You Can get Probation Even if you Plea to Three Flat State Prison Time

Today  I represented a client in Essex County who was coming to Court to be sentenced to 3 years in prison. D-day. We had worked for months to get a better offer, but his prior record was too much to overcome and the best offer we got was the three flat. Three flat means that your first parole eligibility date is in about 9 months. With a prior record like my client’s, he may have maxed out (three years).

The shame of the situation is that my client had really turned his life around. The incident date for the offense was actually a few years back and he had bench warranted while he was taking care of his terminally ill brother. Really heart breaking stuff. He had got married, had a kid, a good job, the whole thing. I tried to use all of this to get him a probation offer during negotiations, but no luck.

There was really no defense to the charges either. He gave a full confession and no issues with the circumstances under which it was given.

That left me with one final bullet. Argue for probation at sentencing. Even if you plead guilty to a sentence that includes jail time, nothing prevents you from trying to argue for something less at sentencing. The truth, it never hurts to ask. Most judges are not going to deviate from a negotiated plea agreement, but it never hurts to ask. How do you ask? by having a really good reason for why it should happen.

Everyone loves a good feeling heart warming story, and this guy had one. For fifteen minutes I told it in front of a court room full of people. When I got done, I didn’t even need the judge, the prosecutor turned to his partner at counsel table and they gave each other a nod. He turned to the judge and said that the state was willing to amend its offer to probation with time served.

Mom crying, wife hugging, defendant beaming court room drama. I can’t say this about everyone, but he deserved it.


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