Chapter 1 - § 1.8 • PLEA NEGOTIATION

• Jurisdiction: Colorado

§ 1.8 • PLEA NEGOTIATION

§ 1.8.1—Summary

Plea negotiation is governed by both statute and rule. A judge cannot participate in plea bargaining, but a judge has both the right and the obligation to decide whether the charging or sentencing concessions contemplated by a plea agreement should be approved. As a matter of due process and fundamental fairness, a defendant who has detrimentally relied on the terms of the plea agreement is entitled to specific performance of that agreement. The overwhelming majority of DUI cases are resolved through plea negotiation and settlement.

Crim. P. 11(f) and C.R.S. § 16-7-301(1) contain nearly identical provisions, providing that a prosecutor may engage in plea bargaining where it appears the effective administration of justice will be served thereby. Plea bargaining has been recognized as a legitimate means of disposing of criminal cases and has advantages for both defendants and prosecutors. Brady v. United States, 397 U.S. 742 (1970). However, plea bargaining may not be hidden, DeLuzio v. People, 494 P.2d 589 (Colo. 1972), and should not be used to subvert the truth or as a means of forcing a plea to a crime that was not committed. People v. White, 514 P.2d 69 (Colo. 1973).

The rule and the statute provide that defendants whose situations are similar should be afforded similar opportunities for plea bargaining. Crim. P. 11(f)(3); C.R.S. § 16-7-301(3). But these sections do not require that similarly situated defendants be offered identical concessions. People v. Lewis, 671 P.2d 985 (Colo. App. 1983). Due process of law does not guarantee that each confederate in a crime be given a comparable or similar sentence. People v. Bruebaker, 539 P.2d 1277 (Colo. 1975).

In DUI cases, by statute, the prosecutor cannot plea bargain a charge of DUI to a non-alcohol offense unless the prosecutor can represent in good faith to the court that he or she could not establish a prima facie case for the alcohol offense. However, a court can accept a non-alcohol disposition without such a showing when the original charge is DWAI. C.R.S. § 42-4-1301(4).

§ 1.8.2—Plea Negotiation Procedures

The prosecutor and the court may put reasonable time restrictions on plea discussions. Most courts notify counsel when a trial date is being set if the court has any such restrictions. If a defendant fails to accept a plea offer within the time limits established in the offer, the defendant cannot thereafter seek to enforce the plea bargain. People v. Mershon, 844 P.2d 1240 (Colo. App. 1992), cert. granted on other grounds and aff'd, 874 P.2d 1025 (Colo. 1994). But the Colorado Supreme Court, in People v. Jasper, 17 P.3d 807 (Colo. 2001), held that while a trial court may enforce a plea cutoff deadline as part of its case management authority, it must provide adequate notice to the parties of the plea cutoff deadline and must permit an exception to the deadline for good cause.

A prosecutor should engage in plea discussions with the defendant only through or in the presence of defense counsel, except if the defendant has not retained counsel, the defendant is not eligible for appointment of counsel because the defendant is not indigent or the charged offense does not include the possibility of a jail sentence, or the defendant has refused court-appointed counsel. Crim. P. 11(f)(1); C.R.S. § 16-7-301(1). A defense attorney must obtain permission and consent of his or her client before plea bargaining. Dabbs v. People, 486 P.2d 1053 (Colo. 1971).

Pursuant to C.R.S. § 16-7-301 and Crim. P. 11(f), a prosecutor may agree to (1) make or not oppose favorable recommendations concerning the sentence, (2) seek or not oppose dismissal of an offense if the defendant pleads to another offense reasonably related to the defendant's conduct, (3) seek or not oppose the dismissal of other charges, or not prosecute other potential charges against the defendant, if the defendant enters a plea of guilty or no contest, (4) consent to pretrial diversion, or (5) consent to a deferred judgment and sentence.

In this context, a "sentence recommendation" is the same as a "sentence concession." People v. Wright, 559 P.2d 249 (Colo. App. 1976). A prosecutor who indicates that he or she "would take no position at sentencing," may nonetheless state the facts of the offense at the time of sentencing, so long as he or she makes no recommendation concerning sentencing. People v. Standish, 701 P.2d 633 (Colo. App. 1985). A prosecutor may, of course, refuse to recommend a sentence or probation. Wright, 559 P.2d 249.

The trial judge is not to participate in plea discussions. Crim. P. 11(f)(4); C.R.S. § 16-7-302(1); Crumb v. People, 230 P.3d 726 (Colo. 2010); People v. Clark, 515 P.2d 1242 (Colo. 1973); Colorado Code of Judicial Conduct, R. 2.6. There are a number of valid reasons for keeping trial courts out of the discussion process, including the following:

• Judicial participation in the discussion can create an impression in the mind of the defendant that he or she would not receive a fair trial were he or she to go to trial before this judge;
• Judicial participation in the discussion makes it difficult for the judge to objectively determine the voluntariness of the plea when it is offered;
• Judicial participation to the extent of promising a certain sentence is inconsistent with the theory behind the use of presentence investigation report; and
• The risk of not going along with the disposition apparently desired by the judge may seem so great to the defendant that he or she will be induced to plead guilty even if innocent.

It is improper for a judge to intervene in plea negotiations with threats of a longer sentence if the defendant refuses the plea bargain and elects to proceed to trial. People v. Clark, 515 P.2d 1242 (Colo. 1973); Fed. R. Crim. P. 11 Advisory Committee's Note; United States ex rel. Elksnis v. Gilligan, 256 F. Supp. 244 (S.D.N.Y. 1966); Standards for Criminal Justice, § 14-3.3 (1999). Only after the discussions have been concluded and a specific plea bargain proposal is announced is a judge able to make an independent determination of whether to approve the charge or sentence concessions.

If a tentative plea agreement has been reached, the trial judge may, upon request of the parties, be advised in advance of the tentative agreement and the reasons for it. The judge may then indicate to the parties whether the court will concur in the disposition. C.R.S. § 16-7-302(2). In every proposed plea agreement, the judge should exercise independent judgment in deciding whether to grant charge and sentence concessions. Crim. P. 11(f)(5); C.R.S. § 16-7-302(3).

The trial court is not bound by the plea agreement proposed by the parties. Instead, the court is required to reach its decision to approve or disapprove the agreement based upon its own independent judgment. Doing so does not constitute improper participation in plea discussions, and refusal to accept a plea agreement does not necessarily indicate bias or prejudice on the part of the judge. People v. Lucero, 714 P.2d 498 (Colo. App. 1985) ; Sober v. District Court, 592 P.2d 400 (Colo. 1979); People v. Jones, 489 P.2d 596 (Colo. 1971).

A plea agreement is an agreement between the prosecutor and the defendant only. The trial court must exercise its independent judgment before approving the agreement. The trial court has the statutory authority to reject any agreement proposed by the parties. Young v. People, 30 P.3d 202 (Colo. 2001); People v. Jasper, 17 P.3d 807 (Colo. 2001).

The trial court should not lightly refuse to accept a plea bargain. The trial court should have "good reason" when refusing an agreement. Jasper, 17 P.3d 807 (plea tendered after court imposed plea cutoff deadline); United States v. Severino, 800 F.2d 42 (2d Cir. 1986) (court may reject plea agreement if it has reasonable grounds to believe accepting agreement...