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    Plea Bargaining Issues In Colorado – By Criminal Defense Lawyer Specialist – H. Michael Steinberg Part II of V

    Plea bargaining in Colorado is at the same time very complex and critical to the best possible result in any criminal case.  This is PART II of a five part series that addresses all aspects of plea bargaining. 

    The Criminal Law – No Right To Plea Bargain

    A defendant has no constitutional right to plea bargain.

    However, a defendant has a Fifth Amendment privilege against compelled self- incrimination, and a Sixth Amendment right to a jury trial.  A waiver of either of these rights “not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.”

    A Voluntary Choice

    When a defendant enters a plea, the overall test, applicable in state as well as federal courts, is whether the plea represents a voluntary and intelligent choice among the alternative courses of action available to the defendant.

    Because of the foregoing, generally a Judge is required to personally advise the defendant of his right to a trial by jury, the right to assistance of counsel at trial, the right to confront and  cross-examine witnesses, the right against self-incrimination,  and to warn him that he will waive his right to trial if the court accepts his plea.

    In addition, the court must make an on-the-record determination that there is a factual basis for the plea as a condition precedent to exercising the court’s discretion to accept or reject the plea.

    Judge Can Reject The Plea Agreement

    The defendant has no absolute right to have a guilty plea accepted.  In examining the factual basis for the plea, the judge will determine that the conduct which the defendant admits constitutes the offense charged, that all elements of the offense are met, and that any requirements of criminal intent are shown by the proffered evidence.

    In determining the voluntariness of a plea of guilty or plea of nolo contendere, the court has a duty to inquire whether the willingness to plead results from discussions between the defendant or his counsel and the prosecutor.  A plea will not be deemed voluntary if it was induced by threats or coercion,was based on unfulfilled or improper promises, or if the defendant was mentally incompetent or under the influence of drugs to the extent that his judgment was impaired.  

    The overall competency standard for entering a plea is whether the defendant has “sufficient present ability to consult with his lawyer with a  reasonable degree of rational understanding,” and has a “rational as well as factual understanding of the proceedings against him.”

    A guilty plea or plea of nolo contendere 

    is also unconstitutional if the defendant does not have “a full understanding of what the plea connotes and of its consequence.” Thus, the court must address the defendant personally in open court and inform him of:

            • the nature of the offense with which he is charged,
            • the range of possible statutory sentences and other offense, including the maximum possible sentence,
            • any mandatory minimum sentence,
            • any enhanced punishment under a dangerous special offender statute
            • the effect of any special parole term that may be imposed,
            • and the terms of any supervised release. (However, there is no constitutional requirement that the defendant be advised of so-called “collateral” consequences” such as: (see my page on Collateral Consequences of a Conviction)
            • general information about parole eligibility,
            • the possible revocation of existing parole,
            • the loss of certain civil rights,
            • deportation ( but the Court must determine if you are a citizen and advise you of the fact that there may be immigration consequences – See My Article on this at THIS LINK
            • the possibility of increased punishment should the defendant repeat the offense,
            • the collateral estoppel effect of a guilty plea in a subsequent civil action,
            • the possibility of a dishonorable discharge from the armed forces,
            • the denial of “good time,”
            • or the fact that the court lacks the power to order that a federal sentence run concurrently with a state sentence.

    The Right To Effective Assistance Of A Lawyer

    A defendant has the right to effective assistance of counsel in deciding whether to plead, how to plead, and in entering the plea. However, with the approval of the court, a defendant may plead guilty without counsel as a matter of free and intelligent choice. Whether the defendant proceeds with or without counsel, the court should always make appropriate inquiries to ensure that the defendant’s plea is voluntary, knowing, and intelligent.

    The Role of the DA – Prosecutor

    A prosecutor has a duty to seek justice, not merely to convict.

    He is given extraordinarily broad discretion in deciding whether to prosecute and what charges to bring, and this discretion is not subject to judicial intervention so long as the charges brought are based on probable cause and the prosecution is not facially discriminatory.

    This broad power to prosecute includes the power to dismiss or nolle prosequi (or “nolo pros”) and to plea bargain.

    In deciding whether to press charges, the prosecutor should consider the desirability of a noncriminal disposition, sometimes referred to as “pretrial diversion.” In considering such an alternative disposition, the National District Attorneys’ Association has said:

    The prosecutor should exercise discretion to divert individuals from the  criminal  justice  system  when he considers  it to be in the interest of justice and beneficial to both the community and the individual. Factors which may be considered in this decision include:

    a.   The nature and severity of the offense;

    b.   Any special characteristics or difficulties of the offender;

    c.   Whether the defendant is a first-time offender;

    d.   Whether there is a probability that the defendant will cooperate with and benefit from the diversion program;

    e.    Whether an available program is appropriate to the needs of the offender;

    f.    The impact of diversion upon the community;

    g.   Recommendations of the involved law enforcement agency;

    h.   Whether the defendant is likely to recidivate;

    i.   Consideration for the opinion of the victim;

    j.     Provisions for restitution; and

    k.   Any mitigating circumstances.

