by David M. Reutter

In an article that appeared in the Akron Law Review, Ohio Supreme Court Justice Michael P. Donnelly detailed his experience, concerns, and solutions to create a fair playing field in the arena of plea bargaining. He called for an end to “sentencing by ambush” after a plea bargain is accepted by criminal defendants.

Justice Donnelly has enjoyed a 30-year career in the legal field. He explained that he “first began to consider the mechanics and ethics of the plea negotiation process 15 years ago during [his] first term as a judge at the Cuyahoga County Court of Common Pleas.” While he was exposed to plea bargaining as an assistant county prosecutor, Donnelly said he  “never actually questioned whether aspects of the plea negotiation process were inherently unfair and unjustly coercive.”

That changed when he became a jurist, who he “firmly believe[s] must be a neutral party in our adversarial justice system.” He soon realized that the “bulk of [his] time would be spent overseeing plea negotiations between the prosecution and criminal defense lawyers, conducting plea hearings, and sentencing individuals who had entered into plea agreements.”

Because plea agreements are basically a contract, each of the parties receive a benefit in exchange for consideration. For a defendant, a guilty or no contest plea can result in lesser or dismissed charges and a more lenient sentence. In addition to reduced exposure, the correctional process can begin immediately and the practical burdens of a trial are eliminated. “In exchange for an efficient, secure, and satisfying conviction, the government surrenders little more than the opportunity to punish the defendant to the absolute maximum permitted by law,” wrote Justice Donnelly.

In entering a guilty or no contest plea, he explained that “the defendant foregoes fundamental constitutional rights, such as the right to jury trial, the right to a speedy and public trial, the right to confront adverse witnesses, the presumption of innocence, and the right to be convicted by proof beyond a reasonable doubt.”

Criminal defendants, regrettably, enter into plea contracts every single day without any idea of what they will receive, without knowing the terms they are obligating themselves to until they have bound themselves to the other side, said Justice Donnelly.

In the real world of criminal justice, there are a “fortunate few” Ohio defendants fully aware of the consequences of entering into a plea agreement because the agreed upon sentence is made on the record. There is another subset of defendants who will learn from their defense attorney what the judge is inclined to do in their case. They “must rely on their counsels’ word that the judge will not renege on this inducement at their sentencing hearing.”

There is also a “significant percentage of criminal defendants [who] enter plea agreements in which they have no idea what sentence they might receive or what sentence the prosecutor intends to advocate for at the sentencing hearing.” They are, Justice Donnelly said, susceptible to sentencing by ambush.

He cited the podcast Serial, which exposed a 2018 investigation of the “systematic pressure that induces defendants away from a trial while highlighting the enormous power wielded by the prosecutor in the plea negotiation process.” This power springs from the prosecutor’s ability to decide which and how many crimes to charge.

Justice Donnelly gave an example of how this works. Consider a case where a defendant steals food from a store. Store security officers spot him in the act, and the defendant flees with the item in his hand. When the officers catch up to him, he forcefully resists apprehension without inflicting serious injuries. Based on those facts, the prosecutor could charge misdemeanor theft and disorderly conduct or a more serious count of felony robbery. The misdemeanor could result in probation, but the felony could carry many years in prison.

With 95% of criminal cases in state cases being resolved by a negotiated plea bargain, it would seem that Ohio would have established principles, guidelines, and standards to promote uniformity, proportionality, and meaningful appellate review to resolve disputes.

“There aren’t,” said Donnelly. “The sad reality is that their absence means that trial court judges throughout the state determine criminal sentences according to their own proclivities.” While some judges are transparent in providing reasonable expectations to attorneys and their clients, many are not.

As a trial judge, Donnelly sided with transparency. Early in his career as a judge, he “concluded that judges and attorneys should not negotiate off the record in chambers.” He “made a conscious decision to hold all plea discussions on the record in open court.”

One morning while a group of law student externs from Ohio’s Attorney General’s Office were observing his courtroom, an experienced public defender was preparing to go on record to change his client’s plea. For the benefit of the students, Donnelly asked him “how many times in his career he had advised his client to say ‘no’ when a judge asked the inevitable question: ‘Has anyone made a representation to you about what sentence you would receive if you enter this plea agreement?’ Without hesitation, he answered that he always advised his clients to say ‘no,’ even when he provided them with assurances regarding sentencing that he had received from the judge in a backroom discussion.”

