Playing Hot Potato: The Risks and Rewards of the Open Sentencing Plea in Texas

The Texas Code of Criminal Procedure allows for a defendant to plead “open” and get sentenced by the trial court. You can also have a jury sentencing hearing, but I’ll discuss that process in a separate post.

Defense attorneys often use the open sentencing procedure as a pressure release valve to resolve the tension between stubborn clients and/or stubborn prosecutors. Let me explain the process.

First, let’s define the phrase. An open plea means that the defendant pleads guilty, signs admonishments and stipulations that inform him of type of crime he is pleading guilty to, explain that he is waiving all rights related to trying the merits of the case to a jury, and specify the punishment range of the offense. But the defendant’s actual sentence is not yet fixed. It is up to the trial court to determine what the defendant’s sentence will be after holding an evidentiary hearing. At this hearing, both the prosecutor and the defense attorney have the opportunity to put on evidence for the court to consider before deciding what sentence the defendant should get.

That’s the basic concept. What follows are other aspects of the open plea that all defendants need to take into consideration.

PSI Reports

Typically, after the defendant enters his guilty plea the case is reset to allow the local probation department to prepare what’s called a pre-sentence investigation report, or PSI.

A PSI report consist of a background write-up of the defendant that includes a summation of the defendant’s criminal, employment, and educational history. They are typically considered as reference documents for the judge to consider when deciding whether or not the defendant would be a good candidate for probation. If probation is not a sentencing option, a PSI report may not be necessary. Depending on the county, PSI reports can take from one to three months to prepare.

In my opinion, PSI reports are mostly a waste of time. These reports are not prepared by professional social workers, criminologists, or lawyers. Rather, they are cobbled together by probation officers who for the most part just pull information from the clerk’s file and from a single interview with the defendant. They are not thorough and should NEVER be relied upon by defense counsel or the defendant when going to a sentencing hearing.

The Code of Criminal Procedure provides that PSI reports should be sealed and provided directly to the judge and counsel for review. They are admissible by statute and are typically reviewed by the judge prior to the sentencing hearing.

Let me repeat that:  when a defendant pleads “open” to the Court, the judge is able to receive from a State agency a hearsay document prepared by probation officers that purports to summarize a defendant’s criminal, social, and professional history. No defendant in the State of Texas starts with a clean slate when he walks into court to get sentenced.

I’ve also noticed that appellate courts will use the statements made by a defendant in a PSI report against him when determining issues such as whether a plea was involuntary or should be withdrawn.

The Downside Risk of an Evidentiary Hearing

Potential clients come into my office regularly to tell me the same unfortunate story. Their goal is to try to undo the damage suffered from a PSI hearing, usually a surprisingly long prison sentence. They are usually looking to file an 11.07 writ of habeas corpus to undo their plea. I’ll explain the legal challenges to challenging open pleas with an 11.07 writ in a subsequent post.

But the families’ stories all follow the same structure. They go like this. The State made the client an offer of prison time. The defense attorney tells the client maybe the judge will give him probation. The defense attorney convinces the client to plead guilty and “open” to the Court. A month or two passes. The client and his family wait patiently for their opportunity to “ask the judge for probation.” They go back to court and something confusing starts happening. The court room clears out. The prosecutor has a stack of paperwork on his desk and is fiddling with the power point and AV equipment at counsel table. The client’s attorney tells him to take a seat next to him at the other counsel table. The judge clears his throat and asks everyone if they are ready to proceed.

What the hell is going on?! The client thought they were about to just ask the judge for probation. Their attorney didn’t tell them they had to endure a real hearing.

What unfolds next is a brutal beat down. The prosecutor brings in witnesses. He aggressively cross-examined the defendant and his support witnesses (typically his mom, maybe one or two other witnesses, usually not an expert). The prosecutor asks the judge to sentence the client to the MAXIMUM sentence allowed under the law.

Many defendants realize too late that an “open plea” isn’t just an opportunity to ask the judge for probation. The prosecutor can and often does ask the judge for a harsher sentence than the one they offered during the plea bargaining process.

So why would a defense attorney lead a client down this primrose path?

The Dynamics at Play

Defense attorneys are prone to underselling the risks of pleading open. There’s a reason for this. Open pleas allow them to close out a case without having to go to trial. If there is not a meeting of the minds during the plea bargaining process, you have to prepare for and get paid for a trial. It’s a lot of work. An open plea, on the other hand, is much more limited in scope (usually . . . ). These hearings are often held on Fridays and are over by lunch. Attorneys can tell their clients who really want probation that “maybe the judge will give it you.” It’s a path of least resistance. If defense attorneys were more honest about the risks of the open plea, I think more clients would opt for a full jury trial instead.

But Still . . . Maybe You Can Win the Game of Hot Potato

The open plea can be and often is a useful tool for defendants, especially if they have an upside argument, such as lack of criminal history, a high-status job (if I’m being on honest here, this kind of fact matters), or lack of violent behavior.

Handing out probations is often a game of hot potato, where the DA office doesn’t want to offer community supervision because of political considerations and judges are either reluctant or more open to the prospect depending on the politics of their electoral district. Broadly speaking, judges have more rhetorical and political room to explain why they gave a particular defendant the opportunity to avoid prison time. “Tough on crime” elected District Attorneys and their ADA’s for the most part don’t.

So, if your defense attorney knows the personality of the judge, the political dynamics at play, and has enough experience to properly assess a borderline case, then the open plea might be a good option for you.

But be careful! Don’t rely on PSI reports. Do make sure your attorney prepares adequately. And don’t ignore the down side risk of a maximum sentence.

In other words, ask yourself this question: is the mere possibility of a probation worth the risk of a long prison sentence? An honest answer to that question is the key first step to making a wise choice on how to plea.

If you have a family member who got a raw deal during an open plea, you should consult with a post-conviction specialist.  But keep in mind that overturning an open plea is difficult. And the “obvious” arguments for why the defendant’s plea was involuntary usually don’t work or have been weakened by appellate court and 11.07 writ jurisprudence and precedence. But as I always say, the specific facts of your loved one’s case are more important than precedent.

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