CRIMINAL DEFENDANT’S HANDBOOK – Order Now!

If a “Motion for Withdrawal of Guilty Plea,” or nolo contendere, is made before sentencing is imposed, the court may permit withdrawal of the plea upon a showing by the defendant of “any fair and just reason” pursuant to Fed.RiCrim.P.lT.(d)(2)(B). After sentencing, a guilty plea may only be set aside by direct appeal or collateral attack pursuant to Fed.R.Crim.P ll(e). Collateral attack is under 28 U.S.C. §2255.

Motions to withdraw a guilty plea filed prior to sentencing should be granted “if for any reason the granting of the privilege seems fair and just.” Kercheval v. United States, 274 U.S. 220, 224, 71 L.Ed. ,1009, 47 S.Ct. 582 (1927). Although, the Kercheval standard is flexible, several factors can be identified that bear on the court’s exercise of its discretion. (1) Whether the defendant has asserted legal innocence; (2) Length of the delay between entry of plea and desire to withdraw; (3) Whether the defendant had the benefit of competent counsel.

Motions to withdraw a guilty plea after sentencing is viewed with disfavor, as an attempt to avoid the sentence imposed, and may be granted only to “correct manifest injustice.” The “manifest injustice” standard is more stringent than the “harmless error” rule applicable to Rule 11 violations challenged in pre-sentence motions to withdraw a guilty plea. A post-sentence motion to withdraw a guilty plea should, at a minimum, be predicated upon a claim of actual innocence and be supported by compelling grounds.

Motions to withdraw a guilty plea will be granted if there’s a fatal defect in the Rule 11 inquiry. When voluntariness is challenged, the court must examine the entire plea record and the totality of the circumstances surrounding the plea. Although Rule 11 violations are serious because of the due process concerns inherent in the waiver of constitutional rights, they justify withdrawal only if they affect substantial rights and are not purely technical. Johnson v. Zerbst, 304 U.S. 458, 464, 82 L.Ed. 1461, 58 S.Ct. 1019 (1938).

Another ground for withdrawal of a guilty plea is the prosecutor’s failure to comply with the terms of a plea agreement or the defense counsel’s promise for downward departures when he or she had no authority or offer from the government to make such a promise.

Another ground for withdrawal of a guilty plea is to prevail on a claim of ineffective assistance of counsel. The defendant must show that the plea was motivated by advice received from counsel which fell short of the range of competence demanded of attorneys in criminal cases. See, Hill v. Lockhart, 474 U.S. 52, 88 L.Ed.2d 203, 106 S.Ct 366 (1985) (defendant must show deficient performance and prejudice). Where defense counsel’s incorrect legal advice rose to level of ineffective assistance of counsel and induced defendant’s plea of guilty, the plea is involuntary and unintelligent.

“A criminal defendant’s plea of guilty may be attacked: on the ground that the defendant’s counsel did not provide the defendant with reasonably competent advice.” Cuyler v. Sullivan, 446 U.S. 335, 64 L.Ed.2d 333, 100 S.Ct. 1708 (1980). A defendant who moves to withdraw his guilty plea before sentencing on the ground that his attorney gave him bad advice is not required by Fed.R.Crim.P. 11 to prove that he would not have pleaded guilty had counsel advised him appropriately.” United States v. Davis, 410 F.3d 1122 (9th Cir. 2005)(amending 410 F.3d 1122).

Another ground for withdrawal of a guilty plea is the court’s failure to apprise the defendant of the nature of the charges including the element of intent. “Due process requires that a defendant be apprised of the nature of the charges, including the element of intent [for those offenses which intent is an element]. to which a plea of guilty is entered.” United States v. Bigman, 906 F.2d 392, 394 (9th Cir. 1990); Henderson v. Morgan, 426 U.S. 637, 645-46, 49 L.Ed.2d 108, 96 S.Ct. 2253, 2257-58 (1976). Not admitting to the element of intent during a Rule 11 inquiry is grounds for a voluntariness challenge to a guilty plea. The Ninth Circuit upheld the “denial of a Henderson voluntariness challenge because the district court specifically questioned the defendant on the element of intent.” Bigman, at 395.

