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Prosecutors Can Renege on Plea Deal, Supreme Court Rules

By William Vogeler, Esq. on November 09, 2017 | Last updated on March 21, 2019

Criminal law is not a shell game, but it sure must look like it to Michael Daniel Cuero.

He pleaded guilty to two felonies and was sentenced to 14 years and four months in state prison. However, the prosecutor missed a prior offense in the deal and amended the complaint.

As a result, Cuero got 25 years to life in Kernan v. Cuero. A federal appeals court said he was entitled to the 14-year deal, but the U.S. Supreme Court reversed and remanded. By the time his sentence is straightened out, Cuero should ask for time served.

Three Strikes

On Oct. 27, 2005, Cuero was charged for driving under the influence and seriously injuring a bystander. Cuero was on parole at the time.

Having served four separate prison terms, he knew what he was getting into when he pleaded guilty to the new charges. The deal said he would get a "maximum punishment" of 14 years, 4 months, plus a fine and parole.

One of his priors was a "strike" under California's three strikes law, which mandates felons serve 25 years to life for certain felonies. However, the prosecutor missed a third strike in the deal and the trial judge allowed an amended complaint.

That put Cuero behind the eight ball -- and bars -- for 25 years. He appealed the sentence, and a federal appeals court gave him a break.

Specific Performance

The U.S. Ninth Circuit Court of Appeals said Cuero was entitled to "specific performance" of the original deal. The panel said it was "necessary to maintain the integrity and fairness of the criminal justice system" and the trial court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States."

The Supreme Court basically said, "we never said that." On the contrary, the justices cited Mabry v. Johnson, to say they "expressly declined to hold that the Constitution compels specific performance of a broken prosecutorial promise as the remedy for such a plea."

"Where, as here, none of our prior decisions clearly entitles Cuero to the relief he seeks, the state court's decision could not be 'contrary to' any holding from this court," said the per curiam decision.

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