GUILTY PLEAS—NEGOTIATIONS AND

AGREEMENTS

AmyMarie TravisJackson County Prosecutor

atravis@jcprosecutor.us

GUILTY PLEAS—OUTLINE

1. Law and Tactics2. Evidentiary Privilege3. Victim Notification4. Witness Immunity

1. LAW AND TACTICS

35-35-1-1. Defendants unrepresented by counsel -- Pleas not accepted.

A plea of guilty, or guilty but mentally ill at the time of the crime, shall not be accepted from a defendant unrepresented by counsel who has not freely and knowingly waived his right to counsel.

1. LAW AND TACTICS 35-35-1-2. Determination by court -- Waiver of rights by defendant.

(a) The court shall not accept a plea of guilty or guilty but mentally ill at the time of the crime without first determining that the defendant:

(1) understands the nature of the charge against the defendant;

(2) has been informed that by the defendant's plea the defendant waives the defendant's rights to:

(A) a public and speedy trial by jury;

(B) confront and cross-examine the witnesses against the defendant;

(C) have compulsory process for obtaining witnesses in the defendant's favor; and

(D) require the state to prove the defendant's guilt beyond a reasonable doubt at a trial at which the defendant may not be compelled to testify against himself or herself;

1. LAW AND TACTICS (3) has been informed of the maximum possible sentence and minimum sentence for the

crime charged and any possible increased sentence by reason of the fact of a prior conviction or convictions, and any possibility of the imposition of consecutive sentences;

(4) has been informed that the person will lose the right to possess a firearm if the person is convicted of a crime of domestic violence (IC 35-31.5-2-78); and

(5) has been informed that if:

(A) there is a plea agreement as defined by IC 35-31.5-2-236; and

(B) the court accepts the plea;

the court is bound by the terms of the plea agreement.

(b) A defendant in a misdemeanor case may waive the rights under subsection (a) by signing a written waiver.

(c) Any variance from the requirements of this section that does not violate a

constitutional right of the defendant is not a basis for setting aside a plea of guilty.

1. LAW AND TACTICS

The standard for validity of a guilty plea is whether the plea represents a voluntary and intelligent choice among alternative courses open to the defendant. North Carolina v. Alford, 400 U.S. 25 (1970).

1. LAW AND TACTICS

In a misdemeanor case, a defendant’s signature on a waiver form adequately demonstrates a knowing waiver of the rights listed in I.C. 35-35-1-2. Maloney v. State, 684 N.E.2d 488 (Ind. 1997).

An oral colloquy with a misdemeanor defendant is not required. Spencer v. State, 634 N.E.2d 500 (Ind. Ct. App 1993).

1. LAW AND TACTICS A trial Court’s en masse advisement of rights is an

acceptable procedure. Barker v. State, 812 N.E.2d 158 (Ind. Ct. App. 2004).

However, when conducting an en masse advisement of rights, the trial Court must determine whether each defendant understands his or her rights and the concept of waiver.

1. LAW AND TACTICS

An unreasonable delay between the statutory advisement and the actual plea may violate I.C. 35-35-1-2.

How long is unreasonable?

1. LAW AND TACTICS

A Trial Court is not required to advise a defendant of the parole consequences of his guilty plea. Fulmer v. State, 519 N.E.2d 1236 (Ind. 1988).

1. LAW AND TACTICS 35-35-1-3. Voluntary plea required -- Factual basis for plea -- Effect

of plea agreement.

(a) The court shall not accept a plea of guilty or guilty but mentally ill at the time of the crime without first determining that the plea is voluntary. The court shall determine whether any promises, force, or threats were used to obtain the plea.

(b) The court shall not enter judgment upon a plea of guilty or guilty but mentally ill at the time of the crime unless it is satisfied from its examination of the defendant or the evidence presented that there is a factual basis for the plea.

(c) A plea of guilty or guilty but mentally ill at the time of the crime shall not be deemed to be involuntary under subsection (a) solely because it is the product of an agreement between the prosecution and the defense.

1. LAW AND TACTICS “Intelligent” plea—if it is done with sufficient awareness of

the relevant circumstances and likely consequences. McCann V. State, 446 N.E.2d 1293 (Ind. 1983).

“Intelligently and knowingly” made guilty plea—this determination is a factual matter. Reviewing Court defers to the trial court UNLESS the only reasonable conclusion from the evidence presented is contrary to the trial court’s decision.

