Can a Judge Change a Plea Bargain at Sentencing

Past H. Michael Steinberg Colorado Criminal Defense Lawyer

Introduction – A Massive ChangeTo Plea Bargains in the Colorado Criminal Justice System

Quietly, with little fanfare, the Colorado Supreme Court, in the case of People of the Land of Colorado, five. Christopher Anthony Mazzarelli, massively changed what was previously considered primal Colorado criminal law in the area of plea bargaining.

The question in Mazzarelli was whether a District Chaser could legally withdraw from a plea agreement if a Colorado Judge determines, in exercising that Estimate'southward contained review of a proposed plea agreement, finds that a more lenient judgement than the one the parties set forth in the agreement was more appropriate.

The Colorado Supreme Court answered this question with a resounding "no."

Where a Judge unilaterally modifies a sentencing concession in a plea deal merely the Defendant, and not the District Chaser, may lawfully withdraw from the plea agreement.

The relative power of the players in the criminal justice system is defined commencement, by the separation-of-powers doctrine every bit divers in Colorado's constitution, and 2nd by the laws and rules further defining that power.

While the District Chaser can "charge bargain" (filing, adding and/or dismissing charges or even dismissing the case itself) the power to "judgement bargain" (stipulating – agreeing to specific sentencing concessions in a plea agreement) is limited by the authority granted to the Judge to independently review those sentence concessions. Nether Colorado law, subsequently Mazzarelli, a Trial Court may turn down ANY sentence concession after accepting a guilty plea.

To arrive at this conclusion, the Court analyzes several cardinal Colorado laws governing the entry of plea bargains in Colorado courts.

The Mazzrelli decision can be reduced to two principles:

Colorado police force:

(1) requires a trial court to exercise its contained judgment in deciding whether to take or refuse sentence concessions in a plea understanding, and

(2) allows a Defendant, but not the State, to withdraw from a plea agreement when the trial courtroom rejects a sentence concession after a Accused has pled guilty pursuant to a plea bargain.

The sentencing concession "contract" that is the plea agreement of the parties – runs in only one direction when the issue at hand is the sentencing bargaining part of the understanding.

Furthermore, even if the Disitrict Attorney tries to add a provision to a plea agreement that expressly allows the District Attorney to withdraw from it later entry of the guilty plea in the event the Judge disagrees with the parties' judgement concessions, that provision is unenforceable.

Sentencing Concessions, Agreements, and Stipulations in Colorado Plea Agreements

Equally the Courtroom made clear in the Mazzarelli decision :

[S]entence concessions in a plea agreement—whether they are called sentence stipulations, sentence agreements, or something else—are sentence recommendations that the trial court, in the exercise of its independent judgment, may adopt or reject."

A System of Mostly Pleas and Few Trials

While near people view the "Constabulary and Society" blazon jury trial as the classic representation of the criminal justice arrangement, the truth is far from that image. The "system" would speedily explode if every case went to trial. While estimates vary, somewhere between 94% to 97% of all criminal cases resolve by a plea agreement.

Equally the United States Supreme Courtroom recently said in the Lafler v. Cooper case:

[C]riminal justice today is for the nearly part a system of pleas, not a system of trials.

Lafler v. Cooper, 566 U.Due south. 156, 170 (2012).

The importance of plea bargaining in an already overburdened criminal justice arrangement cannot be understated. This indicate was not lost on Justice Brian Boatright in his dissent in the Mazzerelli example:

Many judicial districts in Colorado rely on the practice of stipulations to help forge agreements for pleas to some degree. The practice has functioned well for decades because at the core of these agreements is predictability.

I fear that today'south property by the bulk volition unnecessarily accept a negative impact on the orderly resolution of cases by injecting uncertainty into the process. Every bit the majority correctly points out, xc-four per centum of state convictions are the result of plea agreements.

