Pleas, Sentencing, Appeals, Double Jeopardy

if defendant pleads guilty, what must the court do?

Judge must first determine that the plea is voluntary and intelligent. Then the court must address the defendant on the record to ensure that the defendant knows and understands: (1) the nature of the charge and the crucial elements of the crime; (2) the maximum possible penalty and any mandatory minimum; and (3) he has the right not to plead guilty and that if he does, he waives his right to a trial.

When can a plea be set aside?

(1) it was involuntary or procedurally improper;

(2) court lacked jdx to take the plea;

(3) ineffective assistance of counsel;

(4) prosecutor fails to keep plea bargain

Does defendant have a right to counsel at sentencing?

Yes, the defendant has a right to counsel during sentencing.

Does defendant have a right to confront witnesses?

No, defendant does not have a right to confront witnesses except: (1) in a magnified sentencing based on new findings of fact; or (2) capital sentencing requires more confrontation rights.

When is a harsher sentencing allowed on remand after a successful appeal?

To impose a harsher sentence the second time around, the judge must show reasons in the record for the harsher sentence unless harsher sentence was imposed: (1) at a trial de novo; or (2) by the jury.

What type of punishments violate the eigth amendment?

Cruel and unusual punishments that are disproportionate to the offense.

When is death penalty constitutional?

In a murder case, the defendant could be sentenced to death if: (1) authorized by statute; and (2) the statute provides full information and guidance for making the decision.

Death penalty is unconstitutional in what circumstances?

(1) rape cases;

(2) if defendant is insane;

(3) if defendant is intellectually disabled; or

(4) if defendant was younger than 18 when the crime was committed.

Is it unconstitutional to make being a drug addict a crime?

Yes, it is unconstitutional to make the very status a crime; canʻt punish for the mere propensity to commit the crime.

Is it unconstitutional to sentence a minor to life without the possibility of parole?

It is unconstitutional to sentence a minor to life without the possibility of parole for non-homicide crimes.

Can an indigent be imprisoned for failing to pay fines?

No, imprisoning an indigent defendant for failing to pay fines violates the equal protection clause.

What rights does defendant not have with respect to appeals?

Defendant does not have the right to appeal or the right to self-representation.

(NOTE: If state provides a right to an appeal, defendant has the right to counsel for first appeal).

How may defendant attack their case collaterally if an appeal is no longer available?

Defendant may file a habeas corpus petition in a civil action challenging the lawfulness of his detention. Defendant must be in custody to bring a habeas petition (i.e., prison, parole, bail). Defendant must prove the unlawfulness of his detention by a preponderance of the evidence.

When does jeopardy attach in a jury trial?

When the jury is empaneled and sworn in.

When does jeopardy attach in a bench trial?

When the first witness is sworn in.

When does double jeopardy apply?

Defendant cannot be tried for the same offense twice once jeopardy attaches.

What constitutes the same offense for purposes of double jeopardy?

Two crimes are not the same if they each contain at least one element the other does not.

Can a state court and federal court try the defendant for the same offense?

Yes, double jeopardy only applies to cases by the same sovereign.

What are the exceptions to double jeopardy?

(1) hung jury;

(2) mistrial for manifest necessity to abort original trial; or

(3) retrial after successful appeal unless grounds for reversal was insufficient evidence to support a conviction.

(NOTE: Retrial canʻt be for a more serious offense).

Who can assert the self-incrimination privilege?

Any natural persons may refuse to answer a question in any type of case if the question might tend to incriminate them,

What is the scope of a defendantʻs self-incrimination privilege?

A criminal defendant can refuse to take the stand altogether. Other natural persons must take the stand, but can assert the privilege question by question.