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Plea Negotiating Judges, Caps on Sentence and State v. Gordon.

Plea Negotiating Judges, Caps on Sentence and State v. Gordon.

Posted by Edmund R. Folsom, Esq.

March 9, 2021

Intro to a black swan.

In State v. Gordon, 2021 ME 9, decided February 23, 2021, Mario Gordon’s lawyer misread signals from the judge during plea negotiations.  It cost Gordon 12 years in prison instead of 8.

Judges and plea negotiations.

For a long, long time, the Maine Rules of Criminal Procedure provided, “The court shall not participate in the negotiation of the specific terms of the plea agreement.”  The Federal Rules of Criminal Procedure to this day provide that the government and the defense may discuss and reach a plea agreement but, “The court must not participate in these discussions.”  In Maine courts, the days of judges being barred from participating in plea negotiations are gone.

In 2008 the Maine Supreme Judicial Court amended the rules to allow judges to participate in plea negotiations by request or agreement of the parties.  More recently, in 2015, the Maine Supreme Court amended the rules to allow judges to participate in negotiating the specific terms of a plea agreement at any stage of proceedings, no request or consent of the parties required.  These days, Maine judges are an integral part of the plea negotiation process by design, especially in the relatively newly-formed creature known as the “dispositional conference.”  As Justice Jabar references in his concurrence in Gordon, what was once a judicial taboo has become a best practice in docket management. The taboo was grounded in principle. The practice is grounded in expedience.

The shift to judicial involvement in plea negotiations has occurred alongside another shift, also noted by Justice Jabar, that has led to fewer than 3% of all federal and state criminal cases being resolved by jury trial. Plea agreements are so much more efficient than jury trials at resolving criminal cases that Maine courts not only embrace resolution by agreement, they steer as many cases as possible away from trial and toward plea agreement.

Gordon’s dispositional conference.

Gordon faced 2 indictments for, among other things, aggravated trafficking in scheduled drugs, Class A, punishable by a maximum of 30 years in prison.  As background, the maximum punishment for a given class of crime is the most a person may be sentenced to, no matter how egregious the facts are, how bad the person’s record is, how many aggravating factors exist to offset any mitigating factors, etc. It does not mean that every person convicted of a Class A crime is at risk of being imprisoned for 30 years.  In Gordon’s case, the State wanted him to plead guilty to aggravated trafficking and accept a sentence of 8 years in prison. Defense counsel tried to negotiate a sentence of 10 years in prison, with all but 6 years suspended followed by 4 years of probation.  In other words, defense counsel was trying to shave off a couple of years in prison, up front, in exchange for which Gordon would be supervised on probation for 4 years following release, with an additional 4 years of imprisonment hanging over his head for a probation violation.

The prosecutor and defense counsel met in chambers with a judge during a so-called “dispositional conference.”  These conferences are required in all criminal cases unless the State and defendant reach a plea agreement beforehand. The judge participates in the discussion and attempts to facilitate a plea agreement.  Although the division of governmental powers does not allow the court (the judicial branch) to dictate that the prosecutor (the executive branch) must dismiss a certain charge or substitute one charge for another, the Court is always the final arbiter of the appropriate sentence for whatever charge a defendant is convicted of. The Court is allowed to weigh-in on matters such as what sentence it would likely impose for conviction after trial based on the facts as described by the parties, any strengths or weaknesses the court perceives in the State’s case, what negotiated terms would or would not offend the Court’s sensibilities, and what specific terms the Court thinks the parties should agree on.

We learn most of the details about what happened at Gordon’s dispositional conference from the concurring opinion.  The prosecution laid out its case for a straight sentence of 8 years.  Defense counsel made a pitch for 10 years, with all but 6 suspended and 4 years of probation. The Judge told the defense attorney and prosecutor that both their positions were reasonable. Then the Court asked the State what it would offer for a “cap.”  At that point, the State made a plea offer in the alternative:  either a straight sentence of 8 years in prison or a cap of 12 years.  To explain, the cap arrangement would allow Gordon to argue for less time, knowing the most the judge would be allowed to impose under the agreement is 12 years.  If the judge ultimately decided to impose more than 12 years, Gordon would have the chance to abort the proceedings by withdrawing his guilty plea.  As the Gordon concurrence points out, it is not unusual for a judge to invite parties who are close to an agreement, but can’t quite bridge the divide, to enter into an agreement involving a cap on the sentence.

