Kelly v. F.R.N: On Whether a Defendant in Plea Bargain Agreement can Change Plea of Guilty or Withdraw from the Agreement after Conviction to Plea of not Guilty before being Sentenced

On whether defendant in plea bargain agreement can change plea of guilty or withdraw from the agreement after conviction to plea of not guilty before being sentenced: An insight into the Court of Appeal (Abuja Division) laudable decision in IBOYI KELLY V. F. R. N. [2020]14 NWLR PT.1745 AT 479.


Courtesy: Moruff O. Balogun Esq.


Summary of Facts:
The appellant was arraigned on a three-count charge of cheating contrary to section 320(a) of the Penal Code, Laws of the Federation of Nigeria (Abuja) 1990 and punishable under section 322 of the same law.

The charge was accompanied with summary of evidence of witnesses and a plea bargain agreement executed by the appellant and the respondent in which the appellant agreed to forfeit and restitute $500 USD recovered from the appellant to the victim and to a term of 6 months imprisonment or a fine of N300,000 in lieu.

The appellant pleaded guilty to the charge. The counsel to the parties adopted the plea bargain agreement and urged the trial court to convict and sentence the appellant on the terms agreed.

On the basis of the appellant’s plea of guilty and the adopted plea bargain agreement, the trial court convicted the appellant as charged and adjourned the case for sentencing of the appellant.

At the resumed hearing of the case, the appellant sought to withdraw his plea of guilty and to change it to a plea of not guilty because he had information that trial court was to impose a sentence heavier than agreed in the plea bargain. But the trial court held that the appellant was estopped from withdrawing his plea of guilty because he had been convicted on basis of his plea. The trial court also held that it could not revisit its decision convicting the appellant. It ordered the forfeiture and restitution of $500USD in accordance with the plea bargain agreement. It, however, sentenced the appellant to three years imprisonment in accordance with section 322 of the Penal Code instead of the term of 6 months imprisonment agreed to in the plea bargain agreement.

The appellant was dissatisfied with the sentence of three years imprisonment, and he appealed to the Court of Appeal. The appellant’s case was that the trial court erred by refusing to allow him to change his plea to not guilty and by sentencing him under the Penal Code instead of in accordance with the plea bargain agreement.

The respondent raised a preliminary objection to the competence of the appeal in its brief of argument. The respondent argued that under section 270(18) of the Administration of Crimnal Justice Act, 2015, a judgment based on a plea bargain could only be set aside if the plea bargain was obtained by fraud, and that the appellant did not raise any element of fraud in the course of the trial proceedings.
On the merits, the respondent argued that the trial court informed the parties of its intention to impose a heavier sentence than the parties agreed to. The respondent further argued that the appellant had been convicted before he sought to withdraw his plea of guilty and that at the time the appellant sought to withdraw his plea, the trial court was already functus officio.

In determining the appeal, the Court of Appeal considered section 270(10)(a),(b), (11), (15) and (18) of the Administration of Justice Act, 2015, which provides:

“270(10) The presiding judge or magistrate shall ascertain whether the defendant admits the allegation in the charge to which he has pleaded guilty and whether he entered into the agreement voluntarily and without undue influence and may where-

he is satisfied that the defendant is guilty of the offence to which he has pleaded guilty, convict the defendant on his plea of guilty to that offence, and shall award the compensation to the victim in accordance with the term of the agreement which shall be delivered by the Court in accordance with section 308 of this Act; or
he is for any reason of the opinion that the defendant cannot be convicted of the offence in respect of which the agreement was reached and to which the defendant has pleaded guilty or that the agreement is in conflict with the defendant’s right referred to in subsection (6) of this section, he shall record a plea of not guilty in respect of such charge and order that the trial proceed.

(11) Where a defendant has been convicted under subsection (9)(a), the presiding judge or magistrate shall consider the sentence as agreed upon and where he is
satisfied that such sentence is an appropriate sentence, impose the sentence
of the view that he would have imposed a lesser sentence than the sentence agreed, impose the lesser sentence; or
of the view that the offence requires a heavier sentence than the sentence agreed upon, he shall inform the defendant of such heavier sentence he considers to be appropriate.

