Attacking the Guilty Plea: Getting More Time After a Successful Guilty Plea Challenge

What happens if you win your challenge and overturn your guilty plea and then lose at trial? Can the court give you more time in prison as a penalty for successfully challenging your guilty plea? Yes, but there`s more to the story.

The Supreme Court held in North Carolina v. Pearce, 395 U.S. 711 (1969), that a longer sentence as a “penalty” upon reconviction after a successful appeal was unconstitutional. But that case was not about a successful challenge to a guilty plea. There is a difference.

In a case where a defendant did successfully challenge his guilty plea and then lost at trial and got more time, the Court distinguished its decision in Pearce, saying that loss at trial after a guilty plea is successfully overturned is not the same as a retrial. In Alabama v. Smith, 490 U.S. 794 (1989), the defendant was originally sentenced to 30 years in prison after a guilty plea. But after he overturned that guilty plea on appeal and went to trial, he lost. This time the judge said he was “too lenient” the first time and handed him 150 years in prison.

Was this unfair? The Supreme Court said it was perfectly fine, and here`s why.

The Court reasoned that a guilty plea is usually a quick court proceeding. There`s no evidence entered, usually, and the court`s duty is mainly to ensure the guilty plea is valid. That`s the whole point of a guilty plea: to ease the burden on the court and the prosecutor by the defendant admitting that he committed the crime as charged.

But in a trial all the evidence gets brought before the court. People testify, the defendant`s motives get exposed. In short, the court sees much more bad stuff about the defendant than it ever would during a guilty plea. And those facts play a part in sentencing the defendant. Judges are allowed to weigh numerous factors at sentencing, even conduct that wasn`t charged or that was part of any charges that the defendant was not found guilty of committing. Sure it seems unfair, but it`s the way it works. It`s part of the dangers of going to trial, and why so many defendants plead guilty — even if they aren`t guilty of the crimes charged.

Even if the same facts were before the court as the original sentencing but a harsher sentence was handed down the second time, it`s not considered “vindictive” if the new sentencer (a new judge or jury) imposes the harsher sentence. In United States v. Rodriguez, 602 F.3d 346 (5th Cir. 2010), it was the jury that handed out a harsher sentence after a successful challenge to a guilty and subsequent loss at trial. The court said that the jury didn`t know about the more lenient sentence given the first time around so there could not have been any vindictive motive in handing out the longer sentence the second time.

In conclusion, to answer the question of whether someone can get more time if they successfully challenge their guilty plea, the answer is a big “yes.” But maybe not if there`s another guilty plea to the same charge before the same judge. Going to trial will most likely expose someone to more time, however.

 

Attacking the Guilty Plea: The Guilty Plea Hearing

It used to be that the events leading up to a guilty played out in secret. The prosecutor and the defense would get together and hammer out a deal where the defendant would agree to plead guilty in exchange for some concessions. Maybe there were some promises made, and maybe there were some threats. But everyone would go before the court and say none of this happened and the court would accept the guilty plea. It was all lies and everyone knew it. And it worked this was for a long time.

The Importance of the Guilty Plea Hearing

When defendants would challenge their guilty pleas, claiming there were threats and promises made, there was noting to refute their claims. There was no record of any plea negotiations other than maybe a cookie-cutter form used in every case, with the defendant saying that he was guilty and that the plea was a knowing and voluntary decision.

When one of these cases made it to the Supreme Court in Blackledge v. Allison, 431 U.S. 64 (1977), the Court stressed the importance of the guilty plea hearing — especially the statements made by a defendant at that hearing. Federal Rule of Criminal Procedure 11 provides a template a court must follow when conducting a guilty plea hearing. The Court said that a defendant`s statements at this hearing create a “formidable barrier” to any challenge to the guilty plea, and “solemn declarations in open court carry a strong presumption of verity.”

This declaration by the High Court has been quoted countless times by courts denying challenges to guilty pleas, and you`d think the Supreme Court ruled against Allison, the defendant in that case. In fact, he won, the court acknowledging that no method of ensuring a guilty plea is knowing and voluntary is so “perfect” as to avoid a challenge, and that this formidable barrier is “not invariably insurmountable.”

No Per Se Rule that Plea Hearing Statements Foreclose Relief

Because the guilty plea hearing is not a perfect method for ensuring that a guilty plea is knowing and voluntary, Blackledge instructed that a court may not adopt a pre se rule that a defendant`s statements at the plea hearing automatically foreclose any challenge to his guilty plea.

Blackledge was in 1977 and, four decades later, courts are still denying challenges to guilty pleas simply based on the statements made at the guilty plea hearing. It would seem the courts are ignoring the Supreme Court`s mandate in Blackledge. But a closer look shows the real problem: Courts in the cases are almost always relying on case law foreclosing direct challenges to guilty pleas, and most guilty plea challenges are collateral attacks (i.e., habeas corpus petitions). There`s a big difference between the two!

A direct challenge to a guilty plea would go something like this: A defendant pled guilty and admitted his criminal conduct at the plea hearing, a common occurrence. On direct appeal, he brings a challenge to his plea that he`s not really guilty of his crime because of errors in his case. The court then points to his statements made at the plea hearing that he in fact committed the crime and thus rejects his challenge.

But things are different in a collateral attack on a guilty plea. As the name implies, a collateral attack cannot be a direct attack on the plea. The Supreme Court has explained that in a collateral attack on a guilty plea, a prisoner “may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel” was wrong. Tollet v. Henderson, 411 U.S. 258 (1973).

It`s all about the advice to plead guilty, and not about the plea itself, in a collateral attack on a guilty plea.

Some courts have correctly recognized this distinction. In Tovar Mendoza v. Hatch, 620 F.3d 1261 (10th Cir. 2010), the court reversed the denial of a collateral attack on a guilty plea because the district court relied entirely on the defendant`s statements at the guilty plea hearing. “The district court`s conclusion overlooks the fact that Tovar`s responses during the plea colloquy were … a courtroom ritual more sham than real,” the court said, finding that Tovar`s lawyer had coached him on what to say at the hearing so the court would accept his bogus guilty plea.

One important point about Tovar`s case is that he made specific, factual allegations in his claims, which required the district court to hold an evidentiary hearing. This required Tovar`s lawyer to make statements on the record and developed the record further for the eventual appeal. So when the case came before the Tenth Circuit, it had a full record to go on. Often, that`s not the case in a collateral (habeas) case on appeal.

Always point to facts outside the criminal record in a habeas petition (or sec 2255 motion) to force the court into holding a hearing to develop the record on your claims.

I go into more detail about the guilty plea hearing in my book, Attacking the Guilty Plea: An Insider`s Guide, providing much more information on cases that have successfully challenged guilty pleas in the face of damning statements made at the guilty plea hearing.

Note: This information is adapted from my column in the March 2020 issue of Criminal Legal News Magazine, titled “Attacking the Guilty Plea: The Voluntarily and Knowingly Made Standard.”

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.

%d bloggers like this: