OWI-3rd in Iowa: What Now?

A third or subsequent OWI in Iowa is a serious offense. First and foremost it is a felony punishable by at most an “indeterminate” five year prison sentence with a mandatory minimum jail sentence of 30 days. The “indeterminate” part of that sentence means that, if sentenced to prison, the parole board is not hamstrung by a legislative mandate to deny parole for any minimum length of sentence. Good and honor time is applicable but prison is prison and the felon label is impossible to shake. Felons cannot vote unless they specifically request and obtain a restoration of rights. And felons may not possess firearms— stay away from guns and ammunition.

There is no deferrable option for third or subsequent OWI in Iowa. People are sometimes stunned to find this out since the first time OWI offense was typically deferrable for a breath test under .15 or at least a so-called "weekend program" can substitute for the minimum jail sentence on the first offense. That’s not true for either a second or third or subsequent offense where I practice law in Iowa.

When people talk about a "true third" they are talking about someone who has "only" been twice convicted of OWI in their lives-- as opposed to a fourth or fifth OWI that is only classified as an OWI-3rd or subsequent because the classifications go no higher than 3rd or subsequent offense. 

An evaluation is typically required as part of pretrial release and it's legally required before sentencing should a Defendant reach an agreement with the State to dispose of the case with a guilty plea. A defendant who believes he or she will seek a plea agreement with the State should immediately obtain an evaluation and begin any recommended treatment. 

Because of the felony status of a convicted OWI-3rd offender and the minimum 30 day jail sentence (and possible prison sentence) the stakes are high. It will be very important for a competent attorney to review thoroughly the discovery to determine if the law enforcement interaction with the defendant was justified, if field sobriety tests were warranted and properly executed, and if the officer and breath test, if any, were certified in the handling of OWI cases.

A blog is not legal advice. No attorney-client relationship is established by reading a blog or sending unsolicited information to a lawyer over the Internet. 

Authenticating the Unauthentic: What forgery is and what it isn't in Iowa

This check appears to be drawn on an account of the Standard Bank of South Africa

on July 10, 1933. It is believed to be an image unprotected by copyright because the

copyright has apparently expired. The image is available at http://en.wikipedia.org/wiki/Cheque

A forgery in Iowa is the presentation with the intent to defraud some writing that is not what it purports to be. Now that’s fancy language but that’s pretty much how the statute reads at Iowa Code § 715A:

A person is guilty of forgery if,with intent to defraud or

injure anyone, or with knowledge that the person is facilitating a fraud or injury to be perpetrated by anyone, the person does any of the following:

a.       Alters a writing of another without the other's permission.

b.      Makes, completes, executes, authenticates, issues, or transfers a writing so that it purports to be the act of another who did not authorize that act, or so that it purports to have been executed at a time or place or in a numbered sequence other than was in fact the case, or so that it purports to be a copy of an original when no such original existed.

c.       Utters a writing which the person knows to be forged in a manner specified in paragraph "a" or "b".

d.      Possesses a writing which the person knows to be forged in a manner specified in paragraph “a” or “b”.

The Iowa Supreme Court has said that the focus is on the “genuineness” or “authenticity” of the writing. Whether an alleged crime is a “forgery” (instead of no crime at all or possibly a different kind of crime, for example, theft by misrepresentation) hinges on “whether the act affects the genuineness of the instrument.” State v. Calhoun, 618 N.W.2d 337, 339 (Iowa 2000)

But the inquiry doesn’t end there. What if the writing is what it purports to be? For example, a genuine social security card held by someone else posing as that person?

In an unpublished decision, the Iowa Court of Appeals held that a criminal charge that alleges the possession of an authentic social security card by someone else is not forgery if the State fails to craft its trial information in such a way to assail the genuineness or authenticity of the card itself. State v. Hampton, 2008 Iowa App. LEXIS 451, 5 (Iowa Ct. App. July 16, 2008).

The Hampton court wrote, “[t]hese facts could implicate the crime of identity theft but they do not implicate the crime of forgery.” Hampton, 2008 Iowa App. LEXIS 451 at 6.

The specific intent to defraud is also an area to examine. Where forgery requires specific intent to defraud, the jury must specifically find that the defendant intended to defraud someone or some institution. It differs from general intent in that a jury need not delve into the merits of the thought process of a general intent crime; if someone did that general crime the general intent may be inferred from the act.