    District Attorneys’ Association advises:

    The prosecutor should exercise his discretion to file only those charges which he considers to be consistent with the interests of justice. Factors which may be considered in this decision include:

    a.   The probability of conviction;

    b.   The nature of the offense;

    c.   The characteristics of the offender;

    d.   Possible deterrent value of prosecution to the offender and society in general;

    e.   Likelihood of prosecution by another criminal justice authority;

    f.   The willingness of the offender to cooperate with law enforcement;

    g.   Aid to other criminal justice goals through non-prosecution;

    h.   The interests of the victim;

    i.    Possible improper motives of a victim or witness;

    j.    The availability of adequate civil remedies;

    k.   The age of the offense;

    I.    Undue hardship caused to the accused;

    m.  A history of non-enforcement of a statute;

    n.   Excessive cost of prosecution in relation to the seriousness of the offense;

    o.   Recommendations of the involved law enforcement agency;

    p.   The expressed desire of an offender to release potential civil claims against victims, witnesses, law enforcement agencies and their personnel, and the prosecutor and his personnel, where such desire is expressed after the opportunity to obtain advice from counsel and is knowing and voluntary; and

    q.   Any mitigating circumstances.

    The Prosecutor’s Issues In Reaching A Plea Bargain

    It has been suggested that in exercising his discretion to plea bargain, a prosecutor should consider the following factors:

    (a)  The defendant’s willingness to cooperate in the investigation or prosecution of others;

    (b)  The defendant’s criminal history

    (c)  The nature and seriousness of the offense or offenses charged;

    (d)  The  defendant’s   remorse  or  contrition  and  his  willingness  to assume responsibility for his conduct;

    (e)  The desirability of [a] prompt and certain disposition of the case;

    (f)  The likelihood of obtaining a conviction at trial;

    (g)  The probable effect on witnesses;

    (h)  The probable sentence or other consequences if the defendant is convicted;

    (i)  The public interest in having the case tried rather than disposed of by guilty plea;

    (j)  The expense of trial and appeal; and

    (k)  The need to avoid delay in the disposition of other pending cases.

    A prosecutor may not engage in plea negotiations with a represented defendant without the consent of defense counsel. If the defendant is not represented, the prosecutor should make reasonable efforts to ensure that the accused has been advised of his right to counsel, and the prosecutor should be careful not to give even the appearance of overreaching or coercion. 

    If the prosecutor engages in plea bargaining directly with the defendant, it has been suggested that such plea discussions be recorded or reduced to writing.

    Increasing The Charges – Additional Charges

    If the defendant is convicted, it is a violation of due process for the prosecutor to attempt to punish the defendant by bringing additional or more severe charges in retaliation for appealing the conviction or seeking other  post-conviction  relief.  However, no impermissible “prosecutorial vindictiveness” occurs if the prosecutor threatens to charge the defendant with additional offenses if he fails to enter into a proposed plea, and no presumption of vindictiveness exists if the defendant refuses to plead guilty and additional charges are subsequently brought.

    Other Restrictions On A Prosecutor’s DA’s Power

    When a prosecutor is negotiating a reduced charge to which the defendant might plead, the   charge must bear a reasonable factual relationship  to the nature of the defendant’s conduct and  not adversely affect the investigation and prosecution of others. Similarly, the sentence for the alternative charge should be rationally related to the defendant’s conduct, and the prosecutor has a duty to disclose to the court and defense counsel all available information that may be favorable to the accused for sentencing purposes.

    Whether the plea negotiations involve a prosecutorial concession about one or more charges or length of sentence, the prosecutor is required to strive to treat similarly situated defendants equally.

    Throughout the plea bargaining process, the prosecutor should conduct himself with fairness,  impartiality, and an attitude of cooperation with defense counsel, regardless of any prior animosity.  This includes a duty to reveal exculpatory information that is material, and a prosecutor “should not knowingly make false statements concerning the evidence in the course of plea discussions.”

    However, a prosecutor is not required to disclose the weaknesses of his case in plea negotiations.

    A plea bargain that includes a condition that the defendant will not assert a civil claim in connection with the circumstances giving rise to the charges against him is not per se invalid. However, it is unethical for a prosecutor to insist upon such a condition as part of a plea bargain or the dismissal of charges.

    In addition, a plea bargain may not be conditioned upon the defendant’s agreement to waive an ethical violation, or forgo a malpractice or ineffective assistance of counsel claim.

    An Agreement Bind ALL DA’s From The Office

    A prosecutor’s plea agreement binds not only his office but other prosecutors in the state as well. If wrongfully breached, the agreement may be subject to specific performance, or, if the prosecutor breaches an executed agreement, the defendant may withdraw his plea for lack of consideration. Thus, a prosecutor should not breach a plea agreement unless the defendant does so or there are extenuating circumstances. If a prosecutor cannot fulfill a condition of the plea agreement, he should promptly communicate that fact to defense counsel.

    What Is The Role of A Defense Lawyer?

