This week, I urged a motion for new trial on behalf of a client who had been convicted of a first degree felony, for which the penalty range is from 5 to 99 years in prison, or life behind bars, and up to a $10,000 fine. The client came to me, because he’d been sentenced to 20 years in prison by the judge, as the result of having entered an open plea.
When you’re charged with a crime, you have the option to plead not guilty and request a jury trial. However, if you don’t want to go to trial on your case, your lawyer may be able to arrange a plea bargain agreement with the state. In a plea bargain, the state’s attorney and your defense lawyer negotiate an agreement, which contemplates that, in exchange for your plea of guilty or no contest, you will receive an agreed upon punishment from the judge. However, when you enter an open plea to the judge, you plead guilty or no contest, and ask the judge to set your punishment as he or she sees fit. Since there is no plea bargain agreement, the judge can sentence you to anywhere within the range of punishment provided by law for the offense with which you’re charged.
In the above-mentioned case, the client came to me after having entered into his open plea of guilty. He had been represented by another attorney, who advised him, in his opinion, an open plea was the best option, inasmuch as a plea bargain had not been offered by the prosecuting attorney, and, based on the evidence, a conviction would likely occur if the case were taken to trial. However, the client had hoped to receive a much lesser sentence, was shocked to have received twenty years, and wanted to know if anything could be done about it. At first, I was skeptical. After all, when you enter into an open plea, the judge asks you, in open court and on the record, as well as in writing, whether or not you understand the consequences of your plea, and the fact that you can be sentenced to, in this case, life in prison. For these reasons, an open plea cannot typically be undone. I promised to look into the case, but told the client I wasn’t particularly hopeful that I could be of much assistance.
Upon investigation, I learned that the prosecuting attorney had conveyed a plea bargain offer of five years in prison to the attorney who represented my client at the time he entered his open plea. I recalled my conversation with the client, as well as the two family members he brought with him. I’d asked them if he’d ever been offered a plea bargain agreement, and they’d all said that he hadn’t. Suddenly, I became hopeful. I called the client, who confirmed his original answer. He’d never been advised of the plea offer by his previous lawyer.
The case law is clear: an attorney’s failure to advise his client of a plea bargain offer constitutes ineffective assistance of counsel. If you’ve suffered from ineffective assistance of counsel, you’ve effectively been denied your right to counsel, and your right to a fair trial, under the U.S. Constitution. As such, you’re entitled to a new trial. In this case, Texas legal precedent holds that the proper remedy is that, as a defendant, you be put back in the position you would have been, had the harm you suffered never occured (i.e., you should be allowed to take advantage of the plea offer). On this basis, I filed a motion for new trial. After reading my motion, the prosecutor agreed, and the judge set aside the twenty year sentence my client received, and sentenced him to five years.
If you’ve been convicted, either at trial by jury, trial before the judge, or as the result of an open plea, time is running out! You only have thirty days from the date of judgment to file a motion for new trial. Don’t delay! If you think you may have a legal basis for a motion for new trial (or aren’t sure, but would like to find out), you should call the attorneys at Berlof & Newton, P.C. at 214.827.2800. Free consultation. Our criminal defense lawyers will work zealously on your behalf. Call today, or contact one of our attorneys directly using the “Get Legal Help Now!” form in the left margin of this web page. Se habla español.
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