The jury instruction regarding specific intent is instructive:

'"Specific intent' means not only being aware of doing an act and doing it voluntarily, but in addition, doing it with a specific purpose in mind.

Because determining the defendant's specific intent requires you to decide what [he] [she] was thinking when an act was done, it is seldom capable of direct proof.  Therefore, you should consider the facts and circumstances surrounding the act to determine the defendant's specific intent.  You may, but are not required to, conclude a person intends the natural results of [his] [her] acts."

 In a forgery, for example, the specific intent may not simply be found by the act of forgery. The jury must look beyond the act and determine if the defendant's purpose was to defraud.

It's an interesting question. Because every case is different, it is important to look at whether the State has sufficiently charged a forgery with the focus on the genuineness or inauthenticity of the document in question-- or whether it has misapplied the forgery statute. It is also wise to scrutinize whether the defendant possessed the requisite specific intent to defraud at the time of the alleged act.

A blog is not legal advice. No attorney client relationship is established by reading a blog or by sending unsolicited information to a lawyer over the Internet.

Bread on the Water: Why I Give Legal Information Away for Free on the Internet

Some of the information on my website is content for which other attorneys charge beaucoup bucks. The truth of the matter is this: it is an incredibly competitive market. When someone comes to my website and obtains information that other attorneys might disguise cryptically while encouraging contact for a free initial consultation (and, thus, the “sales pitch”) I offer the information for free to educate potential clients and hope that, if they are satisfied or at least better informed, now or next time, I will be their first choice. A criminal prosecution is an anxious time for a Defendant and his or her family. They have many unanswered questions. A good lawyer will provide answers.

For example, potential clients want to know how long a criminal case in Iowa might last so they can brace themselves for the long term marathon ahead. Simple. It can take months. Technically, even a “speedy” resolution under the law can require up to 45 days to indict and as few as 90 days to prosecute, try, and dispose. That’s a total of 135 days, or, four and a half months. There, that’s the answer. It can be longer but it’s a good rough estimate based on the criminal rules.

Second, potential clients want to know whether they can turn themselves in rather than be arrested at their workplace. Sometimes this is true. Other times, detectives and investigators prefer the element of surprise. The sound of the other shoe dropping is ominous but it’s sometimes unavoidable.

Third, once a defendant is in custody, they want to know if talking to the police will help them. Reasonable legal minds can disagree but my answer is this: no. You have a right to remain silent. Use it. Simple answer. The longer answer is that most people want to know why they are being arrested and what information the police will use to seek prosecution. They want the flow of information to come to them. Sorry, any information the police give you is not trustworthy. Law enforcement officers are legally allowed to engage in a “narrative” to  build rapport and render more malleable a reluctant interrogation target. In other words, they can lie to a suspect. Which makes anything they tell you worth nothing and everything you say admissible in court. With an informational value proposition like that, there is little to be gained from a sit down with the police.

 
Fourth, bond is confusing. The three typical permutations of bail are these: cash, surety, ten percent option to the clerk. Cash requires cash. Surety allows a bail bondsman to post a piece of paper called a bond which is the equivalent value of the bond required, and ten percent option allows family members to cut out the bail bondsman and post ten percent of the total bond to the clerk of court without paying a bail bond fee. That money can be used to apply to court costs and fines later. In some cases, it will be returned to the party posting bond if it can be established that this money does not truly belong to the defendant.
 
Fifth, preliminary hearings don’t typically happen in Iowa. A defendant won’t have to show up for this hearing—remember, initials PH for preliminary hearing. Don’t assume a hearing is a preliminary hearing. When in doubt, show up. Otherwise, the State can recommit to bail and the Defendant will be in jail for the entire time the case is pending. Remember the 135 days? Yeah, that long and possibly longer if there are delays.
 
Sixth, some charges require mandatory minimum prison sentences and others don’t. The amount of time a Defendant may spend in prison is a more complicated matter that requires an actual sit-down and review of court papers. In short, there are four classifications of felonies in Iowa: A, B, C, D. A Class A offense includes homicide. Several Class B offenses exist including certain sexual predatory offenses called “Super Bs” that can result in double the typical prison sentence. Most Bs are 25 year prison sentences and some carry with them mandatory minimum 70% no-parole requirements. That means that a seventy percent offense will require 17.5 years in prison before eligibility for parole. Class C and Class D offenses carry 10 and 5 year prison sentences, respectively. They are typically indeterminate. Some can be suspended, meaning probation is a possibility. Others cannot. It will take a thorough review of the complaint and trial information to determine the classification and range of penalties applicable in a given istuation.

