Introduction – A Massive ChangeTo Plea Bargains in the Colorado Criminal Justice System
Quietly, with little fanfare, the Colorado Supreme Court, in the case of People of the State of Colorado, v. Christopher Anthony Mazzarelli, massively changed what was previously considered fundamental Colorado criminal law in the area of plea bargaining.
The question in Mazzarelli was whether a District Attorney could legally withdraw from a plea agreement if a Colorado Judge determines, in exercising that Judge’s independent review of a proposed plea agreement, finds that a more lenient sentence than the one the parties set forth in the agreement was more appropriate.
The Colorado Supreme Court answered this question with a resounding “no.”
Where a Judge unilaterally modifies a sentencing concession in a plea bargain only the Defendant, and not the District Attorney, may lawfully withdraw from the plea agreement.
The relative power of the players in the criminal justice system is defined first, by the separation-of-powers doctrine as defined in Colorado’s constitution, and second by the laws and rules further defining that power.
While the District Attorney can “charge bargain” (filing, adding and/or dismissing charges or even dismissing the case itself) the power to “sentence bargain” (stipulating – agreeing to specific sentencing concessions in a plea agreement) is limited by the authority granted to the Judge to independently review those sentence concessions. Under Colorado law, after Mazzarelli, a Trial Court may reject ANY sentence concession after accepting a guilty plea.
To arrive at this conclusion, the Court analyzes several key Colorado laws governing the entry of plea bargains in Colorado courts.
The Mazzrelli decision can be reduced to two principles:
(1) requires a trial court to exercise its independent judgment in deciding whether to accept or reject sentence concessions in a plea agreement, and
(2) allows a Defendant, but not the State, to withdraw from a plea agreement when the trial court rejects a sentence concession after a Defendant has pled guilty pursuant to a plea bargain.
The sentencing concession “contract” that is the plea agreement of the parties – runs in only one direction when the issue at hand is the sentencing bargaining part of the agreement.
Furthermore, even if the Disitrict Attorney tries to add a provision to a plea agreement that expressly allows the District Attorney to withdraw from it after entry of the guilty plea in the event the Judge disagrees with the parties’ sentence concessions, that provision is unenforceable.
Sentencing Concessions, Agreements, and Stipulations in Colorado Plea Agreements
As the Court made clear in the Mazzarelli decision:
[S]entence concessions in a plea agreement—whether they are called sentence stipulations, sentence agreements, or something else—are sentence recommendations that the trial court, in the exercise of its independent judgment, may adopt or reject.”
A System of Mostly Pleas and Few Trials
While most people view the “Law and Order” type jury trial as the classic representation of the criminal justice system, the truth is far from that image. The “system” would quickly explode if every case went to trial. While estimates vary, somewhere between 94% to 97% of all criminal cases resolve by a plea agreement.
As the United States Supreme Court recently said in the Lafler v. Cooper case:
[C]riminal justice today is for the most part a system of pleas, not a system of trials.
Lafler v. Cooper, 566 U.S. 156, 170 (2012).
The importance of plea bargaining in an already overburdened criminal justice system cannot be understated. This point was not lost on Justice Brian Boatright in his dissent in the Mazzerelli case:
Many judicial districts in Colorado rely on the practice of stipulations to help forge agreements for pleas to some degree. The practice has functioned well for decades because at the core of these agreements is predictability.
I fear that today’s holding by the majority will unnecessarily have a negative impact on the orderly resolution of cases by injecting uncertainty into the process. As the majority correctly points out, ninety-four percent of state convictions are the result of plea agreements.
The Separation of Powers Doctrine – Authority Assigned to the Judicial Branch of Government But Withheld from the Executive Branch
The question in Mazzarelli is one of the distribution of power:
Does the “separation-of-powers doctrine” permit a Judge who accepts a guilty plea to an uncharged offense pursuant to a plea agreement but then rejects the parties’ stipulated sentence prohibit the State from withdrawing from that agreement?
The District Attorney (the executive branch of government), is given the power to “charge bargain.” However, it is the Judge (the judicial branch of government), after Mazzarelli, that now has the power to unilaterally determine the appropriate sentence under the Colorado Supreme Court’s interpretation of the separation-of-powers doctrine.
In the words of the Court:
[The State maintains that] “when a trial court accepts a defendant’s guilty plea to an uncharged offense pursuant to a plea agreement but then rejects the stipulated sentence without allowing them to withdraw from the agreement, it usurps their charging province and offends fundamental separation-of-powers precepts.