Donnelly wrote that the first time he considered the concept of sentence by ambush came in 2018 when he reviewed the appellate case of State v. Davis, 2018 Ohio 1147 (2018). In that case, Davis faced numerous counts of drug trafficking in six cases. A plea agreement was reached to dismiss several charges, which would result in a reduced sentence.

At the first plea hearing, the trial court explained that it had discretion to impose a sentence of leniency of three years or the maximum of 39 years. The case was postponed for Davis to consider his options. At a second hearing, Davis stated that he was not subject to threats nor had any promises been made to induce the guilty plea. After accepting the plea, the trial court sentenced Davis to 22 years in prison.

Davis immediately asked to withdraw his plea as he “emphatically stated that his attorney told him he would not get more than three years if he chose to enter the plea agreement.” Donnelly said that he highlighted the case on the campaign trail many times. While he had no sympathy or pity regarding the actions that led to Davis’ charges and said there may be no better way to protect the public than the imposed sentence,  he believed Davis  “deserved better treatment, including fair disclosure and transparency. He did not deserve to be ambushed.”  No one on the campaign trail ever disagreed with Donnelly on that point.

One of the first cases Donnelly considered after being elected to the Ohio Supreme Court in November 2018 involved 55-year-old Susan Gwynne. She was charged with stealing property from nursing home residents over an eight-year period.  Police identified 46 victims at 12 facilities.

Her defense attorney negotiated a plea agreement that provided for Gwynne to plead to numerous misdemeanor and felony counts, including burglary and theft. Counsel tried to negotiate a sentence of 3-4 years, but the State was seeking 10-15 years. At the plea hearing, the trial court told Gwynne that she faced lenient to severe terms. On several occasions, the court said “if I [ ] send you to prison,” implying a probation sentence as a possible outcome. The State was silent at that hearing, and after accepting the plea, the court ordered a pre-sentence report.

The State then submitted a memorandum that recommended “two wildly divergent sentences: [either] a 42-year sentence (the minimum prison term on each felony count, all served consecutive[ly] to each other) or two years (the minimum on each felony count, to be served concurrently).” Defense counsel advocated for community control or for concurrent sentences and restitution payments.

“Gwynne arrived at her sentencing hearing not knowing whether she would receive probation and be released that day or whether she would receive a sentence so lengthy that she was likely to die in prison,” explained Justice Donnelly. “The trial court imposed a 65-year sentence—23 years more than the prosecution had sought; this sentence is longer than many murders and rapists receive.”While the case was remanded to consider an issue not raised on appeal, the glimmer of hope provided to Gwynne came with “little if any guidance to the lower courts.”

Donnelly said the case raised several questions about the dynamics of the criminal justice system. He asked when it became acceptable for a defendant who enters into a plea bargain with the reasonable expectation of receiving a benefit to receive no indication of what position the State will take at sentencing.

Additionally, at what point did it become acceptable for a judge to tell a defendant he may impose probation and then imposes 65 years of prison? The law does “not allow trial by ambush. So why do we allow it at sentencing?” Justice Donnelly asked.

On the former point, he noted that trial by ambush was ended in Ohio when it implemented open discovery in 2010. “The best solution to obviate the unfairness of sentencing by ambush would be for the General Assembly to enact a complete data driven overhaul of our present antiquated statutory scheme along with reasonable sentencing guidelines and ranges to rein in judicial discretion,” Donnelly wrote.

He then pointed to the role of judges, who are charged with assuring the defendant is “entering into a plea agreement knowingly, intelligently, and voluntarily. But a defendant cannot knowingly, intelligently, and voluntarily submit to a sentence unless he or she has a reasonable idea about what the sentence will be,” Donnelly, stating the obvious, declared.

As to the issue of transparency and fairness by judges, Donnelly said “judges should be required to state on the record the reasons why he or she is rejecting [a] proposed agreement.” A fair playing field also requires the State to disclose on the record at the plea hearing the position it will take at a future sentencing hearing. Finally, Donnelly encouraged Ohio to create “a statewide sentencing database that would collect relevant data about every negotiated plea agreement and every criminal sentence issued in the state.” That would promote more “uniform and proportional” sentences based on the conduct at issue, which would eliminate bias and allow appellate courts to “correct unfair or excessive sentences.”

“Today the time is ripe to eradicate sentencing by ambush,” concluded Donnelly. His observations and proposals are equally applicable to many states other than Ohio.  

Source: “Sentencing by Ambush: An Insider’s Perspective on Plea Bargaining Reform,” Akron Law Review, Vol. 54, Issue 2.

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