People v. Atutis, 2023 NY Slip Op 1709 (NY: Appellate Div., 3rd Dept. 2023)

Waiver of appeal advisement inadequate. “The appeal waiver is invalid, considering “County Court’s terse and inadequate explanation of the nature of the appeal waiver as well as its failure to ascertain — either during the plea colloquy or [in]. .. a written waiver — whether defendant understood the ramifications thereof.”

Gincley v. State, Fla: Dist. Court of Appeals, 4th Dist. 3/27/2019

County administrative order giving defendants only one chance at drug court could not supplant state statute with no such restriction.

People v. Koontz, 166 AD 3d 1215 (N.Y. Appellate Div. 3rd Dept. 2018)

Waiver of right to appeal.

People v. Feher, 2018 NY Slip Op 6653 (NY: Appellate Div., 4th Dept. 2018)

People v. Guerrero, 2018 IL App (3d) 170786 – Ill: Appellate Court, 3rd Dist. 2018

Failure to properly advise defendant of immigration consequences invalidates plea under Padilla.

Commonwealth v. Tibets, Mass: Appeals Court 2018

Setting aside sentencing hearing where defendant appeared without proper waiver of counsel and Court denied drug court and sentenced defendant to incarceration, despite extensive drug history.  The appellate panel observed: “We add this final note about the defendant’s argument that the sentencing judge abused his discretion in electing to revoke his probation and impose a sentence of incarceration on January 4, 2017, after acknowledging that as far back as November 1, 2016, the defendant had a longstanding problem with drugs. It is not within our power to review a lawful sentence. See, e.g., Commonwealth v. Derouin, 31 Mass. App. Ct. 969 (1992), and cases cited. Nevertheless, we believe notice should be taken of the “important and special role of the drug court in achieving important public policy interests.” Deputy Chief Counsel for the Pub. Defender Div. of the Comm. for Pub. Counsel Servs. v. Acting First Justice of the Lowell Div. of the Dist. Ct. Dept., 477 Mass. 178, 187 (2017). The Massachusetts Trial Court has expanded the number of drug courts and encourages judges to recommend appropriate defendants to be screened for participation in such programs. See Arrowood, “Racing in the Right Direction:” Specialty Courts in Massachusetts, 60 Boston Bar J. 1 (Spring 2016); Ellis, Drug Courts Impact Participants, Courts, and Communities, 59 Boston Bar J. 12 (Winter 2015); Sullivan, The Development and Implementation of Specialty Courts in Massachusetts, 59 Boston Bar J. 9 (Winter 2015). See also Latessa & Reitler, What Works in Reducing Recidivism and How Does It Relate to Drug Courts?, 41 Ohio N.U. L. Rev. 757, 775 (2015) (Well-designed drug courts produce a statistically significantly greater reduction in recidivism than incarceration).”

People v. Sumter, 2018 NY Slip Op 354 (NY: Appellate Div., 3rd Dept. 2018)

Waiver of right to appeal was valid, as part of drug court entry contract.

Christopher C. Edwards and Jacob B. Vail, “A Call to End Prospective Waivers of Judicial Disqualification in Accountability Courts”, The Champion, January-February 2014

People v. Coats, 2018 NY Slip Op 983 (NY: Appellate Div., 4th Dept. 2018)

“Although the drug court contract [signed by defendant] contained a written waiver of the right to appeal, County Court did not conduct any colloquy concerning that waiver at the plea proceeding . . ., and we conclude that the contract alone is insufficient to establish a valid waiver.”

State v. Hensley, Iowa Supreme Court 2018

Finding that jail treatment facility was community correctional residential treatment facility and defendant was entitled to credit for time spent there when he failed to complete the drug treatment program.

People v. Juarez, 2017 COA 127 (Colo.  Court of Appeals, 4th Div. 2017)

Court sufficiently complied with Padilla in advising defendant it was probable he would be deported for his plea to drug offense and therefore plea was voluntary.

