Vacating a guilty plea

I get numerous calls from relatives of inmates who pleaded guilty and now want a do over. I explain how hard this is to do but I’m not sure anyone ever understands this. So, I decided to put together a list of cases that would explain what are some of the few grounds for vacating a guilty plea. But it must first be said that even if you are successful, all it does is put you back at square one, i.e. the point just before the plea. In other words, you’re still facing the same charges. If you’re found guilty, there’s a real chance the judge will give you an even stiffer sentence.

That is exactly what happened in McCoy v. State, 147 So.3d 333 (Miss. 2014). McCoy was indicted with two others for two counts of armed robbery. In 2007, he pleaded guilty to both counts and was sentenced to thirty years’ imprisonment for each count, with five years suspended from each sentence and five years of post-release supervision. The sentences were to run concurrently. In 2009, McCoy challenged his plea on the grounds he was given erroneous information about parole eligibility. The Court of Appeals ordered that he be given a hearing and at that hearing the trial court vacated the plea. McCoy went to trial, was found guilty and given consecutive 35 year sentences. On appeal he argued that the sentences were the result of vindictiveness. The Miss.S.Ct affirmed.

Secondly, there is a widespread belief that there is a mechanism whereby a defendant can ask that his sentence be reduced. There is no such animal. “Trial courts, in most circumstances, lack jurisdiction to resentence convicted felons.” Pugh v. State, 132 So. 3d 1080, 1082 (Miss. Ct. App. 2014). “The Mississippi Supreme Court has held that ‘once the case has been terminated and the term of court ends, a circuit court is powerless to alter or vacate its judgment.’” Id.

To understand the requirements for a valid plea, start with URCCCP Rule 8.04

URCCP 8.04: Entry of Guilty Pleas

1. A defendant may plead not guilty, or guilty, or with the permission of the court, nolo contendere.

2 .Entry of Guilty Plea. A person who is charged with commission of a criminal offense in county or circuit court, and is represented by an attorney may, at his/her own election, appear before the court at any time the judge may fix, and be arraigned and enter a plea of guilty to the offense charged, and may be sentenced by the court at that time or some future time appointed by the court.

3. Voluntariness. Before the trial court may accept a plea of guilty, the court must determine that the plea is voluntarily and intelligently made and that there is a factual basis for the plea. A plea of guilty is not voluntary if induced by fear, violence, deception, or improper inducements. A showing that the plea of guilty was voluntarily and intelligently made must appear in the record.

4. Advice to the Defendant. When the defendant is arraigned and wishes to plead guilty to the offense charged, it is the duty of the trial court to address the defendant personally and to inquire and determine:

a. That the accused is competent to understand the nature of the charge;

b. That the accused understands the nature and consequences of the plea, and the maximum and minimum penalties provided by law;

c. That the accused understands that by pleading guilty (s)he waives his/her constitutional rights of trial by jury, the right to confront and cross-examine adverse witnesses, and the right against self-incrimination; if the accused is not represented by an attorney, that (s)he is aware of his/her right to an attorney at every stage of the proceeding and that one will be appointed to represent him/her if (s)he is indigent.

5. Withdrawal of Plea of Guilty. It is within the discretion of the court to permit or deny a motion for the withdrawal of a guilty plea.

6. Sufficiency of Motion. In order to be sufficient, a motion to withdraw a plea of guilty must show good cause.

7. Inadmissibility of Withdrawn Guilty Plea. The fact that the defendant may have entered a plea of guilty to the offense charged may not be used against the defendant at trial if the plea has been withdrawn.

With that being said, here are some specific examples of what is required to make a guilty plea stick:

Factual basis for the plea – Corley v. State, 588 So.3d 765 (Miss. 1991). This means that the court must be able to “say with confidence the prosecution could prove the accused guilty of the crime charged, ‘that the defendant’s conduct was within the ambit of that defined as criminal.’” Corley, 585 So. 2d at 767. This can be through the testimony of witnesses, the defendant’s statement, or a description of the evidence by the prosecution. Id.

The minimum and maximum sentences which could be imposed – The judge should inform the defendant of the minimum and maximum sentences allowed by law. Mallett v. State, 592 So.2d 524, 525 (Miss. 1991);Vittitoe v. State, 556 So. 2d 1062, 1064 (Miss. 1990).

Incorrect advice as to parole eligibility – Thomas v. State, 881 So.2d 912, 916 (Miss.App. 2004). The Court has held that since “parole is a matter of legislative grace, parole eligibility or non-eligibility is not considered a ‘consequence’of a guilty plea” and, thus, “it is not a prerequisite to a valid plea.” Thomas, 881 So2d at 916. However, where the defendant was given incorrect information about parole eligibility and pleaded guilty based on this incorrect information, his plea is not voluntary. Therefore, “a plea is involuntary if a defendant is affirmatively misinformed regarding the possibility of parole and pleads guilty in reliance on the misinformation.” Id. Similarly, the court held that the defendant was entitled to a hearing in Coleman v. State, 483 So.2d 680 (Miss. 1986), where the defendant alleged he had been induced to plead guilty based on his lawyer’s erroneous advice that he’d be eligible for good time credits.

Failure to investigate/failure to advise as to affirmative defenses – counsel’s failure to investigate does not give rise to a claim that would allow the defendant to withdraw his plea unless the defendant is able to show what the investigation would have revealed and how it would have altered the outcome. Middlebrook v. State, 964 So. 2d 638, 640 (Miss. Ct. App. 2007).

For example, where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the determination whether the error “prejudiced” the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial. Similarly, where the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the “prejudice” inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial.

Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370-371, 88 L. Ed. 2d 203, 210 (1985).

In evaluating a case with an eye toward filing to vacate a plea, an attorney needs to start by looking at two documents: 1) the plea petition and 2) the plea transcript. Most defendants who plead guilty have signed a petition to plead guilty. The petition should contain all of the information required to be conveyed to a defendant to make the plea a voluntary one. That is, it will set forth the charges, the minimum and maximum sentences for the charges, the recommendation from the DA as to sentence (if any; if there is no recommendation, this is called an “open plea”); parole eligibility, a list of the rights the defendant is giving up , etc. The plea transcript is a transcript of the hearing wherein the defendant pleaded guilty and the judge accepted the plea. This, too, usually contains all of the elements meant to lock a defendant into a plea. The judge will ask whether the defendant has been promised anything in exchange for the plea (other than a recommendation by the DA). Sometimes the judge will ask the defendant if he//she is satisfied with his attorney’s performance. If all the requirements for a voluntary plea are contained in these two documents, it is very difficult (but not impossible) to set aside a plea.