9.8 Plea-bargaining

• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2018 Ed.)

9.8 PLEA-BARGAINING

The Rules of the Supreme Court of Virginia prescribe a detailed procedure for plea-bargaining cases. ⁴³⁰ The attorney for the Commonwealth and the attorney for the defendant (or the defendant when acting pro se) may negotiate and reach an agreement that upon a guilty plea by the defendant the commonwealth's attorney will: (i) move for dismissal of other charges; (ii) recommend a particular sentence; (iii) agree not to oppose defendant's request for a particular sentence; or (iv) agree that a particular sentence is the appropriate one. If an agreement is reached in a felony case, it must be reduced to writing, signed, and presented in open court for the court's consideration. However, the writing requirement only applies to the procedure for getting a judge to accept the agreement; a judge may not deny the existence of an agreement before this point simply because it is not reduced to writ-ing. ⁴³¹ The court may not participate in plea negotiations. If the agreement is to dismiss charges or that a particular sentence is the appropriate disposition, the court may accept or reject the agreement. If the court rejects the agreement, the defendant must be so apprised by the trial judge and given an

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opportunity to withdraw his or her plea. ⁴³² The court must also advise the accused that if he or she persists in the plea despite the rejection, the disposition may be less favorable than that contemplated by the agreement. If the court accepts the plea agreement, the court must inform the defendant that it will embody the agreement in its judgment and sentence. If the agreement is to recommend a particular sentence or not oppose a defense request for a particular sentence, the court must advise the defendant that the court is not bound by the recommendations or request.

There is a fundamental difference between plea agreements and what are commonly called "cooperation/immunity" agreements. The former are entered into after charges are filed and in anticipation of a plea of guilty or nolo contendere. Plea agreements may be withdrawn before sentencing if there is no prejudice to the defendant. Cooperation/immunity agreements, on the other hand, are entered into before the defendant has been charged, and the Commonwealth bears the burden of establishing a breach by the defendant if the agreement is to be considered unenforceable. If the defendant does not breach the agreement, due process demands that the government provide him or her with the benefit of...