Are a Judge's Statements at Sentencing Grounds for Appeal

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I disagree with jk's statement that “As long as proper procedure was followed (listed witness) and your testimony was pertinent, a judge would be out of line by refusing to allow a defense witness.” There are a variety of reasons why a witness might be disqualified from testifying. The defense does not have an unfettered right to put up any witness it wishes. The rules of evidence constrain what may be presented. There is no way, however, just based on the information you provided to know if the judge’s decision was proper given the applicable rules of evidence.

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I don't believe there is any real disagreement. My simple statement was only to say the defense cannot call just anybody to the stand. There must be a value, if
you will, to the witness. Barring that, surely there are reasons a person could be excluded but that is another discussion really. My point was simply to say that if the judge improperly excluded a witness it would be a basis for an appeal.

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The first level of appeal from a criminal conviction is automatic; so long as the appellant has indicted any proper grounds for appeal the appeals court will hear the case.

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Are you saying the appeal is automatic or the right to appeal automatic? Given your statement there must be a basis for an appeal and defense indicted proper grounds, the appeal will be heard I see it as your saying your right to appeal may be automatic but the acceptance of the appeal isn't.

My understanding of an automatic appeal would be that granted one Sentenced to death or one who lost a trial by written declaration in a California traffic court. The appeal is automatically accepted with no need of an appealable matter.

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I disagree with jk's statement that “As long as proper procedure was followed (listed witness) and your testimony was pertinent, a judge would be out of line by refusing to allow a defense witness.” There are a variety of reasons why a witness might be disqualified from testifying. The defense does not have an unfettered right to put up any witness it wishes. The rules of evidence constrain what may be presented. There is no way, however, just based on the information you provided to know if the judge’s decision was proper given the applicable rules of evidence.

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I don't believe there is any real disagreement. My simple statement was only to say the defense cannot call just anybody to the stand. There must be a value, if
you will, to the witness. Barring that, surely there are reasons a person could be excluded but that is another discussion really. My point was simply to say that if the judge improperly excluded a witness it would be a basis for an appeal.

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The first level of appeal from a criminal conviction is automatic; so long as the appellant has indicted any proper grounds for appeal the appeals court will hear the case.

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Are you saying the appeal is automatic or the right to appeal automatic? Given your statement there must be a basis for an appeal and defense indicted proper grounds, the appeal will be heard I see it as your saying your right to appeal may be automatic but the acceptance of the appeal isn't.

My understanding of an automatic appeal would be that granted one Sentenced to death or one who lost a trial by written declaration in a California traffic court. The appeal is automatically accepted with no need of an appealable matter.

It is unconstitutional for a court to impose a greater sentence on a defendant who has simply exercised their rights. She has the absolute right to seek a direct appeal of a conviction to a higher court following a jury trial.

If a judge excluded relevant admissible evidence that is appealable. But I do not believe any judge said s/he would not allow plea negotiations and a negotiated resolution. That would be utterly contrary to how our criminal justice system works. As far as text messages, they would have to be authenticated. That would require issuing a subpoena duces tecum to the relevant telephone service providers and either getting certified records or a witness to come to court to authenticate them. You can't just hold up a phone and say "look at these texts."

The things being represented as far as a judge threatening to modify a sentence if a case is appealed is not credible, sorry.

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Quoting asa_jim

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The things being represented as far as a judge threatening to modify a sentence if a case is appealed is not credible, sorry.

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well Jim, I've heard worse

I can attest to a judge saying; well, she's (the Defendant) lucky she plead guilty and didn't take this to trial. Her penalty would have been 2 to 3 times what she'll get now.


That same judge said he would refuse to accept a plea agreement because the defedndant had plenty of opportunity before today (the day of the trial)

And there's even worse.


Given i personally heard a judge make those statements, I don't doubt what the op is claiming the judge said in that situation is possible. . Some judges are on serious power trips.

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Quoting jk

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Are you saying the appeal is automatic or the right to appeal automatic? Given your statement there must be a basis for an appeal and defense indicted proper grounds, the appeal will be heard I see it as your saying your right to appeal may be automatic but the acceptance of the appeal isn't.

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I should say that the appeal is automatic by right; that is, if a party asks for an appeal the court must hear the appeal as the party has the right to that appeal. The appeals court does not get to pick and choose which cases to hear (with a few exceptions not pertinent here). However, if no basis for appeal is specified or the appeal is frivolous the appeals court may reject the appeal on that basis. This is contrast to appeal to the Supreme Court where the court is not required to hear the appeal and the appellant must secure permission from the court first before the appeal is filed.

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Quoting asa_jim

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If a judge excluded relevant admissible evidence that is appealable. But I do not believe any judge said s/he would not allow plea negotiations and a negotiated resolution. That would be utterly contrary to how our criminal justice system works. As far as text messages, they would have to be authenticated. That would require issuing a subpoena duces tecum to the relevant telephone service providers and either getting certified records or a witness to come to court to authenticate them. You can't just hold up a phone and say "look at these texts."

The things being represented as far as a judge threatening to modify a sentence if a case is appealed is not credible, sorry.

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They were text in a group forum of 5 people. They took the time or they said they did to check one persons records. Even though they are there. They would not check the records of the account which showed. So they said my friend was lying and the text messages did not exist. The judge also stated at her sentencing that she believed she was lying about certain things. Never told her what those things were.