    Like a prosecutor, a defense attorney should explore a noncriminal disposition of his client’s case in appropriate circumstances. When a plea bargain would clearly be of benefit to the defendant, the failure to try to negotiate the case may constitute ineffective assistance of counsel upon a showing  of  prejudice  by  the  defendant.  However, for purposes of effective assistance of counsel, a defense attorney has no duty to enter into plea negotiations when the prosecutor has no desire to negotiate.

    Also, like the prosecutor, defense counsel has a duty to conduct himself in plea negotiations with candor and to not knowingly make false statements about the evidence to the prosecutor. Statements made during plea discussions with the prosecutor are not admissible at trial, but this privilege may be waived by the defendant if he takes the stand and testifies about the discussion or otherwise “opens the door” to what occurred during plea negotiations.

    Defense counsel should not make public statements about the case that he knows or reasonably should know will have a substantial likelihood of prejudicing the criminal proceeding.

    For constitutional purposes, a guilty plea is valid if it was entered knowingly,intelligently and voluntarily.

    This  depends upon the competence of counsel’s advice insofar as it affects the defendant’s knowledge and understanding. A defendant cannot be bound by his decision to plead guilty if he did not receive reasonably effective assistance of counsel. The test of ineffectiveness is whether counsel’s representation fell below an objective standard of reasonableness and whether there is a reasonable probability that, but for counsel’s ineffectiveness, the defendant would not have pleaded guilty and would have insisted on going to trial.

    For example, a plea may be involuntary when counsel materially misinforms the defendant about the applicable law, the consequences of the plea, or the court’s probable disposition.

    However, a mere erroneous estimate of a sentence or sentencing range does not render the plea involuntary, and an erroneous legal opinion regarding the binding effect of the government’s promise to make a recommendation as to the defendant’s sentence does not render the plea involuntary.

    Throughout the plea bargaining process, defense counsel should advise the defendant of the following:

    (1)  The defendant’s  sole right and decision to accept the plea bargain or take the case to trial;

    (2)  All aspects of the merits of the prosecution’s case, the defendant’s possible defenses, potential defense motions, the applicable law, and a candid assessment of the probable outcome of a trial;

    (3) The general process of plea bargaining and defense counsel’s particular plea bargaining strategy in the case;

    (4)  All plea offers made by the prosecutor, what they mean, and their relative merits;

    (5) All of the consequences and ramifications of a particular plea, including possible sentences and effects on probation, parole eligibility, immigration status, and the like;

    (6) The actual plea-taking process;

    (7) Any allocution required prior to the court’s  acceptance of the guilty plea;


    (8) The process of taking the case to trial if the defendant were to choose that option.

    The extent to which defense counsel should try to persuade his client of the wisdom of pleading guilty in a particular case is a controversial subject. As one commentator has observed:

    Most defendants do not understand our system of justice.

    They are, in the main, too optimistic: they believe that if their attorneys were willing to fight vigorously on their behalf, they might be acquitted.

    They suspect, however, that the “legal establishment” (including perhaps their own attorney) is conspiring to deprive them of the right to trial, and even when defense attorneys have the time for patient explanations (as they often do not), defendants may not fully realize the extent of the penalty that our system exacts for an erroneous tactical decision.

    How Far Should The Criminal Defense Lawyer Go …? The Dilemma

    For these reasons, a Chicago public defender observed, “A lawyer shirks his duty when he does not coerce his client,” and this statement suggests a fundamental dilemma for any defense attorney working under the constraints of the guilty plea system. When a lawyer refuses to “coerce his client,” he insures his own failure; the foreseeable result is usually a serious and unnecessary penalty that, somehow, it should have been the lawyer’s duty to prevent.

    When a lawyer does “coerce his client,” however, he also insures his failure: he damages the attorney-client relationship, confirms the cynical suspicions of the client, undercuts a constitutional right, and incurs the resentment of the person whom he seeks to serve. The defense attorney’s lot is therefore not a happy one.

    While there is no constitutional or ethical requirement that defense counsel expressly recommend that his client take a particular course of action, most criminal defense lawyers believe that such advice is desirable beyond merely informing the defendant of his bare options. Of course, however, counsel’s advice must be reasonable, and any efforts at persuasion must not involve improper threats or coercion.

    Plea Bargaining Information in Colorado – Please Call

    H. Michael Steinberg has been a Colorado criminal law specialist attorney for 40 years. For the First 13 years of his career, he was an Arapahoe – Douglas County District Attorney Senior  prosecutor. In 1999 he formed his own law firm for the defense of Colorado criminal cases. In addition to handling tens of thousands of cases in the trial courts of Colorado, he has written hundreds of articles regarding the practice of Colorado criminal law and frequently provides legal analysis on radio and television, appearing on the Fox News Channel, CNN and Various National and Local Newspapers and Radio Stations.  Please call H. Michael about plea bargaining questions at your convenience at 720-220-2277

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    H. Michael Steinberg Esq.
    Attorney and Counselor at Law
    The Colorado Criminal Defense Law Firm of H. Michael Steinberg
    A Denver, Colorado Lawyer Focused Exclusively On
    Colorado Criminal Law For Over 40 Years.
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