(Posted May 30, 2024) Recent SCOTUS news has me wondering whether Justice Alito has June 14 circled on his calendar … Flag Day …


Criminal law

The Robes by the beautiful banks of the James hand down one published opinion today, to address what appears to be a novel question of criminal procedure: Where the prosecution and defense negotiate a plea agreement, and the court receives that agreement but has yet to accept or reject it, may the litigants renegotiate it?

Thomas v. Commonwealth began with a Fauquier County indictment for the very serious felony of aggravated malicious wounding, the result of a knife attack that left the victim with permanent injuries. The parties appeared in circuit court on the scheduled jury-trial date in January 2020 and informed the judge that they had reached a plea deal. The court agreed to take the plea and sent the jury home.

The agreement called for a nolo contendere plea to a reduced charge of unlawful wounding – still a felony, but with vastly reduced consequences, including one year of active confinement. The prosecutor told the court that he would have difficulty proving the original charge, as the victim had been intoxicated and couldn’t remember the event; other witnesses were proving unavailable or unreliable. The court accepted the defendant’s conditional plea of guilty while taking the plea agreement under advisement. It set a hearing in April 2020 to accept the plea and sentence the defendant.

Fate intervened in the form of a pandemic that shuttered courthouses across the Commonwealth. The defendant’s sentencing date fell back to May 18, by which point the prosecutor’s witness problems had deteriorated. Facing the possibility of losing the case, he agreed with the defense to a new plea deal calling for a nolo plea to assault and battery. Now we’re all the way down to a misdemeanor.

During the period of judicial emergency that year, dockets began to pile up. The clerk of court, casting about for ways to thin out that backlog, invited litigants with agreed resolutions of cases to present them in remote hearings. These parties agreed to set a hearing for May 8 before – and this is important – a judge designate; not the original judge who received the plea agreement.

That hearing got pushed back to May 13, at which point the litigants appeared before the judge designate and presented the new agreement. That document referred to the original plea deal but didn’t go into detail. The judge designate, satisfied with the arrangements, accepted the plea and sentenced the defendant accordingly.

If that were the end of the story, we wouldn’t have much of an appellate tale. The original judge, expecting a May 18 hearing, learned about the proceedings and – reading just barely between the lines of today’s opinion – resented the fact that no one had consulted him. He entered an order on May 20 staying the May 13 sentencing order and directed the parties to appear before him a week later.

Uh-oh. Even though the hearing was telephonic, it probably wasn’t a pleasant experience for the lawyers. They jointly explained the circumstances to the judge, including the clerk’s call to the local bar for uncontested matters. The court was unmoved; calling the interim proceedings “gamesmanship” and “manipulative and deceptive,” the court vacated the sentencing order and set a new sentencing date for August.

Just before that hearing date, the defendant moved the court to withdraw his conditional guilty plea. No dice, the court responded, insisting on proceeding with the original January plea deal. The prosecutor commendably weighed in on the side of the defense, telling the court that he didn’t believe that justice was being served, and that the parties should be free to renegotiate a plea agreement at any time before the court accepts the plea.

Unmoved, the court convicted the defendant of unlawful wounding and imposed the originally contemplated prison term. The Court of Appeals affirmed. Today, the Supreme Court reverses. The key holding is that a plea agreement is a contract that becomes binding once the court accepts it. Until that point, the parties can reframe it. The prosecution and defense acted within their rights by negotiating the second plea and submitting that to the court, and the circuit court incorrectly rejected it.

I’ll add a bit about the case’s procedural posture at this point. The justices send the case back to the Court of Appeals with a directive to remand it to circuit. The last sentence of today’s opinion provides, “Upon remand, the parties will be returned to the status quo ante: an indictment for aggravated malicious wounding.”

Let’s pause a moment to consider what that means. The case is going back to the original sentencing court – and perhaps the original sentencing judge, who will then exercise the usual judicial discretion over whether to accept a plea agreement. No matter how firmly the parties believe that a given outcome is suitable and proper, the court has the ultimate decision on whether to impose it or allow the defendant to elect to go to trial on the original charge.

I invite you, after reading the opinion, to see if you agree with me that the sentencing judge acted out of resentment at that perceived gamesmanship. If that same judge gets to exercise the deal-or-no-deal discretion, there’s a fair chance that the second plea agreement might not make its way into a sentencing order; the court might insist upon a trial on the aggravated malicious wounding charge.

That, in turn, would present difficulties for both sides. Remember, the prosecutor’s effective witness list was already thinning out four years ago – one witness had died; another was accumulating felony charges of his own and might not make an ideal presentation to a jury. We can’t know what evidentiary weapons the Commonwealth can bring to a 2024 trial. And the defendant assuredly doesn’t want to face a Class 2 felony charge, which could result in a life sentence.

Justice Mann pens today’s opinion for a unanimous court. I’ll give credit where it’s due: It’s a delightful read (unless you’re the trial judge). It comes across less like a dry judicial opinion than an engaging story. As a consumer* of the court’s written output, I genuinely appreciate that.

One last point: I was a bit surprised that the Commonwealth, in the person of the Attorney General, fought so hard to hang onto this conviction. I readily acknowledge that the AG isn’t bound by legal positions taken by Commonwealth’s Attorneys. But the local prosecutor’s candor, and his evidentiary plight, made this appear to me to be a particularly unsuitable battle to fight. There may be internal factors at work here that I can’t know, so I won’t judge harshly; but a little appellate prosecutorial discretion here would have made more sense to me.


*(In fairness, they’re consumers of my written output, too.)