Criminal Defense of Immigrants


§ 10.7 D. Relationship to Plea Bargaining

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Sometimes, a plea bargain determines the sentence, so no discretion is left to the court to make different sentence choices.  Under those circumstances, defense counsel must do the analysis and argument to obtain an immigration-safe sentence during plea bargaining.  See § 8.52, supra.


                On other occasions, sentence choices are left open during plea bargaining, and defense counsel is free to attempt, by means of the techniques identified in this chapter, to protect the defendant against immigration consequences by affecting the sentence.


                After sentence, during post-conviction proceedings, the prosecution sometimes argues that the plea bargain continues to dictate the sentence, so the particular post-conviction relief is foreclosed by the plea bargain.  In at least some jurisdictions, e.g., California, the statutory framework and judicial decisions provide that while the plea bargain may have dictated the initial sentence, the court thereafter has discretion to modify the sentence in the interests of justice.[34]


[34] People v. Segura, 114 Cal.App.4th 200 (2d App. Dist. Oct. 26, 2006) (error to deny motion to reduce 365-day sentence imposed as probation condition in the mistaken belief that the court lacked jurisdiction to alter jail term because it had been imposed as part of a plea bargain, since Penal Code § 1203.3 provides that “a trial court enjoys continuing jurisdiction to modify terms and conditions of probation, even over government’s objection and notwithstanding any plea agreement.”).