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If you have a public defender who only wants to plea out, and has made little effort to gather any defense evidence, Options?

Racine, WI |

The PSI from probation officer states a violent criminal, but has never shown any violent tendencies or had any violent crime charges and social worker even recommends ERP. The public defender wants to take whatever sentence is given without challenging any of the evidence, or what the PSI says. There have been unresolved issues with probation officer in the past, and now the probation officer's recommendation is for double the amount of time of the plea agreement. What options are available?

Attorney Answers 3

  1. If this is a probation revocation situation, and the defendant waived his/her revocation hearing, the ability to challenge the evidence was waived with it. If the plea agreement the public defender has negotiated is for a joint recommendation for half the time the revocation summary recommends, seems like tossing that agreement over in favor of an argument for less might be foolhardy. Penalty is always up to the judge, who is free to jump any deal, so arguing in favor of a joint rec for less may well be the best remaining option.

    This answer is provided for general information only. No legal advice can be given without a consult as to the specifics of the case.

  2. I would add to what Mr. Witt said that your lawyer should be free to argue about things in the PSI that are inaccurate, arguing in favor of the plea bargain sentence. In courts where I've practiced, though, I've seen judge's then start asking questions of the PO who just spills out all sorts of garbage that you don't have any inkling will be coming. So, be careful. Many judges will accept a joint recommendation over a PSI recommendation unless they are given reasons to think about it.

    That there is a PSI tells me that you have already entered a plea, not just that you are thinking about it.

    Confidential information should not be disclosed in this Internet forum. This answer is not legal advice, which requires a personal connection and far more facts. This attorney does not give legal advice over the Internet. This is a general statement about law, not advice.

  3. If you are not happy with the direction your case is going or with the advice you are getting from your attorney, you should ask that attorney to withdraw from representing you and request a new attorney be appointed. Usually when you are asking for an attorney to be appointed to your case (State Public Defender or court appointments), you don't have the right to select who you want. However, if you aren't satisfied with the representation you are receiving, you may ask for someone else. There are limits, however, to the number of times you can do this. The judge is the only one who can allow an attorney to withdraw from the case, and most judges only allow for a few changes before telling you that if you fire another attorney you will be required to represent yourself. Representing yourself is ALWAYS a mistake. Most judges will not allow a defendant to get a new attorney when the request comes within a short time before a trial is scheduled in the case.

    That being said, if you have a PSI (pre-sentence investigation) report, you have already entered a guilty or no contest plea or have been convicted at trial. PSI's are not ordered by the judge to be written by an employee of the Department of Corrections (usually a probation agent) until after there is a conviction in the case. If you entered a guilty or no contest plea, the judge would have engaged you in a plea colloquy (asked you a bunch of questions to make sure you knew exactly what you were doing by entering your plea). It is a bit late in the game to be gathering evidence in your defense to challenge the evidence. In some cases, defense attorneys will hire someone to write an alternate PSI. These are costly and it is sometimes difficult to get approval for the funding of these alternate PSI's when you have a court or SPD appointed case. Many SPD offices have a client services specialist on their staff who writes alternate PSI's as part of their assigned duties. However, as with everything else in this economy, there are not enough people to write an alternate PSI in every case (or even in every felony case).

    If when you say that your public defender appointed attorney "wants to take whatever sentence is given without challenging any of the evidence, or what the PSI says," you mean that the attorney is advising you that your best course of action is to have the prosecutor and defense attorney argue for a "joint recommendation" (both attorneys ask for the same sentence), your attorney is probably familiar with the sentencing tendencies of your judge and believes that you will get a shorter sentence by agreeing with the DA instead of arguing for something different and risking that the judge will then follow the recommendation of the PSI writer.

    Be aware that many of the staff attorneys with the State Public Defender's Office are more familiar with the sentencing tendencies of the judges in their jurisdiction than other lawyers because of the large number of cases that they are required to handle and the fact that they practice exclusively in the areas of criminal and juvenile law. I would not be too quick to ask for a different attorney just because you don't like the recommendation in the PSI. Remember that you are in front of a judge in a criminal case for a sentencing hearing because you have been convicted of having committed a crime. The judge is to decide what your punishment should be. It is NOT all about your rehabilitative needs (while that is one of many factors), and criminal sentences are almost always unpleasant. Good luck to you.

    This communication is for the purposes of general advice only. This communication does not form any contractual obligation on behalf of the Attorney Stephen W. Sawyer or the Law Offices of Stephen W. Sawyer.

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