Plea Bargain question.....

[mjflores78]

I am in Texas....

A friend of mine recently told me that he accepted a plea bargain in his criminal case. He said he was told by his lawyer that accepting the plea would be in his best interest. The plea was for 15 yrs. His attorney told him he would be out in 7. His attorney also told him that if he went to trial he could guarantee him that they would lose and he would get life. So basically it was a choice between 7 yrs in prison or life. His attorney told him that the plea bargain was being offerred by the prosecution in an one final attempt to settle before trial. My friend accepted the plea. He later found out through an aquaintance of the prosecutor that the prosecution did not offer the plea. It was my friends attorney who asked for a bottom line plea. My friends attorney is the one who asked for the plea and then convinced my friend to accept. My friend originally turned the plea down several time, but his attorney wouldn't take no for an answer. He finally told him either take the plea or you're going to spend life in prison. Did my friends attorney demonstrate any type of misconduct? My friend already reported this attorney to the Texas State Bar and the bar association dismissed the claim saying the attorney did not violate any rule of Professional Conduct

[dave33]

The bottom line is when you are facing something so serious, get a paid attorney. There is most likely no case for misconduct. Public defenders almost always push for a deal. It's probably a good thing in most cases.goodluck.

[mjflores78]

This WAS a paid attorney.....and a high priced one at that....my friend paid tens of thousands for his defense.

[dave33]

Ineffective assistance is a very hard thing to prove. Almost always it's a loser. Some of the lawyer conduct that is acceptable is ridiculous. I would say that your friends only hope now is a sentence reduction or modification. These things have to be done in a timely fashion. Every state is different so you would need to consult an attorney. Some lawyers are not very honorable and convince you to take a deal sometimes for no other reason than it is easier for them. Even this is not considered misconduct. Since he plead to the charge, that closes alot of doors. I do not know what happened to my other post. Anyway, do a little research into your states cases of ineffective asst. of counsel cases, you will be surprised at what is acceptable. goodluck.

[CavemanLawyer]

If he plead then the prosecutor DID offer the plea. It doesn't matter who throws the number out, prosecutor or defense attorney, the prosecutor ultimately decides what plea bargain to offer and he/she ultimately offered the 15 yrs. Stating that it was a last ditch plea offer to avoid trial is absolutely true regardless of who initiated the offer. That's exactly what the 15 years was, the only offer on the table to avoid trial. Defense attorneys should not lie to their client but telling them the realities of their case is part of the job. The attorney apparently thought the State's case was solid and that the punishment from the judge/jury would be far greater than the 15 yrs. I don't see any redress for your friend, he accepted a plea offer by the state knowing that he had a right to a trial. There is no buyer's remorse allowed plea bargaining.

[garrula lingua]

Originally Posted by dave33

Ineffective assistance is a very hard thing to prove. Almost always it's a loser. Some of the lawyer conduct that is acceptable is ridiculous. I would say that your friends only hope now is a sentence reduction or modification. These things have to be done in a timely fashion. Every state is different so you would need to consult an attorney. Some lawyers are not very honorable and convince you to take a deal sometimes for no other reason than it is easier for them. Even this is not considered misconduct. Since he plead to the charge, that closes alot of doors. I do not know what happened to my other post. Anyway, do a little research into your states cases of ineffective asst. of counsel cases, you will be surprised at what is acceptable. goodluck.

WTF are you talking about re 'sentence reduction or modification' ??!
You spend all your time posting drivel.
Are you fifteen years old ?

[dave33]

What are you talking about? After a plea is accepted you have almost no options left if you are not happy. Sentence reductions or modifications is one of the only avenues still open if it is done before the time limit runs out. I have seen these filed several times,usually to no avail but the success rate is higher than that if ineffective counsel. There is nothing wrong with filing this motion, especially when you have almost no other recourse. Do you have any idea what you are talking about? obviously not. What do you think your sarcastic remarks will accomplish. What is your genius advice to the o.p. Wait let me look... Well what do you know...NOTHING! Keep up the good work, contributing nothing that could possibly be of any use.

[garrula lingua]

Originally Posted by dave33

What are you talking about? After a plea is accepted you have almost no options left if you are not happy. Sentence reductions or modifications is one of the only avenues still open if it is done before the time limit runs out. I have seen these filed several times,usually to no avail but the success rate is higher than that if ineffective counsel. There is nothing wrong with filing this motion, especially when you have almost no other recourse. Do you have any idea what you are talking about? obviously not. What do you think your sarcastic remarks will accomplish. What is your genius advice to the o.p. Wait let me look... Well what do you know...NOTHING! Keep up the good work, contributing nothing that could possibly be of any use.

