Unfair Plea Bargaining By Prosecutors In Misdemeanor Domestic Violence and Other Colorado Cases

By Colorado Domestic Violence Criminal Defense Lawyer – Attorney – H. Michael Steinberg

Unfair Plea Bargaining By Prosecutors In Misdemeanor Domestic Violence and Other Colorado Cases has occurred for decades.. A little known statute – CRS § 16-7-301 – provided not only the opportunity – but the obligation – of Colorado District Attorneys to plea bargain directly with defenseless and confused unrepresented persons just arrested and most of the time held overnight.

These individuals have been denied the right to have lawyers present when they are making some of the most important decisions of their lives. The new law – Colorado House Bill 13-1210 – stops this unfair practice. It is effective on January 1, 2014.

The United States Supreme Court Sends A Message To The State Of Colorado – “Stop This Practice”

House Bill 13-1210 makes Colorado criminal law consistent with recent U.S. supreme court decisions (Missouri v. Frye and Lafler v. Cooper, (U.S. 2012)). These decisions have reinforced the 6^th Amendment right to counsel during the critical stages of plea bargaining. The new law repeals subsection 4 of CRS § 16-7-301 and provides the right for a person charged with a misdemeanor, petty offense, or motor vehicle or traffic offense to obtain counsel before plea bargaining with the prosecuting attorney.

Remember the Sixth Amendment provides that “in all criminal prosecutions, the accused shall enjoy the right to . . . the Assistance of Counsel for his defence.”

Three distinct threshold limitations must be satisfied for the right to a lawyer under the Sixth Amendment:

First, the right to counsel must have attached;

Second, the stage during which the alleged harm to the defendant occurred must be deemed a “critical” stage;

and

Third, the defendant must able to be sentenced to actual incarceration following his trial or plea.

The OLD Colorado Plea Bargaining Law – Unfairness And Unjust Unequal Negotiations

The old law – to be changed in January of 2014 – provided that an initial appearance under Colorado Rule 5 was insufficient to trigger the attachment of the right to counsel. During the initial appearance in Colorado, referred to as a Rule 5 Advisement – (“the Crim. P. 5 proceeding,”) – the defendant is advised of the nature of the charges against him. These rights, including the right to counsel, to a jury, and the right against self-incrimination—and the terms of his bail, if he is bailable, are set at that time.

Under the Old Law – for misdemeanors, petty offenses, or offenses under title 42, C.R.S. [traffic offenses], the prosecuting attorney is obligated to tell the unrepresented defendant any plea offer at the first appearance in court that is based on the facts as known by the prosecuting attorney at that time.

These plea discussions are actually required to occur before the appointment of a lawyer.

The law states that:

“[t]he application for appointment of counsel and the payment of the application fee shall be deferred until after the prosecuting attorney has spoken with the defendant” about potential plea offers.

Here’s the trick that had thousands to plead guilty before consulting a lawyer.

The person detained in jail is led to believe that his immediate release will be based on a guilty plea – and – if he or she – asserts his or her right to counsel, the prosecutor informs that person that – if they cannot post bail – ( sometimes this is NOT explained by the DA) – they may have to remain incarcerated until the second appearance. Many defendants cannot stand another night in jail. Colorado’s system of requiring misdemeanor defendants to talk with prosecutors about possible plea options before the appointment of counsel is wrong at many levels.

Unfair Plea Bargaining By Prosecutors In Misdemeanor Domestic Violence and Other Colorado Cases – The Procedure – An Example In The Denver County Courts

1. The First Advisement

In Denver’s county courts – the plea bargaining process starts with the accused viewing a standardized set of recorded warnings. All defendants watch a video advisement, listen to an audio advisement, or read a written advisement of their rights before speaking to the district attorney.

The advisement contains an explanation of the initial appearance and provides an overview of the individual constitutional and statutory rights, including the right to counsel, to which each defendant is entitled. These other rights as described in the advisement include the right to bail, the right to a jury trial, the right to a speedy trial, and the right to remain silent.

2, The Meeting With The DA

Following the advisement, and before the judge comes out to conduct the hearing, a district attorney speaks directly with each defendant in the manner that is presently (again to be changed on Jan 1 2014) required by CRS § 16-7-301.

The plea offer occurs just before the judge comes out and is told to the defendant in the courtroom in the immediate minutes immediately prior the formal advisement an arraignment on the complaint.

3. If The Plea Bargain Is Accepted

If the unrepresented defendant accepts the plea offer – the defendant is given a written advisement of their constitutional rights known as the “Rule 11” advisement form. This form explains the enumerated constitutional and statutory rights the defendant waives by pleading guilty as well as the possible penalties for the criminal conviction agreed to.

After the defendant signs the “Rule 11 form,” the district attorney informs the court of the proposed plea bargain which includes the agreed upon penalty, and then the form is given to the judge.

The judge then gives an oral advisement of the same Rule 11 rights and makes the ironic finding on the record that the defendant’s plea was entered knowingly, voluntarily, and intelligently; and that there is a factual basis, or valid waiver of the establishment of a factual basis, for the plea.

