Overstating Possible Punishment and the (In)voluntary Nature of the Plea

In a post here discussing application of post-release supervision periods to multiple sentences Jamie raised the question of whether over-advising a defendant as to the maximum possible sentence associated with pending charges can undercut the knowing, voluntary and intelligent nature of a plea. Let’s recap the issue. Suppose a defendant is contemplating pleading guilty to two Class C felony reportable sexual assault charges committed after December 1, 2011. The highest possible minimum for each offense is 182 months. The corresponding maximum is 279 months. Built into this maximum is a 60-month period of post-release supervision. Suppose that when advising the defendant as to the maximum possible sentence, accounting for consecutive sentences, the trial judge doubles 279, getting a maximum of 558 months. The judge so advises the defendant and the defendant pleads guilty and is sentenced. As Jamie’s post clarifies, the judge’s advisement overstated the total maximum sentence that could be imposed for the consecutive sentences. If the sentences run consecutively, only one post-release supervision period is imposed. Because our defendant has two offenses, one 60-month post-release period must be subtracted from the maximum. This means that the maximum sentence is 558 minus 60 months, or 498 months. Assume now that the defendant files a motion for appropriate relief (MAR). He alleges that his plea was not knowing, voluntary, and intelligent because the judge overstated the maximum possible sentence and his lawyer never corrected the error. He further alleges that had he known the correct maximum, he would not have pleaded guilty. How does our defendant fare? Case law suggests that a dramatic overstatement as to the maximum possible sentence can invalidate a plea. In Manley v. United States, 588 F.2d 79 (4^th Cir. 1978), for example, the defendant was charged with six drug offenses and decided to enter a plea of nolo contendere to all counts. There was no plea bargain. At the plea proceeding, the trial court accurately told the defendant that the maximum punishment that could be imposed on each count was 15 years in prison, a fine not to exceed $25,000, or both, along with a special parole term of at least 3 years. The court further explained that because Manley faced six charges, the maximum term to which he might be sentenced would be 90 years plus $150,000 in fines. This latter advisement was incorrect. Under the relevant law, a number of the counts had to be merged and as a result the maximum sentence he could have received if the sentences ran consecutively was 60 years. The judge thus overstated the maximum by thirty years. The judge went on to accept Manley’s plea and sentence him to twelve years' in prison with three years of special parole. Manley later moved to have his sentence vacated arguing that because he was misinformed about the maximum sentence, his plea was not knowing, voluntary, and intelligent. The Fourth Circuit began by acknowledging that for a plea to be knowing, voluntary, and intelligent, a defendant “must have ‘a complete understanding of the possible sentence.’” Id. at 81. However, it noted, this rule did not “establish a per se rule that every error in sentence advice will permit the accused later to upset his guilty plea.” Id. For example, the court stated, if Manley’s lawyer correctly informed him of the maximum sentence, the judge’s error would not invalidate the plea. Id. Thus, the court determined, the “central question” is whether Manley “actually knew” what sentence might be imposed. Id. at 82. On this point, the court determined that a remand was required:

[B]ecause Manley's counsel stated only that he was satisfied his client understood the nature of the charges and the consequences of the pleas, it is possible that Manley's counsel had correctly advised his client of the sentencing possibilities, and by that provided the requisite understanding, or Manley may have been otherwise so advised. Accordingly, we vacate the judgment . . . and remand for further proceedings to determine whether Manley was informed of the maximum sentence that might have been imposed. If Manley were so informed, it follows that, despite the misapprehensions of court and prosecutor, his plea as to this point was in fact voluntary and intelligent. If the court below should find that he was not so informed, Manley's conviction must be vacated and he should be allowed to plead anew. A thirty-year error in sentence advice cannot, we think, satisfy the requirement . . . that the defendant have “a complete understanding of the possible sentence.”

Id. The court made clear if Manley did not actually know the correct maximum, the magnitude of the error in this case would invalidate the plea. See also Hammond v. United States, 528 F.2d 15 (4^th Cir. 1975) (maximum overstated by 45 years). But what about a lesser error? Elsewhere, the court suggested that an error as to “a few years” with respect to a “long term” may not invalidate a plea. Manley, 588 F.2d at 82. It’s noteworthy that Manley stated that its rule would apply regardless of whether or not a plea agreement was in place. Id. at 81 (“[T]he requirement that a guilty plea be voluntary and intelligent applies to all guilty pleas, not merely those in which a plea bargain has been struck.”). In the example above the judge overstated the maximum by five years. That’s well short of the thirty years at issue in Manley but it’s not an insignificant period of time. In the end, regardless of whether a defendant can invalidate a plea on this basis, the best practice for the trial judge is to correctly advise the defendant with respect to the maximum possible sentence. This may mean some fancy calculations when the charges have different post-release supervision periods but I don’t see a way to avoid this difficulty. If you think otherwise, let me know.