Over the last several years the Virginia Courts Appellate have been dealing with a phenomenon under Virginia law wherein the defendant can plead guilty and then later attempt to withdraw her plea. This is all possible because of Virginia Code § 19.2-296:
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.
The problem is that the first sentence sets no standard for the withdrawal of a guilty plea before a sentence is imposed. As you might suppose, this has led to all sorts of gamesmanship. The day of trial arrives and the defendant sees that the two witnesses from Tucson have flown in and are ready to testify against him. Therefore, he pleads guilty. A month later, well before his sentencing hearing he files a motion to withdraw his guilty plea knowing that it will be nearly impossible for the witnesses to be able to make that trip again. Or he learns that a witness moved to Tampa Bay and files the motion. or . . . or . . . or . . .
Actually, the thing that tends to trigger most of the motions to withdraw a guilty plea seems to be when they get their presentence report and realize how stiff a sentence they are facing. No matter how brutally honest their defense attorney was with them the defendants seem to have unrealistic hopes until they see the numbers actually printed on an official piece of paper. Then they want to go back and try their luck with a jury all of the sudden.
Lacking a standard from the statute, the appellate courts have had to develop their own and it looks a little something like this (portion of a brief I wrote recently):
The Virginian appellate courts have given extensive treatment to the withdrawal of guilty pleas in the last several years. Bottoms v. Commonwealth, 281 Va. 23 (2011), Williams v. Commonwealth, 59 Va.App. 238 (2011), Booker v. Commonwealth, 61 Va.App. 323 (2012), Pritchett v. Commonwealth, 61 Va. App. 777 (2013), Ramsey v. Commonwealth, 65 Va. App. 593 (2015), Small v. Commonwealth, 292 Va. 292 (2016), & Spencer v. Commonwealth, 68 Va. App. 183 (2017). From these cases, the appellate courts have given us thorough guidance regarding the withdrawal of guilty pleas:
(A) The probability of a greater sentence than the defendant anticipated is not an appropriate ground for a guilty plea to be withdrawn. Williams, Pritchett, & Ramsey.
(B) Prejudice to the Commonwealth must be considered in determining whether to grant a motion to withdraw a guilty plea. Small, Spencer, & Booker.
(C) The defendant must offer a defense that if presented to a jury would be substantive and reasonable not dilatory or formal or he must show duress, coercion, or undue influence. Williams.
(1) This defense must be shown by testimony or affidavit; a mere assertion is not adequate. Id. & Spencer.
(2) Any duress alleged must be greater than that in a normal criminal prosecution. Booker.
(3) Defenses which are not merely dilatory or formal include (a) self-defense, (b) alibi, (c) insanity, or a (d) defense based on a proffer of specific evidence that, if accepted by the fact finder, would defeat the prosecution’s case. Booker.
(4) Defenses which have been rejected:
(a) Challenge to victim or witness’ credibility. Williams & Ramsey.
(b) Claim that prosecution must prove its case. Booker.
(c) Evidence is circumstantial. Id.
(d) Duress normal to a criminal trial. Id.
(e) Fact that a juror might find for the defendant. Id.
Most defendants want to argue the rejected defense in (C)(4) and I think the majority I have faced fall under (a) thru (c). I've only seen one of these motions succeed and that was because the prosecution was agreeable to the withdrawal ("Sure we'll let you withdraw your guilty plea on felony snipe hunting for which we have video of you in the act and a confession in your own handwriting. When do you want your jury trial and jury sentencing?"). Still, they continue to roll in.
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