Withdrawing a Guilty Plea

Judges allow defendants to withdraw guilty pleas only in limited situations.

By , Attorney · UC Law San Francisco

It's not uncommon for those who've been accused of crime to plead guilty, only to later regret it. Whether it's because of an unpredictably stiff sentence or "buyer's remorse," many defendants believe—rightly or wrongly—that they got a raw deal. The question is whether they can effectively rewind the proceedings by withdrawing their pleas.

Pre-Sentence Withdrawal

A defendant can typically withdraw a guilty plea that a judge hasn't yet accepted. Also, defendants who have pleaded but not yet been sentenced can sometimes get out of their deals, particularly when the judge rejects the negotiated agreement pursuant to which the defendant pleaded. (The prosecution can sometimes back out of a deal, too.)

For example, if Clay pleads guilty to bribery in exchange for the prosecution's agreement to a three-years-or-less sentence, but the judge indicates an intention to sentence him to five years, he can probably withdraw the plea.

Post-Sentence Withdrawal

Some plea deals require the defendant to waive the right to appeal; not surprisingly, undoing a plea in these instances can be particularly tough. But even without a waiver, once a judge has sentenced a defendant, the odds of getting out of a plea can be long.

After sentencing, the trial judge will typically set aside a conviction and allow plea withdrawal only if it's necessary to avoid an obvious injustice. It's generally not enough, say, that the prosecution agreed to and did recommend a certain sentence as part of a plea deal, but the judge imposed a longer one. After all, the judicial system prioritizes efficiency, and rehashing cases is no way to speed the docket along. In addition, judges entertaining plea withdrawals are supposed to consider the potential effect on the prosecution. If, for instance, the prosecution lost contact with witnesses who were necessary for trial between the time of the plea and the attempted plea withdrawal, the judge might deny the defendant's request.

Factors in Favor of Withdrawal

Despite the general difficulty of withdrawing a guilty plea, circumstances exist where judges can—and must—allow defendants to withdraw.

Indeed, judges are required to set aside guilty pleas (even without a request from the defendant) when they receive an indication that a defendant isn't guilty or didn't fully understand the charges or the effects of admitting guilt.

Likewise, certain factors support, but don't mandate, a judge allowing withdrawal of a guilty plea. For example, judges are supposed to take into account the length of time between the plea and the attempt to withdraw; typically, the quicker the attempt, the better for the defendant (unless it's so prompt that it indicates haste). Another circumstance in a defendant's favor is lack of counsel: Not having legal representation when pleading guilty is a fact tending to support subsequent withdrawal.

Ineffective Representation

Plenty of people who take a turn through the criminal justice system are unhappy with their lawyers. But simple dislike for or dissatisfaction with a lawyer isn't enough to withdraw a plea. Rather, the lawyer must normally have been ineffective and the reason the defendant pleaded guilty.

For example, suppose Clay's lawyer didn't investigate or otherwise work on the case at all, but nevertheless convinced his client that conviction at trial was automatic. Meanwhile, there was exonerating evidence that a competent lawyer would have discovered and that would have inspired Clay to go to trial. If Clay pleads guilty in that instance, he might be able to withdraw his plea.

Common Withdrawal Scenarios

There are various situations in which trial or appellate judges are generally supposed to allow defendants to withdraw their pleas. These include—but aren't limited to—the following:

  • the defendant didn't "intelligently" plead guilty, whether because of psychological challenges or the influence of drugs or alcohol
  • defense counsel failed to advise the defendant of crucial ramifications of the plea deal, such as mandatory deportation for an immigrant
  • the lawyer entered a guilty plea on the client's behalf without the client's consent
  • the defendant appears to have a viable chance at trial
  • the defendant was denied a constitutional right, such as the right to counsel
  • the judge participated too much in plea negotiations
  • the defendant entered the plea because of off-the-record promises or threats, and
  • new evidence of innocence surfaces (such as DNA analysis).

Back to Square One

After a defendant, with the court's permission, withdraws a guilty plea, the case normally reverts to the point before the original plea. The defense can hammer out another deal with the prosecution or go to trial. If the reason for the withdrawal undermines the prosecution's case (as in the instance of newly discovered evidence of innocence), the judge might even dismiss the charges. But withdrawing a plea doesn't always end happily: There's typically no guarantee that the defendant won't receive a harsher sentence if convicted (again).

Consult a Lawyer

If you pleaded guilty or "no contest" to a crime and want to withdraw your plea, consult an experienced criminal defense attorney (not one whose poor performance necessitated the withdrawal). Such a lawyer can explain all the conceivable bases for setting aside a plea and analyze your prospects. That lawyer will also know the appropriate procedure—whether, for example, to bring a motion in the trial court or to seek review by an appeals court.

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