Pleading Open on a Criminal Case

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Often times, when you are facing a criminal offense, prosecutors will offer to allow you to plead guilty to a certain count, dismiss the rest of the charges, with an agreement as to what the penalty will be. Typically this occurs in close to 90%+ of cases. Usually the parties come to an agreement, the plea agreement is entered into knowing what the penalty is in advance (or within a certain range), and the parties move forward informed. However, sadly, there are some occasions where the prosecutor’s offer is so outrageous or so out of line with what the defense believes to be reasonable, that set terms can’t be agreed upon. That leaves the defense attorney and his/her client to make a tough call: trial or pleading open. If the defense attorney believes that winning at trial is a long shot, pleading open or going pleading blind may be the best option.

What is pleading open? Simply put, it’s falling on the mercy of the court and arguing over what penalty should be received. That can be to a single count (if the parties are in agreement on the remaining counts) or to all charges (if there is zero agreement on any counts). While pleading guilty to all charges may not seem like a reasonable thing to do, many times counts merge with one another and the total penalty range is capped at the lead charge penalty range, so pleading to all counts doesn’t increase the total risk. If that isn’t the case and consecutive sentencing is a real concern, that is something the defense attorney and his/her client should discuss at great length to understand the risks associated with that decision.

But, as you are reading this, you may be thinking, “why on earth would I plead open to everything with no limitation on the potential sentence and risk involved?” That’s not an uniformed question. There is no doubt that pleading open comes with risks — but, they can be calculated if done appropriately. What are the risks? You are subject to the full penalty or maximum sentence. You are subject to maximum fines. You are subject to pleading guilty to all charges. You are truly risking a lot.

Yet, pleading open is still done all over the country on a daily basis. Why?

Many times that someone is pleading open is because the prosecutor is being wholly unreasonable and trial doesn’t make sense — and, the defense attorney believes that the judge will be more reasonable. When you are pleading guilty, you are accepting responsibility for what you did. That is a statutory mitigator — and a huge one at that. Judges like to see that people accept responsibility for mistakes they made — saving tax payer dollars, court resources, time, and decreasing juror demand. While it is unconstitutional for a judge to increase a penalty for taking a case to trial, aka a “trial tax”, nevertheless it does occur but through a different means, because the defendant loses the huge mitigator of accepting responsibility for the offense(s). Thus, the penalty is usually harsher after trial.

So, if you have a case that shouldn’t go to trial, but the prosecutor is being unreasonable, and you trust the judge (a huge factor to consider), a defense attorney may choose to go open. This signals to the judge that you are willing to accept responsibility but clearly you believe the offer from the State is out of line. Pleading open to the court signals to the judge that what has been extended to resolve the case is clearly out of line with what should be the penalty. The defense attorney can then put on a show at the sentencing hearing as to why what the state is asking for is out of line and why a more reasonable offer is available.

Any experienced attorney can walk you through whether going open is in your best interest. Clearly there are risks, but when the proposed penalty of the prosecutor is way out of line, usually the risks is worth it if your defense attorney trusts and has experience with the judge. As long as the defendant goes into the open sentencing aware of the risks and rewards, it can be a beneficial risk worth taking. It can also put the prosecutor in their place or remind them what is truly reasonable. Which, for any defense attorney, is always fun.

If you or somebody you know has recently been accused of a crime or has questions about the criminal case process, contact the experienced criminal defense attorneys in Indianapolis at Banks & Brower, LLC. We are available 24/7/365  by calling us at (317) 870-0019 or by emailing