Attacking the Guilty Plea: The Art of Withdrawing a Guilty Plea
by Dale Chappell
The art of withdrawing a guilty plea comes down to which phase of the criminal proceeding the guilty plea is at when the motion to withdraw is filed. The phases are: (1) prior to it being accepted by the court, (2) after acceptance but before sentencing, and (3) after sentencing. Each phase requires meeting a different standard in order to withdraw a guilty plea. So far, the columns in this series have described challenges to a guilty plea after sentencing in the post-conviction setting. While that’s the most common arena for prisoners, an understanding of the other two phases will help support a later challenge to a guilty plea by asserting an ineffective assistance of counsel (“IAC”) claim with respect to a guilty plea.
The rule for everything relating to a guilty plea, from entering one to withdrawing one, is found in Federal Rule of Criminal Procedure 11. A “research alert” (as I call it) to be aware of is that withdrawing a guilty plea was also previously governed by Criminal Rule 32(e), but everything was moved to Rule 11, when that rule was amended in 2002 in significant ways. So check the dates of the cases to make sure what you’re reading wasn’t mooted or otherwise modified by any rule changes. This is true even for current cases citing old caselaw denying relief. Even judges don’t always get it right.
State prisoners will find that their state laws and rules closely track those of the federal rules and cases cited in this column because they typically adopt each other’s rules, with minor differences at times. Such similarities will be noted throughout this column.
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 Under Rule 11(d)(1), a guilty plea may be withdrawn before a court accepts it “for any reason or no reason.” Courts have consistently ruled that you have a “right” to withdraw a guilty plea at this point and that “the court lacks authority to deny” your withdrawal. United States v. Feliz, 2019 U.S. Dist. LEXIS 207814 (D.N.J. 2019) (collecting cases). And here’s another “research alert”: Caselaw prior to the amendments to Rule 11 in 2002 will say there’s no 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 “talismanic words” a court must use to mark the acceptance of a guilty plea. 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. Feliz. Courts will often accept a guilty plea pending review of the presentence report or the plea agreement. As long as the court follows Rule 11 in accepting a guilty plea, it’s “accepted.” United States v. Hyde, 520 U.S. 670 (1997) (“once the court has taken these steps [under Rule 11], it may, in its discretion, accept a defendant’s guilty plea”).
A guilty plea, however, does not live or die with the plea agreement, and a plea agreement can be rejected 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, not to 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. United States v. Lopez, 385 F.3d 245 (2d Cir. 2004).
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 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 a court rejects a plea agreement will usually fall under Rule 11(c)(5), allowing withdrawal without any reason at all.
Another example of when you have the right to withdraw your guilty plea would be when a magistrate judge conducts the guilty plea hearing and then makes a recommendation to the district judge to accept your plea. Even if the magistrate judge follows Rule 11 top to bottom, your guilty plea isn’t “accepted” until the district judge adopts the magistrate’s recommendation and accepts your guilty plea. Until then, you can withdraw it for any reason. United States v. Davila-Ruiz, 790 F.3d 249 (1st Cir. 2015).
After Acceptance and Prior to Sentencing
If you want to withdraw your guilty plea after it’s accepted but before sentencing, you must show a “fair and just reason,” according to Rule 11(d)(2)(B). What that entails is not defined in the rule, so we turn to the courts to find out what “fair and just reason” means.
In United States v. Carr, 740 F.2d 339 (5th Cir. 1984), the Fifth Circuit established seven factors a court considers in finding whether a fair and just reason exists to allow withdrawal of a guilty plea after it’s been accepted by a court. These include: (1) a claim of innocence, (2) prejudice to the government, (3) a defendant’s delay in moving to withdraw his plea, (4) judicial “inconvenience,” (5) the “close assistance of counsel,” (6) the knowing and voluntary nature of the plea, and (7) the waste of judicial resources. Any one or several of these can be enough to find a fair and just reason for withdrawal. Most courts have adopted their own factors, but Carr covers all the big ones. All of this, of course, is at the court’s discretion, and none of the factors amounts to an automatic right to withdraw.
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. Of course, if a guilty plea is not knowing and voluntary, it’s unconstitutional and invalid and can be withdrawn. And the same goes for a guilty plea infected with IAC, constituting a violation of the Sixth Amendment.