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Quoting jk

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I can attest to a judge saying; well, she's (the Defendant) lucky she plead guilty and didn't take this to trial. Her penalty would have been 2 to 3 times what she'll get now.

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Well, actually that's true. People found guilty at trial often do receive harsher sentences. There is a premium for taking responsibility early and disposing of your case without dragging citizen jurors into court, etc.

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That same judge said he would refuse to accept a plea agreement because the defedndant had plenty of opportunity before today (the day of the trial)

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That's a position I'd expect a prosecutor to take, and it's pure contract theory. Perhaps that judge is a former prosecutor. Personally, I formally revoke all plea offers once the case is set for trial. That's how offers work - when they are rejected, they no longer exist. I doubt a judge could enforce such a position on his own, though, if the state and the defense reached an agreement. He could not force a trial.

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Some judges are on serious power trips.

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Oh, I don't disagree with that. It's just that a judge who tries to deny a person their right to appeal isn't going to stay on the bench very long, so that one is a little harder to swallow.

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=asa_jim;1042495]Well, actually that's true. People found guilty at trial often do receive harsher sentences. There is a premium for taking responsibility early and disposing of your case without dragging citizen jurors into court, etc.

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no. That is an abuse of power and penalizes a person for expressing their constitutional rights. After all, aren't we supposed to be innocent until proven guilty? To penalize a person for demanding the state prove them guilty injures all of society as it causes a person to fear expressing their constitutional rights. Do you really believe extorting a defendant is acceptable?

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That's a position I'd expect a prosecutor to take, and it's pure contract theory. Perhaps that judge is a former prosecutor. Personally, I formally revoke all plea offers once the case is set for trial. That's how offers work - when they are rejected, they no longer exist. I doubt a judge could enforce such a position on his own, though, if the state and the defense reached an agreement. He could not force a trial.

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it doesn't matter if he was a former prosecutor or not. It is a childish power trip. In my state the court is not bound be a plea agreement. They can refuse to accept them. Due to that, they can force a trial, unless the prosecutor is willing to drop all charges rather than see the defendant go to trial.

As to withdrawing all plea agreements once trial is set? Really? Misdemeanor trials are set within weeks, if not days, of the arrest. The trial date is set before any actions regarding the trial have occurred. It's fast; arrest, charges read and plea entered (generally prior to release from custody), trial schedule is set, often by the time the defendant is released.

So where do you see time to offer and possibly rescind a plea agreement?

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Oh, I don't disagree with that. It's just that a judge who tries to deny a person their right to appeal isn't going to stay on the bench very long, so that one is a little harder to swallow.

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he wouldn't be denying a person's right to appeal. That is one thing he can't do as the appeal is not controlled by the same judge. He is extorting the defendant by attempting to suppress the defendant's actions of actually appealing.

Thanks for all the replies. She was offered two options: plead guilty to all the charges against her, including two counts of involuntary manslaughter, or go to trial.

She has found a new attorney. He is experienced in filling appeals. His response in regards. You're telling me the judge is threatening her regarding the use of her constitutional right

In terms of the so-called "trial tax", a judge cannot impose a greater sentence merely because a defendant exercised his or her constitutional right to go to trial. However, a judge can take into consideration such factors as a defendant's willingness to accept responsibility for his or her crime, the defendant's honesty during court proceedings, and the like, when sentencing the defendant.

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Quoting asa_jim

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As far as text messages, they would have to be authenticated. That would require issuing a subpoena duces tecum to the relevant telephone service providers and either getting certified records or a witness to come to court to authenticate them. You can't just hold up a phone and say "look at these texts."

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It sounds like the police had the defendant's text message records, and the defendant wanted to present evidence from other witnesses about when various text messages were sent and received by them. It may be that, for one reason or another, the time stamps on their text messages were different from those on the defendant's phone; but the times relevant to the defendant and her activities would be the times from her own phone. As I'm sure has happened to most or all of us, I've sent test messages that were not received for many hours, and similarly have received text messages hours after they were sent.

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Quoting asa_jim

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The things being represented as far as a judge threatening to modify a sentence if a case is appealed is not credible, sorry.

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I agree; and perhaps it's being misunderstood.

There are a couple of issues at play -- the first is that the sentence is likely dictated in large part by the sentencing guidelines, and the second is that there may have been some dispute over scoring or (contrary to the OP's impression) the judge may have rejected the prosecutor's scoring and imposed a lighter sentence than the prosecutor requested. If an appeal occurred that required re-sentencing, there would be a chance that the judge would be more receptive to the prosecutor's arguments the second time around.

But the idea that a judge would find out that an appeal was filed and, in straight retaliation, call the defendant back into court, set aside the prior sentence, and impose a new sentence? No, that's not credible -- and it would not stand on appeal, with near certainty that the appeals court would order the case assigned to a different judge on remand.

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Quoting Harley2000

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The judge also stated at her sentencing that she believed she was lying about certain things. Never told her what those things were.

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The judge doesn't have to provide that level of detail. In any event, unless this was a bench trial, it would seem that the jury didn't believe key portions of her testimony, either.

Is this the case of the husband and wife who were prosecuted for letting teens drink at their home, following a car crash that killed two of the teens?