In Gordon’s case, the State wanted him to serve 8 years. Gordon’s attorney wanted him to serve 6. The Court said both positions were reasonable, which led Gordon’s counsel to think that if he argued the sentence under a cap agreement the best Gordon was likely to get was 6 years to serve and the worst was 8 to serve.  This is what Gordon’s attorney advised Gordon. Gordon agreed to accept the plea offer, as long as he could be assured that the judge who did the dispositional conference would be the one who sentenced him. The agreement was struck and Gordon pled guilty before the same judge later that day.  When the Court took Gordon’s plea, it went through a so-called Rule 11 proceeding, as required for a plea to murder or any Class A, B or C crime.  As part of the Rule 11 proceeding, the Court discussed the terms of the plea agreement with Gordon.  Gordon retained the option of either accepting a jointly recommended straight 8-years or arguing for a sentence under a 12-year cap.  Gordon acknowledged understanding that the cap option could result in up to 12 years to serve.  His case was continued for sentencing on another date.

Gordon is sentenced.

At some point between the plea and the sentencing proceeding, Gordon made up his mind to argue sentence under a 12-year cap. The State and Gordon’s counsel submitted sentencing memoranda to the court.  At the sentencing hearing, the State argued for a sentence of 12 years, with none suspended – 4 years above the State’s straight 8-year offer. Gordon argued for a sentence of 10 years with all but 4 years suspended and 4 years of probation – 2 years less to serve than under the 10/6/4 split he proposed at the dispositional conference.  As the Gordon concurrence points out, this is typical in a cap arrangement.  The State often shoots for more than it expects and the defendant shoots for less, each knowing the judge will probably land somewhere in between, each hoping the judge lands closer to its own aspirations than the other’s.  But in Gordon the Court imposed the full 12 to serve, reasoning that Gordon’s conduct merited a basic sentence of 12 years, that the aggravating factors balanced out the mitigating factors, and that the circumstances did not warrant suspending a portion of the sentence with probation.  Gordon moved the sentencing judge for reconsideration.  The motion was denied.

Gordon appeals his sentence.

Gordon applied to the Law Court for discretionary review of his sentence.  The Law Court granted leave.  Gordon argued that it violated due process for the Court to ignore its own statement about the reasonableness of the sentences the parties proposed at the dispositional conference, to impose a 12-year sentence well above those reasonable alternatives.  Because the dispositional conference was not recorded, defense counsel and the State submitted affidavits as to what was said.  The Law Court found no due process violation and upheld the 12-year sentence.  The Law Court’s review was limited to whether the sentencing judge ignored sentencing factors, abused his sentencing power, or imposed a sentence that exhibited manifest inequality in relation to sentences imposed on comparable offenders. Gordon’s sentencing judge followed all the required steps in the sentencing process, did not abuse his sentencing power, and sentenced Gordon within the range allowed under the plea agreement, after ensuring at the time of plea that Gordon knew a 12-year sentence was possible.  Case closed.  Now get out of here.  But is that how it ought to work?

The Gordon concurrence – guarding against judicial contamination.

In his concurrence, Justice Jabar agreed that Gordon’s appeal on due process grounds was doomed to fail. The sentencing judge followed all the applicable rules. But in Justice Jabar’s view, it appeared that the judge’s comments unintentionally misled Gordon to accept the cap offer to his great detriment. Sure, Gordon was told that he could get up to 12 years if he chose the cap option. But why should he think he was going to get 12 years from the judge who said the 6 to 8-year range the parties were hung up on for time to serve was reasonable, right before the judge invited the State to bridge the divide with a cap offer?

If Gordon had an inkling that a sentence above 8 years to serve was a realistic possibility, he would have saved himself the extra 4 years by accepting the State’s straight 8-year offer. Gordon’s attorney counseled Gordon to dive into the uncertainty based on his experience with the way things work in such matters, the Court’s statements during plea negotiations, and the reading of tea leaves involved in trying to discern what a judge who won’t say exactly what he’ll do is likely to do.