But the “close assistance of counsel” factor is not identical to the familiar IAC standard. While the analysis is the same, “close assistance of counsel under [Rule 11] and constitutionally ineffective assistance of counsel under the Sixth Amendment are distinct issues.” United States v. McKnight, 570 F.3d 641 (5th Cir. 2009) (collecting cases). How do they differ? By their application. Close assistance of counsel guides a court’s discretion in allowing or disallowing the withdrawal of a guilty plea, while IAC is used to invalidate a conviction or sentence that’s unconstitutional. Arguing IAC, then, implicates the validity of your guilty plea and is an independent ground for withdrawal, while pressing a lack of close assistance of counsel supports only withdrawing your guilty plea and is but one factor of many the court considers. McKnight.
Most states have the same “fair and just reason” requirement for withdrawing a guilty plea after it’s accepted. See, e.g., Tenn. R. Cr. P. 32(f) (may withdraw guilty plea for any “fair and just reason” before sentencing); Fla. R. Cr. P. 3.170(f) (must show “good cause” for withdrawal of guilty plea before sentencing); State v. Davis, 731 So.2d 958 (La. App. 2d Cir. 1999) (mere change of heart not enough to allow withdrawal of guilty plea after acceptance).
If you want to withdraw your guilty plea after sentencing, you’re stuck with two options: Direct appeal or collateral attack under 28 U.S.C. § 2255, according to Rule 11(e). If you still have direct appeal available, the standard is better than that under § 2255. Assuming it’s been a while since you were sentenced, your only option would be under § 2255, with all its obstacles. And there’s no such things as a “Rule 11 motion” once you’ve been sentenced. Not only does Rule 11(e) specifically limit your options to just the two noted, the Advisory Committee noted on the 2002 amendments to Rule 11 makes clear that “it is not possible for a defendant to withdraw a plea after sentence is imposed.” In fact, if you do file a motion to withdraw your guilty plea after sentencing, the court will likely treat it as a § 2255 motion or just dismiss it. Rautner v. United States, 871 F.2d 693 (7th Cir. 1989) (treating letter to withdraw plea as § 2255 motion).
So, when is a sentence imposed for purposes of Rule 11(e)?
When it is orally pronounced in court. It’s not the written judgment that counts but what’s actually said in open court. United States v. Villano, 816 F.2d 1448 (10th Cir. 1987) (en banc); Young v. U.S., 943 F.3d 460 (D.C. Cir. 2019). Although the foregoing examples are federal cases, states generally follow the same reasoning as federal courts on withdrawing a guilty plea. State v. Reid, 894 A.2d 963 (Conn. 2006) (explaining when motion to withdraw a guilty plea no longer available); Cano v. Superior Court, 72 Cal. App. 4th 1310 (Cal. App. 2d Dist. 1999) (court is without jurisdiction to hear motion to withdraw guilty plea after sentence begins); State v. Turner, 919 S.W.2d 346 (Tenn. Ct. App. 1995) (withdrawal of guilty plea after sentencing only for “manifest injustice”).
If you are still within the limits of withdrawing your guilty plea under the first two phases – that is, before sentencing – understanding what it takes to do so is a huge first step to putting yourself back before the court as an accused who is “not guilty.” If you’re like the majority of people who found out all too late that they would’ve been better off not pleading or going with another option, then you may want to brush up on the § 2255 remedy and research some of the materials cited in the previous three columns of this series on the standards for attacking a guilty plea under § 2255.
In the next column in this series, we’ll go over how waivers and breaches affect attacking the guilty plea.
Editor’s note: This is the fourth column in a series on attacking the guilty plea.
About the author: Dale Chappell is a staff writer for Criminal Legal News and Prison Legal News. For over a decade, he has helped prisoners challenge their wrongful convictions and sentences, with dozens being released from prison. He is a member of the National Lawyers Guild and was a 20-year career firefighter before becoming an advocate for prisoners. He is the author of two books written in conjunction with attorney Brandon Sample: WinningCites: Section 2255, A Handbook for Prisoners and Lawyers and WinningCites: Attacking the Guilty Plea. Email email@example.com for more information on these books (prisoner emails accepted).