An Unjust Bargain: Plea Bargains and Waiver of the Right to Appeal

5-28-15 National:

Abstract

The U.S. Supreme Court estimates that at least ninety percent of criminal convictions are based on guilty pleas. Frequently, criminal defendants are required to waive their appellate rights as a condition of the plea bargain.

The Supreme Court has not addressed the validity of these waivers, but most federal and state courts to address the issue hold them enforceable when they are made knowingly and voluntarily.

A minority of states grant defendants the statutory right to appeal adverse determinations on motions to suppress evidence following the entry of a guilty plea.

California and New York hold that this additional appellate right may be waived in a plea agreement.

This Note asserts that waivers of this specific right should not be enforceable because such waivers are often extracted under coercive circumstances that violate due process and contract law principles.

Furthermore, waivers of this right contravene legislatures’ interest in efficiency by encouraging defendants to proceed to trial solely to preserve their claims of error for appeal. ..Full Paper.. by Alexandra W. Reimelt

USA v Del Valle-Cruz

4-6-15 Puerto Rico, Oklahoma, Florida:

USA v Del Valle-Cruz

Defendant Carlos Manuel Del Valle-Cruz ("Del Valle-Cruz") was sentenced to twenty-one months in prison and seven years of supervised release after pleading guilty to one count of failing to register as a sex offender.

By our count, this is the third time Del Valle-Cruz has been convicted of failing to register since his 1997 sex offense conviction. As troubling as that is, we note that he has not been charged with any other sex offenses in the intervening eighteen years.

The terms of Del Valle-Cruz's supervised release include a series of special conditions that prohibit him from contact with minors and require him to undergo sex offender treatment — terms that were not imposed as part of his sentence for the underlying sex offense. Moreover, these conditions were imposed in a boilerplate fashion, devoid of any explanation by the district court.

Del Valle-Cruz now seeks to vacate his conviction or, failing that, the aforementioned special conditions. A waiver of appeal bars Del Valle-Cruz's appeal of his conviction, as well as his appeal of most of the special conditions. NOTE: There is a large section within decision that explains this more fully, and includes the Oklahoma case of Starkey.

However, as to his appeal of the conditions that would interfere with his relationship with his son, to avoid a miscarriage of justice, we decline to enforce the waiver and instead vacate those conditions that would prevent Del Valle-Cruz from contact with, or residing with minors.

We will remand for de novo resentencing with respect to the supervised release term, so that the district court can consider the supervised release conditions as a whole and in light of intervening precedent.

Upon remand for further proceedings on the special conditions, we invite the district court to revisit the conditions and to explain their justification in this case.

... ... ...

Conclusion

We dismiss Del Valle-Cruz's appeal of his conviction, as well as the conditions imposing sex offender treatment, and prohibiting working with or volunteering with minors.

We vacate conditions 13 and 15, and we remand to the district court for re-sentencing consistent with this opinion.

The re-sentencing shall be limited to the terms of supervised release, and at that time, given the concerns we have expressed herein, the district court may revisit all of the special conditions. United States v. Francois, 715 F.3d 21, 34 (1st Cir. 2013) ("[P]recedent in this Circuit establishes that `an appellate ruling invalidating a sentence . . . may implicate the trial judge's comprehensive, interdependent imposition of a penalty and thus require resentencing on all counts.'" (quoting United States v. Melvin, 27 F.3d 710, 712 (1st Cir. 1994))). At resentencing the district court should explain its reasons for the imposition of conditions and provide factual findings supported by the record.

Gonzalez v State

11-24-2014 Indiana:

Gonzalez v State

On June 2, 1997, Gonzalez pled guilty to Class D felony child solicitation1 based on his touching of a nine-year-old girl. On June 26, the trial court sentenced Gonzalez to three years, with eighteen months incarcerated and eighteen months on probation.

