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Buyer's remorse

"Well, we're going to find out how many cases I can competently handle in one day," I told Bill, the prosecutor. 

"How many you got?"  he asked. 


He nodded, then thought for a moment.  "I'll take the under."

Couldn't say I blamed him.  It wasn't a good day, culminating several hours later with a judge sending my 50-year-old client to prison for stealing $192.  Sounds harsh, but then again, maybe the 20 offenses my client had accumulated in the last three decades had something to do with it.  And it's always a welcome surprise when you're reading a pre-sentence report to find that your client tested positive for heroin.  Twice.

But the case with Bill promised to be the major ass-ache.  I was representing Chaz, who was accused of robbing a guy at gunpoint and taking his car.  Chaz's version was that he'd tried to buy some marijuana, the guy had sold him parsley, words were exchanged, then fists.  Chaz had retrieved his $40, left the guy lying in the street, and didn't know anything about what happened to the car.  Bill agreed that the facts lent some credence to the theory of a drug deal gone bad, and got me a good plea offer:  a reduction to second degree robbery, and removal of the firearm specs. 

This is where things get dicey.  There are judges who won't penalize you for going to trial -- who'll give you the same sentence after conviction that they would have on a plea -- and there are those who will.  Although I obviously prefer the former, I can understand the argument of the latter camp:  remorse is the first step toward rehabilitation, and if you're not going to step up and accept responsibility for what you did, that's a factor that should be taken into consideration in sentencing you.

Well, Chaz was in front of a judge in the latter camp.  I told Chaz we had a decent chance of winning the case at trial, although there were some problems with his story.  If we lost, though, between the first-degree felony and the three-year gun spec, he was going to be doing the better part of a decade in prison.  A plea meant two, three years at the most, with an outside shot at getting paper.  He decided to take the plea.

A week later, he called and told me he'd changed his mind after talking with his family, and wanted a trial.  I told him that I'd file a motion to vacate the plea, which I did, and here we were. 

According to the case law, motions to vacate a plea are supposed to be "liberally and freely granted."  Well, good luck with that.  I've actually had judges tell me, "The rule doesn't say that, just the case law," as if what the case law says is inconsequential.  The law in the 8th District goes back to a 1980 case, most recently reiterated in State v. Johnson

A trial court does not abuse its discretion in overruling a motion to withdraw: (1) where the accused is represented by highly competent counsel, (2) where the accused was afforded a full hearing, pursuant to Crim.R. 11 before he entered the plea, (3) when, after the motion to withdraw is filed, the accused is given a complete and impartial hearing on the motion, and (4) where the record reveals that the court gave full and fair consideration to the plea withdrawal request.

And that's pretty much the way it went here:  I put on my dog and pony show, emphasizing that my client had always protested his innocence to me, and that there was no prejudice to the State in going forward with a trial.  The judge responded that he'd known me fifteen years, and despite that, still found me to be "highly competent,"  he'd gone over the transcript of the plea and found that it had been properly conducted, and that was pretty much that.

There's a problem with this approach, though, which was highlighted by the US Supreme Court's decision this year in Nelson v. USA few years back in Rita v. US, the Court had held that a sentence within the Federal sentencing guidelines was presumptively reasonable.  That's exactly what the district judge in Nelson had relied on:  instead of going through the various factors in arriving at a sentence, he'd simply decided to impose a sentence within the guidelines because "unless there’s a good reason. . . , the Guideline sentence is the reasonable sentence."  The Court reversed because the presumption only applied to appellate review; it wasn't the test to be used by the trial judge.  There were a whole bunch of factors that the judge was supposed to consider in arriving at a sentence, and he couldn't brush it off by choosing a guideline sentence, just because the appellate court would presume that choice was reasonable.

Same thing here.  Chaz might have a decent argument on appeal that the judge erred in exercising his discretion whether to grant the motion to vacate by considering only the factors to be used by an appellate court in determining whether he'd abused his discretion. 

Or maybe not.  Reversals of a judge's denial of  a motion to vacate a plea are about as common as thoughtful comments by Joe Biden; it's easier to get relief from a $3,000 judgment  than to get a plea which will earn someone prison time vacated.

The analogy isn't perfect; there's an element of volition in pleas that's absent in civil cases.  Someone seeking to vacate a civil default judgment may have been negligent in protecting his rights, but that's not the same as walking into a courtroom and, after being fully advised of your rights, pleading guilty to a crime.  

Still, the same basic considerations are present as in civil cases:  balancing finality against the preference for deciding cases on their merits.  If a trial court's reluctant to vacate a plea if a defendant cops on the day of trial, when all the State's witnesses are assembled and ready to go, then walks in three weeks later and announces he wants a jury, that's understandable.  But where there's no possible prejudice to the State and a motion to vacate is made soon after the plea, it doesn't seem unreasonable to suggest that if a defendant wants a trial, he should get one.  "Freely and liberally granted" must mean something.   


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