The art of withdrawing a guilty plea comes down to which phase of the criminal proceeding you`re in when the motion to withdraw is filed. Each phase requires meeting a different standard in order to withdraw a guilty plea. These phases are:
(1) Prior to it being accepted by the court,
(2) After acceptance but before sentencing, and
(3) Any point after sentencing.
The rule for everything relating to a guilty plea, from entering one to withdrawing one, is found in Federal Rule of Criminal Procedure 11.
Research Alert: Withdrawal of a guilty plea was previously governed by Criminal Rule 32(e), but this was moved to Rule 11 in 2002. Your research prior to 2002 will likely cite Rule 32(e) instead of Rule 11, so check the dates of the cases you`re relying on. This is true even for current cases that still erroneously rely on cases prior to 2002. Even judges don`t always get it right. State prisoners will often find that state laws and rules closely track federal rules and laws when it comes to handling guilty pleas.
Phase 1: Before a Guilty Plea is Accepted
The easiest phase to withdraw a guilty plea is before it is accepted by the court. Under Rule 11(d)(1), a guilty plea may be withdrawn before a court accepts it “for any reason of no reason.” Courts have consistently ruled that you have a “right” to withdraw your guilty plea at this point, and “the court lacks authority to deny” your withdrawal. See United States v. Feliz, 2019 U.S. Dist. LEXIS 207814 (D.N.J. 2019).
Research Alert: Caselaw prior to the amendments to Rule 11 in 2002 will say there`s not absolute right to withdraw a guilty plea before it`s accepted. That used to be true under the old rule, but the amendments expressly changed that to fix a split among the circuits on the issue.
When is a guilty plea actually “accepted” by a court? There aren`t any magic words the court must use to mark a guilty plea as accepted. What matters, courts say, is the context of the language used by the court in accepting the plea. Even where a court provisionally or conditionally accepts a guilty plea, it is usually considered “accepted” under Rule 11.
Courts will often conditionally accept a guilty plea pending review of the presentence report (PSR) or the plea agreement. As long as the court follows Rule 11 in accepting a guilty plea, it`s considered “accepted,” the Supreme Court said in United States v. Hyde, 520 U.S. 670 (1997).
A guilty plea, however, does not live or die with the plea agreement, and a plea agreement can be rejected by the court while the guilty plea stands. In Hyde, the Supreme Court recognized that a plea agreement usually isn`t even accepted by a court until sentencing, long after the guilty plea has been accepted.
But there are exceptions. Under Rule 11(c)(5), if the court rejects a plea agreement where the defendant has pleaded guilty and the government has agreed to dismiss charges, to not bring further charges, or to a certain sentence or sentencing range, the court must “give the defendant an opportunity to withdraw the plea.” In this scenario, you have an “unrestricted right” to withdraw your plea as if it had never been accepted.
This is important because nearly all plea agreements have some kind of “charge bargaining,” where the government agrees to drop charges or not bring new charges if the defendant pleads guilty. After all, the whole reason the government piles on so many charges is to coerce a guilty plea, even though it knows it can get the same sentence with just the remaining charges agreed to in the plea agreement. This means a guilty plea after the court rejects a plea agreement will usually fall under Rule 11(c)(5), allowing withdrawal without any reason at all. Most people miss this point.
Another example of when you have the right to withdraw your guilty plea would be when a magistrate judge makes a recommendation to the district judge to accept our plea. In that case, your plea isn`t accepted until the district judge “adopts” the magistrate`s recommendation. Until them you can withdraw for any reason. United States v. Davila-Ruiz, 790 F.3d 249 (1st Cir. 2015).
Phase 2: After Acceptance and Prior to Sentencing
To withdraw your guilty plea after it`s accepted but before sentencing, then you must show a “fair and just reason,” according to Rule 11(d)(2)(B). Since this isn`t defined in the rule itself, we must turn to the courts to find out what this means.
In United States v. Carr, 740 F.3d 339 (5th Cir. 1984), the federal court of appeals in that case established seven factors (called the Carr factors) a court considers in finding whether a fair and just reason exists to withdraw a guilty plea after it`s been accepted by a court.
(1) A claim of innocence,
(2) Any prejudice to the prosecution,
(3) The delay in moving to withdraw the plea,
(4) Any “judicial inconvenience”,
(5) Lack of “close assistance of counsel”,
(6) The knowing and voluntary nature of the plea, and
(7) Any waste of judicial resources.
Any one or several of these can be a fair and just reason to withdraw your plea. Most courts have opted for their own factors, but Carr is the most common case cited for this purpose. And the finding of a fair and just reason is at the district court`s discretion, meaning meeting a factor doesn`t equal an automatic right to withdraw your plea.
That last point is important because it`s the way a withdrawal motion is argued that matters. Notice that constitutional issues, like the knowing and voluntary nature of the plea and the assistance of counsel, only come into play as factors, unless they`re argued as independent grounds for withdrawal. In other words, while these are common constitutional arguments attacking a guilty plea, they are only factors for the “fair and just reasons” analysis.
See the difference? Take the “close assistance of counsel” in factor # 5. It`s not the same as the familiar “ineffective assistance of counsel” (IAC) standard commonly raised in post-conviction motions. In United States v. McKnight, 570 F.3d 641 (5th Cir. 2009), the court discussed the distinction between these closely-related points.
So how do they differ? By their application. Close assistance of counsel guides a court`s discretion in allowing or disallowing withdrawal of a guilty plea, while IAC is used to invalidate a guilty plea because it would then be unconstitutional. Arguing IAC, then, implicates the validity of your plea and is an independent ground for withdrawal, while arguing a lack of close assistance of counsel supports only withdrawing your plea. The art of withdrawing your guilty plea is critical.
Phase 3: Withdrawal After Sentencing
Withdrawing your guilty plea after sentencing leaves you stuck with just two options under Rule 11(e): Direct appeal or collateral attack (i.e., a post-conviction relief motion). If you still have the ability to file a direct appeal, that`s your best option because the standard of review is better. Assuming it`s been a while since you were sentenced, your only option would be to file a post-conviction motion attacking your guilty plea.
This limited opportunity to withdraw your plea is explained by the Advisory Committee on Rule 11: “It is not possible for a defendant to withdraw a plea after sentence is imposed.” Notice the key word there: withdraw. It means you can`t withdraw your guilty plea, but you can still attack it under direct appeal or post-conviction remedies. After sentencing, it`s too late to withdraw your guilty plea but you can still challenge it as invalid.
When is a sentence imposed for purposes of Rule 11(e)? When it`s orally pronounced in court. It`s not the written judgment that counts but what`s actually said in court. That`s true for any question about a sentence: What`s said in court is what the sentence actually is, not what`s written afterward on paper. See United States v. Villano, 816 F.3d 1448 (10th Cir. 1987).
In conclusion, because how you go about withdrawing your guilty plea depends on which phase of the criminal proceeding you`re in when you do so, it cannot be stressed enough that you understand what`s expected of your motion to withdraw. Arguing the wrong way at the wrong time will surely lead to a denial.
Dale Chappell is the author of hundreds of published articles on federal criminal topics and several books on federal post-conviction relief, including Attacking the Guilty Plea: An Insider`s Guide.