If a judge says a joint recommendation of 8 years sounds right, but then changes her mind at sentencing and decides to impose more, the Rules of Criminal Procedure allow the Defendant to withdraw his guilty plea and go back to the drawing board.  But if the judge indicates a sentence less than the cap sounds right, the defendant is stuck with the guilty plea unless the judge later seeks to sentence him to more than the cap.  Maybe all a lawyer is left to do after Gordon is to take it as a cautionary tale regarding that particular judge, and not buy into cap agreements with that particular judge based on statements during plea negotiations.

Caps can be dangerous because you don’t always know what you assume you know.

Back in the 90’s, the board of directors of the Maine Association of Criminal Defense Lawyers used to put on small, short seminars here and there, fairly often.  One afternoon we held one at DeMillo’s, where a few Superior Court justices give a panel presentation that could have been called “Stuff you ought to know from our perspective.” One of the topics was cap sentences. I was surprised to learn one panelist’s perspective. In his mind, accepting a cap agreement amounted to conceding that the cap was a reasonable sentence.  And since the defendant conceded that the cap was reasonable, that’s what this Justice was inclined to impose, protests to the contrary during the defendant’s argument for less notwithstanding.

The audience showed its surprise.  Some of us tried to explain that we usually saw a cap as an insurance policy against being struck by lightning — accept the one-in-a-hundred chance of getting 12 years, to insure against the one-in-a-thousand chance of getting nailed for 20 or 30 on an open plea. The Justice seemed unmoved. He said the pool of Superior Court justices was pretty small, so the lawyers who appeared before them ought to know their predelictions — these things should come as no surprise.  At that point, at least those of us in the room that day knew about this particular justice’s predelictions on this particular issue.  The new information changed our assessment about arguing sentence under a capped plea agreement in front of this justice. Sometimes you think you know what’s going on right up till that frightening moment you realize you don’t.

Sometimes it isn’t just what you assume that’s dangerous – what the judge actually tells you can be dangerous too.

Is the Gordon opinion similar to the revelation at DeMillo’s?  Does it amount to nothing more than learning a particular judge’s propensity – here, the propensity to be unfettered at sentencing by declarations during plea negotiations?  If so, at least the publication of the Gordon opinion ensures that a wide swath of practicing attorneys is placed on notice.  But Gordon issues an even broader warning — a well-publicized warning not to assume too much about anything any judge might appear to lay between the lines during plea negotiations involving a cap.

What is the point of caps on sentence anyway?

From the defendant’s perspective, the purpose of a plea agreement is to minimize unnecessary risk — given the state of the evidence, how much of a hit is the person willing to absorb to avoid taking a hit the person can’t afford?  A sentencing cap often enters the picture when the D.A. and the defendant can’t agree on a hard and fast number.  The defendant thinks the D.A. wants an unrealistically high sentence. The D.A. thinks the defendant wants an unrealistically low sentence. The D.A. sets a cap above the agreed-upon sentence offer and essentially says, “Go ahead, make your pitch to the judge.”  The defendant accepts the cap, figuring the judge will probably also find the D.A.’s position unreasonable and will sentence the defendant to something less than the number the D.A. was stuck on before making the cap offer.

A defendant could always just plead guilty and expose himself to the entire sentencing range on an “open plea.” But because doing that would involve no agreement with the State, it would require the defendant to plead guilty to all charges.  And if the defendant’s assessment of likely sentence turns out to be way off-base, the defendant could end up with a sentence way more than he’d have gotten under an agreed-upon sentence or a cap, with no recourse to withdraw the guilty plea when lightning strikes.  A cap provides a hedge against a lightning strike.  It usually also involves the State dismissing some charges for a plea to another or others.  That’s the value of a cap from the defense perspective.  From the State’s perspective, a cap might entice a plea that otherwise would not occur.  Without a cap offer, when the parties can’t agree on the appropriate sentence, the defendant might choose to proceed to trial — just take his chances instead of throwing in the towel on everything under an open plea.  Even if the evidence is really strong, the defendant might choose to play for a fumble.  And fumbles do happen, and trials do consume lots of time and other resources.  Instead of going there, the State can offer a cap and let the judge decide.  Next case…

But caps harbor dangers for defendants, the judge’s statements in plea negotiations included.

