What is a plea bargain?

In Colorado, a plea bargain is a binding agreement between the prosecutor and the defendant that settles one or more criminal charges without a trial. The defendant agrees to plead guilty or no contest, often in exchange for a reduced charge, a dismissal of some of the counts, or a laxer sentence.

The plea is generally entered at a court proceeding called the disposition hearing.

Contrary to popular belief, criminal cases rarely go to trial. In 2022, for example, almost 42,955 new criminal cases were filed in Colorado’s district courts. Of these, only 806 went to trial – approximately 1.9 percent.¹

The following flowchart summarizes the Colorado criminal court process.

To help you better understand the pros and cons of resolving a criminal case without a trial, our Denver Colorado criminal defense lawyers answer the following questions:

• 1. When Pleas Occur
• 2. Negotiation Process
• 3. Length of Negotiations
• 4. Pros of Pleas
• 5. Sentencing Alternatives
• 6. Cons of Pleas
• 7. Pleading Guilty
• 8. Should I take a deal?
• 9. What happens next?
• 10.Changing Plea Deals
• 11. Violating Plea Terms
• Additional Resources

Read our related article on collateral relief in Colorado.

1. When Pleas Occur

Plea bargaining may occur before you are formally charged or after charges have been brought. It can even occur after a trial has started or at any time before the jury (or judge) returns a verdict.

While you may be tempted to jump at the prosecutor’s first offer, it is a good idea to remember that you are not the only one who does not want to lose at trial. Often the prosecutor is simply trying to make you blink first.

Our Denver and Golden criminal defense attorneys can help you determine whether

• the plea offer is a good one and
• you might be able to do better by waiting.

2. Negotiation Process

Either the prosecutor or your defense attorney can initiate a plea offer. Your lawyer and/or the prosecutor will usually want to investigate the case before making a plea offer. This can include:

• speaking to witnesses,
• watching surveillance video,
• obtaining the results of a drug screen or rape kit, and
• anything else that would tend to establish innocence or guilt.

If the prosecutor’s case is weak, your lawyer will make a presentation to the prosecutor to point out the holes and inaccuracies in the state’s evidence. Often this will result in a plea offer.

In a best-case scenario, the prosecutor will even drop the case entirely. Though even when prosecutors think they have a strong case, they are often willing to bargain in order to avoid a trial.

See our related article about reducing a felony to a misdemeanor.

3. Length of Negotations

Sometimes a plea resolution can be reached in one phone call or email exchange. In other cases, negotiating a plea deal can take weeks or even months.

Low-level misdemeanor cases are usually resolved quicker than high-level felony cases. In serious cases, multiple plea bargains may be proposed and rejected as the case proceeds through:

• “discovery” (fact-finding),
• pretrial motions and,
• possibly, trial.

4. Pros of Pleas

Advantages of plea bargains include (depending on the case):

• Avoiding the expense and uncertain outcome of a trial;
• Avoiding jail time (especially in misdemeanor cases);
• Reducing prison time or serving your sentence in jail instead of prison (with a felony plea bargain to a misdemeanor);
• Having a fixed sentence;
• Avoiding the collateral consequences of a felony conviction (such as losing your gun rights);
• Avoiding the requirement to register as a sex offender;
• Not being labeled a sex offender, drug offender, or child abuser;
• Reducing criminal fines; and
• Getting the help you need instead of incarceration.

Prosecutors and courts also like plea bargains because they:

• reduce their caseload;
• save taxpayers the expense of trials and possible appeals; and
• remove the risk of a “not guilty” verdict in borderline cases.

5. Sentencing Alternatives

Certain types of plea bargains can allow you to obtain treatment instead of going to jail.

In some cases, you may qualify for special Colorado “problem solving” courts such as:

• Adult Drug Court;
• Juvenile Drug Court;
• DUI Court;
• Mental Health Court;
• Family and Dependency/Neglect Court; or
• Veterans’ Treatment Court (VTC) — also known as Veterans Trauma Court.

