# Question 21: The Plea Offer Before Dawn

## Your role

You represent Malik Dorsey in the fictional State of Harrow. He is charged with armed pharmacy robbery and possession of a firearm during the robbery. A plea offer expires at 4:00 p.m. today. Counsel has supplied the complete probability and sentencing record below. Advise Malik without inventing different odds or assuming where a judge will sentence within a stated range.

## Governing law

Assume the following Harrow rules apply:

1. Counsel must communicate every formal plea offer and advise the defendant of the material sentencing, trial, and collateral consequences. The final choice belongs to the defendant.

2. A guilty plea must be knowing and voluntary. The court may reject a sentencing recommendation but must sentence within the applicable range stated below.

3. Under the offer, Malik pleads guilty to robbery. The firearm count is dismissed. The applicable custody range is 30 to 42 months, and the court must credit Malik's eight months of presentence custody.

4. If Malik is convicted at trial of both charged counts, the applicable aggregate custody range is 84 to 108 months. If he is convicted only of the lesser theft offense, the range is 12 to 18 months. An acquittal produces no sentence.

5. The eight months of presentence custody is credited against any custodial sentence after trial. No credit is applied to an acquittal because no sentence exists.

6. A robbery plea or robbery conviction suspends Malik's security-officer license for three years after release. A lesser-theft conviction suspends it for six months. An acquittal produces no suspension.

7. Trial counsel's good-faith assessment, fixed for this assignment, is: 25 percent probability of acquittal, 20 percent probability of conviction only for lesser theft, and 55 percent probability of conviction on robbery and the firearm count.

8. The supplied probabilities already account for the eyewitness identification, partial surveillance video, recovered clothing, absence of Malik's DNA on the weapon, and the cooperating driver's credibility problems. Do not add or subtract probability for those facts.

9. When a sentencing range has no supplied distribution, expected custody must be stated as a range by applying the probability to the low and high endpoints. Do not use the midpoint as though it were a predicted sentence.

10. Expected-value analysis informs advice but does not compel a risk-neutral defendant. Counsel must explain the probability of each materially different outcome and the collateral consequence.

## Facts

A pharmacy was robbed by two masked people. The getaway driver, already charged, says Malik entered the pharmacy with a gun. The driver has received no written cooperation agreement but hopes for leniency. One employee identified Malik's build and voice. Surveillance shows clothing similar to clothing recovered from Malik's apartment. Malik's DNA was not found on the recovered gun. Malik denies entering the pharmacy and says he lent the clothing to the driver.

The prosecutor offers to dismiss the firearm count if Malik pleads to robbery by 4:00 p.m. The prosecutor will recommend 30 months, but the judge may impose any sentence from 30 to 42 months. Malik has already spent eight months in custody.

If Malik goes to trial, counsel supplies the fixed probabilities in rule 7. There is no additional charge, mandatory fine, immigration consequence, or fee shifting. Malik's security-officer license is his principal livelihood. He says:

> “I will not plead if trial is basically a coin flip, but I cannot do nine years. Tell me the real numbers, not what you think sounds safe.”

No probability is supplied for a sentence at any particular point within a range. Malik is competent, understands the charges, and has not authorized counsel to accept the offer.

## Assignment

Counsel Malik on:

* The plea custody range before and after the eight-month credit.
* The probability of each trial outcome.
* The expected trial custody range using only supplied endpoints and probabilities.
* The expected trial custody range after properly accounting for presentence credit.
* The license consequence in each branch.
* The probability of no robbery conviction and the probability of no incarceration beyond time already served.
* The risk difference between plea and trial without converting the analysis into a guarantee.
* The concrete recommendation before 4:00 p.m. and the decision Malik must personally make.

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