Parkersburg, WV asked in Criminal Law for Virginia

Q: Can a judge add specific wording to a binding plea agreement?

We are in WV. My husband signed a binding plea agreement and one of the details was inpatient substance abuse treatment. While at the hearing, the prosecutor insisted on "long term" inpatient treatment, which was not in the original agreement. The judge subsequently added "long term" to the sentencing order. This doesn't sit right with me. He doesn't have a substance abuse problem, but was willing to do short term treatment to appease the prosecution for a lesser sentence. After researching binding plea agreements, I feel like the judge changed the terms AFTER my husband signed what the prosecution agreed to. Is this legal?

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1 Lawyer Answer
Bernard Crane
Bernard Crane
  • Criminal Law Lawyer
  • Washington, DC
  • Licensed in Virginia

A: First off, "long term" treatment doesn't mean what it used to. Thirty years ago long term treatment was 1 1/2 to two years - or in some rare cases three years. As treatment got more expensive and more people started needingt it, it shrunk to one year, then 6 months, then 120 days, etc., to the point where today anything over 28 days is usually considerd "long term" treatment. If your insurance is coverning it, most judges consider long term treatment anything the insurer will pay for. So this whole issue probably involves whether your husband gfoes into treatment for 28 days or 45 days. Is that still worth fighting about?

If your decision is yes, that IS worth fighting about, you have very limited options. The agreement as you described it was ambiguous, and the judge is allowed to fill in that ambiguity. Your husband or his lawyer could have spoken up at that point and said, "Wait a minute, that wasn't our agreement. I don't agree to that." Sounds like he didn't. If he didn't say anything at the time, its probably too late now.

At this point, a much beter tack to take would be for your husband to point out some situations in his life that have changed that now require him to be on the street, like financial problems, serious problems with the kids that he is needed for, medical problems in the family he needs to help with, a career job that he is about to lose, or somethings like that. He then can ask his counselor in the program to write a letter saying he is doing well in treatment, and he has progressed along so well that he would be OK with intensive outpatient treatment instead. Then have his lawyer present all this to the judge in a motion to amend the conditions of his sentencing. Unfortunately, by the time he has gotten all his ducks in a line for this and his lawyer has prepared and filed the motion and the judge has set it for a hearing, he will probably be right about at the end of long term treatment anyway.

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