Defendant May Be Punished for State’s Breach of Plea Agreement
It’s never easy for a defendant to stand before a judge for sentencing. In over 20 years of defending criminal cases, I’ve seen my fair share of judges decide at the last minute to reject a plea agreement. In some cases, its a blessing. A few years ago, I worked out a good deal for a client charged with sale and delivery of cocaine. The Orange County judge rejected the plea deal, we went to trial, and got a not guilty. Unfortunately, not every rejected plea winds up better off in the long run. Most end up in a worse position. But, is it fair that a defendant could end up with a worse sentence due to a plea agreement breach on the part of the State? This is America, right? Let’s take a peek at recent case involving a plea agreement gone wrong, and what can be done about it.
Joshua O’Berry decided it would be in his best interest to enter a plea to a charge of burglary of a dwelling with an assault or battery therein. This charge sounds a lot like a home invasion, doesn’t it? Well, burglary of a dwelling with a battery therein is punishable by life in prison. Ouch. O’Berry decided to not risk a jury trial, so he entered a no contest plea “to the bench” with the state agreeing to recommend 40 years in prison. As you might expect due to the fact that I’m writing about this, the plea didn’t go as planned. First, during entry of the plea, the State decided to recommend a life sentence rather than the 40 years they agreed to recommend. Second, the judge sentenced O’Berry to 50 years prison.
O’Berry was not permitted to withdraw his plea so he appealed, and we’re now here to discuss what happened on appeal, in O’Berry v. State, 114 So. 3d 1110 (Fla. 2d DCA 2013). First, a dangerously short (at the risk of being inaccurate) breakdown of the actual plea and sentencing:
O’Berry’s Attorney: “It’s going to be an open plea to the Court. The State indicated that they would be recommending 40 year in prison but there is no cap and the Defense . . . can argue for . . . a lawful sentence.”
Prosecutor: “Well, Your Honor, our original offer on this case was life. I discussed it with [defense counsel] for a plea offer at one point and we came down to 40 years for a negotiated plea. However, that never panned out. So we’re here in front of you on a sentencing hearing with no cap. The first charge . . . is a burglary with a battery. That’s a first degree felony punishable by life. So the State is asking for the maximum in this case, Your Honor.” Id.
O’Berry’s Attorney: “. . . that’s not part of the plea agreement.”
Prosecutor: “We came down to a negotiated plea for 40 years. That wasn’t accepted.”
Later, the judge, again, asked for a prosecutor recommendation:
Prosecutor: “Well, we did propose I guess a recommended offer of 40 years.”
The judge then sentenced O’Berry to 50 years in prison.
O’Berry’s defense attorney did the right thing, and filed a motion to withdraw the plea. But the judge denied the motion, and basically, that’s what O’Berry appealed–the denial of his motion to withdraw the plea. So, at this point, it may be helpful to understand how a plea can be withdrawn. There are criminal rules out there that lay out the circumstances under which a plea may be withdrawn. This procedure is found in Rule 3.170(l), which permits a defendant to “file a motion to withdraw the plea within thirty days after rendition of the sentence, but only upon the grounds specified in Rule 9.140(b)(2)(A)(ii)(a)-(e).” id. And this begs the question, does O’Berry have any grounds as found in Rule 9.140? We don’t have the time (or desire) to run through all of the grounds listed in the rule, but one major ground does permit withdrawal when the State violates the plea agreement. Did the State violate the plea agreement in this case? Let’s review what we mean by “agreement”.
The appeals court notes that there are basically two different types of plea agreements. The most common plea agreement–often referred to as a “plea deal” or “negotiated plea”–involves the State and Defendant agreeing to a specific sentence and the court imposing that sentence. If the court does not impose the agreed upon sentence under this “plea deal”–a defendant is instantly entitled to withdraw the plea. The rules provide for such a withdrawal of plea, if requested within 30 days (of course, if you get your plea withdrawn and wind up with a worse sentence–tough luck, unfortunately. For an example of just such a situation, check out my article entitled “Be Careful What You Wish For!”)
If a client doesn’t want the negotiated plea deal, and wants to leave sentencing up to the judge (commonly referred to as a “plea to the bench”), a good defense attorney may still be able to get the prosecutor to agree to recommend a particular sentence. That’s exactly what happened in O’Berry’s case. Under these circumstances, the court may impose a higher than recommended sentence, and the defendant may not withdraw his plea. As such, O’Berry’s case falls somewhere in the middle of two common scenarios. O’Berry didn’t enter a “negotiated plea”, but he didn’t plea straight up to the bench without any agreement. He entered a plea with the only agreement being that the State would recommend 40 years. But at sentencing, the State didn’t recommend 40 years, they recommended the maximum. So, what did the appeals court think about this?
The appeals court found that “when the State fails to honor a plea agreement, whether it involves a negotiated plea for a specified sentence or a promise to make a nonbinding recommendation, the violation of the agreement is akin to a breach of contract for which the defendant is entitled to seek a remedy.” Id [internal citations omitted] The court goes on to state that, “although the record supports the State’s position that it offered a forty-year plea deal (a rule 3.171(b)(1)(A)(iii) agreement) that Mr. O’Berry rejected, it also supports Mr. O’Berry’s claim that the State had promised to recommend a forty-year sentence (a rule 3.171(b)(1)(A)(ii) agreement) and failed to uphold its end of the bargain.” Id.
So, the appeals court held that the State breached its promise to recommend 40 years in prison. Obviously, it was the State’s promised recommendation that induced O’Berry to enter his plea in the first place. As such, O’Berry should have been permitted to withdraw his plea. But no, nothing is ever that simple or fair. The appeals court has now ordered the lower court to reassign the sentencing to another judge, and not permit that judge to view the 50 year sentence handed down by the original judge (good luck with that!). But, with this reassignment comes the caveat that the new judge is permitted to impose any sentence it choses–even life.
As we have seen before, re-sentencing can be a real problem for defendants, because there is nothing stopping the new judge from imposing a higher sentence than the old judge. I know what you’re thinking, it sounds a bit vindictive to make the sentence worse after the State violates their agreement? After all, it was the State’s agreement to recommend 40 years that induced O’Berry to enter his plea. Is it fair that the State’s breach of contract could make things worse for O’Berry? Unfortunately, yes. It’s not fair, but it’s legal.
Resentencing is set for January 15, 2014. I’ll keep you posted.