“Construing Bigman’s pro se §2255 motion and appeal liberally requires vacation of Bigman’s sentence.” Accordingly, Bigman is entitled to an evidentiary hearing at which the voluntariness of his plea is to be determined. If such determination is favorable to Bigman, he is entitled to a trial; if adverse, he is entitled to resentencing.” Bigman, at 395 and 396; Haines v. Kerner, 404 U.S. 519, 30 L.Ed.2d 652, 92 S.Ct. 594 (1972); Tatum v. Christensen, 786 F.2d 959, 963 n.4 (9th Cir. 1986).

A court’s failure to advise defendant who pled guilty of his right to appeal does not entitle him to habeas relief if he knew of his right and suffered no prejudice from the omission. Peguero v. United States, 526 U.S. 23, 143 L.Ed.2d 18, 119 S.Ct. 961 (1999).

Examples of grounds for withdrawal of guilty plea are as follows:

• Any fair and just reason
• Plea was involuntary or under threat, duress, coercion or confusion
• Fatal defect in the Rule 11 inquiry affecting substantial rights
• Prosecutor’s failure to abide by terms of plea agreement
• Claim of ineffective assistance of counsel
• Court’s failure to apprise defendant of nature of charges including the element of intent
• Prosecutor’s inducement to plead guilty that was unfulfilled
• Court’s failure to apprise defendant of maximum possible sentence and any mandatory minimum sentence
• Court’s failure to explain the defendant’s constitutional rights
• Erroneous factual basis for guilty plea
• Erroneous information given to defendant by government, the court and defense counsel concerning applicable guideline sentencing range
• Constitutionality of the statute defining the charged offense
• Counsel’s failure to advise defendant that the plea agreement was not binding on the court and the sentence was only a recommendation
• Counsel’s failure to advise defendant of his waiving his appeal rights and post-conviction relief
• Counsel’s failure to advise defendant that guilty plea waived all non-jurisdictional defects including claims of constitutional violations occuring before the plea
• Counsel’s failure to object to court’s errors in guilty plea colliquy
• Counsel’s failure to inform defendant of legal basis for charge

A. Guilty Pleas and Rule 11 Inquiries

Guilty plea made involuntarily or under threat, duress, coercion or confusion may be challenged by collateral attack on direct appeal or by motion under section 2255. Strickland v. Washington, 466 U.S. 668, 80 L.Ed.2d 674, 104 S.Ct. 2052 (1984) “ applies to challenges to guilty pleas based on ineffective assistance of counsel.”

To determine whether a defendant’s guilty plea is “a voluntary and intelligent choice among the alternative courses of action, a trial court must follow the guidelines set forth in Boykin v. Alabama, 395 U.S. 238, 242-43, 23 L.Ed.2d 274, 89 S.Ct. 1709 (1969); North Carolina v. Alford, 400 U.S. 25, 31, 27 L.Ed.2d 162, 91 S.Ct. 160 (1970); See, Moran v. Godinez, 57 F.3d 690 (9th Cir. 1994).

A guilty plea requires the defendant to admit guilt, unless it is entered nolo contendere pursuant to Alford. An Alford plea permits a defendant to plead guilty while still maintaining innocence. Most prosecutor’s are unwilling to offer plea agreements to defendant’s who maintain their innocence. Rule 11(c) (2) permits “conditional pleas,” allowing one to plead guilty while reserving the right to appeal the adverse determination of any specified pretrial motions. If the defendant prevails on direct appeal, the plea is withdrawn. The consent of the court and the government is required for a conditional plea.

While a defendant has “no absolute right to have a guilty plea accepted,” it’s generally an abuse of discretion for the court to refuse to accept a tendered guilty plea for no good reason.” Santobello v. New York, 404 U.S. 257, 262, 30 L.Ed.2d 427, 92 S.Ct, 495 (1971). Rule 11(g) requires a verbatim record of the entry of the guilty plea which is particularly important if the defendant later attempts to withdraw the plea.

“Prior to trial an accused is entitled to rely upon his counsel to make an Independent examination of the facts, circumstances, pleadings, and laws involved and then offer his informed opinion as to what plea should be entered.” Von Moltke v. Gillies, 332 U.S. 708, 92 L.Ed. 309, 68 S.Ct. 316 (1947).

