Weighing all factors
Published 8:26 pm Thursday, April 26, 2018
What is considered before plea agreements, sentencings?
Editor’s note: This is the third in a four-part series looking into the criminal justice system in Albert Lea and Freeborn County.
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Plea hearings and sentencings are the culmination of many criminal cases in Freeborn County.
To ensure the process flows smoothly, judges, defense lawyers and prosecutors must be on the same page.
For a plea to be entered, defendants must admit to the charge they are pleading guilty to.
Freeborn County Judge Ross Leuning said the first rule in plea hearings is to “determine whether it’s fair to both the defendant and the general public. We can reject it. It’s merely a recommendation to us. We’re not bound by it.”
Leuning said lawyers generally know the case better than judges, so he takes that into account.
Freeborn County Judge Steven Schwab said for gross misdemeanor and felony pleas, judges read through an “extensive list of rights that the defendant is waiving.”
“The right to a trial, right to bring in his own witnesses, right to cross-examine,” he said. “We go through an extensive list of rights, so our primary goal when we take felony and gross misdemeanor pleas is to ensure the defendant is aware of all the rights he is waiving with his plea.”
The judges said they must have a factual basis before accepting the plea.
Freeborn County Attorney David Walker said guilty pleas can be entered at any time in a case.
“For me, I very frequently develop a plea offer or a plea proposal very early in the case, at the same time I am charging it,” he said.
Exceptions to that include when there are victims involved and Walker wants to receive input from them. The County Attorney’s Office has guidelines it must follow for guilty pleas.
“It’s gotta be based upon our guidelines, and it can be a written offer or an oral offer,” Walker said. “It could be in the form of just an email between attorneys, it could come in a meeting between an attorney, or the prosecutor and the defendant who is not represented by an attorney.”
Defense lawyer Grant Sanders said he speaks to his clients in preparation of the plea hearing and makes sure they can provide a factual basis.
“I’ll go through what’s called a plea petition with them, and then I’ll have them sign it,” he said. “In Freeborn County, if the person is in custody, the procedure is that they sign it in open court.”
Walker said the plea agreement process begins when he evaluates the facts of the case and the strength of the evidence. He noted in a driving while intoxicated case, the person could be charged with several counts relating to the incident, along with careless driving, reckless driving, speeding, fleeing a peace officer in a motor vehicle, criminal vehicular injury and criminal vehicular homicide.
“Many different things that people do (that) are illegal can be charged in different ways,” Walker said.
“You should then look at the facts and say, ‘Well, what did he do wrong here?’ When you simplify it, when you just forget the legal standards for a moment and look at what this person did and then look at the legal standard that comes closest to capturing the central problem with that conduct, what bothers us about that conduct?”
Walker said there are sometimes difficulties he faces in reaching plea agreements with defense lawyers, specifically the willingness of the defendant to bear responsibility for his or her actions.
“That is probably the biggest factor, how reasonable the defendant is,” he said.
Walker said victims play a role in how the County Attorney’s Office handles cases.
“Victims do not have the right to press charges or to dismiss cases,” he said. “A victim does have the right to have input and be informed.”
The office’s victim witness coordinator, Sandy Strom, keeps in contact with victims and witnesses and receives input from victims about the sentence they want perpetrators to receive.
“We have a strong respect for the victims’ input,” Walker said. “There are cases where we will not accept a plea over the victim’s objection.”
In other cases, Walker said the state must inform the victim they might accept the plea, often when legal evidence shows the case will be difficult to prove.
“You do your best to explain it, but you’re not always successful,” he said.
Sanders said he can only advise his clients whether the plea offer is an appropriate disposition but cannot force them to plead guilty. He said defendants are able to enter a Norgaard plea, when a defendant pleads guilty but cannot remember facts due to intoxication or amnesia; an Alford plea, when the defendant does not admit guilt but recognizes a prosecutor has enough evidence to convict; or a Lothenbach plea, when the defendant must stipulate to the prosecutor’s evidence in a court trial, acknowledge the court will consider the evidence and that the court may enter a finding of guilt based on the evidence.
