Please See Below for a Transcript of the Video
Hi, I’m Richard Waring and I’m a criminal defense attorney in Charleston, SC. If you’ve been charged with a DUI, possession of marijuana or cocaine, burglary, trafficking, or some other crime, you may have decided to plead guilty and are wondering “what will happen at my plea hearing?”
First off, since we’re in the middle of the pandemic, the South Carolina Supreme Court has suspended most in person court proceedings. So, depending on which county in South Carolina you’re in, there’s a good chance that your guilty plea hearing will take place over a virtual program such as Zoom or Web Ex. There’s a high likelihood that you won’t be the only person on the docket pleading guilty though. Generally, there are many other cases that are on the guilty plea docket, so what that means for you is that depending on where your name falls on the docket and depending on how that particular plea judge calls their cases, you could be waiting for your turn in court for quite a while, so I would clear your schedule for it.
During pre-pandemic times, you would sit in the gallery seating quietly until it’s your turn. Anybody who you wanted to speak on your behalf could be present with you too. Currently, you can still have someone speak on your behalf, but it will just be on a virtual court session.
And, if you’re doing your guilty plea over the internet, you might have to go to your attorney’s office to sit next to him or her during the virtual plea hearing so that the judge can see you on the computer screen, or it’s possible you might be on your computer at home. If you’re in jail, you would normally physically go to court, but during the pandemic you’ll most likely be doing your plea over the internet while you sit in a room at the jail.
Depending on whether the government offered you a deal, the terms of your guilty plea may already be worked out. For example, if you were charged with possession with intent to distribute cocaine, but your attorney was able to get you the better deal of a reduction to possession of cocaine with a recommended sentence of probation, then you’re deal would be all worked out and, in general, you shouldn’t have to worry too much about any major surprises.
And, regarding sentencing categories, there are three: a recommendation, a negotiated sentence, and no recommendation.
And a recommendation means that both the prosecutor and you and your defense attorney agree on the sentence, such as probation; however, the judge does have the right to go above that recommendation or below it. In other words, if the prosecutor and your criminal lawyer in Charleston, SC or whichever county in South Carolina agrees on a recommendation of probation for your charge, technically the judge could disregard that recommendation and give you something worse such as prison time.
Conversely, the judge could give you time served, which means you have to serve no additional jail time and you don’t have any probation. Most often though, when both sides are agreeing to the sentence, the plea judge will usually go along with it.
Next, there is a negotiated sentence. A negotiated sentence involves the same concept as a recommendation (as in both the prosecutor and you and your defense attorney have worked out an agreed upon sentence for your case), but the difference is that the judge can’t go above or below the sentence like he or she would have been able to do with a recommendation. The judge can, however, decide not to take the plea if he or she doesn’t approve of the resolution. In those circumstances, the judge would stand the case down, and your plea would not go forward.
Lastly, there is no recommendation. When there is no recommendation on your sentence, that means that both sides did not come to an agreement on what your sentence should be. Therefore, the case law is clear that this means that both sides can ask for whatever sentence they want. So, keep this in mind if there’s no recommendation on your case. It doesn’t mean that the prosecutor is necessarily going to stay silent and not voice whatever sentence they think is appropriate. And, in this scenario, a judge can sentence you theoretically to whatever punishment he or she wants that is within the sentencing range for the charge you are pleading guilty to.
Alright, prior to your court appearance, the prosecutor will give your criminal attorney what’s called a sentencing sheet that he will explain to you and sign. It’s a one page sheet that contains all kinds of important information such as what you’ve been charged with and which charge you’re actually pleading guilty to. It also includes whether there is a recommendation, negotiated sentence, or no recommendation. If you’re charge has not gone to the Grand Jury and been indicted, then you would have to initial that you’re waiving presentment of that indictment to the Grand Jury. Then, you’ll have to sign the sentencing sheet, acknowledging that you agree to everything on it too.
OK, so you’ve been sitting either in court all morning during non-pandemic times or you’ve been at your attorney’s office for hours during pandemic times and now finally you’re name gets called. If you’re physically in court, you and your attorney will walk up and stand behind a podium. The prosecutor would be at a distance at another podium. If you’re doing it over the internet, you’ll see the prosecutor in one window, the judge in another, and you and your attorney will be in another.
Every county and judge does things a little bit differently, but in general, the plea judge will probably ask you and your attorney some questions first just to make sure that you understand what you’re doing and that you’re pleading guilty freely and voluntarily. You’ll also be notified that you’re giving up your right to remain silent by pleading guilty. The judge will read portions of your indictment aloud and will also ask you how you plead. If you want to go forward with your guilty plea and have been advised to do so by your attorney, then you would say, “guilty.” Then, at some point, the judge will instruct the prosecutor to state the facts of the case.
The prosecutor will mention what all you’re alleged to have done, and at another point, the prosecutor will read your RAP sheet or criminal history to the court, if you have one. Additionally, the prosecutor will provide information on whether the sentence is a recommendation, negotiated sentence, or whether there is no recommendation and what they’re asking for as far as a sentence on your case. Also, if there are victims on your case that are cooperative, the prosecutor may ask the judge to allow those victims to speak.
If you’re already on probation at the time of your guilty plea hearing, the department of probation may have an agent make a recommendation on their behalf. For example, if you’ve violated your probation terms by pleading guilty and getting convicted of another crime, the probation agent may ask for your probation to be revoked regardless of what your sentence on the charge you’re pleading guilty will be. Sometimes the probation revocation gets roped into the sentence for the charge you’re pleading to though.
Then, the judge will ask you some more questions such as whether you agree with the facts that the prosecutor read aloud. Your attorney will have the chance to say some positive things about you, and if there’s no agreed upon recommendation, they can ask for a favorable sentence on your case. If you have anyone who is present at the hearing that you’d like to speak on your behalf, your criminal attorney can ask the judge for them to be allowed to speak at that time. Then, the judge will sentence you. Additionally, if there was restitution in the way of money or property lost by any victims on your case, the judge can order that you pay that back.
One other thing: I think right now, at least in Charleston county, if you’re not in jail but you’re guilty plea will result in you definitely going to prison, they are not accepting that kind of plea at this time; however, if you’re already in jail and are going to prison, the court may allow that plea to take place currently.
Keep in mind that a good criminal defense attorney in Charleston, SC, Berkeley, or Dorchester county will keep you informed about everything I’ve mentioned and will be able to answer any questions you have.
Alright, that’s it for now on guilty plea hearings. If you’re in the Charleston, SC area or Lowcountry of South Carolina, feel free to call me anytime, and we can go over the details of your case. Having handled countless guilty plea hearings and tried numerous jury trials on a wide range of crimes, I’ve got the experience to help you take a look at your case. Best of luck.
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