Seventh, pretrial motions can include suppression of evidence. It requires a violation of constitutional rights that the Court recognizes. Some include Fourth Amendment violations like illegal search and seizure. A review of the "discovery" is required to determine whether a legitimate suppression issue exists to file a motion and have a hearing.

Eighth, a good number, because the violation of the Eighth Amendment prohibits the cruel and unusual punishment of children convicted of crimes for which there are lengthy mandatory minimum prison sentences without the possibility of parole. The law in Iowa is evolving in this way and it is important to include an analysis on this basis.

Ninth, plea bargaining is different in every case and depends on the facts and circumstances of a specific criminal prosecution. No attorney can promise results and anyone who does should be viewed with suspicion. There is no way to predict the “success” of an attorney in a particular case. Experience is helpful but “bad facts” are not. Over 90% of all cases in the United States are resolved with plea agreements.  All attorneys must begin each case on a trial footing; in other words, every competent criminal defense attorney will pursue two tracks: trial at the same time leaving the door open for plea negotiations and, by law, communicating every bona fide offer to the Defendant.

Tenth, jury trial includes a partnership as between the defendant and the criminal defense attorney. An attorney should make every effort to pursue requested theories of defense and possible witnesses. Defendants should participate in jury de-selection, including a review of the jury questionnaires and the assembly of a list of possible “strikes”

Finally, communication is the most important aspect of criminal defense. If a Defendant does not “click” with his or her criminal defense attorney, representation can suffer and the disconnect can become a distraction.

A blog is not legal advice. No attorney-client relationship is established by reading a blog or sending unsolicited information to an attorney over the Internet.

Should I Go to Dr. Feel Good or Nurse Ratchet for My Substance Abuse Evaluation?

In the State of Iowa, a substance abuse evaluation is a typical condition of pretrial release on an OWI (DUI) or controlled substance charge. If a Defendant is released on his or her own recognizance or otherwise posts bond, the Judge can order the Defendant to obtain such an evaluation.

Moreover, pursuant to Iowa Code § 321J.3, the Court must impose the requirement that a Defendant obtain a substance abuse evaluation prior to sentencing.

In addition to these  conditions for the above offenses, Iowa Code § 124.47 requires, as a “penalty” for possessing alcohol under the legal age that a Defendant choose between completing a substance abuse evaluation or surrendering their driving privilege for one year.

Pursuant to Iowa Code § 901.5, the Court has the authority to impose the treatment recommended by such an evaluation in any case where it is authorized to order the evaluation.

In addition to these requirements, the Iowa Department of Transportation will insist that a Defendant show proof of completion of a substance abuse evaluation prior to reinstatement of a driving privilege.

Substance abuse evaluations are part of “court life” and thus there has sprung up a cottage industry of evaluators. Some such evaluators also sell treatment services—and a reasonable argument can be made that, because the Court has the authority to order the Defendant to pay for any recommended treatment, such treatment sellers are conflicted. On the flip side, there are evaluators who proclaim that they are “conflict free” in this regard—and disavow “coercive treatment” recommendations on philosophical grounds. So who should the Defendant go to for his or her evaluation?

My answer has surprised many defendants. For those who are seeking to prove themselves worthy of leniency—either in the deferred judgment or sometimes even the weekend program context—I will recommend that the Defendant go to an evaluator likely to recommend treatment. Why? If the evaluation recommends nothing, the Court could consider that it was the intent of the Defendant to avoid treatment. Second, it won’t give the Defendant an opportunity to prove himself or herself—to bring in the Gold Star Diploma after having completed the recommended treatment.

It’s a great feeling, as an attorney, to bring in all of the necessary documentation to show that the Defendant has completed, with flying colors, a treatment program at sentencing. It has to be a great feeling for the Defendant, too. Because it predictably earns kudos for Defendants who have done “what you’re supposed to do” and “what we like to see.”

On the other hand, there are those who are not seeking leniency. They may have already served the minimum jail sentence or have other charges pending that will require additional time. A substance abuse evaluation may be pro forma and a recommendation for treatment might not otherwise benefit the Defendant. For these Defendants, I don't usually have to make a recommendation. They usually have heard from friends about the best choice for a substance abuse evaluation.

