WHAT IF YOU CHANGE YOUR MIND? CAN YOU WITHDRAW A PLEA OF GUILTY?

People ask me all the time about withdrawing their guilty plea because they are unhappy with the sentence they received. Can it be done? The answer is yes, but only under rare circumstances. When you enter a plea of guilty you are giving up several important constitutional rights. Among these rights is the right to a trial. By entering a plea of guilty, you are allowing the judge to find you guilty based solely off of the police reports or your written statement. Because you are giving up these significant rights, the court does everything it can to ensure that you are entering the plea knowingly and voluntarily.

When you enter a guilty plea, there is a colloquy that goes on the record in which the judge confirms that you know that you are giving up your constitutional right to a trial. The judge also confirms that you understand that the court may impose a sentence that exceeds the prosecutor's recommendation. The judge usually follows the recommendation that is on the plea agreement that you sign, but the judge is not obligated to follow that recommendation- the court may impose the maximum sentence allowed by law.

On the plea forms, you will also provide information concerning your age and level of education. This assists the court in determining whether you are making a knowing waiver of your rights. The court also confirms that you you were not threatened to enter the agreement and that you were not promised anything if you entered into the agreement. All of this is confirmed in the agreement you sign and it will also go on the record when you appear in front of the judge. If the plea agreement is not placed on the record in its entirety in court, you may have grounds to withdraw the plea.

A guilty plea may only be withdrawn if you can show that a manifest injustice will occur if you are not allowed to withdraw the plea. The burden is on the defendant to prove that a manifest injustice will occur. The factors that indicate that a manifest injustice will occur are: ineffective assistance of counsel, the defendant did not agree to the plea, the plea was not voluntary, and breach of the agreement by the prosecutor. If these factors are not present, then the defendant must prove that there are some other set of circumstances that would result in an obvious injustice.

Ineffective assistance of counsel usually means that the defense attorney did not do his or her job by failing to properly advise you AND your decision to plead guilty would have been different had you been properly advised. When you attempt to withdraw a guilty plea on the ground of ineffective assistance of counsel, you should have a different criminal defense lawyer represent you due to the conflict of interest.

Although you may be unhappy with your sentence because the judge gave you more jail time than the prosecutor had recommended, that is not grounds for withdrawing a guilty plea. You generally must show that you were not properly advised, that your plea was not voluntary, or that the prosecutor breached the agreement. A motion to withdraw a guilty plea must be made within 1 year of the judgment and sentence.