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Conceding error

One of the things our adversarial system of justice trains attorneys to do is practice a "no-quarter given, none-asked" form of litigation:  a lawyer may refrain from making certain arguments because he believes that they aren't credible, but rarely will he concede that the arguments he has made are wrong.

The one exception to that is the prosecutor's office.  Since their obligation is supposedly to justice, not to a particular client, they are not only allowed, but required, to concede when their position is clearly in error. 

That happens a whole lot more in theory than in reality, but it happened last week in the 8th District's decision in State v. Johnson, and I'm still trying to figure out why.

Johnson pled guilty to rape with a sexual violent predator specification, earning him a sentence of ten years to life.  He appealed, arguing that his plea was invalid because the trial court didn't comply with the requirements of Rule 11.  How so?  Did the trial court fail to advise him of one of his constitutional rights?  Did it fail to explain what the charges against him were?  Did it not properly impose post-release controls?

Nope.  The judge forgot to tell Johnson that he could be fined up to a maximum of $20,000.  And the State agreed this was error requiring reversal.

I think a defensible argument could be made that it wasn't error at all.  The appellate court decided to engage in its own analysis, and cited the 11th's District's 1997 decision in State v. Higgs, which, according to the 8th, "held the plea invalid because the trial court incorrectly stated the potential maximum prison term and completely failed to mention that a possible fine of $7,500 could be imposed upon sentencing." 

A closer reading of Higgs, though, doesn't really provide any support for the notion that failure to tell a defendant about the potential fine invalidates a plea, because that was by far the least of the defects in the plea in that case:  the defendant was indicted for aggravated robbery, but pled guilty to robbery, which wasn't a lesser-included offense; the defendant said that he didn't understand the element of force, and the judge never explained it to him; the judge never told him the State had the burden of proving his guilt beyond a reasonable doubt; and the judge told him that the maximum sentence was 11 to 15 years, when it was actually 18.  

To be sure, there's case law holding that a defendant has to be advised of the maximum sentence in a plea; indeed, that's the basis for the requirement that the court tell a defendant about post-release control.  Still, advising a defendant of non-constitutional rights like these requires only "substantial" compliance, which means that to get the plea vacated the defendant has to show that he wouldn't have made it if he'd been given the full information.  I have a hard time believing that Johnson was willing to plead to a crime that could put him in jail for life, but would have balked at doing so had he known that the judge could've imposed a fine on top of that.  (Not would have; Johnson was indigent, and it's arguable that the judge couldn't have imposed a fine if he'd wanted to.)

So why did the State throw in the towel?  It could have been case-specific, that is, the State wanted another shot at Johnson, for whatever reason.  While the opinion doesn't say what Johnson was charged with, a check of the docket reveals that the State dropped specs that could have resulted in a sentence of life without parole; it may be that they had second thoughts about the wisdom of doing that.

Whatever the reasons, it's a done deal at this point.  I don't know if the decision to concede error in Johnson was run by the gang in the appellate division, but it's too late to unring this bell:  given that concession, further appeal isn't a possibility.  (Let's put it this way, I certainly wouldn't want to be the one tasked with writing a Memorandum in Support of Jurisdiction explaining why the Supreme Court should accept a case so as to overrule a decision you urged the court below to make.)  I don't know how many other cases like Johnson's there are out there, where a plea was accepted without advising a defendant of a potential fine, because the defendant was going to be given a prison term that would make any fine irrelevant.  But I guess we're going to find out.


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