Can you withdraw a guilty plea after sentencing?

In criminal cases in the United States, a defendant can generally seek to withdraw a guilty plea after sentencing by filing a motion to withdraw the plea and demonstrating good cause therefore. If the judge denies the motion, the defendant may be able to appeal the judge’s decision.

Under California criminal law, a defendant can also seek to withdraw a plea (after sentencing) by means of:

1. a writ of habeas corpus petition, per Penal Code 1473 PC, or
2. the state’s expungement process, per Penal Code 1203.4 PC.

While there are some cases in which a defendant may wish to withdraw a plea deal, there are still some good reasons for why a defendant should explore plea bargaining. Some of these are:

1. the accused avoids the uncertainty of a jury trial,
2. the prosecutor may reduce charges as part of plea negotiations (for example, reducing a felony to a misdemeanor charge), and
3. a plea agreement often results in favorable sentences.

In any event, a criminal defendant should consult with an experienced criminal defense attorney or law office prior to entering a plea of guilty or nolo contendere.

How can a person withdraw a guilty plea after sentencing?

Under the Federal Rules of Criminal Procedure, the main way a defendant can withdraw a guilty plea, or a plea of no contest, after a judge has entered a sentence is by “collateral attack.”¹

“Collateral attack” means that the defendant must show that the plea resulted in some type of injustice. Courts will generally allow a defendant to contest pleas, or withdrawal them, for some of the following reasons:

• the defendant, or his/her defense counsel, never entered the plea,
• the accused was denied certain constitutional rights in entering the deal (for example, the defendant asserts ineffective assistance of counsel),
• the accused did not enter the plea bargain voluntarily or did not understand the consequences of the plea, and
• the defendant made the deal without knowing the criminal charges filed or the sentence imposed by the plea.

If a judge denies a defendant’s motion to withdraw, then he/she could challenge the court’s decision by means of a direct appeal.

“Direct appeal” refers to the defendant asking that an appellate court (for example, a state criminal appeals court or the Supreme Court) review the decision of the trial court. If the appellate court finds significant legal issues that were handled erroneously, it may:

• refer the case back to the trial court,
• adjust the sentence rendered, or
• overturn a conviction.

Note that an accused cannot withdraw a plea simply because he/she:

• suffered from buyer’s remorse, or
• was dissatisfied with the details of the plea agreement.

How does a defendant withdraw a guilty plea post-conviction, but pre-sentence?

If a court accepts a plea but has not imposed a sentence, then a defendant can withdraw from the plea if he/she shows a fair and just reason for the withdrawal.¹

A showing of a “fair and just reason” is similar to a collateral attack if sentencing has already taken place.

A court will typically agree to the withdrawal if:

1. there is good cause for the withdrawal (for example, the plea would result in a clear injustice),
2. the defendant entered a plea, or conducted plea negotiations, without a criminal defense attorney,
3. new evidence, or unique sensitive information, arises that shows the defendant’s innocence, and
4. the defendant did not understand the consequences of a plea of guilty.

What is the law in California?

If a guilty plea was entered in a California criminal case, but no sentence has taken place, then the defendant can seek withdrawal by filing a motion to withdraw, per Penal Code 1018 PC. This statute allows an accused to back out of a deal upon a showing of good cause.⁶

Examples of “good cause” include:

1. the defendant not having a criminal defense attorney or defense counsel at the time the plea was made,
2. the accused not being aware of the consequences of the deal,⁷
3. the defendant getting coerced into a plea bargain,
4. a bargain violating a defendant’s rights, and
5. the defense counsel being incompetent.

If sentencing has taken place, though, a defendant can still try to withdraw from a guilty plea. An accused does this by means of:

1. a writ of habeus corpus petition, per PC 1473, or
2. the state’s expungement process, per PC 1203.4 PC.

Some reasons for a court to grant a writ of habeas corpus petition are:

1. the criminal law under which the defendant was charged and convicted was unconstitutional,
2. the defendant was denied his right to effective assistance of counsel,
3. there was an instance of prosecutorial misconduct,
4. the accused was not competent to stand trial.

With regards to an expungement, a person can file this petition after he/she successfully completes either:

• a county jail term, or
• 13¹³

The petition asks the court to:

• allow the defendant to withdraw any plea of guilty or no contest,
• reenter a plea of not guilty, and
• dismiss the case.

If granted, the expungement releases an individual from the negative consequences of a conviction.

What are the advantages/disadvantages of a guilty plea?

There are certain advantages and disadvantages for a defendant to plead guilty to a criminal charge.

Some advantages to entering a plea deal are:

• the defendant avoids the expense and uncertainty of trial,
• a plea may involve a reduction in charges, and
• a plea ensures the defendant avoids the maximum sentence for the crime(s) charged.

The main disadvantage of a plea is that it means the defendant waives his/her right to a trial. By accepting a deal, the defendant loses the possibility of a “not guilty” verdict at trial that could exonerate him/her completely of a crime.

A guilty plea is a serious matter and a defendant should only enter one after consulting with a criminal defense lawyer or a law firm specializing in criminal law.

Legal References:

1. Fed.R.Crim.Pro. 11e.
2. Black’s Law Dictionary, Sixth Edition. See also Travis v. Travis’ Estate, 334 P.2d 508 (1959).
3. Fed.R.Crim.Pro. 11d.
4. See same.
5. See, for example, Santobello v. New York, 404 U.S. 257 (1971).
6. California Penal Code 1018 PC.
7. See, for example, People v. Superior Court (Giron) (1974) 11 Cal.3d 793.
8. See, for example, People v. Sandoval (2006) 140 Cal.App.4th 111.
9. See, for example, People v. Smith (1993) 6  Cal.4th 684.
10. In re Davis, (1966) 242 Cal.App.2d 645.
11. People v. Kasim, (1997) 56 Cal.App.4th 1360.
12. In re Dennis, (1959) 51 Cal.2d 666.
13. California Penal Code 1203.4 PC