The NEW Colorado Plea Bargaining Law – Welcome Changes To The Unfairness Of The OLD Colorado Plea Bargaining Law

New Constitutional Cases decided this year – 2013 – have held that “the right to counsel guaranteed by the Sixth Amendment applies at the first appearance before a judicial officer at which a defendant is told of the formal accusation against him and restrictions are imposed on his liberty.”

The initial appearance of the defendant, where the defendant is informed of the “formal accusation” against him, triggers the attachment of the Sixth Amendment right to counsel.

The OLD Colorado law does not provide for the appointment of counsel at the defendant’s first appearance even in cases where the defendant has a right to counsel.

These new cases held – what we – in the criminal justice know only too well – “[p]lea bargaining is [a] critical stage, not only because it is ‘an essential component of the administration of justice,’ but also because ninety-five percent of convictions end in plea bargains.”

The NEW Law Strikes The Language (Section 4) In The OLD Statute (CRS § 16-7-301) That Permitted the Unjust Procedure Outlined Above

The striking of the language of Section 4 of CRS § 16-7-301 means – in Colorado – that the Sixth Amendment now applies to the critical stage of any criminal case – the process of evaluating a plea offer AND therefore – the appointment and presence of counsel are constitutionally required. The entire plea bargaining process is a critical stage to which the full protections of the Sixth Amendment apply.

Justice Anthony M. Kennedy writes that the “Criminal justice today is for the most part a system of pleas, not a system of trials,”wrote for the majority. “The right to adequate assistance of counsel cannot be defined or enforced without taking account of the central role plea bargaining takes in securing convictions and determining sentences.”

Some 97 percent of convictions in federal courts were the result of guilty pleas. In 2006, the last year for which data was available, the corresponding percentage in state courts was even higher.

“In today’s criminal justice system the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.”

§ 16-7-301. [Effective 1/1/2014] Propriety of plea discussions and plea agreements

(1) Where it appears that the effective administration of criminal justice will thereby be served, the district attorney may engage in plea discussions for the purpose of reaching a plea agreement. The district attorney should engage in plea discussions or reach plea agreements with the defendant only through or in the presence of defense counsel except where the defendant is not eligible for appointment of counsel because the defendant is not indigent or the charged offense does not include a possible sentence of incarcerationor because the defendant refuses appointment of counsel and has not retained counsel.

(2) The district attorney may agree to one or more of the following, depending upon the circumstances of the individual case: (a) To make or not to oppose favorable recommendations concerning the sentence to be imposed if the defendant enters a plea of guilty or nolo contendere (no contest);

(b) To seek or not to oppose the dismissal of an offense charged if the defendant enters a plea of guilty or nolo contendere (no contest) to another offense reasonably related to the defendant’s conduct;

(c) To seek or not to oppose the dismissal of other charges or not to prosecute other potential charges against the defendant if the defendant enters a plea of guilty or nolo contendere (no contest);

(d) To consent to diversion, as provided in section 18-1.3-101, C.R.S.;

(e) To consent to deferred sentencing, as provided in section 18-1.3-102, C.R.S.

(3) Defendants whose situations are similar should be afforded similar opportunities for plea agreement.

(4) [Repealed by 2013 amendment.]

(5) Any plea agreement in a case involving a plea to a violation of article 18 of title 18, C.R.S., may not require a waiver by the defendant of the right to petition to have the defendant’s criminal conviction records sealed pursuant to part 3 of article 72 of title 24, C.R.S.

The Law (That Will Be) Stricken As Of January 2014:

(4) (a) In misdemeanors, petty offenses, or offenses under title 42, C.R.S., the prosecuting attorney is obligated to tell the defendant any offer that can be made based on the facts as known by the prosecuting attorney at that time. The defendant and the prosecuting attorney may engage in further plea discussions about the case, but the defendant is under no obligation to talk to the prosecuting attorney. The prosecuting attorney shall advise the defendant that the defendant has the right to retain counsel or seek appointment of counsel. The application for appointment of counsel and the payment of the application fee shall be deferred until after the prosecuting attorney has spoken with the defendant as provided in this subsection (4). Upon completion of the discussions, the prosecutor shall inform the court of whether a plea agreement has been reached, and:

(I) If a plea agreement has been reached, the prosecutor shall inform the court of the terms of the proposed plea agreement and the recommended penalty. If the court determines that the proposed plea agreement is acceptable, the court shall, in addition to any other advisement required by law, advise the defendant of the right to a court-appointed attorney prior to acceptance of the defendant’s plea. The court shall also advise the defendant prior to acceptance of the defendant’s plea that the court exercises independent judgment in deciding whether to grant charge and sentence concessions made in the plea agreement and that the court may therefore sentence the defendant in a manner that is different than that discussed during the plea discussions.

(II) If a plea agreement has not been reached and the defendant chooses to retain an attorney, or the defendant meets the requirements of section 21-1-103, C.R.S vytorin 10 20., the court shall appoint counsel and all discussions with the defendant outside of the presence of counsel shall cease.

(b) After completion of discussions as described in paragraph (a) of this subsection (4), if counsel is retained by the defendant, or if counsel is appointed for the defendant, when it appears that the effective administration of justice will thereby be served, the prosecutor may engage in additional plea discussions with the counsel for the defense for the purpose of reaching a plea agreement.

Unfair Plea Bargaining By Prosecutors In Misdemeanor Domestic Violence and Other Colorado Cases

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