When facing criminal charges, the defendant has many difficult decisions to make. Probably the most important decision-- and one that can only be made by the defendant personally-- is whether to enter a guilty plea, or to proceed to trial. Although it is not easy to do so, if you have entered a guilty plea, and you now believe it was a big mistake, there may be hope. It may be possible to file a motion to withdraw the guilty plea.
If you intend to file a motion to withdraw your guilty plea, the timing of the motion is an extremely important consideration.
Where the motion is filed prior to sentencing, the law requires the judge the grant the motion "for any just reason." This certainly does not mean that the defendant will be permitted to withdraw his guilty plea simply because he changed his mind, but any just reason is a broad standard. Some examples a "just reason" are that the defendant discovered new evidence, the defendant did not actually understand the charge to which he was pleading or he did not understand the plea agreement, or that defense counsel was ineffective.
On the other hand, where the motion is brought after sentencing, the motion will be granted only where the defendant demonstrates that a manifest injustice will occur unless the plea is withdrawn. Some examples of a "manifest injustice" is where the defendant produces evidence that conclusively proves that he is actually innocent (e.g. DNA), or where the defendant demonstrates that he has been denied a constitutional right, such as the Sixth Amendment right to counsel, or his due process rights.
There are also two different procedures for filing a motion to withdraw a guilty plea.
Under the so-called "Bangert" procedure, the defendant must demonstrate that there is a flaw in the court's guilty plea colloquy. Before accepting a guilty plea, the judge must explain to the defendant, on the record, the nature of the offense (i.e. the "elements" of the offense), the maximum penalty, that the court is not party to any plea agreement, and the judge must be satisfied that there is a factual basis for the plea. Most judges provide much more information. Under the Bangert procedure, the defendant's motion must allege that, during the court's plea colloquy, the judge failed to give the defendant certain required information, or that the information given was inaccurate, and that the defendant did not have an independent understanding of the ommitted or inaccurate information.
The second procedure is called the "Nelson/Bentley" procedure. Here, the plea colloquy is usually accurate, but the defendant alleges that there are facts outside the record of the plea hearing that, if true, would render the plea invalid. Some common examples of such things are that the defendant attorney was ineffective, or there is newly discovered evidence.
There is also a third, somewhat rare, situation where the court may be obliged to permit a defendant to withdraw a guilty plea. This is where, at the plea hearing, the judge failed to warn the defendant that a conviction for a crime may have immigration consequeces, and, at the time the motion to withdraw the plea is filed, the defendant is subject to immigration consequences (removal or denial of admission to the country).
Thus, if you are facing criminal charges and you are considering a guilty plea, the best strategy is to think carefully about it before do so. Unless there is some defect in the plea hearing, you will not be allowed to withdraw the plea once it is entered.
__________________________________ Schiro & Zarzynski Personal Injury Attorneys Milwaukee, WI 53203 414.224.0825
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Milwaukee criminal defense attorney Jeffrey W. Jensen, of the Law Offices of Jeffrey W. Jensen, a Milwaukee law firm with offices located at 735 W. Wisconsin Avenue, Twelfth Floor, Milwaukee, Wisconsin, has represented persons throughout the State of Wisconsin. If you will face felony charges in either state court or in federal court you should call 414.224.9484. Attorney Jensen regularly appears in Milwaukee County (Milwaukee criminal defense lawyer), Waukesha County (Waukesha criminal defense lawyer, Brookfield criminal defense lawyer), Washington County (West Bend and Germantown criminal defense lawyer), Racine County (Racine criminal defense lawyer), Kenosha County (Kenosha criminal defense lawyer), Brown County (Green Bay criminal defense lawyer), Fond du Lac County (Fond du Lac criminal defense lawyer), and Winnebago County (Oshkosh criminal defense lawyer)
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