How To Do a Conditional Plea (with example petition)
by: Tbetz • August 17, 2012 • no comments
This article was written with OPDS attorney Zack Mazer.
Picture a case where the defendant likely suffered an illegal arrest and was the victim of an improperly suggestive identification. But the defendant also confessed and helped the police gather other incriminating evidence. When presented with such a case, the defense attorney has a duty to litigate the legal matters, attempt to suppress the horribly damaging evidence, and walk away with a dismissal.
If, in the above, hypothetical, the defense loses the motion to suppress the defendant's confession and the judge allows the witness's identification, there's not much left for the defense to argue to a jury. Often, in this situation, I perform a quick court trial just to ensure that no matters for appeal are waived. Other times, though, there is some advantage to a conditional plea as outlined by ORS 135.335. ORS 135.335(3) states that:
[w]ith the consent of the court and the state, a defendant may enter a conditional plea of guilty or no contest reserving, in writing, the right, on appeal from the judgment, to a review of an adverse determination of any specified pretrial motion. A defendant who finally prevails on appeal may withdraw the plea.
There are a few things that ORS 135.335 requires the defense attorney to do in order to not waive the right to appeal. For example, the issue must be reserved "in writing." It is not terribly difficult to do. But it is routinely screwed up. So routine, in fact, that when the appellate folks at OPDS get one of these referrals, they make sure to see the plea petition before notice of appeal is filed. The attached plea petition can be used as a template that will leave little room for an argument regarding preservation. The petition was recently submitted in Multnomah County. It's underlined where it differs from the standard plea petition. Basically, the attorney just needs to title the petition appropriately, indicate an intent to appeal, and say what is being appealed. And then say it all a few more times just to make sure nobody is confused about preservation.
The key is to clearly list, on the plea petition itself, each pretrial motion being reserved for appeal (there can be more than one). And then clearly state that the plea is conditional upon reserving the right to appeal those decisions. It really is that simple.
The advantage of a conditional plea over a stipulated facts trial (really a stipulated "evidence" trial-but that is a matter for another day) is this: a stipulated facts trial is just a trial, subject to the same appellate pitfalls as any other trial. In other words, even if the appellate attorney prevails on the suppression issue in a stipulated facts case, the Court of Appeals may still conduct a harmless error analysis. In many (if not most) cases, this will not matter. Take, for example, a simple PCS case where the controlled substance is discovered during an illegal seizure and your client makes an admission after the search. If the Court of Appeals determines that the stop was bad, the substance and the admission will be suppressed, and there will be no question about harm.
However, in a more complicated case, there may be inculpatory evidence that was not discovered pursuant to the illegality, and thus is not suppressible. Imagine that the police lawfully discover evidence connecting the defendant to a drug operation. But later they perform an unconstitutional "inventory" search and discover drug records connecting him or her to the drug operation. But the trial court disagrees, and refuses to suppress the drug records that clearly connect the defendant to the drug operation. If the defense attorney chooses a stipulated facts trial, the Court of Appeals will evaluate the evidentiary strength of the records in the context of all of the other evidence. The Court may determine that even if the drug records were illegally discovered pursuant to an invalid inventory policy, their admission was harmless in the context of all of the other evidence. Thus, the Court of Appeals will affirm, even if the inventory issue is a winner.
This could also arise in a non-suppression situation, such as a motion in limine. Remember, ORS 135.335(3) is for any pretrial motion, not just suppression motions. Say you move in limine to exclude your client's blow in a DUII case on some kind of innovative scientific evidence theory. Of course, the cop is going to repeat the same battery of other evidence-bloodshot, watery eyes; slurred speech; difficulty balancing; fumbling with documents; a "flaccid" facial expression, etc If you conduct a stipulated facts trial to preserve your limine issue, the Court of Appeals may say that admission of the blow is harmless error in light of the other evidence of intoxication.
The easy way to head this off at the pass is to do a conditional plea. Why? Because ORS 135.335(3) provides that "[a] defendant who finally prevails on appeal may withdraw the plea." In other words, in a conditional plea appeal, there is no harmless error analysis. If the appellate attorney wins, the remedy is to remand the case for the defendant to withdraw his or her plea-period. In the later hypotheticals, above, you get to withdraw the plea and renegotiate your case from a position of strength (or at least a stronger position), knowing that the state will not have whatever evidence has now been suppressed or excluded. The state's offers may look a little better once their precious inventory evidence or other limine evidence is off the table, and you may bring the case to a more favorable conclusion for your client. And, if the initial sentencing wasn't too bad, and the DA continues to play hardball, you can always opt to let the plea stand-the choice will be yours. And all because you properly reserved a conditional plea under ORS 135.335(3).