Any government promise that “can be said to be part of the inducement or consideration” for the defendant’s guilty plea “must be fulfilled.” Santobello, at 262. The Supreme Court has recommended specific performance of the agreement or withdrawal of the guilty plea as an appropriate remedy. Santobello, at 263.

As part of the Rule 11 inquiry, the court must apprise the defendant of the nature of the charges including the element of intent, the maximum possible sentence and any mandatory minimum sentence. An intelligent plea requires knowledge of its direct consequences including the range of punishment. Brady v. United States, 397 U.S. 742, 27 L.Ed.2d 747, 90 S.Ct 1463 (1970).

The court must explain the defendant’s constitutional rights, the right to retain or appoint counsel at every stage of the proceeding, the right to a trial by jury, the right to confront and cross-examine the government’s witnesses with the effective assistance of counsel and the right against self-incrimination. The court must inform the defendant that pleading guilty waives all such rights.

Furthermore, in a Rule 11 inquiry, the court may inquire about the offense and the defendant’s answers may be used in a later prosecution for perjury. Additionally, the plea “must be voluntary and knowing and if it was induced by promises, the essence of those promises must in some way be made known.” Santobello, at 261-62. The court must question the defendant personally in order to determine that the plea is voluntary and not the result of force or threats or of promises apart from the plea agreement. Even if the defendant states that the plea is voluntary, the court may look behind this statement in determining whether the defendant was coerced.

It is essential that counsel thoroughly prepare the defendant for the plea proceeding, reviewing the facts to admit as part of the factual basis for the plea and the elements of the Rule 11 inquiry. Failure to do so could be grounds for withdrawing the guilty plea based on ineffective assistance of counsel. Erroneous information given to defendant by the government, the court and defense counsel concerning applicable sentencing guideline range was grounds for allowing defendant to withdraw his guilty plea. United States v. Toothman, 137 F.3d 1393 (9th Cir. 1998).

Fed.R.Crim.P 11 sets forth the procedures that the district court must follow in accepting a plea of guilty or nolo contendere. “The court must determine that the defendant understands his rights and the nature of the charge, that the plea is voluntary, and that there is a factual basis for the plea.” United States v. Patterson, 381 F.3d 859 (9th Cir. 2004).

“Jeopardy ordinarily attaches when the court accepts a plea of guilty. Once the court accepted the plea and deferred acceptance of the plea agreement, however, the court was not free to vacate the plea on the government’s motion.” Patterson, at 864; United States v. Partida-Parra, 859 F.2d 629, 631-34 (9th Cir. 1988). “Where the defendant has the plea set aside, however, the general rule is that ‘double jeopardy is not implicated by his subsequently being recharged and tried on that same count.'” Patterson, at 864; Taylor v. Kincheloe, 920 F.2d 599, 604 (9th Cir. 1990).

A guilty plea waives all non-jurisdictional defects including all claims of constitutional violation occurring before the plea. United States v. Floyd, 108 F.3d 202, 203-04 (9th Cir. 1997). A conditional plea pursuant to Fed.R.Crim.P. 11(a)(2) may reserve issues for appeal if expressly preserved in the plea agreement. Floyd, at 203-04; United States v. Arzate-Nunez, 18 F.3d 730 (9th Cir. 1994).

Unless plea itself is challenged, right to appeal pre-plea motion for substitution is waived by unconditional guilty plea. United States v. Foreman, 329 F.3d 1037, 1039 (9th Cir. 2003). Unconditional guilty plea constitutes waiver of all non-jurisdictional antecedent rulings and cures all antecedent constitutional defects. It also cures defects caused by pre-plea failure to comply with treaty. United States v. Reyes-Platero, 224 F.3d 1112, 1114-15 (9th Cir. 2000), cert.denied, 531 U.S. 1117 (2001).

“Since a plea of guilty is also a waiver of trial, …a waiver of the right to contest the admissibility of evidence the state might have offered against the defendant, it must be an intelligent act done with sufficient awareness of the relevant circumstances and likely consequences.” McMann V. Richardson, 397 U.S. 759, 25 L.Ed. 2d 763, 90 S.Ct. 1441 (1970).

