Enforcing a Plea Bargain Gone South
by: Rjohnson • September 7, 2013 • no comments
I have two cases I’m working on at the moment where the defense attorney negotiated a good plea bargain, but then at a later hearing (sentencing in one case, PV in the other) the DA decided that the actual plea bargain wasn’t good enough, and that the defendant should receive a worse sentence than agreed. In both cases, the defense attorney more or less went along with the change. In one case it was because the attorney was afraid the plea-bargain would be undone altogether. In the other case, the attorney was apparently unaware of the more-favorable plea bargaining terms.
State v. Heisser, 350 Or 12, 21 (2011) and Santobello v. New York, 404 US 257 (1971) establish that plea bargains are, generally speaking, contracts, and are enforceable as contracts. That means that you should object when your client’s gridblock is recalculated in a way not contemplated by the agreement; or when the DDA insists on restitution for the dismissed counts “because we always do it that way.” There are a bunch of unanswered issues about how to deal with plea-bargain disputes, which will only be answered when defense attorneys preserve the issues for appeal. I’ve mentioned a couple of potential arguments here, and you’ll find more in Jess Barton’s sentencing manual (I wrote the chapter on plea agreements). But there are a lot of issues and only a few clear answers.
Plea agreements are generally treated as unilateral contracts, because the defendant can only accept the agreement by performing, i.e., by entering a plea. (As you may recall from law school, a more common ‘bilateral’ contract is an exchange of promises.) Even a written promise by the defendant to perform is unenforceable; until the plea has been entered, the defendant has the power to refuse to enter a guilty plea. See Mabry v. Johnson, 467 US 504, 507 (1984) (accepted, unexecuted plea offer was not enforceable); United States v. Norris, 486 F3d 1045 (8th Cir 2007) (plea agreement signed by both parties was not enforceable before bargain was accepted by judge under federal procedure.) See also Taylor v. Mult. Co. Dept. Sher. Ret. Bd., 265 Or 445 (1973) (discussing unilateral contracts, also called option contracts at that time.)
So, there surely is an enforceable agreement when the defendant tenders a plea and the judge accepts it. As far as I know, no reported authority discusses whether tendering a plea petition constitutes acceptance, or even if saying “guilty” constitutes acceptance before the judge accepts the plea. It doesn’t come up all that often, but, if the defendant has tendered a plea and the parties discuss the bargain or sentence and a dispute arises, you should argue that the defendant performed by tendering a valid plea regardless of the judge’s acceptance.
In the right case, I would argue that there was an enforceable bargain when the defendant accepts the offer, even before tendering the plea. Accepting a plea offer is detrimental reliance because it conveys valuable information to the state about what the defendant is willing to accept. If the state withdraws the offer, the defendant is worse off in later negotiations because of the information conveyed by accepting the withdrawn offer. (Stephanie Engelsman suggested this argument, which is not considered in the above cases dealing with accepted, unexecuted plea bargains.)
You need to keep this in mind at the plea, sentencing, and subsequent hearings about restitution or probation violations. If your client has pleaded guilty to assault in exchange for the dismissal of the criminal mischief charge, and, at sentencing, the DA says that they always get restitution based on the dismissed counts, you say: “I object. We have a plea bargain, which said nothing about restitution on dismissed counts. That count is dismissed, or will be, and so restitution is unavailable.”
If the DDA says “then we’ll just withdraw the offer,” you say “My client has already accepted the offer. It’s not an offer any longer, it’s an agreement, and we intend to enforce it.” There is a widespread belief that a plea-bargain can be undone if there is no “meeting of the minds.” That’s not wrong, but it’s a much narrower rule than believed. “Meeting of the minds” does not mean that a contract is voidable if the DDA doesn’t understand the Miller/Bucholz rule or thinks that the victim can get restitution for a nice new outfit to wear to sentencing. Heisser talks about the meeting of the minds a little, and, if it comes up, you can find information in the OSB CLE on contracts. You can enforce the communicated offer and acceptance, even if the DDA doesn’t like it or wishes that the printed form were a little more precise.
The cases on this topic are mostly good for us. You might need to try to get along with the DDA when you’re negotiating the case; but once the deal is struck, you should be prepared to enforce it.