Back to the revelation at DeMillo’s, in those days judges were prohibited from participating in negotiating the specific terms of a plea agreement.  All negotiations took place between the D.A. and defense counsel.  If the agreement was for a cap sentence, the agreement was placed before a judge who heard the parties’ arguments and imposed a sentence after a sentencing hearing.  How has that changed now that judges are directly involved in negotiating plea agreements?  Before the revelation at DeMillo’s, a defense lawyer’s decision to place a sentencing cap in front of the justice who uttered the revelation would probably have been based on at least one faulty assumption – that all involved viewed the cap as the upper limit, not the presumptive sentence.  After the revelation, the faulty assumption  was cured for anyone in the room that day.  But even as to lawyers who were in the room that day, there might be any number of unstated judicial inclinations unknown to counsel, swirling in the presiding judge’s head, rendering the lawyers’ risk/benefit assessments useless.  And now Gordon tells us that involving judges in plea negotiations injects yet another type of uncertainty into the process – misinterpretation of the judge’s affirmative representations during plea negotiations.

Communications between the D.A. and defense counsel are straightforward.  Both sides have an opportunity to review and assess the evidence in depth.  The terms of any agreement can be nailed down completely.  If there’s room for misinterpretation, it can easily be addressed by a written exchange in which the parties come to precise terms.  But as Gordon demonstrates, this is not the case when it comes to the judge’s participation in plea negotiations.  When the sentencing judge participates, the judge inserts communications into the process that might actively mislead the parties to believe they have achieved a degree of certainty that they have not achieved.

Understandably, a court might change its mind after hearing sentencing arguments, which points up yet another flaw in having judges engage in the plea negotiations.  The judge does not know the case as thoroughly as the prosecutor and defense attorney do at that stage. There is a very real potential that the judge’s mind will change after hearing a more thorough presentation later on, at sentencing.  After all, if a sentencing hearing has no potential to move the judge, what is the sense in holding a sentencing hearing?

Who should bear the cost when something goes wrong with judicial plea negotiations that are designed to benefit the court?

The court derives the benefit from inserting itself into the plea negotiation process, in the form of better docket control. But if something goes wrong, does the court bear the cost?  No.  As we see, it was Gordon who bore the cost.  The court can’t lose, it can only win.

In his Gordon concurrence, Justice Jabar was bothered that the sentencing judge might unintentionally have misled Gordon’s attorney during the plea negotiations.  He points to potential dangers of judges participating in plea negotiations and suggests ways to minimize the risk that judges might damage the process by participating in it.  One such way is to do what Hawaii does.  In Hawaii a judge might indicate a sentencing range that the judge thinks is reasonable.  Defendants entering a guilty plea in reliance on such indications are allowed to withdraw their plea if the judge ultimately decides to sentence above the indicated range.  This imposes the cost of judicial miscommunication or change of judicial mind on the court — the court simply loses the benefit it would otherwise derive from a quick clearing of the case from its docket.  In this way the defendant is saved from bearing the cost in the form of additional years in prison.  This also benefits the court and the prosecution.  By eliminating the peril that might otherwise lurk in capped or open plea arrangements due to misleading statements from the court during plea negotiations, the process preserves the vitality of a valuable case-resolving tool.  Defense attorneys don’t get gun shy about caps.  But Hawaii’s rule makes a lot more sense in an open plea context than in a cap context.  In the cap context, it amounts to the judge placing a de facto limit on the defendant’s exposure, below the cap the defendant agrees to with the State.  It’s unlikely the State would care to buy into this arrangement.  So, it’s difficult to see an easy fix for the problem, other than having judges take scrupulous care not to contaminate the process by creating false impressions.

Caveat emptor.

For a number of reasons, a capped plea can be dangerous for any defendant who is not prepared to take all of it.  There are many potential unknowns in the cap.  For the defendant, it’s caveat emptor, baby.


Disclaimer:  The above post does not contain legal advice. It contains information only and is not to be taken as legal advice. The reader does not have an attorney-client relationship with the author by virtue of reading the above post.