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I Didn’t Agree To That: Consecutive Sentences Versus Concurrent Sentences

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Attorney Jason Chan

267 North Beacon Street, Suite 3
Boston MA 01235

Phone: 781-343-1DUI (781-343-1384)
Fax: 617-226-7986

When criminal defendants accept plea deals, do they really understand the discretion the Court has in sentencing? If not, can they win the argument that the plea was not “voluntary and knowing” (meaning that the defendant understood the consequences of taking the plea) in order to have it withdrawn?  The First Circuit dealt with this issue in a recent case, United States v. Ocasio-Cancel.  In that case, although the Defendant voluntarily entered into the plea agreement, he did not realize that the imposed sentences would ultimately run consecutively. He argued on appeal that because he was unaware of this possibility, his plea was not voluntarily and knowingly made.  The First Circuit did not agree.  Instead the court determined that not all consequences must be understood.

The standard required for a plea agreement to be valid

When a defendant agrees to a guilty plea, it must be “voluntary, knowing, and intelligent.”  This means that he knows exactly what he is getting into by agreeing to say he’s guilty.  However, there are different kinds of consequences of pleading guilty and not all of them need to be explained.  An attorney is only required to inform his client of the “direct” consequences of the plea, not the possible “collateral” consequences.  These consequences can range from employment issues to immigration issues.  Yet, the law does not require defendants to be fully informed.  A rule articulated in United States v. Russell says that, if an attorney decides to mention any possible collateral consequences but misstates the law in some way, the guilty plea may be withdrawn.  According to Jenny Roberts, Associate Professor and Director of the Criminal Defense Clinic at Syracuse University College of Law, this rule:

encourages prosecutors, judges, and defense lawyers to remain silent about the existence or severity of collateral consequences, lest they give incorrect information and thereby undermine the finality of the guilty plea or risk being branded an ineffective attorney.

As in the case of U.S. v. Russell, the fact that the defense attorney incorrectly advised his client, ultimately saved him from deportation.  But sometimes, as in U.S. v. Ocasio-Cancel, the lack of knowledge of the collateral consequences was of no matter.

Why the possibility of consecutive sentences was considered merely a collateral consequence

The turning point in these cases is “whether the consequence represents a definite, immediate, and largely automatic effect on the range of a defendant’s punishment.”  The key language is “largely automatic effect.”  As the Court in U.S. v. Ocasio-Cancel explained, a consecutive sentence was neither automatic nor definite in that case.  The defendant argued that, because neither his attorney nor the district court advised him that his sentences would run consecutively, his plea was invalid.  He also said that if he had been aware that the court would impose a consecutive sentence, he would have reconsidered proceeding to trial.

However, the Court of Appeals pointed out that a consecutive sentence was not an automatic consequence in that case.  Instead, the court had broad discretion to impose either consecutive or concurrent sentences.  Therefore, a consecutive sentence was not a direct consequence of the guilty plea.  Had his attorney told him that the court would automatically impose concurrent sentences, which was not true, then he may have had a chance at getting the guilty plea withdrawn.  But that was not the case.

Is there really a distinction between direct and collateral consequences?

In many cases, like those dealing with non-citizens, consequences such as deportation and eviction from housing are real.  One New York attorney, Florian Miedel, has said, “Courts must recognize that most ‘collateral’ consequences are real and automatic, and cannot be distinguished from ‘direct’ consequences.”

However, until there is a change in the law, attorneys are clearly the first line of defense in advising clients about the consequences of criminal convictions and guilty pleas.  Attorneys must make a conscious effort to stay knowledgeable about the every changing consequences.  So, when considering whether to accept a criminal guilty plea, no matter what the charge, consult with an attorney and ask about the possible consequences.

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