Section 27.14 Conformity to a Plea Bargain Agreement

• Library: Criminal Practice 2012 Supp

B. (§27.14) Conformity to a Plea Bargain Agreement

Rule 24.02(d) outlines the plea agreement procedure that must be followed by the court when the prosecuting attorney and the defendant have reached an agreement on the punishment issues after the defendant enters a plea of guilty to the crimes the defendant is charged with or bargained for. If an agreement has been reached by the prosecuting attorney and the defendant, they must inform the court of the agreement. The court may either accept or reject the agreement. If the court accepts the agreement, the court advises the defendant that it will “embody the disposition provided for” in the judgment and sentence. Rule 24.02(d)(3). If the court does not accept the agreement, the court must inform the defendant and the prosecuting attorney, on the record, of this decision and advise the defendant that:

· the defendant is not bound by the agreement and has the opportunity to withdraw the guilty plea if based on Rule 24.02(d)(1)(A), (C), or (D); and

· if the defendant goes forth with the guilty plea, the court may sentence the defendant to punishment that is less favorable than the plea agreement would have been.

If the agreement is for a non-binding recommendation, the court does not have to allow the defendant to withdraw a guilty plea before sentencing the defendant to a punishment other than what has been recommended by the prosecuting attorney. Thus, it is imperative for the defendant’s attorney to understand the terms of the agreement and to make sure that the defendant also understands the difference between a non-binding recommendation and a true plea agreement and the effect of each at the sentencing hearing. If the defendant does not, the matter will probably end up in a Rule 29.07(b)(d) or Rule 24.035 hearing.

The procedure as stated in Rule 24.02(d) sounds simple enough, but it has proven not to be. There are numerous cases discussing plea agreements and their binding authority (or lack thereof) on the courts in sentencing. Upon appellate review, the courts have considered whether the plea agreement was:

· a non-binding recommendation; or

· a binding agreement that included a “genuine sentence concession.”

Harrison v. State, 903 S.W.2d 206, 208 (Mo. App. W.D. 1995). There must also be consideration of:

· whether the defendant truly understood the difference between a non-binding recommendation and a true plea agreement; and

· the effects that a non-binding agreement has on the court’s sentencing...