Steve Palmer [00:00:01]:

Steve Palmer here. Lawyer talk off the record on the air. What is the appeal? Well, it turns out there is some appeal to what's the appeal, series. People are are liking this. I'm getting lots of questions. So I'm gonna do a quick what's the appeal segment, and I'm gonna talk about something. I don't I don't think I've touched on this yet even tangentially. I get lots of questions all the time upstairs in my law practice, Palmer Legal Defense.

Steve Palmer [00:00:22]:

Check it out. About people who have entered a guilty plea, and now they change their mind, and they wanna withdraw their bargain. And, most of the time when people wanna change their minds because they didn't like the sentence. So the trial judge, didn't do or didn't impose a sentence that the client expected or the the defendant expected to get. This happens a lot. So, a criminal defense attorney goes in, pleads guilty, say that you got three counts of drug trafficking, prosecutor agrees to dismiss two of them. In Ohio, we have something called joint recommendations, meaning the parties are gonna recommend to the judge that there's only one year of prison on this. And, but then the judge has we can't bind the judge in Ohio.

Steve Palmer [00:01:06]:

In federal court, there's binding plea agreements. Other states have some binding joint recommendations. But in Ohio, we don't. So the trial judge doesn't have to follow the joint recommendation, and this happens a lot. So we go in and we jointly recommend one year, and the judge, lo and behold, comes back five years. And the defendant's standing there saying looking at the lawyer saying, what did you just do? You screwed me. This isn't fair. This is an outrage.

Steve Palmer [00:01:29]:

There's there's some things to unpack here. First and first and foremost, when I have a joint recommendation with my client, and I've agreed with the prosecutor to recommend something to the judge, I go talk to my client. And and a lot of this comes down to communication. I am very crystal clear on plea agreements and any big constitutional, meaning you're waiving your right to trial type decisions with my client. Look, we're gonna ask the judge to do a certain thing, but the judge doesn't have to. And the judge could actually turn around and make this significantly worse or even marginally worse, whatever the worst it could be. I always make sure that my client understands this, and we have a very, very candid discussion about it. This and and look, I'm not I'm not criticizing the people I represent.

Steve Palmer [00:02:17]:

In in fact, quite the opposite. When you're sitting on at the in the defendant's shoes, I think our human nature is to hear the good and maybe disregard the bad. So a lot of times people will hear, well, my lawyer said I was gonna get blank. And then I talked to the lawyer later, and the lawyer says, no. I didn't tell him he was gonna get blank. I told him that he could get blank, but he might get more. And then, you know, my my in the back of my head, I'm thinking, well, you didn't tell him that good enough. You weren't clear enough.

Steve Palmer [00:02:45]:

And sometimes I I I actually have my clients repeat back to me, and I say, listen. And I tell them. I say, listen. A lot of times, people sitting where you're sitting, you're you're focusing only on the on the best part of this, and I need you to understand that it could go it could go bad. And if it goes bad, I don't want I don't want you to feel like you're surprised or that you got cut off at the heels or that something, bad happened here that you weren't expecting. We need to expect it. We need to hope for the best, but we have to be prepared for the worst. Let's talk about it.

Steve Palmer [00:03:15]:

And it's hard sometimes for lawyers to have that conversation because, you know, we we don't lawyers have the same human problems that the rest of us have. You know? We we we hate giving bad news to clients because it sucks. We hate talking about the bad stuff because it sucks. We've been hired to do good. We've been hired to help clients, and it's hard to to deliver the bad news. There's a there's an I don't wanna say it's an art form, but it is it is so part and parcel with the way I practice law that it's natural now. I always make sure my clients understand everything because they have to. Now what's we've gotten a little bit of a tangent, but it that's the backdrop for this.

Steve Palmer [00:03:50]:

So somebody doesn't somebody goes through a plea bargain. The judge says five instead of one. And now somebody calls me and says, look. I wanna withdraw my plea. Now, that scenario is the hardest one. And and if it's been years, by the way, and that happens. I got a call recently upstairs in my law practice, where somebody had done already a few years of prison or maybe even five years of prison, and they wanna withdraw their plea. That gets really, really difficult.

Steve Palmer [00:04:18]:

So the more time that goes by, the harder it gets. After sentencing, so the five year sentence has happened, even if it's right after the sentencing, it's harder to withdraw your plea. So Ohio has a couple standards that the case law spells out. After sentencing, it it you have to show a really, really, really, really good reason to withdraw your plea. And a really, really good reason might be that, the the plea colloquy, the question and answer at in the courtroom wasn't done correctly. Or maybe you can show that your lawyer gave you bad advice, told you your case could be expunged, but it couldn't, told you the maximum sentence was x, but it was really y. Maybe the plea paperwork is screwed up. That would be a good reason.

Steve Palmer [00:05:02]:

Sometimes I get affidavits, of my client, my client's family who was in who were in meetings with lawyers who got, bad advice, and then we can try to make a case to withdraw the plea after sentencing, but it's frowned upon. The courts don't like it. Before sentencing, in theory in Ohio, the standard is basically it shall be freely granted. The in other words, withdrawals of plea requests should be freely granted. My experience lately and when I first start practicing back in the nineties, I think that was the practice. I could almost almost always, I could get pleas withdrawn, before sentencing. Now so if you've entered a guilty plea and you've changed your mind and you haven't been sentenced yet, it's a lot harder now to withdraw a plea. And I don't know why.

