Photo from website of U.S. District Court (W.D. Mi.).

When I started practicing criminal defense in 1991, the phrase “guilty plea” sounded like a dirty word, but I already knew that such pleas are a major part of the criminal “justice” system which otherwise would come to a grinding halt if nobody entered a guilty plea. Unfortunately, the stakes are often so high and risky in criminal cases that plenty of innocent people and those with some strong defenses still plead guilty in the hope of being rewarded for accepting responsibility and saving the court’s and prosecution’s time and funds to go to trial, making the judge less irritated or angry about the alleged crime through a more sanitized presentation of the case, getting a sentence no worse than what the prosecution recommends, and getting a better sentence where the prosecution has agreed to drop or amend one or more counts in exchange for pleading guilty.

Guilty pleas become more irreversible the further along they get. Criminal defendants need to know that they can back out of a guilty plea deal before the judge accepts the guilty plea or pronounces guilt. Boykin v. Alabama, 395 U.S. 238 (1969). Nevertheless, dire may be the negotiating consequences of backing out of a guilty plea after a criminal defense lawyer already has told the prosecutor that a deal has been reached. Regardless, the defense is about the criminal defendant, and not about how the defense lawyer will look if an agreed guilty plea later is withdrawn by the defendant’s own volition.

After a judge accepts a guilty plea, it becomes tougher to withdraw from the plea. The plea becomes even tougher to withdraw after a sentence is pronounced, and certainly even tougher to withdraw as more time passes after the sentence.

Sometimes, appellate battle is needed to withdraw a guilty plea. That happened with Lorenzo Martez Lewis. Mr. Lewis entered a guilty plea agreement with a federal prosecutor whereby the parties agreed in writing for his federal sentence to run concurrent with his state sentence. The judge acknowledged that agreement, but intentionally ran the federal sentence consecutive anyway, and would not let Mr. Lewis withdraw his guilty plea after the judge did not accept the agreed sentence. U.S. v. Lewis, ___ F.3d ___ (4th Cir., Feb. 2, 2011).

On appeal, sadly Mr. Lewis’s trial lawyer filed an Anders brief, which shouts out to the appellate court that the lawyer found no meritorious appellate issues. Fortunately, Mr. Lewis’s lawyer’s Anders brief at least informed the Fourth Circuit that the sentencing judge had deviated from the parties’ agreement for a concurrent sentence. Thankfully, the Fourth Circuit appointed a new lawyer for Mr. Lewis to brief that sentencing issue, and ultimately vacated the judgment, thus freeing Mr. Lewis from his guilty plea and sentence.

Lewis rejects the prosecution’s contention that the concurrent part of the written plea agreement was a mere recommendation rather than an agreement. Be ready for a similar argument any time that a defendant tries to withdraw from a guilty plea agreement after being sentenced. Therefore, it is best to meticulously memorialize plea agreements in writing (and to get them signed by all parties), including confirmation of the extent to which sentencing matters are agreements between the parties and not mere recommendations.

DISCLAIMER: My views in this and all Underdog blog entries apply to the jurisdictions where I practice, which are the state and federal courts in Maryland, Virginia, and Washington, D.C. This blog entry is not legal advice, which can only be obtained through a consultation with a qualified criminal defense lawyer licensed n the applicable jurisdiction.