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Plea Bargains


This article is not intended as advice for your specific matter.  Rather, it is a general article about Nevada law.  If you have questions about your particular case, please call Mueller, Hinds and Associates, Chtd. immediately at (702) 940-1234.  This information is valid as of August 25, 2017.

Plea Bargains

In the United States a person has the right to a jury trial, confront and cross-examine his or her accusers, subpoena witnesses and evidence in his or her favor, the assistance of effective counsel and the right to remain silent throughout the proceedings which could not be commented upon by the prosecutor. However, these rights are waived in the vast majority of cases through something called a plea bargain. In fact, in 2003 95% of federal cases were resolved by a guilty plea. Many people plead guilty every day including actors, mayors and judges.

What is a guilty plea agreement?
A guilty plea agreement is an agreement between the prosecutor and the defendant in a criminal case to allow the defendant to plead guilty in exchange for a reduced charge or promise of leniency. The defendant gets the benefit of facing a lesser punishment and the prosecutor does not have to marshal its witnesses and evidence for trial, saving lot of time and energy.

What is the typical process of pleading guilty in Nevada?
Once a defendant is charged with a crime, had an arraignment, received discovery and set a preliminary hearing, the defendant waits to hear from the prosecutor as to what the “offer” is. This is the standard practice of all experienced criminal defense attorneys. If the client is innocent, the defense attorney still has to take the offer to the client because it is the client’s decision to accept or reject an offer. If the client is not as innocent, the defense attorney does not want to appear desperate to plead guilty or that may affect the offer the prosecutor makes. The waiting game usually ends in the days before the date set for the preliminary hearing. The prosecutor reaches out the the criminal defense attorney and proposes a compromise – drop these charges to have the client plead to these other charges.

What kinds of plea agreements are acceptable?
Almost any agreement that can be reached between the defendant and prosecutor is acceptable. Most wise courts will abide by whatever agreement has been reached between the defendant and the prosecutor because they know the facts and mitigating circumstances of the case.

Both sides can agree to a wide variety of plea agreements. For example, they could agree to the following:
1. Pleading to a felony with both sides able to argue to the judge for prison or probation;
2. Pleading to a felony with the prosecutor agreeing to probation;
3. Pleading to felony with the prosecutor agreeing to a reduction or dismissal after successful completion of probation;
4. Pleading to a misdemeanor with both sides agreeing to a fine and a class or two;
5. Pleading to a misdemeanor with the prosecutor agreeing to dismissal after certain conditions are met like a fine or class; and
6. Pleading to fictitious crimes that are unsupported by the facts in order to receive a lesser sentence.
The possibilities are almost limitless, but an experienced criminal defense attorney will know what is reasonable and what will get them laughed out of the courthouse. For instance, a case where the prosecutor had to go to a grand jury on a violent crime is highly unlikely to get resolved to a misdemeanor or dismissal. Also, in cases like DUI and domestic violence the prosecution is prohibited from reducing the charge unless there is some legal cause or reason that prevents or casts doubt on the viability of prosecution.

What are some of the standard conditions in a guilty plea agreement in Nevada?
Once a defendant agrees to plead guilty, the prosecutor gives them a written agreement to review with their attorney. The agreement has the particular terms agreed upon but also a number of standard terms. If the defendant or prosecutor does not abide by all of the terms, the agreement can be withdrawn by the defendant or a harsher sentence can be sought by the prosecutor.

One of the standard terms is the “failure to appear” clause. This portion of the agreement requires that the defendant appear at all future court dates, not commit any new crimes and goes to parole and probation to be interviewed for a presentence investigation report. In Sparks v. State, 121 Nev. 107 (2005), the Nevada Supreme Court found that this clause was enforceable against a defendant that failed to appear at his sentencing hearing and was arrested on additional new charges. In Gamble v. State, 95 Nev. 904 (1979), the Nevada Supreme Court held that before an agreement can be considered “breached” thereby opening the door for the prosecution to argue for a harsher penalty, the district court has to hold a hearing to determine whether the defendant actually breached the agreement.

What are some of the problems with a guilty plea agreement?
Many times a person is not actually guilty of the offense that he is charged with, but the range of penalties for the offenses is so great that going to trial presents a large risk. This scenario presents itself in sexual assault cases where the penalty is potentially life in prison, sexual registration and lifetime supervision. The defendant does not want to plead guilty to something he didn’t do, but also doesn’t want to risk going to prison for life for something he didn’t do. This presents a unique problem for defendants without a satisfactory solution. The closest solution is to plead under North Carolina v. Alford, 400 U.S. 25 (1970), which is to say that you’re not guilty, but there are enough facts to prove you guilty and you are accepting this as a compromise and to avoid the possibility of a harsher punishment. The prosecutors are generally reluctant to allow this kind of plea unless there are special circumstances.

Another problem with plea bargaining is the fact that it is so prevalent. Many lawyers, whether lazy or incompetent, have a plead first mentality. They make big promises to get clients through the door and to open their wallets, but when it comes time to fight the case, they get cold feet and start advising their client to plead guilty. A plead first mentality is generally the safest route, but in practice, fighting back often yields better results.

Can you withdraw a guilty plea agreement?
Under Section 176.165 of the Nevada Revised Statutes a defendant can file a motion to withdraw a guilty plea before sentencing or after sentencing if it is to correct a manifest injustice. The Nevada Supreme Court has held that such a plea can be withdrawn where there is a substantial reason that is “fair and just.” Stevenson v. State, 354 P.3d 1277 (2015).

Have you or a loved one been accused of a crime and are thinking of accepting a plea agreement? Or have you been pressured to accept a plea agreement and want to fight the case? Contact the experienced criminal defense attorneys at Mueller Hinds & Associates, Chtd. for a free consultation and case evaluation at (702) 940-1234.


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