No “Best Interests Pleas.” A defendant may not both plead guilty and maintain his innocence at the same time. Ross v. State, 456 N.E.2d 420 (Ind. 1983).

1. LAW AND TACTICS

1. Promises made to induce a guilty plea must be fulfilled or not voluntary plea. Ryan v. State, 479 N.E.2d 517 (Ind. 1985).

2. Guilty plea rendered by fear of death penalty may not be voluntary. Lombardo v. State, 429 N.E.2d 243 (Ind. 1981).

3. Expectation of a lower sentence does not render plea involuntary. Flowers v. State, 421 N.E.2d 632 (Ind. 1981).

4. Threatening to file an Habitual Offender Enhancement is okay, AS LONG AS there is a legitimate factual basis for doing so. Jackson v. State, 499 N.E.2d 215 (Ind. 1986).

1. LAW AND TACTICS

FACTUAL BASIS—Methods1. The State presents evidence on the elements of the

charged offenses.2. The defendant’s sworn testimony regarding the facts and

events underlying the charges.3. The defendant’s admission that the allegations in the

information as read in open court are true.4. The defendant’s acknowledgement that he understands the

nature of the crimes charged and that his plea is an admission of the charges.

Rhodes v. State, 675 N.E.2d 698 (Ind. 1996).

1. LAW AND TACTICS 35-35-3-3. Action on plea agreement.

(a) No plea agreement may be made by the prosecuting attorney to a court on a felony charge except:

(1) In writing; and

(2) Before the defendant enters a plea of guilty.

The plea agreement shall be shown as filed, and if its contents indicate that the prosecuting attorney anticipates that the defendant intends to enter a plea of guilty to a felony charge, the court shall order the presentence report required by IC 35-38-1-8 and may hear evidence on the plea agreement.

(b) Neither the content of the plea agreement, the presentence report, nor the hearing shall be a part of the official record of the case unless the court approves the plea agreement. If the plea agreement is not accepted, the court shall reject it before the case may be disposed of by trial or by guilty plea. If the court rejects the plea agreement, subsequent plea agreements may be filed with the court, subject to the same requirements that this chapter imposes upon the initial plea agreement.

1. LAW AND TACTICS

(c) A plea agreement in a misdemeanor case may be submitted orally to the court.

(d) In a misdemeanor case, if:

(1) The court rejects a plea agreement; and

(2) The prosecuting attorney or the defendant files a written motion for change of judge within ten (10) days after the plea agreement is rejected;

the court shall grant the motion for change of judge and transfer the proceeding to a special judge under the Indiana Rules of Criminal Procedure. However, there may not be more than one (1) transfer of the proceeding to a special judge under this subsection.

(e) If the court accepts a plea agreement, it shall be bound by its terms.

1. LAW AND TACTICS

Criminal Rule 10—Requires the Court to record the entire proceedings in connection with a guilty plea.

This applies to both felonies and misdemeanors.

1. LAW AND TACTICS

Guilty Pleas Waive the following:1. Entrapment defense. McKrill v. State, 452 N.E.2d 946 (Ind.

1983).2. Claim for violation of right to speedy trial. Lawson v. State,

498 N.E.2d 1212 (Ind. 1986).3. Double jeopardy claim (unless facially duplicative of

previous convictions. Griffin v. State, 540 N.E.2d 1187 (Ind. 1989).

4. Claim that evidence was illegally obtained. Naked City. Inc. v. State, 460 N.E.2d 151 (Ind. Ct. App. 1984).

1. LAW AND TACTICS

Additional Important Legal Issues1. No absolute right to have guilty plea accepted. A trial

Court may accept or reject a proposed plea agreement in the exercise of its sound discretion. Stroud v. State, 450 N.E.2d 992 (Ind. 1983).

2. Defendant must be competent to enter a guilty plea. Defendant must understand the proceedings.

3. Defendant has no right to plea agreement or plea offer. Coker v. State, 499 N.E.2d 1135 (Ind. 1986).

1. LAW AND TACTICS

35-35-1-4. Withdrawal of plea -- Motion.

(a) A motion to withdraw a plea of not guilty for the purpose of entering a plea of guilty, or guilty but mentally ill at the time of the crime, may be made orally in open court and need not state any reason for the withdrawal of the plea.