A guilty plea waives non-jurisdictional constitutional rights such as the right to a jury trial, the right to confront one’s accusers, and the privilege against self-incrimination. A guilty plea may also waive claims of illegal search and seizure, coerced confession, improper grand jury selection, denial of a speedy trial, as well as the entrapment defense and other prosecutorial defects like statute of limitations.

A guilty plea does not foreclose a subsequent claim by the defendant under 42 U.S.C. §1983 because such issues are not necessarily determined in a criminal proceeding.

A guilty plea does not waive jurisdictional challenges to conviction such as failure of the indictment to state an offense, lack of subject matter jurisdiction, or the claim that the sentencing judge lacked impartiality. A guilty plea does not waive the right to challenge the constitutionality of the statute defining the charged offense.

“Where the State is precluded by the United States Constitution from hauling a defendant into court on a charge, federal law requires that a conviction be set aside even if the conviction was entered pursuant to a counseled plea of guilty.” Henna v. New York, 423 U.S. 61, 46 L.Ed.2d 195, 96 S.Ct. 241 (1975).

Claim that conviction was barred by statute of limitations was foreclosed by guilty plea. United States v. Littlefield, 105 F.3d 527 (9th Cir. 1997).

District court failed to comply with Fed.R.Crim.P 11(c)(l) requiring the court to inform the defendant of maximum possible penalty. United States v. Jaramillo-Suarez, 857 F.2d 1368 (9th Cir. 1988). In order to be in compliance with Fed.R.Cr1m.P. 11, district judge must personally inquire as to whether the defendant understands the nature of the charges against him. When Rule 11 is not complied with defendants should be given the opportunity to enter a new plea. McCarthy v. United States, 894 U.S. 459 22 L.Ed.2d 418, 89 S.Ct. 1166 (1969).

Court failed to advise defendant of certain constitutional rights until after it had accepted his guilty plea. United States v. Gastelum, 16 F.3d 996 (9th Cir. 1994).

Jurisdictional defects and claims are not waived. United States v. Caperell, 938 F.Zd 975, 977 (9th Cir. 1991). A guilty plea does not bar appeal based on a claim the applicable statute is unconstitutional or the indictment fails to state an offense. United States v. Mantilla, 870 F.2d 549 (9th Cir. 1989), amended, 907 F.2d 115 (9th Cir. 1990).

Examples of jurisdictional defects are:

• Statute is unconstitutional
• Failure to state an offense
• Double jeopardy
• Prosecutorial vindictiveness amounting to violation of due process
• Rule 11 violations
• Ineffective assistance of counsel
• Failure of court to advise defendant of the maximum sentence
• Failure to advise defendant of his constitutional rights
• Court’s lack of subject matter jurisdiction
• Sentencing judge’s lack of impartiality

B. Guilty Pleas and Plea Bargaining

In every criminal case, the defendant must decide between proceeding to trial or entering a plea of guilty to one or more charges. Effective representation through plea bargaining often requires as much preparation as trial. Counsel must thoroughly investigate the case and obtain discovery before commencing negotiations. Counsel should review and analyze the government’s case and determine the strengths and weaknesses of the defense case. What are the risks of going to trial and being convicted versus limiting the risk of incarceration with a plea agreement? Who is the judge in the case and what are the strengths and weaknesses of the prosecutor?

Negotiations focus on five issues: (1) the offense or offenses to which a plea will be entered and what charges will be dismissed; ( 2 ) the factual basis to be proffered to the court by the government and agreed to by the defense; ( 3 ) the government’s position on bond status between the plea and sentencing; ( 4 ) the government’s position concerning enhanced sentencing provisions; and ( 5 ) the government’s position at sentencing allocution.