The Separation of Powers Doctrine – Authority Assigned to the Judicial Branch of Regime Just Withheld from the Executive Branch

The question in Mazzarelli is one of the distribution of power:

Does the "separation-of-powers doctrine" permit a Approximate who accepts a guilty plea to an uncharged offense pursuant to a plea agreement but and then rejects the parties' stipulated sentence prohibit the State from withdrawing from that agreement?

The District Chaser (the executive branch of government), is given the power to "charge deal." However, it is the Judge (the judicial branch of government), after Mazzarelli, that now has the ability to unilaterally determine the appropriate sentence nether the Colorado Supreme Court's interpretation of the separation-of-powers doctrine.

In the words of the Court:

[The Country maintains that] "when a trial court accepts a defendant's guilty plea to an uncharged crime pursuant to a plea agreement simply so rejects the stipulated judgement without allowing them to withdraw from the agreement, it usurps their charging province and offends fundamental separation-of-powers precepts.

Nosotros are unpersuaded.

Article III of the Colorado Constitution provides that the powers of the state government are divided into 3 different branches—the legislative, executive, and judicial branches—and that "no person . . . charged with the practise of powers properly belonging to i . . . shall do any ability properly belonging to either of the others," unless expressly directed or permitted by the Colorado Constitution.

Put merely, one branch of government may not invade another's function. Article Iii proves problematic here, according to the People, because the trial courtroom accepted Mazzarelli's guilty plea to an uncharged offense pursuant to the plea agreement but then rejected the stipulated sentence without assuasive them to withdraw from the agreement.

Nosotros conclude that no violation of the separation-of-powers doctrine occurred.

Mazzarelli pled guilty to an uncharged offense pursuant to the People'due south plea offering. At the sentencing hearing, the trial court exercised its independent judgment and decided to reject the sentence concession in the plea agreement.

Considering Mazzarelli, through his counsel, affirmed the guilty plea, the trial court moved forward with sentencing.

In accordance with Article Iii, the People made the charging determination to allow Mazzarelli to plead guilty to an added offense, and the trial court and so made the sentencing determination.

Nosotros acknowledge that the People, not the court, may add an uncharged offense, and that the People, non the court, may offer the defendant the opportunity to plead guilty to it every bit part of a plea agreement. "

Understanding the Mandate of "Dominion eleven″ – Entering a Plea Into a Plea Understanding in Colorado

Colorado Rule of Criminal Procedure Rule 11 governs the procedures that must exist followed for the successful entry of a plea under Colorado police force. The Rule requires a Colorado gauge carry what is commonly chosen a providency hearing. At that hearing the Judge makes sure the Defendant fully understands the plea agreement and it is knowingly and voluntarily entered with total knowledge, not merely of the terms of the understanding, but of the rights waived by the Defendant to accept the agreement.

At the providency hearing, Rule 11 permits a Colorado approximate to tentatively accept the plea understanding pending the sentencing portion of the procedure. The reason for the delay in a full acceptance of the agreement is that Colorado law requires the judge to "practice independent judgment" in making the critical conclusion to take or reject that agreement.

Hither are the relevant parts of Rule 11:

(b) Pleas of Guilty and Nolo Contendere. The court shall not accept a plea of guilty or a plea of nolo contendere without first determining that the defendant has been advised of all the rights fix along in Rule five(a)(2) and also determining:

(1) That the defendant understands the nature of the accuse and the elements of the criminal offense to which he is pleading and the consequence of his plea;

(two) That the plea is voluntary on defendant'south part and is not the result of undue influence or coercion on the office of anyone;

(3) That he understands the correct to trial past jury and that he waives his correct to trial by jury on all issues;

(4) That he understands the possible punishment or penalties;

(5) That the defendant understands that the court will not be bound by whatever representations made to the defendant by anyone concerning the penalty to exist imposed or the granting or the denial of probation, unless such representations are included in a formal plea agreement approved by the court and supported past the findings of the presentence report, if any;

(six) That at that place is a factual ground for the plea. If the plea is entered as a upshot of a plea agreement, the court shall explain to the defendant, and satisfy itself that the defendant understands, the footing for the plea agreement, and the accused may and so waive the establishment of a factual footing for the particular charge to which he pleads;

