When a defendant pleads guilty or admits that there are
sufficient facts that could determine their guilt, their lawyers will often
conference with the prosecutor to come up with a sentence that all parties
agree to. Sometimes there are differences between what the defense and the
prosecution thinks is an appropriate sentence.
A defendant may then take forward their terms and the
prosecution’s terms for the judge to consider and hear arguments on. The judge
may then agree with the defendant, the prosecutor or he may “split the baby”
and find somewhere in between. A defendant-capped plea means that the decision
does not bind the defendant if the judge agrees with the prosecutor or if the
judge’s terms are not agreeable. The terms are capped at what the defendant
wants. If the defendant does not wish to continue with his plea, he or she can
take it back and move toward a trial. Defense counsel should request that in
the event of trial, a different judge hear the matter.
In Charbonneau v.
Holyoke Div. of Dist. Court Dep’t, the SJC vacated a standing order that
disallowed a defendant from tendering a defendant-capped plea on the day of
trial. Under M.G.L. ch. 278 s. 19 and Mass. R. Crim. P. 12, a defendant has an
absolute right to tender a plea up to and until trial.
