La. Admin. Code tit. 22 § XV-731

Current through Register Vol. 50, No. 11, November 20, 2024

Section XV-731 - The Process of Plea Negotiations

A. In order to develop an overall negotiation plan, counsel should be aware of, and make sure the client is aware of:

1. the maximum term of imprisonment and fine or restitution that may be ordered, and any mandatory punishment or sentencing guideline system; and counsel should make the client aware that a guilty plea may have adverse impact upon;

2. the possibility of forfeiture of assets;

3. other consequences of conviction including but not limited to deportation, the forfeiture of professional licensure, the ineligibility for various government programs including student loans, the prohibition from carrying a firearm, the suspension of a motor vehicle operator's license, the loss of the right to vote, the loss of the right to hold public office; and the registration and notification requirements for sexual offenders;

4. any possible and likely sentence enhancements or parole consequences.

B. In developing a negotiation strategy, counsel should be completely familiar with:

1. concessions that the client might offer the prosecution as part of a negotiated settlement, including, but not limited to:

a. not to proceed to trial on merits of the charges;

b. to decline from asserting or litigating any particular pretrial motions;

c. an agreement to fulfill specified restitution conditions and/or participation in community work or service programs, or in rehabilitation or other programs; and

d. providing the prosecution with assistance in prosecuting or investigating the present case or other alleged criminal activity;

2. benefits the client might obtain from a negotiated settlement, including, but not limited to an agreement:

a. that the prosecution will not oppose the client's release on bail pending sentencing or appeal;

b. to dismiss or reduce one or more of the charged offenses either immediately, or upon completion of a deferred prosecution agreement;

c. that the defendant will not be subject to further investigation or prosecution for uncharged alleged criminal conduct;

d. that the defendant will receive, with the agreement of the court, a specified sentence or sanction or a sentence or sanction within a specified range;

e. that the prosecution will take, or refrain from taking, at the time of sentencing and/or in communications with the preparer of the official pre-sentence report, a specified position with respect to the sanction to be imposed on the client by the court;

f. that the prosecution will not present, at the time of sentencing and/or in communications with the preparer of the official pre-sentence report, certain information; and

g. that the defendant will receive, or the prosecution will recommend, specific benefits concerning the accused's place and/or manner of confinement and/or release on parole and he information concerning the accused's offense and alleged behavior that may be considered in determining the accused's date of release from incarceration;

3. the position of any alleged victim with respect to conviction and sentencing. In this regard, counsel should:

a. consider whether interviewing the alleged victim or victims is appropriate and if so, who is the best person to do so and under what circumstances;

b. consider to what extent the alleged victim or victims might be involved in the plea negotiations;

c. be familiar with any rights afforded the alleged victim or victims under the Victim's Rights Act or other applicable law; and

d. be familiar with the practice of the prosecutor and/or victim-witness advocate working with the prosecutor and to what extent, if any, they defer to the wishes of the alleged victim.

C. In conducting plea negotiations, counsel should be familiar with:

1. the various types of pleas that may be agreed to, including but not limited to a plea of guilty, not guilty by reason of insanity, a plea of nolo contendere, a conditional plea of guilty, (State v. Crosby, 338 So.2d 584 (La. 1976)), and a plea in which the defendant is not required to personally acknowledge his or her guilt (North Carolina v. Alford plea);

2. the advantages and disadvantages of each available plea according to the circumstances of the case; and

3. whether the plea agreement is binding on the court and prison and parole authorities.

D. In conducting plea negotiations, counsel should attempt to become familiar with the practices and policies of the particular jurisdiction, judge and prosecuting authority, and probation department which may affect the content and likely results of negotiated plea bargains.

La. Admin. Code tit. 22, § XV-731

Promulgated by the Office of the Governor, Public Defender Board, LR 35:668 (April 2009).

AUTHORITY NOTE: Promulgated in accordance with R.S. 15:142, 147 and 148.