No matter what, there is no way to predict the outcome of a substance abuse evaluation. I have seen professionals accused of consistently making a “no rec” recommend treatment come back with treatment options. And, on rare occasions, I have seen self-serving treatment sellers make “no rec” recommendations, as well.

 

The short answer is that an eval is required and it's best to get it out of the way early and follow any recommendations to the letter.

 

A blog is not legal advice. No attorney-client relationship is established by reading a blog or by sending unsolicited information to a lawyer over the Internet.

Understanding Cash or Surety, Cash Only, and Ten Percent Option Bonds

What is the difference between a cash bond and a cash or surety bond? What about a ten percent option to the clerk? These are all good questions and they usually come fast and furious after a loved one is jailed on a criminal complaint in Iowa.

A cash bond is a bond in which you must post cash to the clerk of court. A corporate surety bond is a special type of bond where your bondsman, with the assistance of a corporation that writes bonds, can put up a financial instrument that has the value of your bond amount. A criminal defendant and his or her family pay the bondsman a fee for this service (it’s how the bondsman earns a living) and the defendant never sees that fee again. The bondsman files the surety bond with the clerk of court and this substitutes for the cash. If it is a “cash only” bond, the defendant cannot use a corporate surety to post the bond. Typically, this means that they must find the cash out of pocket or have a family member post it. However, some bondsmen will post cash for an even higher percentage fee—usually only if the defendant and his or family secures the cash bond with significant collateral like unburdened real estate (a house that is paid off). Sometimes collateral can include a paid-off late model car.

Bondsmen are private sector businesspeople and, within the confines of the law, they write their own bonds and transact business in the private sector. They are connected to the court system but they don’t work for the courts.

When a cell mate tells a defendant that he or she needs to come up with ten percent to secure the services of a bondsman, this is a general rule of thumb for corporate surety bonds but by no means required or enforceable. That's because the bondsman does his own business on his own terms within the law. He might not even write a bond if he believes the defendant is a flight risk.

 

In certain cases, the judge will allow a “ten percent option to the clerk” or other percentage option to the clerk. This allows the defendant to post a certain amount of the bond amount to the clerk without using the services of a bondsman. First, that saves the family a considerable fee to a bondsman by cutting out the middle man. Second, once the matter is resolved with either a trial or a plea agreement, costs and fines, if any, can be deducted from clerk option.

A blog is not legal advice. No attorney-client relationship is established by reading a blog or sending unsolicited information to an attorney over the Internet.

How Can You Represent the Guilty?

Defense attorneys hear this a lot from non-attorneys.

The answer? I don’t. I represent the innocent unless proven guilty (some say ‘innocent until proven guilty’ but I regard that as a self-fulfilling prophecy—a kind Judge Roy Bean, let’s-give-him-a-fair-trial-and-then-hang-him implication). It's a facet of our unique system of jurisprudence.

How unique is it? Well, the presumption of innocence and requirement that the State prove the Defendant guilty beyond a reasonable doubt are not actually in the United States Constitution. But here’s what the United States Supreme Court had to say about it:

“This Court has declared that one accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on grounds of official suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial . . . And it long has been recognized that an instruction on the presumption is one way of impressing upon the jury the importance of that right.”

. . .

“While use of the particular phrase ‘presumption of innocence’ -- or any other form of words -- may not be constitutionally mandated, the Due Process Clause of the Fourteenth Amendment must be held to safeguard ‘against dilution of the principle that guilt is to be established by probative evidence and beyond a reasonable doubt.’”

Taylor v. Kentucky, 436 U.S. 478, 485-486 (U.S. 1978).

At some point, however, some astute critics will point out that the merits phase is over and the sentencing phase is set to begin. They ask me whether I change my mind about my clients once they have been proven or have pleaded guilty.

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The answer is that my oath to advocate zealously for my client, once I am their lawyer, forbids dilution of my commitment. What kind of a criminal justice system would we have if lawyers were allowed to abandon their clients after they had been found guilty by a jury or entered a plea of guilty pursuant to a plea agreement?

More importantly, what kind of a person would flee an obligation because it became unpopular or difficult? Morality is equal parts courage and dedication. Neither is demonstrated by the rhetorical question posed above—how can you represent the guilty? Maybe the better question is: how can I not?

