Sometimes people accused of a crime are convinced, maybe by their attorney or maybe by the district attorney, to plead guilty. Occasionally, pleading guilty is not the right choice. For example, if you are not a U.S. citizen, a guilty plea could cause you to be deported. A person who goes to trial and found guilty has the right to appeal. However, someone who pleads guilty does not have the right to appeal. So, what can someone do when they realize they made the wrong choice taking a plea?
There are numerous ways to challenge the validity of a guilty plea. The easiest is if your guilty plea violates the law. See Crim. P. 35(a); see also Crim. P. 35(c)(2)(I). One example is if the court sentences you to more jail time than a law or statute allows. This is not common. Most judges know the sentencing statutes fairly well because sentencing is one of the judge’s main role in the criminal justice system.
Next, you can challenge a guilty plea if the statute you are convicted of violates the constitution, or if the conduct you pleaded guilty to is constitutionally protected conduct. See Crim. P. 35(c)(2)(II). A good example is First Amendment free speech. In fact, the Colorado Supreme Court recently decided a case where the defendants handed out pamphlets to potential jurors outside the Denver courthouse advocating for jury nullification (link to jury nullification blog). See People v. Iannicelli, --- P.3d ---- (Colo. 2019). Jury nullification is prohibited from being advocated at trial and the State charged the defendants with jury tampering. Because handing out pamphlets in a public place is protected by the First Amendment, the defendants moved to dismiss the case. Although the defendants did not plead guilty in this case, they still could have moved to withdraw their guilty plea based on the conduct of the crime being constitutionally protected.
Next, you can challenge a guilty plea if the court that rendered the sentence did not have jurisdiction. See Crim. P. 35(c)(2)(III). This is rare, but this would happen if you committed a crime in downtown Denver but for some reason you were charged with the crime in Boulder County.
Next, you can challenge a guilty plea if you discover new evidence that proves your innocence. See Crim. P. 35(c)(2)(V). This is a more common mechanism for withdrawing a guilty plea. However, the defendant has a pretty high burden when challenging a guilty plea based on new evidence. First, the evidence must be discovered after you pleaded guilty and the evidence must not have been capable of being discovered before you took the plea. See Crim. P. 35(c)(2)(V); see also Mason v. People, 25 P.3d 764, 767 (Colo. 2001). Second, the charges against you must be actually false. See id. Third, the evidence must be likely to bring an acquittal at trial. See id. These last two essentially mean the evidence must prove you are innocent, a very high burden that is not the same as being not guilty.
Next, you can challenge a guilty plea for any other collateral reason a conviction can be attacked. See Crim. P. 35(c)(2)(VI). This is essentially a catch all provision that allows you to attempt to withdraw a plea if some part of the proceedings against you violated a constitutional right. The most common challenge is ineffective assistance of counsel. The Sixth Amendment guarantees the right to competent counsel in criminal proceedings. See U.S. Const. Amend. VI. When you challenge a guilty plea based on ineffective assistance of counsel, you are essentially saying your attorney did something wrong along the way. This can be extremely hard to prove because, one, the standards aren’t very high, see Strickland v. Washington, 466 U.S. 668 (1984), and, two, when you plead guilty you typically sign plea paperwork advising you of the rights you give up and other consequences of the plea. So, if your lawyer didn’t explain what the plea meant and you still signed, it’s hard to argue your lawyer didn’t advise you or at least that you knew the effects of the plea. Typically, you will need more than the lawyer failed to explain the conditions of the plea agreement to you.
Finally, you can challenge a guilty plea if you have already served the full sentence or there has been an unlawful revocation of parole, probation, or conditional release. See Crim. P. 35(c)(2)(VII). Typically, this will only happen if you’ve been sitting in jail awaiting trial and you serve your full sentence but then plead guilty to a crime anyway. Another way this could happen is if you plead guilty to a crime, are released on conditional release, and then your release is revoked without a valid reason. Usually, probation or parole will only revoke your release for some valid reason like violating a condition of release. However, if probation or parole revokes your release just because they don’t like you, you can move to withdraw your guilty plea.
Is there a time limit on withdrawing a guilty plea?
For pleas that are illegal, no. However, in most other situations, yes. For class 1 felonies, there is no limit on time to file a motion to withdraw. See Crim. P. 35(c)(3)(I); C.R.S. § 16-5-402(1). For all other felonies, you must file a motion to withdraw within 3 years of the date of the sentence. See Crim. P. 35(c)(3)(I); C.R.S. § 16-5-402(1). For misdemeanors, you must file a motion to withdraw within 18 months of the sentence. See Crim. P. 35(c)(3)(I); C.R.S. § 16-5-402(1). For petty offenses, you must file a motion to withdraw within 6 months of the date of the sentence. See Crim. P. 35(c)(3)(I); C.R.S. § 16-5-402(1). However, if you don’t file the motion to withdraw within the proper time limits, you may still be able to withdraw a guilty plea if you can show you failed to file the motion because of justifiable excuse or excusable neglect see Crim. P. 35(c)(3)(I); C.R.S. § 16-5-402(2)(d), or because you were adjudicated incompetent or committed for treatment for a mental health disorder. See Crim. P. 35(c)(3)(I); C.R.S. § 16-5-402(2)(d).
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