IN THE MATTER OF TB, 168 A. 3d 83, 451 NJ Super. 391 (NJ: Appellate Div., 2017)

“In sum, we remand the three Drug Court expungement applications for reconsideration. Assuming the State can demonstrate that the applicant has a potentially disqualifying conviction under N.J.S.A. 2C:52-2(c)(3), the applicant shall bear the burden to establish that expungement of that conviction would serve the public interest, as required by N.J.S.A. 2C:52-2(c)(3). The court shall make the appropriate finding consistent with the principles set forth above and in Kollman.) Kearney v. BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS, (Pa: Commonwealth Court 2017) (admissions made by physician’s assistant in plea used to enter drug court could not bar him from reobtaining his license, where he successfully completed drug court and charges were dismissed.)”

State v. Bowling, 2017 Ohio 8539, (Ohio: Court of Appeals, 12th Appellate Dist. 2017)

Curfew was not sufficient confinement to entitle defendant to jail time credits on sentence.

Callis v. State,  Not Selected for Publication, (Ind. Court of Appeals  11/20/2017)

Defendant not entitled to credit for time spent in diversion drug court because if court were to award offenders credit for time spent in diversion programs prior to sentencing, it would diminish the reward for completing the program and ultimately be rewarding offenders for their failure.

Hendrick v. KNOEBEL, (SD Indiana 5/10/2017)

“Though we need not rule on Defendants’ argument concerning the waiver provision in the DTC Agreement, we note our serious doubts as to its enforceability under Indiana contract law, given the conspicuous lack of parity between the parties, the absence of specificity in the provision’s language, the fact that it purports to absolve the DTC’s employees of liability for intentionally tortious conduct, and the fact that the DTC Program is an entity of the local government performing a public service. See generally LaFrenz v. Lake Cty. Fair Bd., 360 N.E.2d 605, 608 (Ind. Ct. App. 1977). Moreover, because the provision implicates federal common law by purporting to waive federal statutory and constitutional rights, the likelihood of its enforceability is increasingly remote. Federal courts are rightly skeptical, albeit not uniformly dismissive, of claims that a plaintiff has waived his constitutional rights or has released a defendant from liability for violating them. We “indulge every reasonable presumption against waiver of fundamental constitutional rights,” Johnson v. Zerbst, 304 U.S. 458, 464 (1938); Bayo v. Napolitano, 593 F.3d 495, 503 (7th Cir. 2010), and we acquiesce in a waiver only if it has been “knowing, intelligent, and voluntary.” Schriro v. Landrigan, 550 U.S. 465, 484 (2007). The lack of specific language in the agreement before us, in conjunction with its prospectivity, not only falls short of eliciting “an intentional relinquishment or abandonment of a known right or privilege,” Patterson v. Illinois, 487 U.S. 285, 292-93 (1988), but also encourages DTC staffers to violate the DTC participants’ constitutional rights, knowing they are acting with impunity. Enforcing such an agreement is inconsistent with the public interest given its potential for abuse and cancellation of the participants’ primary means of vindication.”

People v. Sampson, 2017 NY Slip Op 3291 – NY: Appellate Div., 4th Dept. 2017

Defendant’s lack of colloquy with the court on waiver of right to appeal in drug court contract was ineffective to waive appellate rights, but the defendant did not properly perfect his appeal.

People v. Mason, 2016 Slip Op 07527 (N.Y. App. Div. 11/10/16)

Drug Court contract that waives the right to appeal not sufficient to waive right without knowing and voluntary waiver in colloquy with judge.

State v. Lapianka, Not Selected for Official Publication (N.J. Super. App. Div., 2015)

Failure to fully advise as to deportation consequences does not constitute a knowing and intelligent waiver.

State v, Fleming, ___ S. 2d ___, (Georgia 6/29/15)

Neither by agreement or statute is defendant entitled to credit on her sentence for time spent in drug court.

People v. McCaslin, 2014 IL App (2d) 130571 NOT SELECTED FOR PUBLICATION (Ill. App. 12-11-2014)

Defendant waived his right to appeal as part of entry to drug court, so appeal from termination from drug court dismissed.

State v Fox, 2013 S.D. 40 (2013)

An agreement in which a defendant gives up his right to voluntarily enter a plea of his or her choice as a condition of participating in a diversion drug court is unenforceable.

