Should I Accept a Guilty Plea?

by Professor Byron L. Warnken on September 25, 2014

In most criminal cases, the Defendant is afforded an opportunity to accept a guilty plea.  The question is, if a plea can be negotiated, should the Defendant accept a guilty plea?  No two cases are alike, and there is no “one size fits all” answer to whether to accept a guilty plea.  Here are some of the considerations.

The “plus” of agreeing to plead guilty is that the Defendant usually – not always, but usually – is able to plead guilty to lesser charges and/or receive a lesser sentence.  To answer the question as to whether to plead guilty, the first consideration is, if the Defendant rejects a plea and goes to trial, what then happens?  If the Defendant rejects a guilty plea, and goes to trial, the Defendant may be found not guilty, which is the best possible result.

However, if the Defendant rejects a guilty plea, goes to trial, and is found guilty, i.e., loses at trial, the Defendant is usually convicted of something worse than the plea offer, and the sentence will almost always be harsher than if the Defendant accepted the plea.  Moreover, the Defendant, in most cases, will have a criminal record for the rest of his or her life.  Thus, the Defendant must consider (1) what are the chances of success if the Defendant goes to trial, i.e., what are the chances of a not guilty verdict on all counts; and (2) how much risk is the Defendant willing to accept.

Before deciding whether to accept a guilty plea, the Defendant must understand the difference between a two-party plea agreement and a three-party plea agreement.  In a two-party plea agreement, defense counsel and the prosecutor reach an agreement, but that agreement is not binding on the judge.  Usually, the judge will accept the plea, and the recommended sentence that goes with that plea.  However, there is no guarantee.  The amount of the sentence is still completely up to the judge.  The Defendant may argue for a lighter sentence than the one agreed to.  The Defendant may be sentenced to the sentence that was agreed to or be sentenced with a sentencing range agreed to.  Of course, the Defendant may be sentenced to the maximum sentence for the crime or crimes to which he pleaded guilty.

Maybe the prosecutor will agree to “remain silent” at sentencing or agree to recommend a cap on the sentence.  Usually, the court will accept the recommended sentence, but, again, there is no guarantee.  Often, the two-party plea agreement is an agreement to “sentencing guidelines.”  This means that if the guidelines are three years to seven years, the parties will recommend guidelines, with the right to argue for any sentence within the guidelines.  A two-party plea agreement is risky.  Defense counsel needs to know the judge’s track record when sentencing Defendants under a two-party plea agreement.

In a three-party plea agreement, the parties, through counsel, present the plea agreement to the judge, urging the judge to “bind the court” to the plea and the sentence.  Most judges, when presented with a three-party agreement, agree to join the plea and bind the court to the recommended sentence, but there is no guarantee.  The judge may defer accepting or rejecting the three-party plea agreement until the court receives the pre-sentence investigation report.  Occasionally, the plea is a partial two-party plea agreement and a partial three-party plea agreement.  This means that the parties and the court agree to a sentencing range, which is often the guidelines range, with the court deciding on the sentence, within the agreed to range, after hearing argument from both counsel.

Plea agreements, particularly in lower level State Courts for minor offenses, may not involve jail time.  There may be an agreement to plead guilty, be sentenced to jail time, have that jail time suspended, in return for restitution or community service.  The agreement may include that, upon successful completion of the plea conditions, the Defendant returns and the court strikes the guilty finding and enters probation before judgment.  Generally, this can eventually be expunged, resulting in no criminal record.  The best of all worlds for the Defendant is for the prosecutor to agree to nol pros, i.e., dismiss the charges.  This too can be expunged.

There is one downside to a three-party plea agreement.  With a two-party agreement, the Defendant may file a motion for modification or reduction of sentence (MMRS).  If such a motion is filed, the court may or may not modify or reduce the sentence.  Although the court may deny the motion, the court may not increase the sentence.  With a three-party agreement, the court may not modify or reduce the sentence, except under rare circumstances, which almost never apply.  Thus, the good news with a three-party agreement is certainty and, similarly, the bad news is that there is certainty.

The best of all worlds may be a two-party agreement in which the judge agrees to entertain an MMRS, with the understanding that if the Defendant has a “good adjustment record,” the court will seriously consider granting probation or granting probation before judgment.  If the court reduces the sentence to probation, the Defendant will be permitted to serve the remainder of the sentence “on the street.”  If the court reduces the sentence to probation before judgment, after successful completion of probation, and a waiting period (usually three years), the Defendant may file for expungement, which permits the Defendant to have this case forever erased from his record, as if it did not happen.

A plea agreement is not something that should be thrown together at the last minute, particularly if trial counsel is seeking a plea agreement because trial counsel is not prepared to go to trial.

Depending on the circumstances, last minute plea agreements because a lawyer is not prepared to go to trial can be an issue raised on post conviction.  If an attorney guarantees a certain length of a sentence to induce his client into taking a plea, then the client later gets more time, this can also be an issue in post conviction.

Do not take the decision whether or not to plead guilty likely.  Often times, we receive calls many years later from clients we did not represent at trial seeking to have a guilty plea undone.  It’s not easy to undo what has been done.  It’s easiest to simply get good advice about whether or not to plead guilty up-front.  Hiring the right criminal lawyer, even if you know you are thinking about simply pleading guilty, is important.  There are numerous concerns and issues to weigh with qualified counsel before making such an important decision.  We at Warnken, LLC used to have a very active criminal practice in the Baltimore, Maryland area.  However, as time has gone on and my son takes a more active role in the practice, we’ve switched our focus to other areas like workers’ compensation.  We still handle select criminal matters, though.  Furthermore, if we cannot handle your criminal case, we can refer you to someone who can.

In conclusion, please understand the importance of weighing your options when deciding whether or not to plead guilty to a criminal offense.  The decision should be rooted in much contemplation with the benefit of good counsel.

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A Thank You to the Baltimore Bar Library

by Professor Byron L. Warnken on August 5, 2014

Baltimore Bar Library Signing Picture

Byron Warnken at Baltimore Bar Library

On July 17th, I was able to speak at the Baltimore Bar Library about the updates to the criminal law of Maryland in the past year since my treatise was published.  It was a privilege and an honor.

It was remarkable how quickly the year since the original publication went by.  Ultimately, I decided to make the first annual update to the treatise available for free on the book’s webpage on  The response has been exceedingly positive.  If you have not downloaded the update, you are welcome to at any time.  No waiting, no paying.  If you haven’t gotten the full set from Amazon, you can do that at any time too.  A little waiting, a little paying.  Hopefully, though, worth its weight in gold.

Thanks to the Baltimore Bar Library and to Lou Curran.

Maryland Criminal Procedure at Baltimore Bar Library

Maryland Criminal Procedure


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An Update on My Treatise

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Things are moving right along.  My treatise is complete.  Editing is complete.  Indexes are complete.  Intros are complete.  Typos are fixed.  The Foreword is in.  The Library of Congress knows about it.  Covers have been picked.  The formatting is nearly complete. As promised recently, Maryland Criminal Procedure will go to the printer in early September and [...]

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