1. LAW AND TACTICS

(b) After entry of a plea of guilty, or guilty but mentally ill at the time of the crime, but before imposition of sentence, the court may allow the defendant by motion to withdraw his plea of guilty, or guilty but mentally ill at the time of the crime, for any fair and just reason unless the state has been substantially prejudiced by reliance upon the defendant's plea. The motion to withdraw the plea of guilty or guilty but mentally ill at the time of the crime made under this subsection shall be in writing and verified. The motion shall state facts in support of the relief demanded, and the state may file counter-affidavits in opposition to the motion. The ruling of the court on the motion shall be reviewable on appeal only for an abuse of discretion. However, the court shall allow the defendant to withdraw his plea of guilty, or guilty but mentally ill at the time of the crime, whenever the defendant proves that withdrawal of the plea is necessary to correct a manifest injustice.

1. LAW AND TACTICS

(c) After being sentenced following a plea of guilty, or guilty but mentally ill at the time of the crime, the convicted person may not as a matter of right withdraw the plea. However, upon motion of the convicted person, the court shall vacate the judgment and allow the withdrawal whenever the convicted person proves that withdrawal is necessary to correct a manifest injustice. A motion to vacate judgment and withdraw the plea made under this subsection shall be treated by the court as a petition for postconviction relief under the Indiana Rules of Procedure for Postconviction Remedies.

1. LAW AND TACTICS For purposes of this section, withdrawal of the plea is necessary to correct a

manifest injustice whenever:

(1) The convicted person was denied the effective assistance of counsel;

(2) The plea was not entered or ratified by the convicted person;

(3) The plea was not knowingly and voluntarily made;

(4) The prosecuting attorney failed to abide by the terms of a plea agreement; or

(5) The plea and judgment of conviction are void or voidable for any other reason.

The motion to vacate the judgment and withdraw the plea need not allege, and it need not be proved, that the convicted person is innocent of the crime charged or that he has a valid defense.

1. LAW AND TACTICS

(d) A plea of guilty, or guilty but mentally ill at the time of the crime, which is not accepted by the court or is withdrawn shall not be admissible as evidence in any criminal, civil, or administrative proceeding.

(e) Upon any motion made under this section, the moving party has the burden of establishing his grounds for relief by a preponderance of the evidence. The order of the court upon a motion made under subsection (b) or (c) of this section shall constitute a final judgment from which the moving party or the state may appeal as otherwise provided by law. The order of the court upon a motion made under subsection (a) of this section is not a final judgment and is not appealable but is reviewable upon appeal from a final judgment subsequently entered.

1. LAW AND TACTICS

Defendant Attempting to Withdraw Guilty Plea1. Must be in-writing and verified. Flowers v. State, 528

N.E.2d 57 (Ind. 1988) and Marshall v. State, 590 N.E.2d 627 (Ind. Ct. App. 1992).

2. The Court’s ruling on the Motion to Withdraw GP is within the Court’s discretion unless manifest injustice is shown. However, if there is no manifest injustice, the Court must deny the Motion if it would result in substantial prejudice to the State. Coomer v. State, 652 N.E.2d 60 (Ind. 1995).

2. Evidentiary Privilege Rule 410. Withdrawn pleas and offers.

(a) Prohibited uses. -- In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:

(1) a guilty plea or admission of the charge that was later withdrawn;

(2) a nolo contendere plea;

(3) an offer to plead to the crime charged or to any other crime, made to one with authority to enter into or approve a binding plea agreement; or

(4) a statement made in connection with any of the foregoing withdrawn pleas or offers to one with authority to enter into a binding plea agreement or who has a right to object to, approve, or reject the agreement.

(b) Exceptions. -- The court may admit such a plea, offer, or statement:

(1) in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together; or

(2) in a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, and with counsel present.

2. Evidentiary Privilege

In Order for Privilege to Apply:1. The Defendant must be charged with a crime;2. The statement made with intent to seek plea agreement or

in contemplation of a plea agreement; and3. Made to someone who has authority to enter into or

approve a binding agreement. Gonzalez v. State, 929 N.E.2d 699 (Ind. 2010).

3. Victim Notification

35-35-3-2. Notice of recommendation to victim.

(a) In making a recommendation on a felony charge, a prosecuting attorney must:

(1) Inform the victim that he has entered into discussions with defense counsel or the court concerning a recommendation;

(2) Inform the victim of the contents of the recommendation before it is filed; and

(3) Notify the victim that the victim is entitled to be present and may address the court (in person or in writing) when the court considers the recommendation.

(b) A court may consider a recommendation on a felony charge only if the prosecuting attorney has complied with this section.