Steve Palmer [00:05:46]:

I I, you know, just the the the outlook on it has changed a little bit in the courts. Even though it should be freely granted, courts are denying these requests. So, it's not so easy to withdraw the plea even before sentencing. And and then you have to consider this. So if somebody calls me and says, look, I wanna withdraw my plea. And I'm the first question is why? Well, you know, my my lawyer the the cliche, my lawyer screwed me, is typically an answer I get. Or, you know, you get to the bottom of it, which is the judge did more than what the person expected. But then I get into a deeper discussion, like, alright.

Steve Palmer [00:06:24]:

So you withdraw your plea. You're in this frying pan. You withdraw your plea. You're gonna jump right back into the original fryer. You're gonna go back to the trial court level. That means you're gonna go back and you're gonna have to try your case. And there was probably a reason you entered a plea in the first place. In other words, you didn't wanna go to trial for one reason or another.

Steve Palmer [00:06:40]:

Maybe the evidence was strong. Maybe you couldn't win. Maybe you were afraid of what the consequences would be worse than what it was even on the plea plea agreement in the sentence. And you have to be very careful because it's easy to have buyer's remorse. But you have to understand that the option isn't go back and win. The option is to go back and start over. And that means time. I guess your time forget about time, but it means money.

Steve Palmer [00:07:05]:

You have to go back and you have to pay a lawyer or you have to go back and, and deal with it with a public defender if that's what you're gonna do. You gotta go back to square one and start over, meaning you may have to go to jury trial on your case. And you should understand that if you have withdrawn your plea and you had an agreement with a prosecuting attorney on that and it's the same prosecutor's office, they're not gonna be so happy about it the second time around. They're gonna be thinking, wait a minute. I gave you this deal the first time around. There ain't no deals now. It's not gonna get any better for you. In fact, it's gonna get worse.

Steve Palmer [00:07:37]:

You either plead guilty as charged or go to trial. So don't withdraw your plea thinking that, it's gonna get better automatically. It might get worse. And, again, people don't always understand that it can get worse. But anybody who's, like, go to a blackjack table and think I can't lose four times in a row, and you lose five and you lose six. It can always get worse. That's a bit of a hyperbole, but you get what I'm saying. Now there's another reason that people want to withdraw their pleas.

Steve Palmer [00:08:06]:

Maybe, just maybe, since you've been sentenced, the landscape has changed. Maybe the evidence has changed. Maybe the alleged victim has recanted and said, no. My husband really didn't assault me. I made it all up because I was in a divorce, and I feel and I, wanted to get custody or whatever it is. You know? So maybe the evidence has changed, and that gives you a better chance to win the trial the second time around. That's a far more contemplative decision, to withdraw the plea. And that one, I would often support.

Steve Palmer [00:08:38]:

But if it's just to go back and say, I don't like the sentence. I'm gonna do it again. Don't think that if you do it again, it's gonna get better. Now, I guess, the final scenario is what do you got to lose? So there are certain times where it it literally can't get any worse. You got a maximum sentence, so why not go back and try it? And I get it, you know. What do you got to lose? Well, if there's if there's very little or nothing to lose, so the the risk at trial is like an extra year of prison and you're doing 10. I get it. Go back and take your shot at trial if you got any reasonable shot.

Steve Palmer [00:09:09]:

Take your shot and try to win it. Doesn't so what do I do when I get a request to withdraw the plea? I have this conversation with my clients. I walk through all these considerations. I try to figure out what they're trying to do, why they're trying to do it, and what could get worse, what could get better, what are the ramifications. And And then we look at if the decision is we wanna do it, we wanna try to withdraw the plea. Step one, I get the documents. So whenever somebody enters a guilty plea, or a no contest plea in a criminal case, there's almost always a written document that you've signed. And it and it could be a waiver of your constitutional rights.

Steve Palmer [00:09:44]:

It could be something called rule 11 negotiations, which is like the the written contract of what the agreement is. You sign that. And then I get the transcript, if it still exists, of the plea hearing in front of the judge. So the judge has to have a meaningful dialogue, meaning they have to under they have to talk to the defendant so and be sure that the defendant understands that they have constitutional rights, they're waiving those rights, what the maximum punishment is. If there's a plea agreement, almost always a judge in Ohio will say, I don't have to follow a joint recommendation, sir. I I can do worse. You understand that? And I get the but I I get the transcripts so I can see if there's a constitutional or or or, I guess, I don't wanna call it a technical problem, but a problem with the plea agreement itself. And then we draft a motion.

Steve Palmer [00:10:28]:

The motion is filed in the trial court. Prosecutor responds. I often beef up my motions with things like affidavits or witness statements. If there's citations to the record that are helpful, I'll use that. And then the trial judge has to make a decision. If you've already been sentenced, probably not gonna get granted, then you have to go to the Court of Appeals, and, the Court of Appeals will review it. If you lose there, you go to the highest Supreme Court, and you go up the appellate ladders I've talked about. With that, we'll wrap it up.

Steve Palmer [00:10:53]:

Palmer Legal Defense here at Lawyer Talk Podcast, What's the Appeal? You got a question you want me to answer? Go to, lawyertalkpodcast.com. Shoot me a a comment on the socials. I'll be happy to reply. Check us out.