Here’s the situation:  the defendant pleads guilty to possession of over a thousand grams of cocaine, a 1st degree felony with a major drug offender specification mandating the maximum ten year sentence.  At the plea hearing, the judge advises him that he could be subject to “up to” five years of post-release controls.  After the plea and sentence, the defendant appeals, claiming that the trial court erred:  the defendant is supposed to get exactly five years of post-release controls, and that’s not what the court said.  Since the court did not accurately inform him of the sentence, he’s entitled to have the plea vacated.  Deal or no deal?

No deal, said the 2nd District last week in State v. Harrington. 

Actually, the decision isn’t as much of a no-brainer as you might think.  The 8th District in particular has been very strict in regulating how the court advises defendants of post-release controls at the time of the plea, and probably would have reversed in a similar case.  Last year it had two cases, here and here, in which it threw out a plea where the judge advised the defendant of post-release controls, but didn’t tell him how long it was going to be.  The topper was State v. Jacobs, which the court vacated a plea where the defendant was looking at 58 years in prison for drug trafficking, and copped a deal which gave him 8; in that case, though, the trial judge had failed to advise defendant at all of post-release controls at the plea before proceeding immediately to sentencing.

Some courts are a little more forgiving.  Since post-release controls involves a non-constitutional right, only “substantial” compliance with Rule 11 is required.  (Advising of a constitutional right requires strict compliance, on the other hand, and the 8th District has even reversed a plea where the trial judge advised the defendant that he had a right to call witnesses in his defense, but failed to tell him that he had the right to subpoena them.)  Some courts thus take the approach that the defendant must show a prejudicial effect from the court’s failure, and that the appropriate test is whether the plea would otherwise have been made.

That’s probably a bit too far in the other direction, and gets into some mind-reading that the courts are better off avoiding.  Still, there’s some merit to a more common-sense approach.  As the 2nd District pointed out last week,

Harrington knew that by pleading guilty he would be subject to a mandatory ten-year term of imprisonment. The trial court clearly advised him of that inescapable consequence of his plea. Given the magnitude of this sentence, to which Harrington tearfully referred when he said, at the sentencing hearing, “You know, ten years is a long time,” we find it unlikely, in the extreme, that a mistaken understanding, on Harrington’s part, that there was a possibility that his post-release control period might be less than five years, played any significant part in his decision to accept the plea bargain.

And keep in mind that this is one of those situations where the Arab curse, “May your wishes come true” takes on some reality.  In Jacobs, for example, the appellate court pointedly noted that it was vacating the plea and reversing so that the case could “proceed on the indictment,” an indictment in which the defendant faced over half a century in prison, as opposed to the less than a decade he got in the plea.  What’s more, the prosecutor in the case is very well-known to the defense bar because she handles a lot of the drug cases there, and based upon my prior dealings with her, I’m figuring that her opening gambit to defense counsel at the first pretrial isn’t going to be, “How can we improve upon the deal we offered your client the last time?”