Perry v. State, No. 39A01-1312-CR-517. (Ind. App. 2014)

Person in drug court on electronic home monitor not entitled to credit for time served while on monitor.

State v. Hewson, 178 Wn. App. 1043 (2014)

Due process requires the State to prove beyond a reasonable doubt all the necessary facts of the crime charged. A defendant in drug court who agrees to have his guilt determined based on documentary evidence does not waive his right to have that determination established beyond a reasonable doubt, but such proof can be established by documentary evidence.

State v. Calvin, 12-0618 (Iowa 11-1-2013)

Reversing State v. Calvin, 829 N.W.2d. 193 (Iowa 2013) (Accordingly, we remand the case to the district court to modify its sentencing order to grant Calvin credit for time served in residential treatment at the IRTC and in the county jail as punishment for violations of the drug court program, but not for time served in the county jail for contempt.)

People v. Brignolle, 2013 NY Slip Op 23330, 971 N.Y.S.2d 866 (10-1-2013)

Court permits entry into diversion drug court, without entry of plea, because of potential deportation consequences.

People v. Ramirez, No. C071056. Court of Appeals of California, Third District, Lassen, Filed June 18, 2013. NOT SELECTED

Waiver of pre-sentence confinement credit consisting of  sanction jail time imposed in drug court was knowing and voluntary.

State v. Orlando, 2013-Ohio-2335 (Ohio App. 6-6-2013)

Plea agreement was violated when defendant not granted drug court, as offered by prosecutor as a plea inducement.

State v. Washington, Iowa Supreme Court (6/7/2013)

When the district court asks the defendant a question at sentencing and then imposes an adverse sentencing consequence unrelated to any legitimate penological purpose of the inquiry because the defendant invoked his Fifth Amendment rights, the defendant has been improperly penalized.

Missouri v. Frye, 10-444 (U.S. 3-21-2012)

To show prejudice, under Strickland v. Washington, where a plea offer has lapsed or been rejected because of counsel’s deficient performance, defendants must demonstrate a reasonable probability both that they would have accepted the more favorable plea offer had they been afforded effective assistance of counsel and that the plea would have been entered without the prosecution’s canceling it or the trial court’s refusing to accept it, if they had the authority to exercise that discretion under state law.

Padilla v. Kentucky, 559 U.S. ____, 130 S. Ct. 1473 ( 2010)

Not informing defendant of possible deportation consequences is a potential ineffective assistance of counsel issue under Strickland v. Washington.

Stearns, T. “Examining the Consequences of a Conviction After Padilla v. Kentucky and State v. Sandoval” SEATTLE JOURNAL FOR SOCIAL JUSTICE, Vol. 9, Issue 2 (2011)

People v. Andrews, 2011 NY Slip Op 31216 (NY: Supreme Court 4/21/2011-unpublished)

Padilla not retroactive and defendant not establish that but for counsel’s deficient performance a different result would have occurred.

U.S. v. Carrion, 488 F. 2d 12 (1st Cir 1973)

In entering a guilty plea: “The right to an interpreter rests most fundamentally, however, on the notion that no defendant should face the Kafkaesque spectre of an incomprehensible ritual which may terminate in punishment.”

Maxwell Alan Miller, et al., Finding Justice in Translation: American Jurisprudence Affecting Due Process for People With Limited English Proficiency Together With Practical Suggestions, 14 Harv. Latino L. Rev. 117 (2011)

John A. Martin, et al., What Does the Intersection of Language, Culture, and Immigration Status Mean for Limited English Proficiency Assistance in the State Courts?, Center for Public Policy Studies (Oct. 2012)

Zumberge v. State, 236 P. 3d 1028 (Wyo. 2020)

Court must accommodate hearing impairment where brought to attention of the court or obvious.

People v. Huggins, (not published)  (Calif. 4th App. Dist. 9/30/11)

Defendant waived the benefits of Prop. 36 by his guilty plea and waived incarceration credits received for sanction as deduction from his sentence upon revocation.

