Nov 15, 2017 Guilty pleas in Virginia – Fairfax criminal lawyer on their points of no return
Guilty pleas in Virginia must only be the result of the defense’s fully preparing for trial. As a Fairfax criminal lawyer, I know that this trial readiness approach to pleading guilty, no contest/nolo contendere, Alford, or facts sufficient to prove guilt (collectively for this article, “guilty pleas”) comes from a position of strength and complete readiness to go to trial in the event plea negotiations fall through.
Fairfax criminal lawyer recognizes trials and trial preparation as the default, not guilty pleas
Judges handling guilty pleas at first blush look overqualified for the task of assuring that guilty pleas are being entered knowingly and voluntarily by the criminal defendant. As a Fairfax criminal lawyer, I know that the judge must make such assurance, to assure Constitutional adherence and to avoid a lengthy trial in the event the guilty plea is overturned.
Fairfax criminal lawyer underlines that guilty pleas should not be entered in Virginia nor elsewhere before full case investigation and analysis of prospects for victory and conviction
As a Fairfax criminal lawyer, I also know that pleading guilty typically is the point of no return once the judge accepts the guilty plea. Damien Cameron Spencer learned that when the Virginia Court of Appeals this week affirmed the Circuit Court’s denial of Spencer’s request to withdraw his nolo contendere pleas that Spencer entered with his since-replaced lawyer, for “procuring a minor for obscene material by communications system, in violation of Code § 18.2-374.1; electronically transmitting child pornography, in violation of Code § 18.2-374.1:1; possessing child pornography, in violation of Code § 18.2-374.1:1; and soliciting a minor for child
pornography, in violation of Code § 18.2-374.1″. Spencer entered his nolo contendere plea before any holding of a hearing on a motion to suppress evidence. Spencer argued that evidence from the search warrant should have been suppressed. Spencer v. Virginia, ___ Va. App. ___ (Nov. 14, 2017).
Here is the Virginia point of no return on efforts to withdraw guilty pleas pre-sentencing
Spencer sought post-conviction and pre-sentencing to withdraw his nolo contendere plea. The standard for such a withdrawal is as follows:
“Leave should ordinarily be given to withdraw a plea of guilty if it was entered by mistake or under a misconception of the nature of the charge; through a misunderstanding as to its effect . . . or even where it was entered inadvisedly, if any reasonable ground is offered for going to the jury. Justus v. Commonwealth, 274 Va. 143, 153, 645 S.E.2d 284, 288 (2007)”
Virginia criminal defendant Damien Spencer was denied withdrawing his guilty pleas, and likely got slammed at sentencing
However, Spencer finds that Spencer failed to meet that withdrawal burden, and points out that not holding a suppression hearing by itself is not grounds to withdraw a nolo contendere or guilty plea. Although Spencer does not detail what steps Spencer’s original lawyer took to explore and act on such suppression efforts, as a Fairfax criminal lawyer, I know that proceeding with an evidence suppression hearing sometimes terminates a plea offer from the prosecutor, necessitating particularly informed decision making at that stage.
Spencer reminds Virginia criminal defense lawyers and their clients to tread cautiously before proceeding with any guilty plea or nolo contendere plea.
Fairfax criminal lawyer Jonathan L. Katz is top-rated by key lawyer reviewers AVVO and Martindale-Hubbell. Jon will be delighted to discuss your criminal or DUI case with you in confidence. Please call Jon’s staff for an appointment with him, at 703-383-1100.