“Sometimes people want the benefit of that bargain, but they can’t allocute to the facts that are that amended crime, or whatever,” Sanders said. “And that’s something that has to be taken into consideration.”
Judges, lawyers receive abundance of information prior to sentencing
In felony cases, reports are received from Court Services and the Department of Corrections. A four- to seven-page pre-sentence investigation typically includes information about the offender’s family history, criminal record, financial and family situations and other factors.
“That’s very, very helpful, because otherwise we are kind of shooting from the hip,” Schwab said. “It helps to have the pre-sentence investigation.”
To determine a presumptive sentence, officials utilize the Minnesota sentencing guidelines grid.
“You take your criminal history and the current offense, seriousness of the crime, and you go on the grid, and it tells you where you fall,” Schwab said. “So your criminal history does matter, especially on felonies. … It may make the difference between a stay of execution — which means you’re on probation — or it may mean a commit to prison, depending on your criminal history.
“If you have three or four prior felonies, you’re probably going to prison.”
Schwab said judges have some discretion on felony cases.
The state of Minnesota has sentencing guidelines, which gives judges “a fairly rigid (guideline) , depending on their prior history, criminal history score, depending upon the current offense,” Schwab said.
“You plug it into that grid and it tells you what you should sentence them to. So we have some discretion, but not as much I think as people think we do.”
Leuning said sentencing guidelines throughout the state are designed so offenders who have the same charges do not receive different sentences depending on where they are sentenced.
When factoring in probationary conditions, the judges look at the offender’s amenability to probation.
Victim impact statements are “remarkably persuasive,” Leuning said.
“I did not think they would have that much influence on me, but they make a difference, and I appreciate getting them,” he said.
“I do, too,” Schwab said.
At a felony sentencing hearing, the judges ensure the sentencing worksheet is accurate, and then hear from the state and the victims of the incident, along with the defense lawyer and the offender.
Leuning said it is long-established law that a defendant has the right to speak before being sentenced.
“It’s an absolute right,” he said. “We have to make sure we give it to him.”
Motions to increase or decrease the presumptive sentence can complicate sentencing hearings.
“That whole scenario gets changed, and that’s one of the first things I look for when I have felony sentencing day is, do I have a departure?” Schwab said. “Because that changes the whole ballgame.”
Walker said a judge needs to find “substantial and compelling circumstances” to deviate from a presumptive sentence. Such circumstances could include mitigating factors like the defendant playing a relatively passive role in the incident, other factors that reduce the defendant’s culpability, the victim being an aggressor in the incident, the charge having no mandatory minimum sentence and other factors. Aggravating factors could include the victim’s vulnerability, the cruelty of the crime, criminal sexual conduct cases and major economic or drug offenses.
Once a departure motion is accepted, a departure motion must be filed with the state with an explanation of why it was needed.
“They are pretty diligent about making sure you file those departure reports,” Schwab said. “They want those.”
The burden of proof on departure motions rests on the lawyer arguing for it.
Sanders said after a plea hearing, he assists his clients during the pre-sentence investigation process. For example, he sometimes hires an expert to conduct a psychosexual evaluation in a criminal sexual conduct case.
“You have the power to change somebody’s life,” he said of his role in the process. “This is somebody who could go to prison but does not because of the work you do. That’s rewarding, changing somebody’s life.
“If you keep somebody out of prison that way, you feel good about it, and usually the client will come back and thank you.”
The judges said sending offenders to prison can be difficult but is needed.
“Do I want to send anyone to prison?” Schwab said. “No, but there are times when it’s appropriate and it has to be done, and you do it in the best manner you can. You have to do your job, and sending someone to prison is one of those tough calls, but you have to do it. You don’t have a choice sometimes.”
“What they say is very important to us, and I give it great weight,” he said. “I think a judge’s job is to listen and to listen carefully. It does influence, maybe color my decision, but it’s not the sole thing, and I have to still make the right decision no matter how emotional their plea might be.”