On September 15, 1999, Gonzalez was discharged from probation and began registering as a sex offender, which he would be required to do for ten years pursuant to the Sex Offender Registry Act (SORA). See Ind.Code § 5-2-12-5 (1996) (sex offender required to register with local law enforcement for ten years after the date the offender is placed on probation).

Effective July 1, 2006, the legislature modified the statutes regulating SORA in a way that required Gonzalez to register as a sex offender for the rest of his life based on the details of his crime. In 2010, after ten years of registration, Gonzalez wrote the trial court requesting it remove his registration requirement.

On January 27, 2011, Gonzalez, by counsel, filed a "Verified Petition to Remove Sex Offender Designation Pursuant to Ind.Code 11-8-8-22." (App. at 34.) The trial court denied the petition on July 22.

... ... ...

The requirement that Gonzalez register as a sex offender for life is based on his age at the time of the crime and the age of his victim. See Ind.Code § 11-8-8-19(c) (assigning lifetime registration requirement to person over eighteen years old who committed offense on victim under twelve). Unlike Jensen, no additional statute allows Gonzalez to petition the court to reassess his lifetime registration requirement.

Additionally, unlike both Flanders and Jensen, whose lifetime registration requirements arose by virtue of their status as SVPs pursuant to Ind.Code § 35-38-1-7.5(b), which statute provides an annual review mechanism, Gonzalez is not an SVP; rather, his lifetime registration arose under Ind.Code § 11-8-8-19(c), which does not classify him as an SVP or provide a mechanism by which he could petition the court for removal of that requirement.4

Therefore, the seventh factor of the intent-effects test indicates Ind. Code § 11-8-8-19(c) is an unconstitutional ex post facto law as applied to Gonzalez because the imposition of the requirement without recourse tips the test toward the change in law being punitive.

We therefore must reverse the denial of Gonzalez's petition to remove the lifetime SORA registration requirement and remand for removal of the lifetime registration requirement.

Reversed and remanded.

Supreme Court: Stallworth Does Not Have to Register as a Sex Offender

4-16-15 Mississippi:

The Mississippi Supreme Court ruled today that a Jackson pastor, who was convicted of a sex crime in another state but had the conviction expunged, does not have to register as a sex offender in Mississippi.

Jeffrey A. Stallworth pleaded guilty to a misdemeanor sexual assault of a woman in Maryland in 2002, requiring him to register as a sex offender.

Later, in 2010, a Maryland judge expunged the conviction. Stallworth argued that he should not have to appear on the Mississippi sex offender registry. The Mississippi attorney general's office, which is representing the state, disagreed with Stallworth's argument.

In a split decision, the state supreme court agreed with Stallworth's interpretation.

Michigan v Juntikka

4-21-15 Michigan:

Michigan v Juntikka

At issue in this case is whether a trial court properly imposed a $100 probation enhancement fee upon defendant under MCL 771.3. Because we conclude that MCL 771.3(2)(d) does not independently authorize trial courts to impose any assessment, and because we conclude that the probation enhancement fee was not statutorily authorized as a cost specifically incurred in defendant’s case, we vacate the portion of the court’s order imposing the probation enhancement fee and remand for further proceedings.

On January 23, 2013, defendant pleaded guilty to one count of failing to register as a sex offender, MCL 28.729. The trial court sentenced defendant to a five-year probationary term and
12 months in the county jail. The court additionally ordered defendant to pay several financial
charges, including a $100 probation enhancement fee.

On August 6, 2013, defendant filed a motion for resentencing, contending, among other things, that the $100 probation enhancement fee was improper because it was an unauthorized assessment. The court denied defendant’s motion, explaining that the probation enhancement fee covered items including “gloves so that the probation agents may test bodily fluids more safely” and “cell phones so that [agents] can quickly respond to issues that may arise.” The trial court concluded that because defendant was on probation, the fee rendered him a potential benefit and so fell within the ambit of MCL 771.3(2)(d).

