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Withdrawing a guilty plea
Philippine News Tuesday, February 07 2012
In compliance with the holding of Boykin v. Alabama (1969) 395 U.S.238, when a guilty or nolo contendere plea (which is treated the same as a guilty plea) is entered, the record must show that the defendant was aware or made aware of, voluntarily waived, his or her constitutional rights to:
(1) trial by jury; (2) confrontation of witnesses; (3) privilege against self-incrimination; and (4) right to counsel, if unrepresented.
The defendant must file the appropriate motion in a timely manner. However, it is not rare that a post-judgment motion to change a plea is not timely made. Consequently, the court may still consider the request but the defendant has the burden of proof to explain and justify the delay. Due diligence is required because substantial prejudice to the government may result if the case proceeds to trial after a long period of time had lapsed. The defendant must show good cause for the withdrawal of a guilty plea by clear and convincing evidence.
Good cause is shown when a defendant demonstrates that a guilty plea was entered a result of mistake, ignorance, inadvertence, fraud, duress, or any other factor overcoming the exercise of the defendant=s free judgment.
Some examples of grounds constituting good cause
(1) Ineffective assistance of counsel: A defendant is entitled to an attorney at every step of a criminal proceeding, including the aid of counsel to enable an intelligent decision as to his plea. If ineffective assistance of counsel results in a defendant=s decision to plead guilty, the defendant has suffered a constitutional violation. To show this the defendant must establish that the attorney=s work fell below an objective standard of reasonableness and show that he was prejudiced. Simply, but for the attorney=s incompetence, defendant would not have pled.
(2) Advisement of his rights is not voluntary: As stated above, the record must be clear that in pleading guilty, the defendant was made aware of and voluntarily waived his ABoykin@ rights. The courts review voluntary under the totality of circumstance standard. An immediate factual review would be to see whether the defendant was assisted by a court certified interpreter which would insure that he/she was fully cognizant of everything being said in court.
(3) Illegal sentence is imposed: This speaks for itselfBif a defendant was sentenced to any term that is not enumerated and allowed under the specified charge, the court must vacate the plea.
(4) Fraud, misrepresentation, undue influence, coercion: If a defendant is threatened or promised something by the government other than what he/she was sentenced to, such acts of bad faith are grounds for good cause.
Withdrawing a guilty plea is available to all but be aware that good cause is required. Your defense attorney must expect a factual scrutiny of your case. Consequently, a well written motion and an effective presentation of your case for the evidentiary hearing must be compelling and persuasive.