Schwab said he sometimes receives comments from offenders he’s sent to prison.
“For the most part, the letters that I’ve gotten from prison have been fairly positive, where they indicate, ‘I know what I did was wrong,’” Schwab said. “‘I know what you had to do, and I’m changing my life around.’ I have to admit, most of the letters I’ve gotten from prisoners currently incarcerated are positive letters.”
In Minnesota, there are petty misdemeanors, misdemeanors, gross misdemeanors and felonies. Petty misdemeanors carry no jail time, while misdemeanors include a maximum 90-day sentence. Gross misdemeanors carry a maximum penalty of one year in prison and a $3,000 fine, while felonies carry potential prison sentences.
The state Legislature has shifted some first-time drug crimes from felonies to gross misdemeanors to try to ease the prison population.
“You’re transferring the issue from state prisons back more to local jails, because we are literally filling up our prisons,” Schwab said.
Sentencings on felony cases can sometimes take up to 60 days from the plea hearing because the court needs to receive the offender’s criminal history score, which sometimes comes from other states.
Schwab said the majority of the cases judges oversee are misdemeanors such as DWIs, violation of harassment restraining orders or orders for protection, gas thefts and failures to stop for a school buses.
“We sometimes forget that the bulk of the cases, the greater number of cases, are these everyday things, the petty misdemeanors and the misdemeanors that most people come to court for,” he said.
Walker said appropriate sentences reflect the severity of a crime and acknowledged that sometimes to oversee a guilty plea, he recommends some leniency at sentencing in exchange for the person taking accountability for their actions.
“That’s appropriate,” he said.
Walker said leniency is not offered in cases where prosecutors have strong evidence and believe the perpetrator can be held accountable even if they don’t plead guilty.
To Walker, being a prosecutor allows him to do what he thinks is right, which could be dropping the case or proceeding with it.
“That’s a luxury the defense attorneys do not have,” he said. “They must pursue the goals of their clients, whether they think they are right or not.”
Walker said he does not make the final decision to send an offender to prison.
“Even if I have some qualms about it, if I had some concerns about it, I make my recommendation, and it’s up to the judge to determine what is the right thing ultimately, and the judge makes the final decision,” he said.
He noted restitution is sometimes issued in criminal cases to return property to its owner.
Walker said offenders will sometimes write him thank-you letters in appreciation of his work to help them.
“I do appreciate that,” he said. “I think the ideal situation with the justice system is that the person is held accountable appropriately for their crime and then they do their time and return to society better for it, hopefully.”
Sanders views himself as protecting the constitutional rights of his clients.
“I’m the last stop protecting your constitutional rights, and so if you are indigent and if you come into my office, what I do is I review the file and I take instruction from you and make recommendations to you, but ultimately the decision to go to trial is yours, and even if the evidence against you is overwhelming, my job is to test that evidence and put the government to its proof.”
Sanders noted race, sex, employment factors and status, social factors such as the defendant’s education level, living arrangements, length of residency, marital status, as well as the defendant using Constitutional rights during the adjudication process cannot be used to argue for departures from presumptive sentences.
Sanders admitted it is difficult to see a client he did not feel should be sent to prison be incarcerated.
“Those are the cases that haunt you,” he said. “Those are the cases that you think about every day. And you go back in the kind of mental Rolodex in terms of thinking about, is there something I could have done better? That’s the process of continual self-improvement, because your job is to stand between the awesome power of the government and protecting that individual whose accused of the a crime.
“And so you really hope as a defense lawyer, that you didn’t do anything — particularly if it’s a jury trial — that impacted your client’s ability to get a fair and just trial.
Sanders also sometimes keeps in correspondence with his clients, and he believes some criminals enter the justice system having made a one-time mistake.
“I will sometimes say to them, ‘I don’t want to see you again unless you want me to help refer you to somebody for financing a business or you need help putting together a business plan, and some clients do come back and say, ‘Well, I actually took that advice and I need you to send me to somebody,’” he said.