Motions to Withdraw Pleas: What Factors Are Used?

The Test for Plea Withdrawal Matters:

A defendant may withdraw a guilty plea after the court accepts the plea, but before it imposes a sentence, if he “can show a fair and just reason for requesting the withdrawal.”

Courts have a factor-based test that they use to determine this:

These include:

(1) whether the defendant asserted actual innocence;

(2) whether withdrawal of the plea would prejudice the government;

(3) the extent of the defendant’s delay, if any, in filing the motion to withdraw;

(4) whether withdrawal would substantially inconvenience the court;

(5) whether the defendant was benefitted by the close assistance of counsel;

(6) whether the guilty plea was knowing and voluntary; and

(7) the extent to which withdrawal would waste judicial resources. 

Case Examples

Extremely Bad Advice as Grounds for Withdrawal:  Gardner: 5th Circuit

Gardner's Case And Plea Agreement

Gardner was charged with meth crimes.  He hired an attorney and engaged in litigation.  He told his attorney he wanted to file a motion to suppress.  Gardner indicated that his attorney told him a motion to suppress would be filed after the entering of the plea.

Gardner Files a Motion for Plea Withdrawal

Gardner kept asking about the motion to suppress. When the lawyer told him the motion was no longer an option, Gardner asked for new counsel.

Gardner asked for new counsel to be appointed because he felt misled by his lawyer. He claimed  his lawyer told him the objections to the Presentence Investigation Report had been filed and his lawyer gave inconsistent information about the “availability of audio or video footage of the search that led to his arrest.”  The court appointed another attorney to represent Gardner.

Ultimately, the new attorney filed a motion to withdraw the guilty plea, stating that Gardner “wishe[d] to withdraw his guilty plea based o[n] his desire to file a motion to suppress that his former attorney did not file.”

The court denied the motion to withdraw the plea without a response from the government and without an evidentiary hearing.

The court sentenced Gardner to 240 months in prison and 6 years supervised release.  Gardner filed an appeal asking the Fifth Circuit to send the case back to the district court for an evidentiary hearing.

Gardner indicated he was not benefitted by the close assistance of counsel and that his plea was not knowing and voluntary.  The Fifth Circuit had to evaluate whether the district court failed “to permit a defendant to withdraw a plea rendered involuntary due to counsel’s ineffective assistance.”

The Application of the Factors

The court determined that in order to test this the court would need to evaluate whether “(1) that “counsel’s representation fell below an objective standard of reasonableness,” and (2) that “counsel’s constitutionally ineffective performance affected the outcome of the plea process.”

Gardner alleged his counsel advised him he could file a suppression motion after entering a plea.  If true, this is very wrong:

“It is well settled that an unconditional guilty plea ordinarily waives the right to challenge all non-jurisdictional defects in the trial court proceedings, including any objection to searches and seizures that violate the Fourth Amendment. At the same time, the Federal Rules of Criminal Procedure clearly lay out the method for entering a conditional plea.”

The court also determined that prejudice had been met if Gardner’s allegations were true:

“As for prejudice, Gardner argued that he would not have pleaded guilty had he known that he was waiving his right to file a motion to suppress, believing that his suppression motion would eviscerate the Government’s case against him.  While we cannot from our perch evaluate the merits of this allegation, it satisfies  Strickland’s prejudice prong, if true.”

As a result of this, the district court abused their discretion by denying the motion without a hearing.  The Fifth Circuit vacated the court’s denial of the motion plea withdrawal.

Failure to Address Suppression Issues as Grounds to Withdraw Plea: Tran, 5th Circuit

Tran was charged with four counts related to a drug conspiracy. After indictment, Tran’s first two attorneys were permitted to withdraw and Tran was appointed new counsel. A week before trial was set to begin, Tran wrote a letter to the court requesting a continuance because Tran had allegedly only met with his new attorney once for less than 10 minutes and was not prepared for trial. Tran also relayed that he had trouble translating between English and Vietnamese. The district court denied the motion. After jury selection had been completed, Tran entered guilty pleas to all four counts without a plea agreement.

Prior to sentencing, Tran filed a pro se motion to remove counsel. Tran explained that his attorney refused to visit, consult with him, answer calls or texts, or provide requested information. Tran further contended that counsel had committed grievous errors prior to his plea and that he intended to pursue collateral claims based on ineffective assistance of counsel. Tran’s motion was again denied.

Almost two months later, Tran filed a second letter motion to dismiss counsel citing irreconcilable differences. Following a hearing, counsel was withdrawn and Tran was again appointed new counsel prior to sentencing. New counsel filed a motion to continue sentencing to conduct further investigation and set out Tran’s lack of understanding that, by pleading guilty, Tran waived the right to challenge the admissibility of any evidence. The district court granted the motion to continue.

Tran, through counsel, subsequently filed a motion to withdraw his guilty plea pursuant to Rule 11(d)(2)(A) of the Federal Rules of Criminal Procedure. Tran argued that he did not know nor understand that pleading guilty foreclosed the possibility of future suppression challenges. Tran further advised the court that prior counsel was suspended from practicing law for deficient representation of other clients. The court scheduled a hearing on the motion, but later canceled. The district court ultimately denied the motion on the briefs, finding Tran’s plea was knowing and voluntary. Tran was subsequently sentenced and appealed to the Fifth Circuit.

On appeal, Tran argued that the district court abused its discretion in denying his motion to withdraw guilty plea without an evidentiary hearing. Under Rule 11 and circuit precedent, Tran bore the burden of establishing a fair and just reason for requesting the withdrawal. In applying the standard, the court is to consider: (1) whether Tran had asserted his innocence; (2) whether the government would suffer prejudice if the motion was granted; (3) whether Tran delayed in filing the motion to withdrawal; (4) whether withdrawal would substantially inconvenience the court; (5) whether close assistance of counsel was available; (6) whether Tran’s original plea was knowing and voluntary; and (7) whether withdrawal would waste judicial resources. United States v. Carr, 740 F.2d 339 (5th Cir. 1984) (known as the “Carr factors”).

The Fifth Circuit found of particular significance the district court’s conclusion that the suppression issues were investigated by prior counsel prior to Tran’s plea. The district court also found that Tran confirmed in his plea colloquy that he had an opportunity to discuss possible defenses with counsel and that his plea was knowing and voluntary.

However, the Fifth Circuit concluded that the plea colloquy in this case was not a sufficient remedy for deficient counsel. The Fifth Circuit further explained that “close assistance of counsel” under the Carr factors is distinct from “ineffective assistance of counsel” which appellate courts generally do not consider on direct appeal.

The Fifth Circuit found that Tran repeatedly attempted to address the suppression issues with counsel and directly with the court. Accordingly, the court held that Tran had provided sufficient evidence that the district court abused its discretion in denying an evidentiary hearing on Tran’s motion to withdraw his guilty plea. Judgment of the district court was vacated and the case remanded for a hearing.