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Wednesday, August 27, 2014

Revoke a plea -- how to withdraw a plea and seek a trial

Occasionally, it becomes necessary to withdraw a plea once made. This is usually a messy situation that does not enamor the defense counsel to the prosecutors in the local district. Nevertheless, there is a certain strategy to the process, and I'll cover it here. For ease of discussion, I will refer to the D.C. Code. However, similar provision exist in VA and MD rules, and the general thrust remains the same in most jurisdictions.

The controlling code in D.C. is Superior Court Criminal Rule 32(e) which reads:
(e) Withdrawal of plea of guilty. A motion to withdraw a plea of guilty or of nolo contendere may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice, the Court after sentence may set aside the judgment of conviction and permit the defendant to withdraw the plea.

Only pre-sentence plea withdraw is discussed in this article. Post sentence is almost impossible to obtain and usually requires clear error and is exceptionally difficult to obtain.

The controlling case in this matter is Gooding v. United States, 529 A.2d 301 (D.C.1987). This case lays out the foundation for the three elements which must be proven in order to obtain a pre-sentence plea withdraw. They are:
Element
Whether the defendant has asserted legal innocence.
Length of delay between entry of plea and the desire to withdraw it.
Whether the defendant had the benefit of competent counsel.


As in most motions, you should argue each element and demonstrate that the client has met the requirement. The one exception is the final element - competency of the attorney. If you also represented the client in the plea hearing, obviously you will not argue competency. However, not all three of these need be proven -- in fact, no specific element has more weight, and all must be considered in sum (Id. at 306).

To prove legal innocence, have your client submit an affidavit explaining why she accepted the plea, and why she feels it should be revoked. In her affidavit, have her state she is innocent, and have her deny the charges with particularity. Confusion as to what the prosecutor was offering, confusion in the prosecutor's proffer, or a short time window to accept a plea are all fertile grounds to assert innocence. Binion v. United States, 658 A.2d 187 (1995)

Length of delay should always be short -- no more than a week or two at the most. The longer the delay, the less compelling an argument the defense will have. United States v. Roberts, 570 F.2d 999 (D.C. Cir. 1977)

Be sure to always include new facts that make re-opening the case just and fair. The stronger the new facts, and the less likely the client would be to have known them, the more likely the court will hear the case.

Finally, review your drafts carefully! Effective writing of the motion to withdraw the plea is critical. You have only one bite at the apple. Remember - if this is done before sentencing, a motion to withdraw the plea severely damages any attempt at rehabilitation and remorse. This will cause sentencing to be much less favorable to your client.

Do you need help with a motion to withdraw? Give us a call -- we can review your case and discuss options for post-conviction/plea relief.

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