Maine v Reynolds

5-7-15 Maine:

Maine v Reynolds

Ronnie L. Reynolds appeals from a judgment of conviction entered by the Superior Court (Washington County, R. Murray, J.) after a jury found Reynolds guilty of his second offense of failing to comply with the Sex Offender Registration and Notification Act of 1999 (Class C), 34-A M.R.S. § 11227(2) (2014).

Reynolds is, by law, a lifetime registrant; however, he asserts that he was led to believe that a 2004 amendment to SORNA changed his classification from a lifetime registrant to a ten-year registrant.

He contends that the court erred in excluding relevant evidence of a letter from the Department of Public Safety, State Bureau of Identification that caused him to believe that he was no longer required to register. See 34-A M.R.S. § 11227(6) (2014).

We agree that the court erred in excluding the letter. We vacate the judgment and remand for further proceedings.

... ... ...

In short, had the letter been admitted in evidence and had Reynolds offered testimony about the letter, it would have been for a jury to determine the reasonableness of (1) Reynolds’s belief that the letter reclassified him as a ten-year registrant and (2) his belief that the ten-year registration period had expired, thus amounting to just cause for failing to register.

To the extent that the court determined that Reynolds’s purported reliance on the letter was not believable, the court made a credibility determination that should have been made by the jury. See Allen, 2006 ME 20, ¶ 26, 892 A.2d 447. The court’s exclusion of the letter as irrelevant was clearly erroneous.

Don’t Have $35? How About an Arrest for Failure to Register as a Sex Offender?

April 2015 Florida:

by The Law Office of John Guidry II

Forgive me for stating the obvious, but a criminal record will hurt your employment opportunities. A petit theft charge, for example, will limit job opportunities in retail stores because most retail stores suffer the majority of their losses at the hands of their employees–so these stores prefer to hire someone with a record of driving on a suspended license or marijuana possession, rather than theft.

And, while theft charges can put a dent in things, being a sex offender absolutely crushes any hope of ever being employed again. Period. Not a dishwasher (not that there’s anything wrong with that). Not flipping burgers, rolling burritos–nothing. Not only can sex offenders not find employment (double negative? Maybe not), good luck finding a place to live that isn’t within a 1000 feet of a school or playground. I’ve seen city’s set up playgrounds just to drive out sex offenders–so much for liberty and freedom to travel.

It should come as no surprise that the bleak employment prospects of sex offenders also translate into a life of living under bridges, and having no money (redundant, I know). To add insult to injury, when a sex offender moves from sleeping under one bridge to sleeping under another bridge, this change of address requires government intervention. You anti-government folks (me?) should be jumping up and down when the government tacks on requirements to a citizens’ movements once they’ve completed their prison time and probation.

Santobello v. New York

1971 U.S. Supreme Court:

Santobello v. New York
404 U.S. 257 (1971)

After negotiations with the prosecutor, petitioner withdrew his previous not-guilty plea to two felony counts and pleaded guilty to a lesser included offense, the prosecutor having agreed to make no recommendation as to sentence. At petitioner's appearance for sentencing many months later, a new prosecutor recommended the maximum sentence, which the judge (who stated that he was uninfluenced by that recommendation) imposed. Petitioner attempted unsuccessfully to withdraw his guilty plea, and his conviction was affirmed on appeal.

Held: The interests of justice and proper recognition of the prosecution's duties in relation to promises made in connection with "plea bargaining" require that the judgment be vacated and that the case be remanded to the state courts for further consideration as to whether the circumstances require only that there be specific performance of the agreement on the plea (in which case petitioner should be resentenced by a different judge), or petitioner should be afforded the relief he seeks of withdrawing his guilty plea.

---

The essence of this case is, anyone who entered into a plea with the state, that plea cannot b broken it is sacrosanct. Plea bargains are special and reduced to writing, whatever that says cannot be broken and the defendant can rely on that. If one who has entered into a WRITTEN plea bargain feels the state has violated that can assert this case to force the state to abide by the WRITTEN plea bargain.

Google Scholar: Santabello v NY and Plea Bargains

---