(f) Plea Discussions and Plea Agreements.
……
(2) The commune attorney may agree to one of the following depending upon the circumstances of the individual case:

(I) To brand or not to oppose favorable recommendations concerning the sentence to be imposed if the accused enters a plea of guilty or nolo contendere;

(Two) To seek or non to oppose the dismissal of an offense charged if the defendant enters a plea of guilty or nolo contendere to some other offense reasonably related to the defendant's conduct;

(III) To seek or not to oppose the dismissal of other charges or non to prosecute other potential charges against the accused if the defendant enters a plea of guilty or nolo contendere.

(four) The trial estimate shall not participate in plea discussions.

(5) Nevertheless the reaching of a plea agreement between the district attorney and defense counsel or accused, the judge in every instance should exercise an contained judgment in deciding whether to grant charge and sentence concessions.

Colo. R. Crim. P. 11

A judge in Colorado is empowered not simply to reject a plea agreement as a "package deal" under Colorado'southward Dominion 11 (in a higher place), after Mazzarelli, Colorado Judges have the power to exercise a kind of "line particular veto" over a sentencing concession contained within that package.

The Mazarrelli Courtroom interpreted Dominion xi's language granting the power to plea bargain to Colorado'south Commune Attorneys – ("to brand or not to oppose favorable recommendations concerning the sentence to be imposed if the defendant enters a plea of guilty or nolo contendere) equally simply that, pure recommendations in the strictest sense of those words.

In Mazzarelli, as more than closely discussed below, the Colorado Supreme Court, in the context of plea agreements, interprets any plea agreement with "judgement stipulations" every bit only "sentence recommendations."Subsequently this decision,  the words sentence concessions, sentence agreements, and sentence stipulations …. "accept the same meaning and have no binding effect on the trial courtroom."

With these words, the Court changed the landscape of Colorado plea bargaining in means that will have an affect for decades to come. The Colroado Supreme Courtroom held in Mazzarelli that sentence stipulations, "the package" plea bargains which take been a staple in most Colorado counties for decades, had never existed.

Accused, Mazzarelli, and the District Attorney entered into a common form of plea agreement that consisted of both "charge bargaining" and "sentence bargaining." The " charge bargaining" function of the agreement was that the prosecution would dismiss the original Form 3 Felony accuse of kid abuse and the Defendant would plead guilty to a bottom (added charge) of Grade 4 Felony child abuse.

The "judgement bargaining" part of the plea bargain was a further understanding that at that place would be a stipulation, an agreement, that Mazzarelli would be sentenced to prison from between ii to 8 years. Under the agreement, probation was not an option.

After the advisement of his rights pursuant to Crim. P. 11(b), Mazzarelli pled guilty to the added charge and the Courtroom accustomed his plea and dismissed the original charge. A new date was selected for the sentencing stage of the case and a presentence study was ordered.

At the sentencing hearing the Court, after reading the presentence written report and hearing argument, rejected the sentencing stipulation to prison and would only accept a plea understanding with "an open judgement" allowing the Estimate to impose probation. When the DA asked to withdraw from the plea deal, the Estimate refused and sentenced Mazzarelli to three years of supervised probation.

The People appealed.

Understanding the Mazzarelli Court's Reasoning Requires a Closer Look at Four Central Colorado Criminal Law Concepts Involving the Entry of Pleas

1. The Duty of a Gauge to Exercise "Independent Judgement"

Colorado criminal law Section xvi-7-302(3) provides that:

"[n]otwithstanding the reaching of a plea agreement between the commune attorney and defence counsel or accused, the guess in every example should exercise an independent judgment in deciding whether to grant . . . sentence concessions."

Crim. P. Rule xi(f)(5) contains nearly identical language.

Under both Department 16-7-302(3) and Rule eleven(f)(5), A Colorado Judge is required to exercise its independent judgment in making the conclusion to accept or pass up "sentence concessions" in a plea agreement.