We are unpersuaded.
Article III of the Colorado Constitution provides that the powers of the state government are divided into three different branches—the legislative, executive, and judicial branches—and that “no person . . . charged with the exercise of powers properly belonging to one . . . shall exercise any power properly belonging to either of the others,” unless expressly directed or permitted by the Colorado Constitution.
Put simply, one branch of government may not invade another’s role. Article III proves problematic here, according to the People, because the trial court accepted Mazzarelli’s guilty plea to an uncharged offense pursuant to the plea agreement but then rejected the stipulated sentence without allowing them to withdraw from the agreement.
We conclude that no violation of the separation-of-powers doctrine occurred.
Mazzarelli pled guilty to an uncharged offense pursuant to the People’s plea offer. At the sentencing hearing, the trial court exercised its independent judgment and decided to reject the sentence concession in the plea agreement.
Because Mazzarelli, through his counsel, affirmed the guilty plea, the trial court moved forward with sentencing.
In accordance with Article III, the People made the charging decision to allow Mazzarelli to plead guilty to an added offense, and the trial court then made the sentencing decision.
We acknowledge that the People, not the court, may add an uncharged offense, and that the People, not the court, may offer the defendant the opportunity to plead guilty to it as part of a plea agreement. “
Understanding the Mandate of “Rule 11″ – Entering a Plea Into a Plea Agreement in Colorado
Colorado Rule of Criminal Procedure Rule 11 governs the procedures that must be followed for the successful entry of a plea under Colorado law. The Rule requires a Colorado judge conduct what is commonly called a providency hearing. At that hearing the Judge makes certain the Defendant fully understands the plea agreement and it is knowingly and voluntarily entered with full knowledge, not only of the terms of the agreement, but of the rights waived by the Defendant to accept the agreement.
At the providency hearing, Rule 11 permits a Colorado judge to tentatively accept the plea agreement pending the sentencing portion of the procedure. The reason for the delay in a full acceptance of the agreement is that Colorado law requires the judge to “exercise independent judgment” in making the critical decision to accept or reject that agreement.
Here are the relevant parts of Rule 11:
(b) Pleas of Guilty and Nolo Contendere. The court shall not accept a plea of guilty or a plea of nolo contendere without first determining that the defendant has been advised of all the rights set forth in Rule 5(a)(2) and also determining:
(1) That the defendant understands the nature of the charge and the elements of the offense to which he is pleading and the effect of his plea;
(2) That the plea is voluntary on defendant’s part and is not the result of undue influence or coercion on the part of anyone;
(3) That he understands the right to trial by jury and that he waives his right to trial by jury on all issues;
(4) That he understands the possible penalty or penalties;
(5) That the defendant understands that the court will not be bound by any representations made to the defendant by anyone concerning the penalty to be imposed or the granting or the denial of probation, unless such representations are included in a formal plea agreement approved by the court and supported by the findings of the presentence report, if any;
(6) That there is a factual basis for the plea. If the plea is entered as a result of a plea agreement, the court shall explain to the defendant, and satisfy itself that the defendant understands, the basis for the plea agreement, and the defendant may then waive the establishment of a factual basis for the particular charge to which he pleads;
(f) Plea Discussions and Plea Agreements.
(2) The district attorney may agree to one of the following depending upon the circumstances of the individual case:
(I) To make or not to oppose favorable recommendations concerning the sentence to be imposed if the defendant enters a plea of guilty or nolo contendere;
(II) To seek or not to oppose the dismissal of an offense charged if the defendant enters a plea of guilty or nolo contendere to another offense reasonably related to the defendant’s conduct;
(III) To seek or not to oppose the dismissal of other charges or not to prosecute other potential charges against the defendant if the defendant enters a plea of guilty or nolo contendere.
(4) The trial judge shall not participate in plea discussions.
(5) Notwithstanding the reaching of a plea agreement between the district attorney and defense counsel or defendant, the judge in every case should exercise an independent judgment in deciding whether to grant charge and sentence concessions.
Colo. R. Crim. P. 11
A judge in Colorado is empowered not only to reject a plea agreement as a “package deal” under Colorado’s Rule 11 (above), after Mazzarelli, Colorado Judges have the power to exercise a kind of “line item veto” over a sentencing concession contained within that package.
The Mazarrelli Court interpreted Rule 11’s language granting the power to plea bargain to Colorado’s District Attorneys – (“to make or not to oppose favorable recommendations concerning the sentence to be imposed if the defendant enters a plea of guilty or nolo contendere) as just that, pure recommendations in the strictest sense of those words.
