Nothing Entered Yet

TO: Marti Sleister     

FROM: Kim Huggins

FILE:

RE: Withdrawal of Guilty Plea Before Sentencing   

DATE: 11-13-21

QUESTIONS PRESENTED: Can a defendant withdraw a guilty plea before the sentencing hearing? In what situation? Does something need to be filed with the court?

SHORT ANSWER: Yes, a client can withdraw a guilty plea before sentencing, if the defendant can show a fair and just reason for withdrawing the plea, provided that the prosecution has not been or would not be substantially prejudiced by its reliance on the plea entered. A defendant’s attorney must file a motion within the Court of the criminal offense, in order for a defendant to withdraw a guilty plea.

FACTS: The defendant was initially charged with:·         Count 1 – Possession of a Controlled Substance – Class 4 Felony. This was amended to an Attempt of a Class 4 Felony: Class 1 Misdemeanor.·         Count 2 – Possession of Marijuana 1 oz or less -1^st offense – Infraction. This Count was dropped/dismissed.·         Count 3 – Possession or use of drug paraphernalia – Infraction. This Count was dropped/dismissed.·         Count 4 – Unlawful entry without park permit – Class 5 Misdemeanor. This Count was dropped/dismissed.

DISCUSSION:

When it comes to withdrawing a guilty plea, according to Rule 11(d) of the Federal Rules of Criminal Procedure

(1) before the court accepts the plea, for any reason or no reason; or

(2) after the court accepts the plea, but before it imposes sentence if:

(A) the court rejects a plea agreement under 11(c)(5); or

(B) the defendant can show a fair and just reason for requesting the withdrawal.

As far as what establishes the “fair and just reason” requirement for withdrawing a guilty plea upon acceptance, most states have the same requirement. (Tenn. R. Cr. P. 32(f) (may withdraw guilty plea for any “fair and just reason” before sentencing); Fla. R. Cr. P. 3.170(f) (must show “good cause” for withdrawal of guilty plea before sentencing); State v. Davis, 731 So.2d 958 (La. App. 2d Cir. 1999)

The Fifth Circuit established the following seven factors a Court would consider when allowing a withdrawal of guilty plea after its initial acceptance by the Court (United States v. Carr, 740 F.2d 339 (5th Cir. 1984)) Those factors include the following:

• a claim of innocence
• prejudice to the government
• a defendant’s delay in moving to withdraw his plea
• judicial “inconvenience”
• the “close assistance of counsel”
• the knowing and voluntary nature of the plea
• the waste of judicial resources

Each one of these factors is up to the Court’s discretion and does not constitute an automatic right of withdrawal of a guilty plea. Based on the following cases, State v. Ortega, 290 Neb. 172, 859 N.W.2d 305 (2015) and  State v. Carlson, 260 Neb. 815, 619 N.W.2d 832 (2000), “the reaffirming standard is that court may allow defendant to withdraw plea, not that court should allow defendant to withdraw plea.” N00007696PUB.pdf.

When a client does plead guilty, “the plea should be voluntary, knowing and intelligent with an awareness of all relevant circumstances and consequences.” State v. Utter, 803 N.W.2d 647, 651 (Iowa 2011). If a guilty plea “is not knowing and voluntary, it is unconstitutional and invalid and can be withdrawn.” (Attacking the Guilty Plea: The Art of Withdrawing a Guilty Plea | Criminal Legal News)

CONCLUSION: A defendant may withdraw a guilty plea previously entered prior to sentencing; however this right is not absolute based on the Court’s discretion.