Attacking the Guilty Plea: The Voluntarily and Knowingly Made Standard

Attacking the guilty plea is probably one of the least understood concepts in the post-conviction world, even though more than 95 percent of state and federal convictions are the direct result of a guilty plea. Why are guilty pleas so prevalent? Because they`re easy. It`s an easy win for the prosecutor, and the courts love guilty pleas because they dispose of a case rather efficiently. So the last thing a court wants to hear after it thought a case was final is an attack on a guilty plea. For this reason, the hurdles to successfully challenge a guilty plea are high. Very high.

A Plea Must Be “Voluntarily and Knowingly Made”

The golden standard for challenging any guilty plea is proving that it was not “voluntarily and knowingly made.” But what does this mean? While courts tend to conflate these two terms, in reality they are two distinct requirements that must be met before a plea can be accepted by a court.

To be “voluntary,” a plea must be of your own free will. This means that the court cannot accept your plea if it`s induced by coercion, false promises, or threats. Machibroda v. United States, 368 U.S. 487 (1962). What would this look like? Imagine the prosecutor offers you a deal that if you plead guilty, he won`t charge your wife with the same crime and throw both of you in jail and leave your kids in the custody of the state. If the prosecutor couldn`t really make a case against your wife, your resulting guilty plea would be considered made under threats and deemed void. United States v. McElhaney, 469 F.3d 382 (5th Cir. 2006).

However, threatening you with life in prison, if you don`t plead guilty isn`t coercion — if the prosecutor can charge with something that would put you away for life. “the Supreme Court has squarely held that a prosecutor may threaten to charge a greater offense if a defendant will not plead guilty to a lesser on, as long as the prosecutor has probable cause to believe the defendant committed the greater offense.” United States v. Creighton, 853 F.3d 1160 (10th Cir. 2017).

The knowingly aspect of a plea is a little more involved than the voluntary part. A plea is knowingly made when a person understands the rights he is waiving by pleading guilty (e.g., the right to a jury trial), and also understands the consequences of the plea (e.g., the sentencing exposure).

Bad legal advice to enter a guilty plea can render a plea “unknowing.” While courts have generally held that counsel`s wrongful predictions on sentencing won`t make a guilty plea unknowing, they do agree that counsel should at least do some research on the law pertaining to the case before making any suggestions to plead guilty. For example, in See Brock-Miller v. United States, 887 F.3d 298 (7th Cir. 2019), the court held that counsel`s failure to investigate and discover that a prior conviction could not support an enhancement that would have doubled the sentence, prior to advising the client to plead guilty to avoid that enhancement, constituted ineffective assistance of counsel.

I go into a lot more detail on the knowing and voluntary standard in my book, Attacking the Guilty Plea: An Insider`s Guide. My book also has a collection of cases where people have been successful in attacking their guilty plea by challenging the knowing and voluntary nature of their plea.

So how does a court determine whether a guilty plea is voluntarily and knowingly made? It holds a hearing. I go over the guilty plea hearing in another post.

Note: This is adapted from a column I wrote in the March 202 issue of Criminal Legal News Magazine.

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