By David Zapp, Esq.
If a defendant chooses to plead guilty before trial he can do so without benefit of a plea agreement with the prosecutor or with such a plea agreement. In most cases in New York and near as I can tell in Florida, the prosecutors give you “ice in winter.”—nothing. They give you what you could have gotten if you had pled guilty to all the charges in the indictment. In a narcotics case for example a plea agreement is based on the quantity and type of drug, the role, and pleading guilty in a timely manner, with some aggravating or mitigating factors thrown in. But the trouble is that a plea agreement usually calls for the defendant to agree that if the judge gives you a guideline sentence you agree to it and promise not to appeal.
But if you plead to the indictment, you are in a position to challenge quantity, role, and even type of drug. Everything is open to challenge and you have a right to appeal. The prosecutors would argue that if you plead to the indictment you would have to plead to every charge and there could be fifteen charges each with its own penalty, but what the prosecutors do not tell you is that under guideline law, the charges are grouped together if they relate to the same conspiracy and the sentence would not change. I actually have never seen a plea to the indictment where a defendant received more time than if he had pled pursuant to a plea agreement.
Now if in a plea agreement you can get a concession from the government that you played a minor role and deserve a reduction, that is an altogether different situation. Nothing like a prosecutor’s blessing. First of all conceding role reduction telegraphs to the judge that he pretty much can do what he wishes. If you plead to the charges in the indictment, however, rejecting a plea agreement you can be sure the prosecutors will make no concessions. But if you believe in your position, go for it, and this is especially true if the prosecutor is giving you nothing. I find that judges who are generally older than prosecutors and with more experience tend to be more charitable and more understanding of life’s foibles.
So to plea to the indictment or plea pursuant to a plea agreement, that is the question. But now you know what to look for and what not to be scared of.