When Can a Guilty Plea Be Challenged? The "Knowing and Voluntary" Standard

A guilty plea can be challenged after conviction if it was not "voluntarily and knowingly made." That is the standard a court uses to decide whether a plea can be attacked, and it is the first thing to understand before challenging yours. The bar is high, but it is not impossible to clear.

Challenging a guilty plea is one of the least understood parts of post-conviction law, even though more than 95 percent of state and federal convictions come from guilty pleas. In 2018, there were 73,109 federal convictions, and 71,550 of them were by guilty plea, according to the Administrative Office of the U.S. Courts. State courts follow largely the same pattern.

Why are guilty pleas so common? Because they are easy. The prosecutor gets an easy "win," and courts like them because they take little work: in and out, next case. As a result, courts do not like to reopen a case once they hear the words "I'm guilty."

This first column in the series explains what "voluntarily and knowingly made" means and how courts apply it.

A Plea Must Be "Voluntarily and Knowingly Made"

Courts often blend these two terms together, but they are two separate requirements, and both must be met before a court can accept your plea.

Voluntary means the plea was your own free choice. A court cannot accept a plea brought about by coercion, false promises, or threats. Machibroda v. United States, 368 U.S. 487 (1962).

What would that look like? Say the prosecutor promises that if you plead guilty, he will not charge your wife with the same crime and put her in jail, which would leave your kids without parents at home. If the prosecutor had no probable cause to charge her, your plea would likely be treated as made under threat and could be thrown out. United States v. Whalen, 976 F.2d 1346 (10th Cir. 1992); United States v. McElhaney, 469 F.3d 382 (5th Cir. 2006).

But threatening a life sentence if you go to trial is not coercion. United States v. Creighton, 853 F.3d 1160 (10th Cir. 2017) ("the Supreme Court has squarely held that a prosecutor may threaten to charge a greater offense if a defendant will not plead guilty to a lesser one, as long as the prosecutor has probable cause to believe the defendant committed the greater offense").

Some judges have criticized this practice, but they have not convinced most courts to stop it. Garcia v. Herbert, 2018 U.S. Dist. LEXIS 203454 (E.D.N.Y. Nov. 30, 2018) (Judge Weinstein's 100-plus page opinion criticizing the prosecutor's "vindictiveness" and the "trial penalty" after a defendant refused to plead guilty).

Knowing is a little more involved. A plea is knowing when you understand the rights you are giving up, like the right to a jury trial, and the consequences of the plea, like the sentence you could face.

Bad legal advice can make a plea unknowing. Courts generally hold that a lawyer's wrong guess about your sentence does not make the plea unknowing. But a lawyer must at least research the law before advising you to plead guilty. Brock-Miller v. United States, 887 F.3d 298 (7th Cir. 2018) (sending the case back for a hearing where counsel allegedly failed to research whether a prior conviction could support an enhancement that doubled the mandatory minimum before advising a guilty plea).

In Pidgeon v. Smith, 785 F.3d 1165 (7th Cir. 2015), the defendant pleaded guilty because his lawyer told him he would otherwise face mandatory life without parole based on a prior conviction. But that prior conviction did not qualify. The court held counsel was ineffective, found that the defendant would have gone to trial with correct advice, and affirmed habeas relief.

So how does a court decide whether a plea was voluntary and knowing? It holds a hearing.

The Guilty Plea Hearing

Plea deals used to be made in secret. The prosecutor and defense would agree on a deal, sometimes with promises or threats. Then everyone would tell the court no promises had been made, and the court would accept the plea. It was all a fiction, and everyone knew it, yet it worked this way for a long time. See Santobello v. New York, 404 U.S. 257 (1971).

When defendants later claimed they had been promised something or threatened, there was no record either way. Often there was only a standard form saying the plea was knowing and voluntary.

The Supreme Court was not happy with this. In Blackledge v. Allison, 431 U.S. 63 (1977), it addressed this exact situation and held that what the defendant says at the plea hearing carries great weight. Under Federal Rule of Criminal Procedure 11, the judge must go over more than a dozen points with you, such as whether anyone made you promises and what sentence you face.

The Court said your statements at this Rule 11 hearing are a "formidable barrier" to a later challenge. "Solemn declarations in open court carry a strong presumption of verity," meaning they are presumed true. But the Court also said no plea procedure is so "perfect" that it rules out every challenge, and the barrier is "not invariably insurmountable."

Lower courts and prosecutors often quote the "formidable barrier" part and skip the rest. You would never know from those quotes that Allison actually won his case in the Supreme Court.

No Automatic Rule That Plea Hearing Statements End Your Claim

Because the plea hearing is not "perfect," Blackledge said courts may not adopt a "per se" (automatic) rule that your statements at the hearing block any later challenge.

Yet four decades later, some courts still reject plea challenges based only on what was said at the plea hearing. Winthrop-Redin v. United States, 767 F.3d 1210 (11th Cir. 2014). The problem is that these courts often rely on cases about direct challenges to guilty pleas.

A direct challenge looks like this: you admit your guilt under oath at the plea hearing, then argue on direct appeal that you are not really guilty. The court points to your sworn admissions and rejects the challenge. United States v. Gonzalez-Mercado, 808 F.2d 796 (11th Cir. 1987).

In Winthrop-Redin, the Eleventh Circuit relied on Gonzalez-Mercado to reject a collateral attack on a guilty plea. A collateral attack is a challenge filed after the appeal, such as a § 2255 motion. It is not the same as a direct attack.

The Supreme Court has explained that in a collateral attack, a prisoner "may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel" fell below the required standard. Tollett v. Henderson, 411 U.S. 258 (1973). The focus is on the lawyer's advice to plead guilty, not the plea itself.

Some courts get this right. In Tovar Mendoza v. Hatch, 620 F.3d 1261 (10th Cir. 2010), the district court denied relief based only on the defendant's plea hearing statements. It said his lawyer's alleged promises could not excuse his "blatant and repeated misrepresentation under oath" that no one had promised him anything.

The Tenth Circuit reversed. It found Tovar's lawyer had lied to him and coached him on what to say at the hearing. His answers were "a courtroom ritual more sham than real," the court said.

Tovar won in part because he made specific, factual claims that required an evidentiary hearing. The magistrate judge who held the hearing recommended relief, but the district judge rejected that recommendation and relied on the plea hearing statements. With a full record, the Tenth Circuit could see the district judge had applied the automatic rule that Blackledge rejected.

Point to Events Outside the Record

In Blackledge, the Court said claims about events "outside the courtroom," which the plea hearing record cannot disprove, are the kind that can require an evidentiary hearing. Those claims are less likely to be dismissed without a hearing.

Vague or "conclusory" claims carry no weight. Instead, state (1) the statements, threats, or promises made; (2) when, where, and by whom; and (3) who witnessed them. Key v. United States, 806 F.2d 133 (7th Cir. 1986).

Conclusion

Challenging a guilty plea is full of traps, and any one of them can end your claim. The Supreme Court has made clear that a collateral challenge to a guilty plea means challenging your lawyer's advice to plead guilty.

The next column covers the ineffective assistance of counsel standard you must meet to challenge that advice.

One practical step: order the transcript of your plea hearing (the Rule 11 hearing) early. It shows exactly what you were told and what you said, and any claim about promises or threats will be measured against it. For a federal prisoner, a § 2255 motion generally must be filed within one year, usually counted from the date the conviction became final. 28 U.S.C. § 2255(f).

This article originally appeared in the March 2020 issue of Criminal Legal News. It is reprinted with permission. Copyright, 2020 Criminal Legal News.

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