Sentencing error that doubles probation: fight, or let it go?

[InflShut]

A buddy of mine was sentenced to 5 years imprisonment/1 year executed, 5 years probation in CT. I do not know the particulars, but my understanding is that he was offered the five year probation if he plead guilty or no contest to a modified charge.

Recently his lawyer called him up to say "oops, the prosecution wasn't supposed to offer that and neither he, I, nor the judge noticed - you'll be going to court soon to be re-sentenced for 10 years probation."

He has talked to his probation officer and another friend has talked to his lawyer and they both say "there is no fight; you [he] will receive the new sentence." However, my buddy is wondering if there is any value in:

1) filing a statement at his re-sentencing describing the error so that it is noted on record

or

2) filing a grievance with the state bar

or

3) pursuing legal action once he is out

He is getting advice on the inside (mostly from lifers who have nothing to lose) to file a statement at the re-sentencing and possibly sue when he gets out, but he does not want to make more of a mess of things. His strongest desire is to fly under the radar and come out the other end clean, but he is understandably concerned about what seems to amount to "oops" on the part of his lawyer, the prosecutor, and the sentencing judge.

Should he let it go, or demand justice for an error that adds five years to his punishment?

Many thanks in advance,
J.

 

[quincy]

A buddy of mine was sentenced to 5 years imprisonment/1 year executed, 5 years probation in CT. I do not know the particulars, but my understanding is that he was offered the five year probation if he plead guilty or no contest to a modified charge.

If your friend's guilty plea was based solely on the prosecutor's offer of a 5 year probation, your friend potentially could withdraw his guilty plea when he returns to court. But I am not sure he benefits from this in any way.

Has the offered 5 year prison term/1 year executed, and the modified charge, remained the same? The change from a 5 year probation to a 10 year probation is not really adding to his punishment if the 10 year probationary period is a non-negotiable mandatory minimum for his offense.

 

[InflShut]

Has the offered 5 year prison term/1 year executed, and the modified charge, remained the same? The change from a 5 year probation to a 10 year probation is not really adding to his punishment if the 10 year probationary period is a non-negotiable mandatory minimum for his offense.

Yes, the charge and prison term (5/1) will remain the same as far as he knows - the new sentencing date is upcoming, but his lawyer and PO both say that the only thing that will change is the duration of his probation.

My friend's overall question I guess would amount to: if the 10-year probation period is a known non-negotiable mandatory minimum, what business did the prosecutor have offering 5? Why didn't his own lawyer say "wait, you can't offer that"? And finally, why did the judge not catch it either?

This may sound like a very naive question, but do these sorts of clerical errors (or however they'd be categorized) just go by? "Oops, sorry"? I understand that the defendant should accept responsibility for finding out the exact sentencing guidelines for the crime that they have been charged with, but my friend's concern is that he (like many people) paid his lawyer quite a fee to interpret the charge & sentence, and recommend a course of action. He is wondering if this qualifies as some kind of lapse on the prosecutor, defense lawyer, or judge's part (or all three) and if there is any value in bringing attention to the matter either at his new sentencing hearing or after his release.

Note: he is not looking to get his probation reduced or to get the state to bend the rules under these circumstances. He is looking to be heard that he was not necessarily dealt with fairly. Though I understand the statement that a revised probationary period does not "add" to his sentence, having 5 years of the state watching over your shoulder suddenly be changed to 10 is indeed an extra burden that was not originally described to him.

Thank you,
J.

 

[FlyingRon]

A mistake was made.

Making "statements" at the resentencing aren't going to mean much. If there's some reason why the new sentence shouldn't be imposed, his lawyer can make an appropriate action. Then if that is denied a statement of exception might have legal weight at appeal.

Not sure what you think a grievance to the bar would do. It certainly won't result in the sentence changed.

Once he's been on probation for a time, he can always ask for it to be reduced.

There's no right to a sentence review for probation terms apparenlty, only for periods of incarceration. Note that the sentence review is a double edged sword. It may result in LONGER sentences than you started with.

 

[quincy]

Yes, the charge and prison term (5/1) will remain the same as far as he knows - the new sentencing date is upcoming, but his lawyer and PO both say that the only thing that will change is the duration of his probation.

My friend's overall question I guess would amount to: if the 10-year probation period is a known non-negotiable mandatory minimum, what business did the prosecutor have offering 5? Why didn't his own lawyer say "wait, you can't offer that"? And finally, why did the judge not catch it either?

This may sound like a very naive question, but do these sorts of clerical errors (or however they'd be categorized) just go by? "Oops, sorry"? I understand that the defendant should accept responsibility for finding out the exact sentencing guidelines for the crime that they have been charged with, but my friend's concern is that he (like many people) paid his lawyer quite a fee to interpret the charge & sentence, and recommend a course of action. He is wondering if this qualifies as some kind of lapse on the prosecutor, defense lawyer, or judge's part (or all three) and if there is any value in bringing attention to the matter either at his new sentencing hearing or after his release.

Note: he is not looking to get his probation reduced or to get the state to bend the rules under these circumstances. He is looking to be heard that he was not necessarily dealt with fairly. Though I understand the statement that a revised probationary period does not "add" to his sentence, having 5 years of the state watching over your shoulder suddenly be changed to 10 is indeed an extra burden that was not originally described to him.

Thank you,
J.

Plea agreements can be "conditionally" approved by a judge. The agreement approval can be subject to information in a presentence report and, if the information in the presentence report is consistent with the agreement made between prosecutor and defendant, the sentence should remain as agreed.

If it is discovered that the sentence is not in line with the law (such as mandatory minimums), the court can allow a defendant to withdraw their guilty plea. However, by withdrawing the guilty plea, the defendant is back to where he started. The plea agreement is history and the defendant faces once again the original charge (not reduced) and the original penalties (length of jail time).

There is a risk for the defendant in withdrawing a guilty plea. The resulting sentence could be less favorable (longer jail term on original charge, for example). However, if your friend believes there is a reasonable probability that the outcome of his case will be better if he goes to trial, he should discuss this with his attorney.