People v. Barker, ___P. 3d__, (Court of Appeals of California, First District) (August 31, 2011). (not selected for publication)

The record clearly establishes that a condition of Barker’s felony probation was participation in drug treatment as ordered by the probation department, regardless of whether this was also a condition of diversion in his separate misdemeanor case or cases. Thus, the time Barker spent in treatment as a condition of his probation in this felony case qualified for credit against his felony sentence unless that credit is otherwise prohibited.

State v. Drum, 225 P.3d 237, 237 (Wash. 2010)

Holding that a drug court contract was not equivalent to a guilty plea, but more akin to a deferred prosecution, and that a court must still make a determination of the legal sufficiency of the evidence to convict, irrespective of stipulation by the parties.

State v. Dimaggio, No. 2011-156, Supreme Court of New Hampshire (April 10, 2012)

Drug court program was neither a day reporting center nor home confinement –therefore defendant not entitled to credit for all time in drug ct program, although he was entitled to jail days imposed as sanctions for non-compliance.

House v. State, 901 N.E.2d 598 (Ind. Ct. App. Feb. 2, 2009)

Defendant may waive the right to credit time as part of a written drug court agreement.

People v. Black, 176 Cal. App. 4th 145 (2009)

Holding that the defendant waived pre drug court incarceration credit to enter drug court program.

Commonwealth v. Fowler, 930 A.2d 586, 586 (Pa. 2007)

Holding that because defendant voluntarily entered program, he was not entitled to pre-sentence credit for time spent in inpatient program.

Commonwealth v. Gaddie, 239 S.W.3d 59, 59 (Ky. 2007)

Holding that the court did not have jurisdiction to increase suspended sentence from 180 days to 1 year, even though the defendant agreed to modification in order to enter drug court.

Laxton v. State, 256 S.W. 3d 518, 518 (Ark. Ct. App. 2007)

Holding that drug court participant was not entitled to “sanction” jail time as credit because such credit was not included in the contract.

Louis v. State, 994 So.2d 1190, 1190 (Fla. Dist. Ct. App. 2007)

Determining whether there was ineffective assistance of counsel for not advising client of drug court.

People v. Conway, 845 N.Y.S.2d 545, 545 (N.Y. App. Div. 2007)

Addressing the waiver of appeal.

People v. Byrnes, 813 N.Y.S. 2d 924, 924 (N.Y. App. Div. 2006)

Waiver of right to appeal.

State v. Colquitt, 137 P. 3d 892, 892 (Wash. Ct. App. 2006)

In a stipulated fact trial, prosecution must still prove the charged elements beyond a reasonable doubt.

State v. Jones, 131 Wash. App. 1021, 1021 (Wash. Ct. App. 2006)

Addressing a search waiver)

State v. Melick, 129 P.3d 816, 816 (Wash. Ct. App. 2006)

Waiver that permitted a stipulated fact trial.

Wilkinson v. State, 641 S.E.2d 189, 189 (Ga. Ct. App. 2006)

As part of her drug court contract the defendant waived her ability to contest a search and move for recusal of the drug court judge.

People v. Anderson, 833 N.E.2d 390, 394-95 (Ill. App. 2005)

Defendant agreed not only to the substance of the evidence but to its sufficiency as well. Because a stipulation to the sufficiency of the evidence is tantamount to a guilty plea and the defendant needed to be properly advised.

State v. Bellville, 705 N.W.2d 506, 506 (Iowa Ct. App. 2005)

Holding that the defendant must know he has the right and is surrendering the right to appeal before it can be said that he waived the right to appeal.

Wall v. State, No. 212, 2005 Del. LEXIS 17 (Del. 2005)

Waiver of right to appeal.

Smith v. State, 840 So.2d 404, 404 (Fla. Dist. Ct. 2003)

Ineffective assistance of counsel not to inform defendant of drug court as an option.

Adams v. Peterson, 968 F.2d 835, 835 (9th Cir. 1992)

Holding that a showing of a knowing, voluntary and intelligent waiver must be present and that the full Boykin v. Alabama, 395 U.S. 238, 238 (1969) inquiry is not necessary to implement waivers to a stipulated fact trial.