(15) Where the defendant has been informed of the heavier sentence as contemplated in subsection (11)(c) of this section, the defendant may-
(a) abide by his plea of guilty as agreed upon and agree that subject to the defendant’s right to lead evidence and to present argument, relevant to sentencing, the presiding Judge or magistrate proceed with the sentencing; or
(b) withdraw from his plea agreement, in which event the trial shall proceed de novo before another presiding judge or magistrate, as the case may be.

(18) The judgment of the court contemplated in subsection 10 (a) of this section shall be final and no appeal shall lie in any court against such Judgment except where fraud is alleged.”

Held (Unanimously allowing the appeal):

The following issues were raised and determined:
On Purpose of section 270(11) and (15) of Administration of Criminal Justice Act, 2015 and whether permits defendant in plea bargain agreement to change plea of guilty or withdraw from the agreement:
The provisions of section 270(11) and (15) of the Administration of Criminal Justice Act, 2015 is designed to protect a defendant in a plea bargain and to give him the opportunity of changing his plea of guilty or to completely withdraw from the plea bargain if the trial court wish to impose a sentence heavier than was agreed in the plea bargain. This is because it is the lesser punishment offered by the prosecution for defendant’s plea of guilty and conviction that goaded the defendant to voluntarily agree to plead guilty.

That was the understanding that made the parties consummated the plea bargain agreement. In this case, the refusal of the trial court to allow the appellant change his plea breached section 270(11) and (15) of the Administration of Criminal Justice Act and occasioned a miscarriage of justice to him.

On Power of court to set aside conviction based on plea of guilty and bargain agreement where defendant withdraws plea and renege on the agreement on being informed of court s intention to impose heavier Sentence:
A trial Judge retains powers and jurisdiction to revisit pronouncement of guilt and conviction passed on a defendant in proceedings where there is plea bargain agreement and where he subsequently decides or intends to inflict a heavier punishment on defendant instead of the mild or lesser punishment contained in the plea bargain agreement between the prosecutor and the defendant and the defendant objects or disagrees with the decision or intention of the trial Judge to inflict or mete out a heavier punishment upon the defendant in place of the punishment agreed by the parties.

In other words, where the trial Judge as directed by section 270(11)(C) of the Administration of Criminal Justice Act 2015 informs a defendant of its intention to impose heavier punishment upon defendant and the latter refuses, the provisions and the intendment of the statute as contained in section 270(15) (a) or (6)) of the Act is automatically invoked.

The defendant is entitled to withdraw his plea bargain agreement and the trial shall commence de novo before another Judge. In this case, the respondent’s argument that the trial court was functus officio upon conviction of appellant is grossly misplaced and is not supported by law.

On Right of defendant to renege on plea bargain agreement:
By virtue of the provisions of section 270(11)(c) and (15) of the Administration of Criminal Justice Act 2015, a defendant has the inviolable right to opt out of a plea bargain agreement even after a plea of guilty accompanied by conviction by the trial court, and to apply to the trial court to plead not guilty to the charge against him.

This is because section 270(15) of the Act makes it clear that even after pronouncing the defendant guilty and convicting him, the trial court must fulfill or comply with conditions precedent stipulated in subsection 11(C) of the Act which states that where a defendant has been convicted under subsections (9)(a) and (10)(a), the presiding Judge or Magistrate shall consider the sentence as agreed upon and where he is:
satisfied that such sentence is an appropriate sentence, impose the sentence
of the view that he would have imposed a lesser sentence than the sentence agreed, impose the lesser sentence; or
of the view that the offence requires a heavier sentence than the sentence agreed upon, he shall inform the defendant of such heavier sentence he considers to be appropriate.

On When court is functus officio –
A Judge is functus officio in a matter or cause in the course of a judicial function or duty when he has accomplished or concluded the hearing and determination in the cause or matter or an essential aspect of the matter by pronouncing on the rights of the parties before him. It means a task concluded and final decision taken by the Judge seised of the matter. It means the decision taken in judicial capacity cannot be revisited by the trial Judge. In this case, contrary to the respondent’s argument, a combined reading of the provisions of section 270 of the Administration of Criminal Justice Act, 2015 particularly subsections 9, 10, 11 and 15 thereof shows that the principle or doctrine of being functus officio does not apply to an adopted plea bargain agreement until sentence has been validly imposed on the defendant by the trial court upon fulfillment of the statutory procedures laid out in section 270(9), (10), (11) and (15) of the Act.

Courtesy:
Moruff O. Balogun Esq.
Ijebu Ode, Ogun State.
08052871414.


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