In Mazzarelli, as more closely discussed below, the Colorado Supreme Court, in the context of plea agreements, interprets any plea agreement with “sentence stipulations” as only “sentence recommendations.”After this decision, the words sentence concessions, sentence agreements, and sentence stipulations …. “have the same meaning and have no binding effect on the trial court.”
With these words, the Court changed the landscape of Colorado plea bargaining in ways that will have an impact for decades to come. The Colroado Supreme Court held in Mazzarelli that sentence stipulations, “the package” plea bargains which have been a staple in most Colorado counties for decades, had never existed.
Defendant, Mazzarelli, and the District Attorney entered into a common form of plea agreement that consisted of both “charge bargaining” and “sentence bargaining.” The “charge bargaining” part of the agreement was that the prosecution would dismiss the original Class 3 Felony charge of child abuse and the Defendant would plead guilty to a lesser (added charge) of Class 4 Felony child abuse.
The “sentence bargaining” part of the plea bargain was a further agreement that there would be a stipulation, an agreement, that Mazzarelli would be sentenced to prison from between 2 to 8 years. Under the agreement, probation was not an option.
After the advisement of his rights pursuant to Crim. P. 11(b), Mazzarelli pled guilty to the added charge and the Court accepted his plea and dismissed the original charge. A new date was selected for the sentencing phase of the case and a presentence report was ordered.
At the sentencing hearing the Court, after reading the presentence report and hearing argument, rejected the sentencing stipulation to prison and would only accept a plea agreement with “an open sentence” allowing the Judge to impose probation. When the DA asked to withdraw from the plea bargain, the Judge refused and sentenced Mazzarelli to three years of supervised probation.
The People appealed.
Understanding the Mazzarelli Court’s Reasoning Requires a Closer Look at Four Key Colorado Criminal Law Concepts Involving the Entry of Pleas
1. The Duty of a Judge to Exercise “Independent Judgement”
Colorado criminal law Section 16-7-302(3) provides that:
“[n]otwithstanding the reaching of a plea agreement between the district attorney and defense counsel or defendant, the judge in every case should exercise an independent judgment in deciding whether to grant . . . sentence concessions.”
Crim. P. Rule 11(f)(5) contains nearly identical language.
Under both Section 16-7-302(3) and Rule 11(f)(5), A Colorado Judge is required to exercise its independent judgment in making the decision to accept or reject “sentence concessions” in a plea agreement.
Having established the principle that Judges are empowered to ensure the fairness of a plea agreement – the next question is what is the extent of that power to review a plea agreement.
If a Colorado Judge rejects a sentence concession that was believed to be a requirement of the plea bargain offered by the District Attorney (DA) and accepted by the Defendant, can the State withdraw from a plea agreement?
Can the Judge STOP the DA from unwinding – voiding – the plea bargain? The answer to that question turns on a rewriting of the word stipulation from the previously accepted legal meaning of that word to Colorado’s criminal defense bar.
2. The Difference Between a Sentence Stipulation and a Sentence Recommendation
The Mazzarelli Court made clear that the normal contract principles applied to plea agreements previously understood and accepted in almost every judicial district in Colorado, had no application under the facts of this case.
The Court found there was no legal distinction between a “prosecutorial recommendation” of a particular sentence and a “prosecutorial agreement” that requires a Court to impose a particular sentence.
After Mazarelli, sentence “concessions” are non-binding sentence “recommendations” and are unenforceable by the District Attorney. The words used in the plea agreement concerning sentencing agreements are now meaningless in the context of plea agreements.
Whether the words used are called “sentence stipulations,” “sentence agreements,” or “sentence concessions,” these terms and “similar terms are nothing more than sentence recommendations that the trial court is free to accept or reject, including after the defendant’s guilty plea.”
3. The “Timing” of the Plea and Sentencing Phase in a Colorado Guilty Plea Proceeding
Colorado Rule 11(b)(5) requires a Colorado Judge to determine before that Judge fully accepts a plea bargain agreement, that the Defendant understands that the Judge is not:
…bound by any representations made to [him] by anyone concerning the penalty to be imposed . . . , unless such representations are included in a formal plea agreement approved by the court and supported by the findings of the presentence report.
Under Colorado law, a Judge only tentatively accepts a proposed plea agreement until the sentencing hearing. The entry of the plea under Rule 11 is just the first step in the process. The requirement of a “presentence report” is a bookmark to separate the entry of the plea from acceptance of a plea agreement and the imposition of a sentence.
