The Critical Role of Criminal Defense Attorneys in Sentencing

The New Jersey Supreme Court eloquently reminds us all of that which many observers sadly view as a lost component of our criminal justice system; the exercise of independent judicial discretion in the sentencing of a defendant. The third branch of government has, in essence, surrendered; perhaps, it’s most important role to the legislative and executive branches of government. 

In State v. Hess, 207 N.J. 123,147(2011); 

A restrictive plea agreement entered into between defendant and the State required defendant to concede that the aggravating sentencing factors outweighed the mitigating factors and prohibited defendant from “affirmatively” seeking a term of less than thirty years subject to NERA. On the other hand, the plea agreement did not bind the court to give any particular sentence, and the prosecutor disclaimed any intention to impinge on the court’s exercise of its discretion.

Addressing such a plea agreement, in the context of an application for Post-Conviction Relief based upon a claim of ineffectiveness of counsel, the Supreme Court held:

Our jurisprudence makes clear that the State cannot insist on a term in a plea agreement that would vitiate the court’s ability to exercise discretion in sentencing. “[A] criminal sentence is always and solely committed to the discretion of the trial court to be exercised within the standards prescribed by the Code of Criminal Justice.” State v. Warren, 115 N.J. 433, 447, (1989). That discretion cannot “be encumbered” by giving the prosecutor a stranglehold over the sentencing determination. Id. at 447–48.

In State v. Warren, we specifically disapproved of the plea-bargaining practice that enabled a prosecutor to withdraw a negotiated guilty plea if the trial court imposed a sentence more lenient than the one recommended by the prosecutor in the plea agreement. Id. at 442, 449. Our rejection of this practice was premised on several grounds. We found that “the negotiated-sentence practice constitutes an impermissible constraint on the sentencing discretion of trial courts” under New Jersey’s Code of Criminal Justice and Court Rules. Id. at 446. The negotiated-sentence practice undermined the trial courts’ independent responsibility to identify and weigh the aggravating and mitigating factors in fixing a just sentence. Id. at 447–50. We also believed that the important goal of sentencing uniformity would be subverted by permitting the prosecutor “to impinge in this way on the court’s independent discretion.” Id. at 449.

Significantly, in this case, the Prosecutor’s statement at oral argument made clear that the purpose of the gag provision in the plea agreement was to do an end run around Warren. The Prosecutor explained that the intent of the gag provision was to minimize the possibility that the sentencing court would “undercut” the sentencing provisions of the plea agreement.

In State v. Briggs, 349 N.J.Super. 496, 501, (App.Div.2002), the Appellate Division extended the core principles of Warren and precluded the type of restrictive plea agreement found in the case before us. The defendant in Briggs, who had been indicted for murder, pled guilty to aggravated manslaughter pursuant to a negotiated plea agreement that “provided that ‘defense counsel agrees not to request a sentence of less than twenty years.’” Id. at 498. The defendant received an eighteen-year prison term subject to NERA. Ibid. The panel held “that the restriction in the plea form deprived defendant of effective assistance of counsel during a critical stage of the criminal proceeding.” Ibid.

To support its holding that the restriction on defense attorney’s advocacy constitutionally infringed on the right to counsel, the panel cited to Herring v. New York, 422 U.S. 853, 857, 95 S.Ct. 2550, 2553, 45 L.Ed.2d 593, 598 (1975), which struck down a state law prohibiting defense counsel from giving a summation in a bench trial, and State v. Fusco, 93 N.J. 578, 586–87(1983), which struck down a court order prohibiting counsel and client from discussing, during an overnight recess, testimony the client had given during trial. Id. at 500–01.

Briggs noted that “the ability of counsel to provide a meaningful argument at sentencing, even in a case that appears ‘open and shut,’ is no less important than the opportunity to give a summation in a nonjury case.” Id. at 501. It is at the critical stage of sentencing that counsel can make “a vigorous argument regarding mitigating and other circumstances, hoping to personalize defendant in order to justify the least severe sentence under the Criminal Code.” Ibid. The Briggs panel believed that “there can be no doubt that a defense attorney must have an unfettered right to argue in favor of a lesser sentence than that contemplated by the negotiated plea agreement.” Ibid. The panel reversed and remanded for a new sentencing because it was unable to say “with confidence that the restriction upon defense counsel did not affect her ability to present a cogent and meaningful argument at sentencing.” Id. at 503.

The intersection between Warren and Briggs is apparent. A plea agreement that prevents a defense attorney from presenting or arguing mitigating evidence to the sentencing court deprives the court of the information it needs to faithfully carry out its unfettered obligation to identify and weigh the appropriate sentencing factors. The unhindered adversarial process at sentencing allows the court to be fully informed about all the evidence and factors that will lead to a just sentence. A lopsided presentation by the State, and the virtual gagging of defense counsel, does not accomplish that goal.

As the State points out, Briggs was decided on direct appeal and the present case comes to us on an application for post-conviction relief. Nevertheless, the principles set forth in Briggs were not new or a break with precedent, and indeed those principles flowed directly from Warren and decisional law affirming the right to effective counsel at sentencing. See, e.g., McConnell v. Rhay, 393 U.S. 2, 4, 89 S.Ct. 32, 34, 21 L.Ed.2d 2, 4 (1968) (“The right to counsel at sentencing must, therefore, be treated like the right to counsel at other stages of adjudication.”). The manner in which defense counsel seemingly interpreted the restrictive plea agreement in this case clearly was antithetical even to the right of allocution at sentencing. Rule 3:21–4(b) allows the defendant “to present any information in mitigation of punishment.” Yet mitigation evidence was withheld from the sentencing court.

Neither the State nor amici Attorney General challenge the underlying legitimacy of Briggs. We affirm the principles set forth in Briggs. Our jurisprudence does not permit restrictions on the right of counsel to argue for a lesser sentence, or to argue against an aggravating factor or for a mitigating factor, or how the factors should be balanced, as this would deprive defendants of the needed advocacy of their attorneys and deny our courts the needed insight to administer justice. Briggs is consistent with and a natural extension of Warren. [Ibid. 151-154] 

This advocacy by counsel and the needed insight to administer justice are all the more important in a criminal justice system where, as the United States Supreme Court noted in Missouri v. Frye, 132 S. Ct. 1399, 1407 (2012):Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas. See Dept. of Justice, Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics [citations omitted].