Felony Change of Plea Process (example)


A change of plea in a felony case can be a tricky process for clients and lawyers. By law, judges must have a meaningful conversation with a defendant before the judge will accept the client's guilty plea. This is called "allocution". If a plea bargain is worked out, the client must be able to "allocute" or "get through allocution" before the judge will accept the plea. This is a very important step that must be covered between lawyer and client prior to appearing before a felony judge.

Below is an example shared by a colleague of mine who preps his clients to appear before a specific judge in Delaware County.

The Change of Plea process:

The judge will address the Rule 11(f) agreement which is the agreement between the defendant and the State of Ohio. This contains the statutory section to which you are pleading guilty as well as the State's recommendation (or joint sentencing recommendation).

An 11(f) agreement will be covered by the judge and he will engage in a conversation with the client. Even though the client, defense attorney and prosecutor signed the agreement, it does not bind the judge. It only binds the parties. He does not have to follow it.

The judge will then address the statutory and Constitutional right a client is waiving. You have the right to have the state prove your guilty beyond a reasonable doubt, to have your lawyer cross examine the state's witnesses, and your right to subpoena witnesses on your own behalf. Also, you are giving up your right to remain silent.

Some judges will ask the client if the client knows the prison range and fine range. He will then address Post Release Control (PRC). PRC is only if a person is sent to prison and is released it is up to the parole board if the defendant is placed on it and they determine how long (up to 3 years) and what the rules of PRC are - if the defendant violates their rules the Parole Board can send the defendant back to prison for up to one half the original stated prison term.

The judge will then cover a non-prison term and placement on "community control". There are residential, non-residential and financial community control sanctions.

Judges have to determine if a defendant is "amenable" to community control sanctions and if community control would demean the seriousness of the offense.

A judge will ask you if your plea is "voluntary" meaning by your own free will and nobody forcing you. The judge will ask you if you've consumed any alcohol or drugs in the past 24 hours.

The judge will advise you that he can move forward with sentencing immediately and impose a prisoni term.

The judge will ask you if you know what a PSI is. It is a comprehensive background check or "the good, the bad and the ugly".

Finally, the judge will ask you to explain the fact that gave rise to the criminal charge. You must be open, full, and honest.

Once the Court accepts the plea, you will visit the probation office to begin the PSI process.