Asked over 1 year ago - Hartford, CT
FlagMy husband was convicted and plead guilty to a violation of protective order charge. And was sentenced to 2 1/2 years through a plea agreement. Is there anything that can be done to appeal the amount of time he has to serve?
Dear ?,
There are at least two kinds of plea bargaining in state courts. In California, the parties bargain with each other, come to an agreement and then the judge either approves or disapproves of their agreement, much like in a civil case. So, as the the other counsel notes, if this is the system used in your state, then we assume the sentence your husband received was the one he agreed to in the plea agreement and since he got the sentence he bargained for, he cannot complain about it. (This, of course, assumes the judge's sentence did not exceed the maximum allowed for the charge, was not the product of any bias by the judge or was not an illegal sentence in any other way.)
Now, in a second kind of plea bargaining in the courts of some states, the accused is bargaining with the prosecutor for the prosecutor's sentence recommendation. That is to say, in the California model described above, the judge either accepts the bargain and then is bound to sentence according to it, or he/she rejects the bargain and the parties must go back to square one. In this second kind of bargaining, the judge neither accepts nor rejects the bargain and is not bound to sentence according to the prosecutor's recommendation. In this model, the accused hopes the judge will sentence according to the recommendation he has bargained for with the prosecutor, but the judge is free to ignore it and sentence either more or less than the prosecutor's recommendation.
If your husband's plea bargain took place in a state like the second model where the judge is not bound by any agreement of the parties, then he may have some basis to appeal the sentence.
BUT, the only one who can answer that question, i.e., whether he has a legitimate basis for a sentence appeal, is an experienced criminal appellate counsel practicing in the courts of the state where he was convicted. He is constitutionally entitled to such counsel on appeal if he cannot afford one. Otherwise, there are no doubt several such counsel right here on Avvo.
Yours sincerely,
Tim Provis
Cal. Bar No. 104800
Wis. Bar No. 1020123
Member: U.S. Supreme Court Bar
When people voluntarily plead guilty to a criminal offense , it is generally very difficult to overturn that conviction. In short, if they answered all of the judge's questions as needed to do a guilty plea, then they probably killed any chance of a successful appeal. The slim chance they may still have will likely require the assistance of an experienced criminal appellate attorney.
Don't speak legalese? We define thousands of terms in plain English.
Browse our legal dictionary