Having established the principle that Judges are empowered to ensure the fairness of a plea agreement – the next question is what is the extent of that power to review a plea understanding.

If a Colorado Judge rejects a sentence concession that was believed to be a requirement of the plea bargain offered past the Commune Chaser (DA) and accustomed by the Defendant, can the State withdraw from a plea agreement?

Can the Judge STOP the DA from unwinding – voiding – the plea bargain? The answer to that question turns on a rewriting of the give-and-take stipulation from the previously accustomed legal meaning of that give-and-take to Colorado's criminal defense bar.

2. The Difference Betwixt a Sentence Stipulation and a Sentence Recommendation

The Mazzarelli Court made clear that the normal contract principles applied to plea agreements previously understood and accepted in almost every judicial commune in Colorado, had no application under the facts of this instance.

The Court plant there was no legal distinction between a "prosecutorial recommendation" of a particular sentence and a "prosecutorial agreement" that requires a Court to impose a particular sentence.

After Mazarelli, sentence "concessions" are not-bounden sentence "recommendations" and are unenforceable by the District Chaser. The words used in the plea agreement concerning sentencing agreements are now meaningless in the context of plea agreements.

Whether the words used are chosen "judgement stipulations," "sentence agreements," or "sentence concessions," these terms and "similar terms are nothing more than than sentence recommendations that the trial court is free to accept or reject, including after the defendant's guilty plea."

iii. The "Timing" of the Plea and Sentencing Phase in a Colorado Guilty Plea Proceeding

Colorado Rule 11(b)(5) requires a Colorado Approximate to determine before that Guess fully accepts a plea bargain understanding, that the Accused understands that the Judge is not:

…spring by whatever representations made to [him] by anyone apropos the punishment to be imposed . . . , unless such representations are included in a formal plea agreement canonical by the court and supported by the findings of the presentence report.

Under Colorado law, a Judge only tentatively accepts a proposed plea agreement until the sentencing hearing. The entry of the plea under Dominion xi is simply the kickoff step in the process. The requirement of a "presentence report" is a bookmark to separate the entry of the plea from acceptance of a plea agreement and the imposition of a sentence.

Put differently, a Colorado Judges have the right to tentatively approve a proposed plea agreement contingent on the data provided during the sentencing phase of the proceeding. While the police mentions a presentence study, there is NO statutory requirement for a presentence report and, in about cases, no presentence study is ever prepared.

The concept is elementary, a Judge conspicuously cannot exercise the kind of "independent judgment " the police force requires until the parties provide the information reserved for the sentencing stage of a Colorado criminal instance.

A Courtroom does not formally and legally "accept" a plea bargain until the sentencing phase of the plea hearing has been completed.  Only then is the plea proceeding fully completed.

4. Only a Accused Tin Withdraw from a Plea Bargain if the Judge Changes the Sentence Concessions – Colorado Rules of Criminal Process – Rule 32(d) and Section sixteen-vii-302(2)

The Mazzerelli Court was clear when a Approximate modifies the sentencing provisions of a Colorado plea agreement, any correct to withdraw from that plea agreement belongs only to the Accused.

Colorado Crim. P. 32(d) and CRS § sixteen-7-302(2), are the ii laws that govern the withdrawal from a plea agreement.

After a Colorado Judge accepts a guilty plea, Sections sixteen-7-302(two) and Rule 32(d) require the court to "advise the Accused and the Commune Attorney" if it is rejecting the sentence concession "and then call upon the defendant to either affirm or withdraw the plea of guilty. "

There is no provision allowing the DA to either assert the plea agreement or to withdraw from it.

As noted below, this is different than the exception to this dominion – a situation where a Commune Attorney is allowed to withdraw from an accustomed plea agreement when "the defendant has essentially and materially breached the plea agreement by her action or inaction." (Run across Sidebar below).

The Court made this statement in Mazarelli:

… if the trial court rejects a sentence concession after the accused pleads guilty, simply the defendant may withdraw from the plea agreement.