3. Victim Notification

35-35-3-5. Certification of notification to victims -- Statement by victim -- Failure to comply.

(a) As a part of the recommendation submitted to the court, the prosecuting attorney must certify that he has offered to show the proposed recommendation to the victims of the felony, if any, and that they have been offered an opportunity to present their opinion of the recommendation to the prosecuting attorney and the court.

3. Victim Notification(b) A victim present at sentencing in a felony or misdemeanor case shall be advised by the court of a victim's right to make a statement concerning the crime and the sentence. The court shall also offer the victim, if present, an opportunity to make a statement concerning the crime and the sentence. If unable to attend the hearing, the victim may mail a written statement to the court, which must be included in the presentence report made with respect to the defendant.

(c) However, this section gives no additional rights to the defendant. Failure to comply gives no grounds for postconviction relief.

3. Victim Notification 35-35-3-6. Special victims -- Procedure.

(a) If the victim is deceased or is under the age of eighteen (18) years, the prosecuting attorney shall certify that he has completed the procedure required by section 5 [IC 35-35-3-5] of this chapter with at least one (1) of the next of kin or the parent, guardian, or custodian of the victim. If the victim is a corporation, limited liability company, association, or governmental entity, the prosecuting attorney shall certify that he has completed the procedure with a responsible officer or agent of the entity. If the victim is a partnership, the prosecuting attorney shall certify that he has completed the procedure with at least one (1) partner.

(b) If there are more than three (3) victims, the prosecuting attorney shall complete the procedure required by section 5 of this chapter with the three (3) who he believes have suffered the most.

3. Victim Notification 35-35-3-7. Failure to locate victim or next of kin --

Certification to court.

If the prosecuting attorney is unable to make a certification required under section 5 or 6 [IC 35-35-3-5 or IC 35-35-3-6] of this chapter because he was unable, after a reasonable effort, to locate the victim or his next of kin, then he shall certify this fact to the court. He may then submit the recommendation, and the court may act upon it.

3. Victim Notification See also, THE VICTIM BILL OF RIGHTS

1. 35-40-5-1. Right to be treated with fairness, dignity, and respect.

2. 35-40-5-2. Right to be informed of release or escape of accused.

3. 35-40-5-3. Right to confer with prosecuting attorney.4. 35-40-5-4. Right to have personal safety considered in

release determination.5. 35-40-5-5. Right to be heard.6. 35-40-5-6. Right to make statement in presentence report.7. 35-40-5-7. Right to pursue restitution.8. 35-40-5-8. Right to information on disposition of case.9. 35-40-5-9. Right to be informed of victim's rights.10.35-40-5-11. Interview by defense counsel of child less than

sixteen who is alleged victim of sex offense.

4. Witness Immunity

35-37-3-2. Refusals based on privilege against self-incrimination.

If the court determines that the witness, based upon his privilege against self-incrimination, may properly refuse to answer a question or produce an item, the prosecuting attorney may make a written request that the court grant use immunity to the witness, in accordance with section 3 [IC 35-37-3-3] of this chapter.

4. Witness Immunity 35-37-3-3. Granting of use immunity -- Instruction to witness -- Use of evidence

in perjury prosecutions -- Continued refusal to give evidence.

(a) Upon request of the prosecuting attorney, the court shall grant use immunity to a witness. The court shall instruct the witness, by written order or in open court, that any evidence the witness gives, or evidence derived from that evidence, may not be used in any criminal proceeding against that witness, unless the evidence is volunteered by the witness or is not responsive to a question by the prosecuting attorney. The court shall instruct the witness that the witness must answer the questions asked and produce the items requested.

(b) A grant of use immunity does not prohibit the use of evidence the witness has given in a prosecution for perjury under IC 35-44.1-2-1.

(c) If a witness refuses to give the evidence after the witness has been granted use immunity, the court may find the witness in contempt.

4. Witness Immunity Entering into Immunity Agreements

1. My preference is to discuss the matters and then reduce the agreement to writing.

2. Be up front about what you are offering and what you expect to get.

3. Truthful testimony at trial, depositions, etc.4. Name the people involved (Co-defendants).5. Define the cooperation (answering questions,

revealing the location of physical evidence, making recorded telephone calls, recording a conversation in person, taking a polygraph, etc.)

6. Do not engage in wink-wink deals.

THANK YOU

AmyMarie TravisJackson County Prosecutor(812)358-6130atravis@jcprosecutor.us