Issue: Whether where a one-year conditional discharge is first introduced at sentencing, with only the attendant conditions being mentioned at the plea, the plea is unknowing and involuntary; and whether preservation is required under those circumstances.

Held: The Court didn’t reach the merits, instead finding the claim unpreserved because Mr. Bush did not object to the new sentence being imposed at sentencing, which occurred on a later date than the plea.

CAL Observes: Versions of this issue—whether the fact of a conditional discharge and its length have to be disclosed before someone can knowingly and intelligently plead guilty to the offense for which its being imposed—have been percolating in the lower courts for years. (By analogy, the Court has previously said that, for example, post-release supervision needs to be disclosed. See People v. Catu, 4 N.Y.3d 242 (2005).)

However, the Court did not definitively resolve these questions. Instead, it found the claim unpreserved because there had been opportunities for the defense to pipe up at sentencing to complain about the bait-and-switch. The preservation hawks carried the day, with the majority undertaking a lengthy discussion of “why we have a preservation rule” while ignoring that at no point prior to even the final pronouncement of sentence had the court suggested that “conditional discharge” would be the revocable sentence itself.

While this decision was unsatisfying, with these issues remaining live, the Court’s decision does, at least in dicta, suggest it understands that the question is whether “conditional discharge” falls within the “direct consequences” bucket such that it would have to be disclosed pre-plea. But Judge Rivera, writing in dissent, points out the fundamental unfairness of what Bush experienced: the imposition of a sentence with harsher conditions than he had agreed to at the time of his plea.