Yes, you twit.
Someitmes, there is no possible helpful response - such as in this case.
He's screwed, blued and tattoed (or soon will be).
To get 15 yrs, this guy is probably not a newcomer to the criminal system; he can probably teach us crim pro.

Have you ever read a felony plea or heard it read in court ?
... the defendant is asked whether s/he freely, voluntarily, without duress, etc. enters the plea, etc. etc.
Some Prosecutors require a waiver of all appeal rights as part of the plea.
I realize you are trying to help people, but posting drivel is harmful.
Do you even understand that each state's Codes are different ?
Do you know the legal standard for 'ineffective assistance of counsel' in such a criminal setting ? (PS: all attorneys are 'Officers" of the court. It's an antiquated term.)

Yes, I'm a licensed attorney in both California (active & a retired Dep. Dist. Atty) and Texas (active & working).
Please, check your info before you post.
Start citing Code sections or caselaw from the O.P.'s state, instead of "I saw; I heard; I was told".

[dave33]

I am giving basic suggestions. I am not going to look up every law and code in every state. This person got sentenced to 15 years, which means lots of free time. I am encouraging him to be proactive. Inmates do sometimes get their sentence reduced. He may have closed alot of doors as a result of the plea deal, but all is not losede. If I were in that situation I would be looking for any remedy I could find.Maybe his states modification or reduction are worded differently than my states, but every state has options. In your opinion his situation is hopeless. I completely realize the terms of a plea agreement and the standards for ineffective counsel. I have personally sat through hundreds of plea procedures. I have also seen successful reduction requests. If you ever become defense counsel, tell your clients there is nothing you can do and filing motions is drivel. See how long you are employed. Also in all fairness put the shoe on the other foot.You would do nothing. Throw your hands up and declare hopelessness.No reasonably competent attorney or even person for that matter would choose that course of action. I would be filing every motion I could. I realize in my state anyway a sentence modification could increase your sentence, but please explain how filing a motion for a reduction could hurt his cause. The o.p. obviously has access to the net and can just as easily look up cases where the sentence has been reduced. Unless of course you are saying in the state of Texas a sentence has never been reduced.If that is the case that would be the only state in the U.S. Also giving up the right to an appeal is very common in plea deals, but after e review of your case you can still file motions for ineffective counsel and a reduction.Such things are not appeals and have seen reductions argued successfully after a plea deal. Ineffective counsel are still argueable but almost lose. I have seen a judge have to wake up defense counsel during a trial and after the defense lost he filed an ineffective motion and LOST! That's why I say reductions are your best bet. Given it is not likely, but since none of us know the gravity of the situation it's worth a try. I certainly would not give up with years of free time. People get released early all the time due to motions being filed on there behalf. I find it difficult to believe you do not agree. The things I suggest in this thread I have seen 1st hand. Also please try and remain civil, name callig is ridiculous and remember you are the one that asked if I was 15. Come now with all your education I would hope you can do better. Also to correct myself ineff. coun. and red. are appeals, just not on the merits of the evidence which is disallowed after the plea, so they can be legally filed.

[CavemanLawyer]

There really is no legal provision in Texas for a Sentence Modification or Reduction, but that doesn't stop some inmates from filing them. The filing of the motion is basically just requesting a nunc pro tunc of the judgment to change the amount of the sentence. A nunc pro tunc can only be done within 30 days of the sentence date and it can only be used to correct clerical errors. The only time they are granted is when the amount of the jail credit was wrong, or some other clerical error on the judgment is preventing the inmate from getting all of their back time (ex: date of offense incorrect.) Nuncs cannot be used to just reduce their sentence as a favor. Its not even possible.

After 30 days has expired there is no way to modify the judgment at all. All that can be done is for the inmate or their attorney to file a post conviction writ based on some error in the plea bargain process or some certain Constitutional error (in other words extremely limited circumstances.) If granted the conviction is thrown out and the case is reopened all over again.

The inmate's issues with his attorney really are a claim that his plea was involuntary based on incorrect legal advice. In other words, had he been given correct legal advice he would not have plead. My previous answer still stands. It doesn't sound like his attorney did anything wrong, and it would most likely take a grievous wrong on his attorney's part to give him any hope at post conviction relief. If he really wants to pursue anything then he needs to hire an attorney and have everything looked at one more time.

[dave33]

Caveman lawyer, thank you for clearing that up.I am sure if you can think of any other recourse in the state of Texas the o.p. would appreciate it. I mentioned the mod. and red. because in my state you have 90 days for a reduction and modification. The problem with the mod. is that the trial judge can actually increase your sentence. Also here the most common way for a reduction is if your sentence exceeded the benchmark. I only suggested this because I have no idea as to the particulars of his case.Anyway thanks again and your mature civil behavior is appreciated. Dave