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What you need to know for 07/26/2017

Taking back a plea usually a futile effort

Taking back a plea usually a futile effort

A request to reverse a plea sets off delays that could continue for weeks as a formal motion is prep

Friends and family of Mary Greco prepared themselves in early June to face the former nun’s killer.

Michael Briggs was set to be sentenced in the 82-year-old’s brutal killing, which Briggs admitted under oath he committed.

Then came a call from a prosecutor in the case to the family: Briggs’ sentencing was being postponed, as he was trying to take back his plea.

A request to reverse a plea sets off delays that could continue for weeks as a formal motion is prepared, a response made and a ruling issued by a judge.

Only in rare cases is the motion granted. In the meantime, however, the case is on hold.

“It becomes very frustrating because this has been dragging on now, for over a year and a half, since my aunt was murdered,” Greco’s nephew, Thomas Hayostek said. “We’d like to put closure on it, and when you think there’s a finish line, there’s another obstacle thrown at you.”

When a defendant pleads guilty to a crime, it’s usually in exchange for a lighter sentence. That plea is also supposed to be final — the defendant also waives most of his rights to appeal the case to a higher court.

Had Briggs, 38, gone to trial and been convicted, he faced a possible sentence of life in prison without parole. His benefit under a plea deal was a sentence of 30 years to life and the prospect that if he lives to the age of 67, he would go before a parole board.

Briggs is one of several high-profile defendants in recent months to try to withdraw a guilty plea.

About a week ago in Schenectady County, Nicholas Khan told a judge he wanted to take back his guilty plea earlier this year to second-degree murder in a November case where William Riddick was shot and killed during a car chase.

Khan’s request led to his sentencing being put on hold and a new attorney appointed to explore all related issues and possibly prepare a formal motion. They were the same steps taken in the Briggs case.

Admitted killer Clifford Burns of Niskayuna did the same thing in May. He admitted in Warren County Court in April that he brutally killed his estranged wife in Lake Luzerne on Christmas Eve, but later moved to have that plea withdrawn.

That leaves the family of the victim, former Niskayuna resident Patricia Burns, also waiting for an end. Clifford Burns’ motion is still being decided.

Other murder defendants in Schenectady County in recent years have also tried to take back guilty pleas. None have ultimately succeeded.

Getting a plea back is rare, legal experts say. Judges regularly take pains to ensure defendants know what they’re doing and what they’re giving up and that the decision is a final one.

To actually get a plea back, defendants must essentially prove the plea wasn’t knowingly or voluntarily made. It’s a high standard given the lengthy set of questions judges ask during each plea.

But, at the very least, it can delay proceedings for weeks until the issue is resolved.

Prosecutor Philip Mueller of the Schenectady County District Attorney’s Office called the phenomenon “buyer’s remorse.” Mueller prosecuted Khan’s case and now would defend Khan’s guilty plea if a formal attempt is made to take it back.

“It’s not unusual for someone who has made a very serious, life-altering decision to have second thoughts about it afterwards,” Mueller said after Khan’s court appearance asking to take his plea back. “And that appears to be what happens. It’s buyer’s remorse. Except in extraordinary cases, which aren’t present here, the decision to plead guilty under oath is a final one.”

The judge decides the issue based on arguments made in motions and the transcript of the plea itself. The judge can also order a hearing to further explore the issues.

Judges also may appoint a new attorney, as one of the possible arguments to take back a plea could be that the original attorney didn’t do his job properly. Briggs’ main argument is that his attorney pressured him into taking the plea.

“Mr. Briggs’ involuntary plea was the result of defense counsel’s deficient performance, in that defense counsel systematically persuaded Mr. Briggs that he must plead guilty or ‘he would spend the rest of his life in prison,’ ” according to the filing prepared by attorney James Tyner.

Prosecutor John Healy wrote that the record of Briggs’ plea is clear and that Briggs knew the ramifications of what he was doing.

Healy argued the advice Briggs’ attorney gave was accurate. The prosecutor set out a description of the evidence in his case in the motion, including Briggs’ fingerprints in Greco’s apartment in places associated with the crime, as well as video showing him in the vicinity.

Healy also used the “buyer’s remorse” phrase in his argument, writing that Briggs’ arguments came down to that.

“Buyer’s remorse is not now, and has never been, a ground upon which a plea of guilty may be withdrawn,” Healy wrote.

Schenectady victims advocate Pat Gioia said the delays caused when defendants try to take back their pleas only add to the grief families are going through. It can feel endless for them, she said.

“Just when you think you get to a certain point where you can kind of put this awful grief in some spot in your mind and heart,” Gioia said, “something like this, another stone, is thrown at you.”

A sense of uncertainty can creep back, said Gioia, local chapter president of the group Parents of Murdered Children and Other Survivors of Homicide Victims.

But once a defendant expresses an interest in withdrawing their plea, a delay is the only real option, local defense attorney Mark Juda said. If a judge were to press forward with sentencing without allowing an attorney to explore the issue, the case could come back on appeal.

Juda was the attorney assigned to assist in an attempt to take a plea back in a 2012 drug case. The request was denied and the defendant sentenced, but the Appellate Division of state Supreme Court sent the case back, finding a hearing should have been held.

In that case, there were questions over whether medication the defendant was on at the time affected her state of mind as she pleaded guilty.

Such requests, Juda said, are fact-specific. If a judge asks all the right questions and does everything correctly, guilty pleas aren’t disturbed, Juda said.

“Generally, in my experience, it’s hard to take back a plea once it’s taken,” he said.

Even if there are issues with a portion of the plea, it doesn’t always mean the defendant gets to start over.

Sarah R. Moore, now 30, admitted in court to setting a fire in 2009 that killed a 10-year-old girl and accepted a sentence of 22 years to life in prison. She later tried to take back her plea, arguing her attorney failed to pursue a mental health defense.

She was initially successful in getting her entire plea back, using an argument on a secondary count of second-degree assault. An issue with the sentence on the assault plea, which related to an injury to a firefighter, was found and appeared to invalidate the plea to murder, as well.

After further arguments from prosecutors, though, the murder plea was reinstated. Only the assault plea was invalidated. In 2012, the Appellate Division upheld the result, and Moore’s guilty plea to murder stood.

In 2010, a defendant whose case was tied to a murder case was allowed to take back a weapons plea. In that instance, the judge taking his plea did not properly advise him of the post-release supervision component of the deal. Prosecutors noted the error then and did not object to the plea withdrawal. That man’s case then went to trial, and he was convicted.

Hayostek’s aunt was killed in late December 2012, after two snowstorms. Prosecutors alleged the giving woman accepted Briggs’ offer to shovel snow after the first storm. He returned after the second to rob her and then brutally killed her, prosecutors alleged.

That’s what Briggs admitted to in March, an admission he is trying to undo now.

For Hayostek, the legal intricacies of the motions are familiar to him. He is an attorney who once practiced locally. He now lives and practices law in California.

He has also served as the person who relays information from prosecutors to the larger Greco family. It was Hayostek’s job to explain to his family, including his 85-year-old mother, why there was another delay.

“I’m an attorney, so I understand the system,” Hayostek said. “But the problem is for the rest of the family. It’s frustrating for them.”

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