Withdrawing a Guilty Plea In Colorado – Especially Colorado Domestic Violence Cases

Withdrawing a Guilty Plea In Colorado –  Especially Colorado Domestic Violence Cases

by Denver Colorado Criminal Defense Lawyer H. Michael Steinberg

Introduction: So often I receive calls about “mistakes” individuals make – especially in “fast tracked” Colorado domestic violence cases.  Frightened and incarcerated for the first time – average citizens often “cave” to offers to plead guilty believing – even in the face of a judge’s advisement as to the right to a bail bond – to crimes that result in permanent lift time convictions that are not sealable – “expunge-able” under Colorado law.

Due process of law mandates that a guilty plea must be voluntarily and understandingly made before a valid judgment of conviction can be entered thereon.

What follows is an article explaining the law in this area in Colorado:

An Individual Decision To Plead Guilty  – NOT The Lawyers

The decision to enter a guilty plea is among the few “fundamental choices that must be decided by the defendant alone” …. other such decisions are whether to testify, waive jury trial, or take an appeal.  The law is set up so that the process for entering guilty pleas is thorough to make certain that the plea is the product of a defendants’ choices.

Defendants cannot be forced to plead guilty against their will under the code of ethics that governs all Colorado lawyers.( Colo. RPC 1.2(a) provides that a lawyer in a criminal case “shall abide by a client’s decision, after consultation with the lawyer, as to a plea to be entered.”)

Understanding Rule 11 – The Advisement Before A Judge Accepts A Guilty Plea

Colorado Rule of Criminal Procedure Rule 11 forbids a trial court from accepting a guilty plea without first determining that the defendant has been advised of certain rights and understands, among other matters. Here is what the Rule requires – it requires a Judge to advise the Defendant who is about to plead guilty….

(1) the nature of the charge and the effect of the plea;

(2) the right to a jury trial and that he or she waives that right by pleading guilty;

(3) the possible penalty;

and

(4) that the court will not be bound by any representations made by anyone concerning the penalty to be imposed unless it approves a formal plea agreement.

The trial court must also determine that there is a factual basis for the plea and it is made knowingly, intelligently, and voluntarily.

The Purpose of Colorado Rule 11

The purpose of the extensive advisements prescribed by Crim. P. 11 is “to facilitate an accurate determination of adequate compliance with the constitutional requirements necessary for a valid guilty plea.”

The Colorado Courts have held that “these safeguards exist because a plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment.”

No Absolute Right To Withdraw From Plea

Because Colorado Judge’s employ meticulous precautions in the advisement process before permitting the entering of guilty pleas – defendants who have entered guilty pleas do not have an absolute right to withdraw them.

Colorado Rule of Criminal Procedure Rule 32 (d) Governs The Attempt To Withdraw From A Guilty Plea

Crim. P. 32(d) authorizes a motion to withdraw a guilty plea before sentence is imposed, the decision to grant or deny such a request is left to the sound discretion of the trial court.

1. To warrant a change of plea before entry of a sentence, there must be some showing that denial of the request will subvert justice.”

2. The defendant has the burden to demonstrate a “fair and just reason” for the change.

Withdrawal of a guilty plea may exist where: the plea was entered through fear, fraud, or official misrepresentation; or where it was made involuntarily.

BUT a defendant may not withdraw plea merely because he or she discovers the prosecution’s case is weaker than it once appeared. Or they have changed their mind.

The Rule Restated:

A defendant does not have an absolute right to withdraw a guilty plea, but “a plea can be withdrawn if the defendant makes a showing that denial of the request will subvert justice.”


A court may allow the withdrawal of a guilty plea where the defendant has shown a fair and just reason for the withdrawal, such as where a defendant may have been surprised or influenced into a plea of guilty when he had a defense; where a plea of guilty was entered by mistake or under a misconception of the nature of the charge; where such plea was entered through fear, fraud, or official misrepresentation; or where it was made involuntarily for some reason


Here Is An Analysis Of The Law

Rule 11 of the Colorado Rules of Criminal Procedure governs the Court’s acceptance of a guilty plea and provides that, the court shall not accept a plea of guilty without first determining that the defendant has been advised of all the rights set forth in Rule 5(a)(2) and also determining:

(1) that the defendant understands the nature of the charge and the elements of the offense to which he is pleading and the effect ofhis plea;

(2) that the plea is voluntary and not the result of undue influence or coercion;

(3) that the defendant understands his right to trial by jury and that he waives such right by his plea of guilty;

(4) that the defendant understands the possible penalty or penalties;

(5) that the defendant understands that the court will not be bound by any representations made to the defendant by anyone concerning the penalty to be imposed or the granting or denial of probation, unless the representations are included in a formal plea agreement approved by the court;

and

(6) that there is a factual basis for the plea.

A Review Of The Transcript Of The Plea

Usually a transcript of the plea is ordered to be produced and paid for by the Defendant.  A review of the record including the attached transcript of the providency hearing and the signed documents submitted in connection with the plea is then conducted to determine whether the Judge fully complied with the requirements of Rule 11.