A blog is not legal advice. No attorney-client relationship is established by reading a blog or by sending unsolicited information over the Internet.  

They didn't Mirandize Me-- What do I Get for That?

Everyone knows the Miranda warning from television. Though we sometimes see law enforcement protagonists reading a pro forma warning to arrestees from a card, there are no magic words as long as the police clearly inform custodial interrogation targets that they do have a right to be quiet because everything can, and will be used against them (really bad) if they don't do so. Likewise, interviewees in custody subject to the functional equivalent of questioning have a right to an attorney.

If an officer wants to obtain a statement to shore up an investigation, he or she will cagily invite a suspect to “tell his side” of the story by leaving a business card or a scribbling a cell phone number on a scrap of paper as an offer or gesture to the would-be defendant.

“Let’s sit down and talk,” says Officer Friendly.

“You’re not under arrest” and “you’re going home tonight” are frequent watch words that should set off alarm bells that both disarm and deny to defendants the Miranda warning. Why? Because Miranda requires only that an officer announce that an interrogation target;s words will be used against him or her when he or she is in custody. The stereotypical—and easy—situation where everyone understands a warning is required is when a suspect is in handcuffs and placed in an interrogation room. This is easily, objectively a custodial situation that requires a Miranda warning.

 

Why objective? Well, because a reasonable person standing in the suspect’s shoes would understand this situation to mean that he or she was unfree to leave. Unfree to leave has talismanic significance. If the defendant is free to leave, as in, “you’re not under arrest” and “you’re going home tonight,” or “you can go any time you want to—we’re just talking,” it becomes clear that Miranda may not be necessary. In fuzzy situations, like standing in a raided house, or, even a suspect's house, the facts and circumstances will be key to an understanding whether the suspect was both subjectively and objectively free to leave. If so, police, and the courts, may equate a non-custodial interrogation to a casual conversation that does not require a Miranda warning.

Now, if Officer Friendly pairs "you're not under arrest" language with handcuffs and sequestration in a locked interrogation room, you’ve got a different story. Which is why the facts and circumstances of each case should be reviewed by a qualified attorney for possible presentation of a suppression issue to a judge.

The second requirement is an actual interrogation. Walking up the middle of the street and confessing a crime to an unwitting patrol officer is not an interrogation. It’s an unsolicited confession. And absent mitigating circumstances is probably not going to require a Miranda warning. How could it? The officer was heretofore directing traffic (it's also not custody). 

 
It gets blurrier if an officer does not technically engage in questioning designed to elicit incriminating answers and does not know a suspect’s particular susceptibility to a scripted dialogue about the consequences of silence.
 

In a 34 year old United States Supreme Court case called Rhode Island v. Innis, two police officers transporting an armed robbery suspect engaged in an un-Mirandized dialogue with each other and within earshot of the defendant about the safety of a nearby school in the context of a discarded weapon. So distraught about the possibility of an injured student, the robber blurted out that he wanted to assist the officers in retrieving the discarded firearm. The Supreme Court held that the dialogue was not the functional equivalent of an interrogation because the officers did not know that the conversation was likely to have such a jolting effect on the suspect.

Even if an un-Mirandized custodial interrogation produces an incriminating statement, the remedy is, sadly, not dismissal of the prosecution as so many defendants and their families hope. It is suppression of the evidence under limited circumstances. This means that the defendant’s incriminating statement can be withheld from an unwitting jury under limited circumstances—and sometimes can even be introduced over the objection of the defendant under other, limited circumstances.

A blog is not legal advice. Neither reading a blog nor sending unsolicited information to a lawyer over the Internet establishes an attorney-client relationship.

Should a Defendant Agree to a Pre-Charge Polygraph Examination?

In Unforgiven, Gene Hackman's character, a town marshal, interrogates Morgan Freeman with a whip. The marshal confronts Freeman's character with purported guilt. When his coconspirators lies don't match his lies, says Hackman, he's going to hurt Freeman, "and not gentle like before. But bad."

Despite nearly universal rejection of polygraph junk science in the courts, some law enforcement officers still ask interrogation targets to take polygraph, or, so-called “lie detector” tests. The objective is a confession-- not the truth.