Put differently, a Colorado Judges have the right to tentatively approve a proposed plea agreement contingent on the information provided during the sentencing phase of the proceeding. While the law mentions a presentence report, there is NO statutory requirement for a presentence report and, in most cases, no presentence report is ever prepared.
The concept is simple, a Judge clearly cannot exercise the kind of “independent judgment” the law requires until the parties provide the information reserved for the sentencing phase of a Colorado criminal case.
A Court does not formally and legally “accept” a plea bargain until the sentencing phase of the plea hearing has been completed. Only then is the plea proceeding fully completed.
4. Only a Defendant Can Withdraw from a Plea Bargain if the Judge Changes the Sentence Concessions – Colorado Rules of Criminal Procedure – Rule 32(d) and Section 16-7-302(2)
The Mazzerelli Court was clear when a Judge modifies the sentencing provisions of a Colorado plea agreement, any right to withdraw from that plea agreement belongs only to the Defendant.
Colorado Crim. P. 32(d) and CRS § 16-7-302(2), are the two laws that govern the withdrawal from a plea agreement.
After a Colorado Judge accepts a guilty plea, Sections 16-7-302(2) and Rule 32(d) require the court to “advise the Defendant and the District Attorney” if it is rejecting the sentence concession “and then call upon the defendant to either affirm or withdraw the plea of guilty.”
There is no provision allowing the DA to either affirm the plea agreement or to withdraw from it.
As noted below, this is different than the exception to this rule – a situation where a District Attorney is allowed to withdraw from an accepted plea agreement when “the defendant has substantially and materially breached the plea agreement by her action or inaction.” (See Sidebar below).
The Court made this statement in Mazarelli:
… if the trial court rejects a sentence concession after the defendant pleads guilty, only the defendant may withdraw from the plea agreement.
Sidebar: There Remain Instances When A District Attorney May Withdraw from a Plea Bargain
It is a common analogy for attorneys and judges in the Colorado criminal justice system to view a plea agreement as a contract between the parties. The analogy is apt in some instances but fails in others.
The contract analogy has been used by the Colorado Court of Appeals when analyzing, for example, the enforcement of a plea agreement based on the detrimental reliance of a cooperating Defendant.
The Mazzarelli decision did not change this area of law. Specifically, the Court said:
Nothing in this opinion should be viewed as passing judgment on the appropriate remedy if any when a party breaches a plea agreement after the defendant has pled guilty. That issue is not before us.
The Mazzarelli case was based on the interpretation of statutes and rules and not based on contract law. While the general principles of contract law are often applied in analyzing plea agreements in the past, there was no alleged breach of the plea agreement by either party.
Summary and Conclusion – When a Judge Refuses to Follow a Plea Bargain in Colorado
After all of the analysis of the Mazzarelli case, the holding of the case – the reason it is so important – is the new rule it created:
When a Colorado Judge decides to accept a plea bargain but rejects a sentence concession in that plea agreement, Colorado law does not permit the District Attorney to withdraw from the agreement.
This watershed case also removes any attempt by the District Attorney to alter the language of the plea agreement to prevent a Colorado Judge from modifying the sentencing portion of the plea agreement.
An easy way to understand the ruling in Mazzarelli is this – the entry of a plea agreement is bifurcated.
Part 1 occurs when the plea agreement is tentatively accepted by a Colorado Judge following a providency hearing pursuant to Rule 11.
Part 2 addresses the final “entry” of the plea agreement – the step during which it is approved, rejected, or altered by the Judge – this occurs when the Court subsequently sentences the Defendant.
The impact of the Mazzarelli decision is, as yet, not be fully known. It is still a relatively new decision.
The Colorado Supreme Court was “keenly aware” of the possible shock waves the decision may have in the coming years:
The practical effect today’s decision is likely to have on our trial courts is not lost on us. After all, we are keenly aware that the general practice in many courtrooms is inconsistent with this opinion.
While we are confident our opinion will not be the death knell of plea agreements, it will no doubt change the landscape in which plea agreements occur.
We will see.
Update: Since drafting this article, I located an attempt by the Colorado State Legislature in the 2020 Legislative session to try to legislatively alter the Mazzarelli rule.
The bill, HB20-1054, failed.
Concerning a clarification of the authority of either party to withdraw from a plea agreement when any condition agreed to by the parties is rejected by the court.
“A person charged with a crime requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.”
United States Supreme Court – Powell v. Alabama, 287 U.S. 45, 69 (1932)
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