When such an agreement is reached before charges have been filed or before a plea has been entered, it is known as diversion.² If you have already entered a guilty plea in court, you may still be able to obtain counseling instead of jail time under Colorado’s deferred sentencing law.³

Both adult diversion and deferred sentencing “pause” the criminal proceedings so that you can obtain treatment instead of going to jail. Upon successful completion of a diversion program, the charges against you will be dismissed.

6. Cons of Pleas

Disadvantages to Colorado plea bargains include (but are not limited to):

• Losing the opportunity of a “not guilty” verdict at trial;
• A guilty or “no contest” plea counts as a conviction;
• Generally no opportunity to change your mind later or appeal the sentence; and
• Restrictive conditions on your freedom, which can include (without limitation):
  • Admitting to guilt (even if you are innocent);
  • Regular meetings with your probation officer;
  • Risk assessment and counseling at your own expense;
  • Victim restitution;
  • Testifying against another defendant or otherwise helping with an investigation;
  • A protective order that restricts your freedom;
  • Drug testing;
  • Losing your right to possess a firearm; and
  • Risk of jail if you commit any crime other than a minor traffic infraction — even one that would not normally get you jail time.

7. Pleading Guilty

You do not necessarily have to plead guilty to get a plea deal. With a diversion plea bargain, you may never need to enter a plea at all.

You must enter a plea to obtain deferred sentencing. Though the judge may allow you to plead “nolo contendere” (no contest) instead of guilty.

8. Should I take a deal?

It is important to retain an experienced criminal lawyer to advise you on:

• whether they think the deal can be improved and
• what the possible outcomes are if you take your case to trial.

In the end, only you can determine whether the benefits of a plea deal outweigh the risks of trial.

9. What happens next?

After a plea agreement is worked out between the prosecutor and your criminal defense lawyer, the prosecutor presents it to the judge with the recommendation that the court accept it.

The judge usually goes along with the prosecutor’s recommendation. However, it is entirely up to the judge whether or not to do so. Factors the judge will consider may include:

• Your prior criminal history (if any);
• Recommendations in the pre-sentence investigation report (PSIR);
• Recommendations made by treatment providers;
• Statements of family members and alleged victims; and
• The nature of the crime and acts alleged.

If the court accepts the plea bargain, it will be entered into the record in open court with you present. If the court rejects the deal, the prosecutor and your defense attorney can try again.

10. Changing Plea Deals

In general, once you sign a plea deal, you may not change your mind. However, you may be able to challenge its validity if:

• Your lawyer was incompetent (ineffective assistance of counsel);
• You were mentally ill or otherwise legally incompetent when you signed; or
• The police or prosecutor committed fraud in connection with your case.

You should be aware, however, that such challenges are rarely successful absent clear evidence that you were unable to understand the consequences of what you agreed to.

11. Violating Plea Terms

Your Colorado plea agreement will set forth the consequences for violating its terms. Depending on what has been agreed, a violation can result in:

• no action,
• a fine,
• incarceration, or
• the commencement or resumption of criminal proceedings against you.

However, if you have a good excuse, the judge may let you off the hook.

Additional Resources

For more in-depth information about plea bargains, refer to these scholarly articles:

• The Prisoners’ (Plea Bargain) Dilemma – Journal of Legal Analysis.
• Fairness and the Willingness to Accept Plea Bargain Offers – Journal of Empirical Legal Studies.
• The Plea-Bargain Crisis for Noncitizens in Misdemeanor Court – Immigration and Nationality Law Review.
• Felony Plea Bargaining in Six Colorado Judicial Districts: A Limited Inquiry into the Nature of the Process – Denver University Law Review.
• Colorado Counsel Conundrum: Plea Bargaining, Misdemeanors, and the Right to Counsel – Denver University Law Review.

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