Law enforcement in the State of Iowa has a checkered past of using polygraph examinations oppressively to extract confessions. State v. Franks, 239 N.W.2d 588, 590 (Iowa 1976). In Franks, a prosecuting attorney exchanged the promise to refrain from filing a trial information for the Defendant’s consent to  take and “pass” a polygraph examination.

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The Court recounted that the promise went something like this: “Larry, if that's the case why don't you take the polygraph and I won't even have to file an Information if you don't know anything about it.” But it got worse from there.

The polygraph was a prop in a devious interrogation, which the Court found coercive and involuntary irrespective of the technology. Id. The prosecutor refrained from charging the defendant to deny him counsel, invited the unrepresented defendant to take a polygraph to avoid a charge, and the polygrapher detective promised probation for a confession and threatened a twenty year prison sentence if the Defendant did not confess. Id. The Iowa Supreme Court understandably reversed and remanded for a new trial. Id.

Similarly, the Iowa Supreme Court has affirmed a lower court ruling suppressing a confession after a rigorous “hard” polygraph examination was a factor in confronting the defendant with his purported guilt. State v. Cullison, 227 N.W.2d 121, 129 (Iowa 1975). In Cullison, the facts and circumstances—including sleep deprivation and a six hour polygraph exam—were so egregious that the court held that the use of a prolonged polygraph exam, while not per se coercive, must be a factor in determining whether a confession was coerced. State v. Cullison, 227 N.W.2d at 129.

Notably, the Cullison court queried whether the “release” the defendant signed was designed to indemnify the detectives for their treatment of the defendant:

 

“This instrument contained another waiver of Miranda rights but its main purported purpose was to release the Pottawattamie county attorney and his employees (Babbitt, the polygraph officer was one) from all liability for the results of the polygraph examination.”

Cullison, 227 N.W.2d at 128.

Perhaps the lawsuit protection was wise, as the Court pointed out:

“The physical and psychological tensions exerted on [the defendant] were demonstrated by his condition when the interrogation ended. The officers were alarmed; he was immediately hospitalized.” Cullison, 227 N.W.2d at 129.

The Cullison polygraph interrogation was nine and a half hours straight—six and a half hours of which was the so-called polygraph exam. Id.

 
In Franks and Cullison, polygraphs were a prop for interrogations, designed to confront defendants with purported “knowledge” of their guilt. In both cases, the court found that the extraction was inherently coercive and, thus, both unreliable and unconstitutional.
 
But there is another good reason not to take a polygraph examination—if a defendant “passes,” the prosecutor can prohibit the jury from ever seeing the result. In State v. Conner, a defendant offered evidence of his own expert polygraphers to show that he was not being deceptive when asked specific questions. The State moved to limit the introduction of that evidence. The Court agreed that it could not be offered unless the prosecution stipulated, or, agreed, to its introduction.  State v. Conner, 241 N.W.2d 447, 457 (Iowa 1976).

So, in short, polygraph exams in the State of Iowa are mostly props useful only to interrogators and useless to defendants who wish to “prove” their innocence.

A blog is not legal advice. No attorney client relationship is established by reading a blog or by sending unsolicited information to an attorney over the Internet.

Should a Defendant Plead Guilty to Get Out of Jail?

The question sometimes comes up in my Iowa criminal law practice: Should I plead to get out of jail before sentencing? No. The only reason a defendant should plead guilty in exchange for an agreement that includes release pending sentencing is if they are (1) guilty; (2) know they will not commit subsequent offenses while on pretrial release; and (3) have reviewed with their attorney the law and the facts; and (4) come to a determination that further discovery, investigation, and litigation will be fruitless and lead to the same or worse result. At that point, it is the defendant's choice to plead guilty. If they do so, the Court will ask specific questions about:

1. The factual basis of the plea-- do the facts meet the elements of the offense charged?
2. Does the defendant actually believe they are legally guilty of the offense?
3. Do the minutes of testimony and trial information accurately reflect what happened?
4. Does the defendant understand the plea agreement for a recommendation to the court
5. Does the defendant know the judge is unbound by the plea agreement and can impose any legal sentence?
6. Does the defendant know the judge doesn't actually have to follow the recommendation to release the defendant following the plea?

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If the defendant understands all of the above and, also, that the worst case scenario is that the sentencing judge may sentence the defendant to the maximum sentence allowed by law regardless of the plea agreement between the parties, the defendant may accept a plea agreement that includes, as an aside, release pending sentencing.

A blog is not legal advice.