9-b-2 Plea Agreements[30]

• Library: A Jailhouse Lawyer's Manual (2020 Edition)

9-B-2. Plea Agreements[30]

If you pleaded guilty, your right to appeal is limited in certain ways. If you pleaded guilty as part of a plea bargain or negotiated sentence, you automatically forfeited (lost) your right to appeal certain matters. This is true even if your plea agreement does not say so. Moreover, many plea agreements contain terms in which you waive (give up) the right to appeal even more matters, which would be listed in the agreement. The next two parts explain these limits on your right to appeal.

Be aware that if you successfully appeal from a guilty plea, you will still have to face all the original charges against you. If you then negotiate a new plea agreement, or if you go to trial and are convicted, your new sentence could actually be worse than the sentence you received under your earlier plea. Thus, unless you have already received the worst possible sentence, there is some risk involved in appealing a guilty plea.

(a) Rights Automatically Forfeited by Your Guilty Plea

If you pleaded guilty, you automatically forfeited the right to appeal many types of errors, even if your plea agreement does not specify them.³¹ You may plead guilty to the entire charge/indictment. If you have been charged with only one crime, you may plead guilty to a lesser included offense (defined in glossary). This requires the consent of the court and the District Attorney. If you have been charged with two or more offenses, you may:

(1) plead guilty to one or more but not all of the offenses charged, or

(2) plead guilty to a lesser included offense corresponding to any of the offenses charged, or

(3) plead guilty for any combination of the offenses charged and their corresponding lesser included offenses.³² In general, by pleading guilty, you give up the right to argue the factual issue of guilt.³³ Additionally, you give up the right to raise problems with discovery or other pretrial matters.³⁴ You may not appeal the following issues if you pleaded guilty:

(1) The insufficiency of the evidence before the grand jury;³⁵

(2) The insufficiency of instructions given to the grand jury;³⁶

(3) The refusal of the trial court to try you separately from a co-defendant;³⁷

(4) The denial of your right to a jury trial;³⁸

(5) The denial of your right of confrontation;³⁹

(6) The suppression of evidence, if you pleaded without obtaining an explicit ruling on this;⁴⁰

(7) The limits on your privilege against self-incrimination;⁴¹

(8) The expiration of a statue of limitation (a time limit for bringing charges);⁴²

(9) The lack of a factual basis for a plea to a lesser charge;⁴³

(10) The absence of counsel during certain proceedings; and⁴⁴

(11) Your statutory (as opposed to constitutional) right to a speedy trial.⁴⁵

By pleading guilty, however, you did not forfeit your entire right to appeal. Generally, you still have the right to appeal about the following errors (and others⁴⁶):

(1) You were denied your constitutional right to a speedy trial,⁴⁷

(2) You were charged in violation of your constitutional right against double jeopardy,⁴⁸

(3) You were not competent to stand trial,⁴⁹

(4) The statute under which you were convicted is unconstitutional,⁵⁰

(5) Your sentence was illegal,⁵¹

(6) Your plea was not voluntary or knowing,⁵²

(7) Jurisdiction was not proper in the trial court,⁵³

(8) Your conviction was based entirely upon evidence the prosecutor knew was false,⁵⁴

(9) You were improperly denied a motion to suppress evidence,⁵⁵ or

(10) The trial court based your sentence on an improper determination of your prior-felon status.⁵⁶

Even though you did not automatically give up your right to appeal the issues listed above by pleading guilty, you may have given up the right to appeal these issues by other ways. You could have specifically given up (waived) your right to appeal in your plea agreement or you may have given up your right to appeal by failing to preserve the issues at trial (that is, failing to object when the mistakes were first made). Waiver and preservation are discussed in Part B(2)(b) and Part B(3) of this Chapter, respectively.

(b) Rights You Waive by Agreement

In addition to pleading guilty, you may also have agreed to waive your right to appeal as part of a plea bargain or negotiated sentence.⁵⁷ If your plea included an agreement to waive your right to appeal, you still have several options. First, you may claim your waiver was invalid. A waiver is considered invalid if you did not knowingly, intelligently, and voluntarily agree to waive your right to appeal.⁵⁸

Second, you can appeal certain types of claims that are considered so important to society that they can never be waived by plea agreement. This means that even if you waived your right to appeal in a plea agreement or as part of a negotiated sentence, you still have a right to appeal certain types of claims.⁵⁹ These claims include:

(1) a challenge to a death sentence,⁶⁰

(2) a claim that you were denied your constitutional right to a speedy trial,⁶¹

(3) a challenge to the legality of court-imposed sentences,⁶²

(4) a challenge to the constitutionality of the statute outlawing the conduct to which you pleaded guilty,⁶³

(5) a claim regarding your competency to stand trial,⁶⁴ or

(6) a claim that ineffective assistance of counsel affected the voluntariness of your guilty plea.⁶⁵

Keep in mind, though, that there may be other claims that society has a strong interest in, including double jeopardy as you were informed of the potential maximum sentence.⁶⁶ Finally, keep in mind that while you cannot waive your right to challenge an illegal sentence, you can waive your right to challenge your sentence as too harsh or excessive.⁶⁷ This is true even if your plea agreement did not contain the promise of a specific sentence and as long as you were informed of the potential maximum sentence.⁶⁸

30. See JLM, Chapter 40, "Plea Bargaining," for more information on entering into plea bargains.

31. See generally N.Y. Crim. Proc. Law § 220.10 (McKinney 2002 & Supp. 2012); People v. Hansen, 95 N.Y.2d 227, 231 n.3, 738 N.E.2d 773, 776 n.3, 715 N.Y.S.2d 369, 372 n.3 (2000) (listing claims that are forfeited by guilty plea); People v. Gerber, 182 A.D.2d 252, 259-60, 589 N.Y.S.2d 171, 174 (2d Dept. 1992) (listing claims that are forfeited by guilty plea).

32. N.Y. Crim. Proc. Law § 220.10 (McKinney 2002 & Supp. 2012)

33. See People v. Garcia, 216 A.D.2d 36, 36-37, 627 N.Y.S.2d 666, 667 (1st Dept. 1995) ("By pleading guilty, the defendant has waived his right to litigate the issue of his guilt. ").

34. See People v. Berezansky, 229 A.D.2d 768, 771, 646 N.Y.S.2d 574, 577 (3d Dept. 1996) (holding that a defendant who waives indictment and pleads guilty "waives all discovery and all other pretrial and trial matters.").

35. See People v. Caleca, 273 A.D.2d 476, 476, 711 N.Y.S.2d 743, 744 (2d Dept. 2000) ("By pleading guilty, the defendant waived his claim that the evidence submitted to the Grand Jury was not sufficient to support the indictment.").

36. See People v. Palo, 299 A.D.2d 871, 871, 749 N.Y.S.2d 452, 452 (4th Dept. 2002) ("The contention of defendant that the prosecutor improperly instructed the grand jury does not survive his plea of guilty.").

37. See People v. Shepphard, 177 A.D.2d 668...