I am having second thoughts. Can I take my plea back?
This has happened many times while sitting in my office. I get a phone call from a worried spouse, parent, relative or a love one. “My boyfriend just took a plea. He is now facing X number of years. He didn’t do it. He just went with the advice of his lawyer and took the deal. Can he take the plea back?”
The short answer is “probably not.” There are a number of factors that a judge will consider before allowing a defendant to withdraw a guilty plea. Having a change of heart is not one of them. That is why all the pleas are taken on the record and the judge goes over in details with a defendant about their guilty pleas. In D.C. Superior Court, an entry of guilty plea must also be acknowledged by a defendant in writing. In Maryland it depends on the county in which you are in whether there is a form. You can get the DC Plea Agreement and Waiver of Trial Form here. In Maryland it depends on the county in which you are in whether there is a form requirement. Your attorney should be familiar with the county and courts where your case is.
Standards for Withdrawing
The reason for such a thorough colloquy with the judge is to make certain that the plea is taken KNOWINGLY, VOLUNTARILY, AND INTELLIGENTLY. So, the defendant cannot come back later and claim that he/she made a mistake or was coerced to plea guilty. A motion to withdraw a guilty plea is usually an uphill battle. Typically, in order to move to withdraw a guilty plea, there are two usual circumstances. (1) newly discovered evidence; or (2) ineffective assistance of counsel. If there is no newly discovered evidence such as new witnesses, police misconduct in the investigation, etc, that leaves us with the Ineffective Assistance of Counsel argument.
Most lawyers don’t like taking this route, and understandably so. To file an ineffective assistance of counsel claim, the attorney is essentially admitting to having made a mistake in the case and thereby, rendered improper advice to the client. Inevitably, this could subject the attorney to a bar complaint, and even personal civil liability. While I am all for helping my former clients (or other attorneys’ former clients) out, I am also going to be very careful in how I go about doing that.
In my years of practice, I was able to successfully withdraw guilty pleas for a few clients. I do want to caution against any false hope that the eventual result would get better. In the event that a judge approves the motion to withdraw guilty plea, your case would then go back to the trial stage. At this point, you are still possibly facing the same evidence, witnesses, etc. Your options are: go through with the trial and hope for an acquittal or only be convicted of lesser offenses; or (2) hope for a better plea offer (which is highly unusual given the fact that you were already given an opportunity for a plea once before).
Whether to withdraw a guilty plea is a complicated decision and it should be evaluated on a case-by-case basis. If you want our help, just call 202-455-5610 for a free phone consultation. We’ll let you know what we think about your case and see if we’re the right criminal defense attorneys to help you out.
Rollins and Chan Law Firm
419 7th Street, NW Suite 405Washington DC, District of Columbia 20004