An Alford plea may be acceptable to the government if the defendant is unable or unwilling to acknowledge guilt. Generally, the government is not willing to negotiate a plea agreement without the acceptance of responsibility and admission of guilt. A prosecutor may re-indict the defendant on more serious charges if the defendant does not accept the plea offer by the government. The Supreme Court in Bordenkircher v. Hayes, 434 U.S. 357, 363-65, 54 L.Ed.2d 604, 98 S.Ct. 663 (19781, found nothing improper in the prosecutor’s threat to indict the defendant on additional charges if the defendant did not accept the government’s offer. The Supreme Court in United States v. Goodwin, 457 U.S. 368, 73 L.Ed.2d 74, 102 S.Ct. 2485 (1982), held that there was neither actual nor presumptive vindictiveness in a decision to obtain a felony indictment after a defendant refused to plead guilty to non-jury triable misdemeanors and demanded a jury trial, even though the defendant had not been warned of such action during the bargaining process.

A “binding” plea is one where the plea agreement is made for a specific sentence. A “blind” plea agreement contains only a recommendation for a specific sentence. If your agreement is binding, you may withdraw your plea if you do not receive the sentence specified in your plea agreement. You cannot withdraw a plea under a blind agreement simply because you do not receive the recommended sentence. Obviously, it’s important for a defendant who enters into a plea agreement to negotiate a “binding” plea, not a “blind” plea.

Guilty plea and the failure of the government to abide by the plea agreement permits “defendant…back out of his promised performance, just as a binding contractual duty may be extinguished by the nonoccurrence of a condition subsequent.” United States v. Hyde, 520 U.S. 670, 674-78, 137 L.Ed.2d 935, 117 S.Ct. 1630 (1997).

Acceptance of a guilty plea and a plea agreement may be treated distinctly. “[I]f a court rejects a plea agreement, the court shall afford the defendant the opportunity to then withdraw the plea. If the court rejects the agreement, the defendant can then withdraw the plea for any reason and does not have to comply with the requirement under Rule 32(e)…to show a fair and just reason for withdrawal; given the commonsense notion that a defendant can no longer be bound by an agreement that the court has refused to sanction.” Hyde, at 937.

There are three types of plea agreements. “The defendant may agree to plead guilty in exchange for the government’s agreement to (A) not bring or move to dismiss other charges, (B) make particular sentencing recommendations to the court, or (C) agree upon a specific sentence or sentencing range.” Patterson, at 863.

Under the first (A) and third (C) types, the court may accept or reject the agreement, or it may defer its decision until it has considered the PSR. The second (B) type is not binding on the court, and the court must advise the defendant “that he or she has no right to withdraw the plea if the court rejects the recommendation. If the court rejects the plea agreement, it must so inform the parties and must give the defendant an opportunity to withdraw the plea, as well as advise the defendant that if the plea is not withdrawn, the court may “dispose of the case less favorably towards the defendant than the plea agreement contemplated.” Patterson, at 863.

Acceptance of plea bargain later withdrawn by the government did not create a constitutional right to have the bargain enforced, and defendant may not successfully attack his subsequent guilty plea. In cases where a defendant was not fairly apprised of its consequences, a guilty plea can be challenged under the Due Process Clause. Mabry v. Johnson, 467 U.S. 504, 81 L.Ed.2d 437, 104 S.Ct. 2543 (1984).

Judge’s improper participation in plea negotiations violated Fed.R.Crim.P 11(e)(l) and raised questions of impartiality and coerciveness. United States v. Bruce, 976 F.2d 552 (9th Cir. 1992). Judge’s pronouncement that he would not accept a plea to fewer than all 30 counts of an indictment and his admonishment to the prosecution not to “make any deals” rendered defendant’s plea involuntary. United States v. Anderson, 993 F.2d 1435 (9th Cir. 1993).

Failure of court to determine whether defendant was pressured into signing on to package plea deal calls into question the voluntariness of the plea. United States v. Caro, 997 F.2d 657 (9th Cir. 1993).

Federal Rule of Evidence 410 and Fed.R.Crim.P. 11(e)(6) provide that statements made in the course of plea discussions between a criminal defendant and a prosecutor are inadmissible against the defendant. United States v. Mezzanatto, 513 U.S. 196, 130 L.Ed.2d 697, 115 S.Ct. 797 (1995).

When a prosecutor induces a defendant to plead guilty based upon the promise that the government will file a 5K.1 motion, and the government fails to do so, the plea becomes involuntary. See, United States v. Smith, 953 F.2d 1060 (7th Cir. 1992).