Sidebar: There Remain Instances When A District Attorney May Withdraw from a Plea Bargain

It is a common analogy for attorneys and judges in the Colorado criminal justice system to view a plea agreement as a contract between the parties. The analogy is apt in some instances merely fails in others.

The contract analogy has been used by the Colorado Court of Appeals when analyzing, for example, the enforcement of a plea agreement based on the detrimental reliance of a cooperating Defendant.

The Mazzarelli decision did not alter this area of law. Specifically, the Courtroom said:

Null in this opinion should be viewed as passing judgment on the advisable remedy if whatsoever when a party breaches a plea agreement after the defendant has pled guilty. That outcome is not before u.s..

The Mazzarelli case was based on the interpretation of statutes and rules and non based on contract law. While the full general principles of contract police are often applied in analyzing plea agreements in the past, there was no alleged breach of the plea agreement by either party.

Summary and Conclusion – When a Judge Refuses to Follow a Plea Bargain in Colorado

Afterward all of the analysis of the Mazzarelli instance, the holding of the case – the reason information technology is so of import – is the new dominion it created:

When a Colorado Approximate decides to accept a plea bargain but rejects a sentence concession in that plea agreement, Colorado police does non permit the District Attorney to withdraw from the understanding.

This watershed instance also removes any endeavour past the District Chaser to alter the language of the plea agreement to prevent a Colorado Estimate from modifying the sentencing portion of the plea agreement.

An easy way to understand the ruling in Mazzarelli is this – the entry of a plea agreement is bifurcated.

Part i occurs when the plea agreement is tentatively accepted by a Colorado Judge following a providency hearing pursuant to Rule 11.

Part two addresses the final "entry" of the plea understanding – the pace during which it is approved, rejected, or contradistinct by the Guess  – this occurs when the Court subsequently sentences the Defendant.

The impact of the Mazzarelli conclusion is, as yet, not be fully known. It is still a relatively new conclusion.

The Colorado Supreme Court was "keenly aware" of the possible shock waves the decision may have in the coming years:

The practical effect today'south decision is likely to have on our trial courts is non lost on us. After all, we are keenly aware that the general practice in many courtrooms is inconsistent with this opinion.

While we are confident our opinion will not be the death knell of plea agreements, information technology will no dubiousness change the landscape in which plea agreements occur.

We volition see.

Update: Since drafting this commodity, I located an attempt by the Colorado Land Legislature in the 2022 Legislative session to try to legislatively alter the Mazzarelli dominion .

The bill,  HB20-1054, failed.

HB20-1054 – Withdraw Plea Agreement If Condition Rejected

Concerning a description of the authority of either party to withdraw from a plea agreement when whatever status agreed to past the parties is rejected by the court.

"A person charged with a offense requires the guiding paw of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence."

The states Supreme Court – Powell v. Alabama, 287 U.S. 45, 69 (1932)

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Never stop fighting – never stop believing in yourself and your correct to due process of law.

ABOUT THE AUTHOR: H. Michael Steinberg – Email The Writer at hmsteinberg@hotmail.com – A Denver Colorado Criminal Defense force Lawyer – or telephone call his office at 303-627-7777 during business hours – or phone call his cell if you lot cannot wait and need his immediate aid – 720-220-227. Attorney H. Michael Steinberg is passionate about criminal defence. His all-encompassing cognition of Colorado Criminal Law and his 38 plus years of feel in the courtrooms of Colorado may give him the border you need to properly defend your instance.

Every bit a former career prosecutor for Arapahoe and Douglas Counties, he has a unique understanding of the criminal justice system that works to his clients' advantage to meliorate protect their rights. H. Michael also knows how to talk clearly and very directly to his clients, his adversaries and to the Court. He uses his life feel, common sense, and straight talk to help clients fully empathise and make decisions regarding their options.

If you are gear up to talk, H. Michael stands ready to assistance.

A Roadmap to Pleas in Colorado  – the Alford Plea

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