My 25 year-old son, who has no criminal history whatsoever (he has never even gotten a traffic ticket), took a plea deal. He is now sitting in prison looking at a 10 year sentence. His lawyer convinced him that it was a good deal, and he took it. I have talked to other people who have been in similar situations since that time and they have gotten much better deals. CAN HE TAKE BACK HIS PLEA AND UNDUE THIS WHOLE THING?
It is EXTREMELY difficult to withdraw a guilty plea. The two main arguments for even attempting to do so are what we call “Newly Discovered Evidence” and “Ineffective Assistance of Counsel.” In the above example, it looks like he simply has changed his mind. If there is no newly discovered evidence, new witnesses, police misconduct in the investigation, etc, that leaves us with the Ineffective Assistance of Counsel argument.
Although it is not easy, this argument can be achieved by offering that there may have been ineffective assistance of counsel. Some examples could be: not advising properly of a possible outcome, failing to note an objection at trial, failing to clearly advise them of the rights they are giving up by pleading guilty, etc.
Many attorneys don’t take this route (and understandably so) because, in essence, they are admitting that they were wrong or that they made a mistake. Inevitably, this could rise to a bar complaint, discipline from the bar, and even personal civil liability. While I am all for helping my former clients out, I am also going to be very careful in how I go about doing that.
The fact is, that when someone pleads guilty to a crime, the court is very careful in making a record that this plea is made knowingly, voluntarily, and intelligently. Those three words are used at virtually every plea hearing that takes place in this state, usually by both the judge and the defense attorney. The judge goes over the guilty plea document in detail with the defendant on the record in order to ensure that the person understands the rights that they are giving up by pleading guilty (their constitutional rights to remain silent, question witnesses, have a jury trial, etc.). Possible ramifications, one being the fact that the judge doesn’t have to follow the agreed sentence recommendation, are also reviewed. After all of this, the defendant must agree to a statement that makes them guilty of the crime in order to enter a plea.
The reason this is done in such detail and ON THE RECORD in open court is to ensure that people know what they are doing and TO GUARD AGAINST DEFENDANT’S CHANGING THEIR MIND AFTER A PLEA IS ENTERED.
The problem for the son in the above situation is that even if he is successful in getting his guilty plea withdrawn, the overall result in his case will not likely get any better. His case would simply be sent back to the trial level left with the same facts, circumstances, witnesses, and overall case against him. At that point, his options would be 1) to hope for a better offer, which is highly highly unlikely, or 2) to take his chances at a trial and hope for an acquittal from the jury or being convicted of a lesser charge, which is also highly unlikely without any new facts or evidence.
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Stryder J. Wegener is the author of this article, the co-founder of Emerald City Law Group, and a damn good criminal defense attorney.