Utah Court Rules – Published for Comment
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Posted: October 19, 2021
URCrP011. Pleas. Amend. The proposed change would provide that both parties must either affirm or have the opportunity to withdraw from a plea agreement if the judge decides that the final disposition will not conform to the plea agreement to which the Court had previously approved. Also included are grammatical changes that make the rule comply with the court’s style guide.
This is a much needed and beneficial change. My comment is simply to express my full support for this proposal.
I agree wholeheartedly with this proposed change. While our judges rarely deviate from a stipulated resolution, both parties should have the right to withdraw from an agreement when that agreement is not being accepted in full by the Court. Especially when dealing with misdemeanor offenses, which lack any equivalence to a presentence investigation, a judge will typically not have the information known to the parties for what resolution is in the best interests of the parties, the victim, and even society generally. If the judge deviates from the stated terms of the agreement, both parties should have the ability to weigh the benefits/disadvantages of accepting the altered resolution or rejecting it.
I support this change. It’s hard to negotiate a plea deal that all parties, including victims, can live with, only to have the judge deviate from the intended outcome. While judges’ discretion is an important part of this process, when judges deviate from carefully negotiated plea deals, often times it is the victims of crimes that come out worse for it. Prosecutors should be able to withdraw from a plea agreement when the judge decides that the final disposition will not conform to the plea agreement to which the Court had previously approved. This is a needed change to the rule.
I support this change. It is important that both parties be afforded the same opportunity to withdraw if the Judge intends not to follow the negotiated settlement. The State is generally best positioned to know the victim’s wishes, and also must weigh considerations of justice and community safety before making an offer. If the court intends to give the defense a “better deal” so to speak, then the State should absolutely be allowed to withdraw from the bargain and present the entirety of its case to the Court. It does not make sense to treat the parties differently in this respect.
I support this change. While our Judges almost always execute the agreed upon terms, there have been times when a Judge has deviated from the agreement and I am left wondering what exactly the deviation is based on, especially in misdemeanor cases, as touched on in Randall McUne’s comment. I have also had Judges say, “I am not onboard with this agreement” and an in chambers conversation ensued where the Judge expressed their concerns and counsel explained the basis for the proposed agreement. The latter requires a Judge who understands, while they have the power to execute any sentence within the law, sometimes justice demands they understand the specifics of the case. This change provides a mechanism which could compel that thoughtful exchange, which should lead to a better outcome.
Negotiated plea resolutions involve the agreement of both parties, however the current rule provides a loophole which places defendants in a superior position if the court does not accept that negotiated resolution. This is a restoration of fairness and transparency in plea bargaining.
This will facilitate resolutions and add much needed predictability. I support this amendment.
This change is definitely needed and a matter of fundamental fairness. No party should be asked to negotiate a plea agreement, which entails relinquishing constitutional rights, without a safeguard that if the deal winds up not being accepted, then the person can still back out. This rule change would also protect the government if a court goes below a plea. The parties could always negotiate a deal that includes an agreement to accept any sentence, or that is to a certain range. But if a court decides not to accept the agreement, to go over/under what was agreed to, either side as a matter of protecting fairness should be able to back out.
Either side could obviously decide not to back out, but the rule gives each the chance.
This rule change also brings Utah in line with the federal rule and many states around the country.
And lastly, the rule does nothing to impact a court’s sentencing discretion. A court does not have to accept or follow an agreement the judge believes is improper or insufficient. The result may be a trial or a new deal — which is fair —and not a party winding up with a result that was never part of a deal — which is not.
This rule is needed because without it, the parties are left in a difficult spot when negotiating, and defense attorneys are left in a difficult spot in advising a client. Absent the change the result is needless anger among people who accept pleas only to see a sentence go above the agreement. In sum, this rule change is a matter of common sense and fundamental fairness. It should be adopted.
On lines 9, 14, 56, 65, 68, and 85, “must” seems to be a better fit than the currently-proposed “will.”
As to the proposed changes to Rule 11(i), those appear to be intended to add that the prosecutor—not just a defendant—can withdraw a previously entered plea if a judge approves a tentative plea agreement, but then changes his or her mind before sentencing. This is a positive change.
But to avoid any conflict with the Plea Withdrawal Statute’s deadline for withdrawing a guilty plea, Utah Code § 77-13-6(2)(b), the rule needs to make it clear that the judge must inform the parties of his or her change of mind, and have them either reaffirm or withdraw the plea, before sentence is announced. The statute requires a request to withdraw a guilty plea to be made “before sentence is announced.” See id.
The rule should also make it clear that if a defendant has entered his plea, but the parties then withdraw from the plea agreement because a judge has changed his or her mind, then the plea itself is withdrawn, not just “the plea agreement.” The proposed changes speak only in terms of the parties withdrawing from “the plea agreement.” But the “plea agreement” is technically distinct from the accepted plea.
In theory, the parties could withdraw from the plea agreement, but the previously-entered guilty plea would still stand. The agreement is an agreement between the parties, but the entry of the plea and the dismissal of additional charges are not the agreement—they are formal actions taken in the case as a result of the agreement. Withdrawing from the agreement does not necessarily undo the actions taken in reliance on that agreement. For example, if either party withdraws from a plea agreement that required payment of restitution, but the plea itself is not withdrawn, then the defendant would be relieved of his restitution obligation under the agreement, but the court could still order restitution at or after sentencing.
To address these concerns, the Committee should consider revising Rule 11(i)(3) as suggested here:
(i)(3) If, after approving a tentative plea agreement, the judge accepts the plea but later decides that final disposition should not conform to the plea agreement, the judge must advise the parties of the reasons for diverging from the plea agreement and then call upon the parties to either affirm or withdraw from the plea agreement. The judge must do so before announcing sentence. If either party withdraws from the plea agreement, the judge cannot announce sentence and must set aside the previously accepted plea.