This quote from a recent case demonstrates the importance of the transcript of the plea:

The transcript of the providency hearing convincingly demonstrates that the court adhered to the requirements of Crim. P. 11 in accepting the defendant’s guilty pleas and that those pleas were entered in accordance with due process of law. Insofar as the defendant’s constitutional challenge is based on his asserted misunderstanding of the elements of the crimes to which he pled, the record shows that the court explained the elements of those offenses to the defendant, that the defendant acknowledged his understanding of the charges, that he further understood that he was waiving his right to assert the affirmative defense of self-defense by entering pleas of guilty, and that he was indeed admitting his guilt to both assault in the second degree and a crime of violence.

The record further shows that the court told the defendant that he was facing a mandatory sentence of four to eight years to the department of corrections. During the providency hearing the defendant expressly acknowledged his understanding of the penalty. We find nothing in the record before us to undermine the constitutional validity of the defendant’s pleas.”

Colorado Caselaw Explains The Process:

In Maes v. People, 155 Colo. 570, 574-75, 396 P.2d 457, 459 (1964) the Colorado Supreme Court set forth the standards applicable to a motion to withdraw a guilty plea:

One accused of crime may not, as a matter of right, have his plea of guilty withdrawn or changed. An application for the withdrawal or change of such plea is addressed to the discretion of the trial court …

To warrant the exercise of discretion favorable to the defendant concerning a change of plea, there must be some showing that justice will be subverted by a denial thereof, as where a defendant may have been surprised or influenced into a plea of guilty when he had a defense; where a plea of guilty was entered by mistake or under misconception of the charge; where such plea was entered through fear, fraud or official misrepresentation; or where it was made involuntarily for some reason.

Colorado Law: Changing One’s Mind Does Not Meet The Standard

Justice is not subverted by the denial of defendant’s motion to withdraw his plea where the record indicates that a defendant has simply changed his mind about the disposition to which he had agreed. People v. DiGuglielmo, 33 P.3d 1248, 1250 (Colo. App. 2001).

Burden of Proof BEFORE SENTENCING OCCURS – “Fair and Just Reason”

A guilty plea should not be withdrawn at the instance of a defendant unless he carries his burden of demonstrating that a ‘fair and just reason’ exists to justify withdrawal. ABA Standard Relating to Pleas of Guilty§ 2.l(b).”

Burden of Proof AFTER SENTENCING OCCURS

If you have entered your guilty plea and you have been sentenced for your conviction, you will have to move to withdraw your guilty plea in post conviction proceedings, which will take place in the same court in which you entered your guilty plea.

Time Bars To Motion To Withdraw Pleas In Colorado

Colorado Revised Statutes §16-5-402(1) provides that a person who has been convicted under a criminal statute in Colorado or another state may collaterally attack the validity of that conviction only if such attack is brought within a specified time period or completion of the direct appeal process for that conviction, unless one of the exceptions listed in §16-5-402(2), C.R.S. are applicable.  The specified time periods are as follows:

All class 1 felonies:             No limit 

All other felonies:               Three years

Misdemeanors:                   Eighteen months

Petty offenses:                   Six months

The statutory time period commences on the date that you were sentenced, or the date that the mandate issued if you appealed your conviction or sentence.

If you miss this deadline – then you are limited to the following grounds under Rule 35C to challenge your Plea

To initiate postconviction proceedings, you will have to file a petition for postconviction relief pursuant to Crim. P. 35(c).  The judge must hold an evidentiary hearing if the claims in your petition, if true, would entitle you to withdraw your guilty plea.

1)  The court entering judgment of conviction did not have jurisdiction over the subject matter of the alleged offense;

(2) The court entering judgment of conviction did not have jurisdiction over the person of the Defendant;

(3) The failure to seek relief within the applicable time period was caused by an adjudication of incompetence or by commitment of the Defendant to an institution for treatment as a mentally ill person;

or

(4) The failure to seek relief within the applicable time period was the result of circumstances amounting to justifiable excuse or excusable neglect.

The So Called “Successive Petition Bar”

Another impediment to a post conviction ( after sentencing ) attempt to withdraw the guilty plea is the successive petition bar.

This hurdle means that if this issue was raised on appeal or could have been raised at that time – (claim for withdrawing your guilty plea in a prior appeal or other post conviction proceeding) you cannot raise it again.  

What If You Are Successful In Withdrawing From Your Plea Agreement?

This is not a simple consideration.  If you are successful in withdrawing your plea – the original charges – and the original consequences are reinstated.  These consequences – a trial and a verdict on the original charges – may actually be a much worse result than the original plea agreement.

Bad Advice From Your Lawyer – NOT Grounds For Withdrawing Your Plea In Most Cases

If a defendant receives advice, either from his lawyer or the Judge, that is different from the information contained in the written plea documents, the defendant must request a clarification from the court when given the opportunity to do so, this situation WILL NOT be a sound basis for postconviction relief.

Innocence is NOT – Without More – Grounds To Allow A Withdrawal Of A Guilty Plea

A claim of innocence is not, by itself, reason to allow a defendant to withdraw his plea. People v. Valdez, 928 P.2d 1387, 1392 (Colo. App. 1996).

An Ineffective Lawyer – Must Be Very Very Incompetent To Provide A Basis For Plea Withdrawal

To establish a claim of ineffectiveness of counsel, a defendant must show that:

(1) counsel’s performance was outside the wide range of professionally competent assistance;

and

(2) the defendant was prejudiced by counsel’s errors. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984); People v. Cole, 775 P.2d

The Strickland test applies in the context of a guilty plea.

It is a very difficult standard to meet.

Colorado Domestic Violence Lawyer