Published in Criminal Law by Ben Jaffe on May 13, 2024.

Plea bargaining is a common practice in criminal law. With the increase in minimum sentences, discretion that is allowed from court judges, the overwhelming number of criminal cases assigned to the court system, and unpredictable case outcomes, a plea bargain can sometimes make sense.

There are also times when moving forward with a trial is more favorable than simply accepting a plea bargain. When it comes to criminal charges and the option to accept or turn down a plea offer, our team of dedicated and knowledgeable criminal defense attorneys can advise the best course of action.

Here we are explaining what a plea bargain is, the types of plea bargains available in Indiana, and the advantages and disadvantages of accepting a plea bargain vs. going through a jury trial.

What is a Plea Bargain?

To start, let’s explore what a plea bargain is. Essentially, a plea bargain is an agreement made between the defendant and prosecuting attorneys involved in the case.

When entering a plea bargain with the court, the defendant will agree that they are guilty of the criminal charges against them and will receive the penalty recommended by the prosecution. This offers the opportunity for the prosecution to obtain a guilty plea but also generally allows the defendant a favorable sentence, and a sense of relief knowing what the outcome is.

Indiana law allows the use of plea deals for both misdemeanor and felony offenses. There are some restrictions on sentences, depending on the jurisdiction someone is charged and the crime they are charged with. In some instances, there are minimum mandatory sentences.

It is important to note that even if you sign a plea bargain, a judge is not required to accept plea bargains. There is no guarantee that the defendant will receive the sentence agreed upon in a plea bargain. It depends on several factors – if a judge feels the sentence in a plea bargain is too lenient, or in some cases too harsh, the judge has the authority to reject that plea agreement.

Whether or not a plea bargain and agreed sentencing is adopted by the court is completely up to the presiding judge. 

Types of Plea Bargains

Two types of plea bargains are commonly used: a set-term plea, and an open-term plea.

An agreement to withhold prosecution (commonly known as a Diversion) is another way to resolve a case that is similar to a plea bargain.

The Set-Term Plea

Most criminal offenses carry a broad range of sentences, and the judge uses their discretion when deciding which sentence to impose, defendants might prefer to plead guilty with a guaranteed sentence than take their chances of a guilty verdict at a jury trial and a judge’s sentencing.

A Set-term plea involves an agreement on the charge and sentencing phase. Instead of a defendant’s sentence being at the mercy of the court, the prosecution makes a specific agreed upon sentencing recommendation in exchange for a guilty plea.

It is common for a set term plea to involve pleading to a lesser charge, or agreeing to a lesser sentence than would potentially be available after losing a trial. 

Pleading to a lesser charge is an instance where the prosecutor offers the defendant a lesser charge in exchange for a guilty plea. The lesser charge will often carry a shorter sentence or less harsh punishment than the original charges filed against the defendant. The lesser charge may also have other ancillary benefits such as not losing rights to purchase or carry a firearm.

Receiving a lesser sentence would mean agreeing to a sentence on the lower end of what is allowed on a particular charge, or even coming to an agreement that minimizes exposure to the harshest penalties. In Indiana the law allows for a range of penalties on all offenses.

For example, a Level 4 Felony carries a sentencing range of 2-12 years. If a defendant has a lengthy criminal history and is likely to be a candidate for the maximum penalty, an agreement that would allow for something closer to the minimum penalty can be a good option.

Along the same lines; most charges allow for suspended sentences or executed sentences on Home Detention rather than jail or prison. Coming to an agreement with the prosecutor to reduce or eliminate the possibility of a prison term is often desired in reaching a plea agreement. 

The Open-Term Plea 

An Open plea is similar to a set-term plea in that the idea is to manage risk for a defendant. The difference is that there is not a specific agreed upon term, but rather a range that is agreed upon. These types of pleas may still involve a combination of factors discussed above.

For example, there can be an agreement to a reduced range of exposure, like reducing the possible sentence on a Level 4 Felony from 2-12 to 2-4, or something along those lines. An Open plea does not prevent an agreement to reduced charges, as only the penalty range is not agreed upon.

Additionally, placement (i.e. Home Detention rather than jail/prison) is often an open term that can be considered. The “open” portion of the sentence is left to the discretion of the judge after argument by the parties.

Agreement to Withhold Prosecution or Diversion

An Agreement to Withhold Prosecution is a contract between the defendant and the prosecutor’s office that states if a defendant completes specific terms, the state will dismiss the charges against the defendant. The judge is not a Party to this type of agreement.

Diversion agreements usually charge a fee, require attendance in education classes related to the offense (i.e. anger management, alcohol education), and/or some Community Service Work.

If a defendant fails to comply with the terms of their diversion agreement, the State can proceed with the prosecution of the case. Diversions are offered at the sole discretion of the prosecutor’s office and are dictated by Ind. Code § 33-39-1-8.

How long do you have to accept a plea deal?

When considering a plea deal, you usually have a set time to decide. This is often a few months from when the offer is made. If you don’t accept by then, the prosecutor might extend the same offer or propose a new one, which might not be as good.

Should I accept a plea bargain or go to trial?

We never recommend accepting a plea bargain or arrangement without speaking to a criminal defense attorney first. Sometimes prosecutors offer deals to lessen the burden on their schedule, but also without allowing defendants to discuss their case with a lawyer. There can be consequences beyond what is spelled out on agreements that are far reaching and should be considered.

This is where the team of experienced criminal defense attorneys at Eskew Law comes in. You have the right to an attorney, no matter how enticing a plea bargain offer might be. Consulting with an attorney to ensure your rights are protected and that you receive the opportunity for a fair plea bargain is crucial.

If you’ve been arrested and are facing criminal charges, call us at 317-974-0177 or contact Eskew Law online today. Our Indiana criminal defense attorneys can help you examine the facts of your case and negotiate any potential plea deals that may be in your best interest.

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Ben Jaffe

Ben Jaffe is one of the most experienced trial attorneys in Indiana, handling some of the most difficult high-profile cases in the State. Ben’s impressive trial record includes more than 110 jury trials, with 95 at the major felony level. He has a well-earned reputation for being a respected and persuasive litigator. Ben’s strengths are his outstanding ability to understand all sides of a legal issue and to present well-thought-out arguments that strengthen his client’s position. This, coupled with his gift for communicating effectively with jurors and judges, has led to a track record of impressive results in the courtroom.