Consequences of Virginia guilty / no contest pleas – Fairfax criminal lawyer on sentencing

Consequences of Virginia guilty and no contest pleas are serious. As a Fairfax criminal lawyer, I know that such a plea bypasses a trial, leads to a conviction, and results in a sentence. Fortunately, reversing such a plea in Virginia state court is easier than in federal court, but is not a guarantee. Talk fully and closely with your Virginia criminal defense lawyer before deciding whether to enter into such a plea agreement. You have the absolute right to back out from a plea deal before the judge accepts your plea. Nonetheless, once you reverse a plea deal, do not expect your Virginia assistant commonwealth’s attorney / prosecutor to agree to any further plea negotiations, at the very least so as to deter other Virginia criminal defendants from backing out of their plea deals with the prosecution.

How hard is it to withdraw my Virginia state guilty or no contest plea before sentencing?

“Under our settled law, a court must grant a motion to withdraw a guilty plea filed before sentencing if a defendant makes a prima facie showing of a reasonable defense to the charge, that the original plea was made in good faith, and that the motion to withdraw was not made in bad faith—unless the equities favoring the motion are outweighed by undue prejudice to the Commonwealth.” Holland v. Commonwealth of Virginia, ___ Va. App. ___ (Oct. 24, 2023). The timing of your motion to withdraw your plea is governed by the applicable Virginia statute, which provides: “A motion to withdraw a plea of guilty or nolo contendere may be made only before sentence is imposed or imposition of a sentence is suspended; but to correct manifest injustice, the court within twenty-one days after entry of a final order may set aside the judgment of conviction and permit the defendant to withdraw his plea.” Va. Code § 19.2-296. Fully consider the foregoing consequences of a Virginia guilty or no contest plea.

Is it harder to withdraw a federal guilty plea than a Virginia state court plea?

Do not expect to be able to withdraw your guilty plea in Virginia federal court: “As the Fourth Circuit has held, ‘[a] defendant has no absolute right to withdraw a guilty plea.’ United States v. Bowman, 348 F.3d 408, 413 (4th Cir. 2003). Rather, once the district court has accepted a guilty plea, it is within the district court’s discretion to determine whether to permit the defendant to withdraw his plea. See Fed. Crim. P. 11(d)(2)(B). The defendant bears the burden of showing a ‘fair and just reason’ for withdrawing his guilty plea. Id. The Fourth Circuit has held that ‘[t]he most important consideration in resolving a motion to withdraw a guilty plea is an evaluation of the Rule 11 colloquy at which the guilty plea was accepted.’ Bowman, 348 F.3d at 414. Essentially, a ‘fair and just reason’ is one that ‘challenges . . . the fairness of the Rule 11 proceeding.’ United States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992). A properly conducted  Rule 11 guilty plea colloquy leaves a defendant with a very limited basis upon which to have his plea withdrawn and ‘raise[s] a strong presumption that the plea is final and binding.'” Bowman, 348 F.3d at 414.” U.S. v. Addae, Criminal No. 19-CR-188 (E.D. Va., Nov. 26, 2019) (unpublished). In other words, the consequences of entering a federal guilty plea are virtually irreversible.

Will my bond / pretrial release be revoked pending sentencing? Are such consequences tied to the egregiousness of the convicted offense?

Do not automatically trust your Virginia assistant commonwealth’s attorney / prosecutor not to move the court to revoke your bond / pretrial release status pending sentencing, whether you have been convicted on a not guilty plea or on a plea of guilty or no contest. Even if the prosecutor does not seek such revocation / stepback, your trial judge on his or her own may decide to do so. Talk with your lawyer about your risk of having your pretrial release liberty revoked pending sentencing. That is typically not an issue in Virginia General District Court and Juvenile & Domestic Relations District Court, where sentencing typically takes place on the date that the defendant enters a guilty plea or no contest plea. Stepback / bond revocation is a possible issue in Circuit Court when the sentencing date will be subsequent to the date that the criminal defendant enters a plea of guilty or no contest. Factors that might influence the judge to be more likely to revoke your bond pending sentencing may include whether you are going to have to receive a mandatory minimum jail or prison sentence anyway. Bond revocation consequences are also increased for more egregious criminal convictions.

How do I back out of a guilty or no contest plea after sentencing?

Proving manifest injustice is required to withdraw a Virginia guilty plea or no contest plea after sentencing. Virginia Code § 19.2-296: “‘Manifest injustice is a “more severe” standard and it applies post-sentencing “to avoid motions for withdrawal based on disappointment in the terms of the sentence . . . .”‘ Brown [v.] Virginia, 297 Va. [295] at 300 (alteration in original) (quoting Lilly v. Commonwealth, 219 Va. 960, 965 (1978)).” Mendez Belmonte v. Virginia, Record No. 0889-20-4 (Va. App., Aug. 3, 2021) (unpublished). In other words, consequences of your case post-sentencing makes such a withdrawal an uphill battle.

Your plea negotiations as a Virginia criminal defendant must come from a position of strength

As with negotiations in all aspects of life, your plea negotiations as a Virginia criminal defendant must come from a position of strength and trial readiness, so that you do not suffer adverse consequences that you should not suffer. Make sure that the Virginia criminal defense lawyer you hire is at all times up for the challenge of a trial and for the skills needed to successfully negotiate a plea deal that you want.

Fairfax criminal lawyer Jonathan Katz relentlessly pursues your best defense against Virginia DUI, felony and misdemeanor prosecutions. Secure your free in-person confidential initial consultation with Jon Katz about your court-pending case, by calling 703-383-1100.