C. Guilty Pleas and Competence

The conviction of an incompetent person violates due process. Even a post-sentence motion to withdraw guilty plea must be granted if the defendant was incompetent or lacked capacity to enter an intelligent plea. Courts have traditionally required a greater showing of competence to plead guilty than to stand trial. See, Westbrook v. Arizona, 384 U.S. 150, 16 L.Ed.Zd 429, 86 S.Ct. 1320 (1966)(per curiam)(by analogy, finding of competence to stand trial does not suffice as finding of competence to waive right to assistance of counsel); Godinez v. Moran, 509 U.S. 389, 125 L.Ed.2d 321, 113 S.Ct. 2680 (1993)(held that the competence standard is the same in either context).

Court must conduct, sua sponte, a competency hearing when there is information known to the court at the time of trial or plea hearing sufficient to raise doubts about a defendant’s competency. Pate v. Robinson, 383 U.S. 375, 15 L.Ed.2d 815, 86 S,Ct. 836 (1966). Court’s failure to inquire if defendant, who had been taking large doses of anti-psychotic drugs, had stopped taking medication prior to entering guilty plea raised a reasonable doubt about defendant’s competency to enter a plea. Miles v. Stainer, 108 f.3d 1109 (9th Cir. 1997).

D. Ninth Circuit Review

A District Court’s judgment of conviction and sentence entered after a defendant has pleaded guilty is a final appealable order. United States v. Signori, 844 F.2d 635, 638 (9th Cir. 1988). Fed.R.Crim.P.11 governs guilty pleas, and has it’s own harmless error provision. This provision states, [a]ny variance from the procedures required by this rule which do not affect substantial rights shall be disregarded.” United States v. Smith, 60 F.3d 595 (9th Cir. 1995)(District Court erred by falling to fully explain the nature of charges to defendant as required by Fed.R.Crim.P 11(c)(3)).

Any deviation from Rule 11 requirements is reversible unless government shows error was harmless. United States v. Odedo, 154 F.3d 937, 940 (9th Cir. 1998), overruled on other grounds by United States v. Vonn, 535 U.S. 55, 152 L.Ed.2d 90, 122 S.Ct. 1043 (2002). “Unobjected to error in trial court’s guilty plea colloquy was reversible only upon showing that such error was plain and that it affected defendant’s substantial rights.” Vonn, at 55.

Failure to inform the defendant of the legal basis for the charge against him is not harmless error because the defendant must know both the factual and legal basis for the charge. United States v. Longoria, 113 F.3d 975, 977 (9th Cir. 19971, overruled on other grounds by as stated in United States v. Jimenez-Dominguez, 296 E.3d 863, 867 (9th Cir. 2002).

The Ninth Circuit has held harmless error will not apply to the law of contractual plea agreements. Where the government does not abide by the agreement, the defendant must be re-sentenced by a different judge on remand. See, United States v. Johnson, 187 F.3d 1129, 1135-36 (9th Cir. 1999).

The voluntariness of a guilty plea is reviewed by the appellate court de novo, as are issues whether the defendant waived the statutory right to appeal and whether the government breeched the plea agreement. United States v. Agular-Muniz, 156 F.3d 974, 976-77 (9th Gir. 1998).

If withdrawing a guilty plea is being argued based on the claim of ineffective assistance of counsel, the remedy is to place the defendant in the same position as if the Sixth Amendment violation had not occurred by setting aside the guilty plea. United States v. Baramdyka, 95 F.3d 840, 844 (9th Cir. 1996), cert.denied, 520 U.S.

The following standards of review apply:

• Denial of motion to withdraw guilty plea (abuse of discretion)
• Interpretation and construction of plea agreement (clear error)
• Factual findings regarding terms of plea agreement (clear error)
• Whether government breeched plea agreement (de novo)
• Whether language in plea agreement is ambigious (de novo)
• Voluntariness of guilty plea (de novo)
• Adequacy of Rule 11 inquiry and plea hearing (de novo)
• Whether factual basis was sufficient to support plea (de novo)
• Whether defendant waived his statutory right to appeal (de novo)