Thursday, September 01, 2022

No Second Chance on Dismissed Charges Following Appeal

US v. Petties: In 2015, Petties was indicted on three counts - one (Count 1) for failing to register as a sex offender, and two (Counts 2 & 3) for committing crimes of violence while having failed to register. In both of the latter counts the crime of violence was kidnapping. After the district court denied Petties motion to dismiss the Counts 1 & 2, because kidnapping is not categorically a crime of violence, he entered into a plea agreement in which pleaded guilty to Count 2, preserving the right to appeal his motion to dismiss. In return, the Government agreed to dismiss the other two counts and "not further prosecute [Petties] for conduct constituting the basis for the Indictment." Petties was sentenced to 96 months in prison and Counts 1 & 3 were dismissed.

Supreme Court decisions while the case was on appeal made defending the district court's denial of the motion to dismiss untenable, so the Government conceded that kidnapping was not a crime of violence and the conviction under Count 2 had to be vacated. The Fourth Circuit vacated "the district court's judgment and remand[ed] for further proceedings."

On remand, Petties moved for immediate release, but the Government argued that it was now "relieved of its obligations under the plea agreement once Petties's Count 2 conviction and the district court judgment were vacated." The district court agreed and denied Petties' motion. By vacating the conviction, the Fourth Circuit had "reinstated the indictment and reset the case" and while Counts 2 & 3 were no longer viable, Count 1 was. The plea agreement did not bar further prosecution under Count 1 and, in fact, "because Petties had repudiated it when he moved for release instead of pleading guilty to Count 2, as promised . . . Petties was obliged to plead to Count 2's lesser included offense of failure to register." Petties pleaded not guilty and was convicted of all counts at a bench trial, but Counts 2 & 3 were dismissed as multiplicitous. He was sentenced to the same term as before - 96 months in prison.

On appeal (for the second time) the Fourth Circuit reversed the district court (for the second time). The court noted that the plea agreement "on its face" appears to say that if Petties pleaded guilty to Count 2, the Government would "refrain from any further prosecution for conduct charged in the indictment - including the failure to register offense charged in Count 1, on which Petties now stands convicted." The Government made the agreement "with full knowledge that Petties might appeal - and appeal successfully - his conviction on Count 2." That possibility was "a contingency expressly contemplated," given that it was a conditional guilty plea entered into precisely to preserve Petties' right to appeal the motion to dismiss. The Government could have included language allowing it to pursue other charges in that event ("as the government often does"), but it did not. It also could have required Petties plead guilty to Count 1, but it did not. Nor could the court find any support for the argument that, in his original plea to Count 2, Petties agreed to plead guilty to the lesser-included offense in the case of a successful appeal.

Congrats to the Defender office in ED North Carolina on the win!

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