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Let's Make a Deal, Part 2

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Yesterday we talked about a situation where you work out a plea for your client, only to have the prosecutor yank it on the day of the plea hearing. Here's another variation on that theme.

Your client was initially charged with child rape and kidnapping, but the prosecutor has some serious problems with the case, so you work out a deal for a plea to one count of abduction. Sure, it's a third degree felony, but there's no sex offender registration, and given your client's lack of any prior criminal record, he's a good candidate for probation. So you're non-plussed when the trial judge maxes out your guy at sentencing, quoting extensively from the pre-sentence investigation report, which recounts the victim's version in excruciating detail. But your client didn't plead to rape, so how can that be taken into consideration in sentencing him, you argue, to no avail...

Something like that is what happened to Samuel Peal, and the week before Christmas, he got a serious lump of coal in his stocking: in State v. Peal, the 8th District said there was nothing wrong with that. Sort of.

Peal was charged with aggravated murder and a host of lesser offenses stemming from a drug-related robbery-homicide which resulted in the death of one victim and serious injuries to another. At trial, the jury acquitted him of the aggravated murder, but couldn't reach a verdict on the other counts, including the lesser charge of murder. Before a second trial on the hung counts, the parties reached a plea agreement where Peal would plead to one count of involuntary manslaughter, with a 1-year firearm specification. The judge maxed him out, noting that he'd considered the appropriate sentencing factors "incorporating all of the information I learned in the trial as well." Peal appealed, arguing that the latter comment indicated that the court improperly considered an offense for which Peal wasn't convicted, namely the aggravated murder or murder.

The court begins by relying on a series of cases from more than a decade ago which held that "a trial court may not impose a greater sentence upon an offender because of its belief that the offender committed a more serious offense than that for which he has been convicted." The court distinguishes the cases, finding that the trial judge in Peal, unlike the judges in those other cases, didn't really indicate that he "based his sentence on the aggravated murder charges of which appellant had been acquitted." The only jarring note is that in one of the cited cases, where the defendant received a maximum sentence on a plea to attempted gross sexual imposition, reduced from a rape charge, "this court noted that the parties had not agreed as part of the plea bargain that the judge would not consider 'either the rape charges or the violent sexual circumstances of the crime.'" Does that mean defense counsel should include in the plea bargain an agreement that the judge won't take into consideration the greater offense?

Maybe, because the law isn't as simple as Peal would indicate. First, while there's some support for the notion that a judge can't take acquitted conduct into consideration in fashioning a sentence, it's relatively thin. The 8th District case is based on a 1987 10th District decision, but the 10th District rejected that analysis in 2006, citing an Ohio Supreme Court case which held that "'it is well established that a sentencing judge may take into account facts introduced at trial relating to other charges, even one of which the defendant has been acquitted." And, as I explained in a post five years ago, use of acquitted conduct is commonplace in the Federal system, and received approval from the Supreme Court.

There's a contrary argument, basically the unfairness of penalizing a defendant for something that a jury's found him not guilty of, especially in light of Apprendi and Blakely, which place a much higher value on a jury's verdict. But even that argument disappears in the context of a plea. What you get into there is what's called "real offense sentencing." As explained by one court,

Notwithstanding the plea bargain, the judge may sentence the offender within the statutory parameters of the plea bargained offense based upon what the record shows to have been the real facts of the offense. Thus, seriousness of the offense will generally be based upon the judge's perception of the real facts of what occurred, and the plea bargained offense will simply set a ceiling on what the judge can impose.

In other words, the defendant gets the benefit of the bargained offense, but he doesn't get the benefit of the assumption that the bargained offense is actually the only thing he did.

Keep in mind that the "judge's perception of the real facts" will usually be based upon the pretrial statement, which is in turn based upon the police report. If you've got evidence contra - medical records showing minimal injuries to the victim, witness statements which cast doubt on the prosecutor's version - that's something you need to bring out, either at the hearing or preferably in a sentencing memorandum. It might behoove you to take a walk up to the judge's room to review the report a couple days before the sentencing hearing, just to make sure it doesn't contain any surprises.

And that's not to say all judges will do that. I recently had a child rape-and-kidnapping case like the one I outlined above, which the prosecutor agreed was semi-bogus, so we worked out the plea to abduction. The judge told us he wasn't going to give my guy the minimum - he was doing time on another crime that the judge had just sentenced him on - but that if the plea was to abduction, that's what he was going to sentence on; he wasn't going to pretend that a rape had occurred. The alleged victim's father and grandfather came in and put on a show, but the judge was true to his word, and gave my guy a year.

It doesn't always work out that way, and that's something you need to know, and if possible, find out from the judge.


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