People v. Nelson

Opinion

ELKINGTON, Acting P. J.

Defendant James Nelson (Nelson) and one James Buels were jointly charged with two counts of

possession for sale

of a controlled substance, one count of transportation or offering to sell such a substance, and one count of conspiracy to sell such a substance. In the course of a plea bargain, Nelson pleaded guilty to one count of possession for sale of the substance, and one count of transportation or offering to sell

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such a substance. Upon announcement of the plea bargain, the court said it was inclined to impose a sentence of two years, and Nelson has conceded that he had “always known that this was the sentence which might be imposed.” And as a result of the plea bargain the remainder of the charged counts was dismissed.

At the time set for Nelson’s sentencing, his attorney pointed out that the codefendant Buels had been found guilty, and was granted probation conditioned upon a one-year term in the county jail. Although conceding that “Mr. Buels received very lenient treatment in the case,” he argued that Nelson should “be similarly treated.” The prosecutor objected, saying that Nelson’s case was in “a different posture than Buels’.” The court continued sentencing “to allow for review of the file.”

On the continued date for sentencing the trial court, among other things, stated: “In making this sentencing choice, the court is denying probation based upon the nature and seriousness of the offense, the large amount of drugs involved, and although he may have been the underling . . ., he did occupy an active part in this transaction. I’ve selected the low term based on the defendant’s lack of prior record. ... I made a mistake with reference to sentencing Mr. Buels.”

Nelson argued in the superior court, as he now does here, that: “A . . . policy, that in favor of plea negotiations, favors the equal treatment of similarly situated codefendants. Here, [Nelson] entered into a plea agreement whereby he pled guilty to Counts II and III . . . in exchange for receiving an indicated sentence of two years in state prison. His co-defendant who did not plea bargain or obtain an intended sentence, received a sentence equal to one-half the sentence received by the appellant. . . . Furthermore, [Nelson] here should not be bound by the plea agreement he entered into because to do so would not result in the administration of justice.” (Sic.)