The Defendant’s Absolute Right to Plead or Not Plead Guilty

In Colorado – as in most states – the decision to take a plea agreement or to go to trial can ONLY be made by the accused with the advice of his or her attorney. While a criminal defense lawyer has the right to make decisions about tactics and strategy in defending a case – the attorney does NOT make the ultimate decision of guilt or innocence.

In Colorado – the law is clear – the defense counsel has the broad authority to determine what strategy to employ in the defense of a case. However, a few decisions involve a fundamental constitutional right that is reserved to a defendant personally.

According to the Colorado Courts of Appeal – the decision to enter a guilty plea is among the few “fundamental choices that must be decided by the defendant alone.” The other absolute decisions left to the Defendant are whether to testify, waive jury trial, or take an appeal.

The established legal process for entering guilty pleas ensures that they are products of defendants’ choices.

For example, ethical and procedural safeguards protect defendants from being forced to plead guilty against their will. 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.”

….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,

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 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.”

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.”

A Defendant’s lawyer MUST honor a defendant’s request to move to withdraw a guilty plea.

The Colorado Courts have held that the decision to ask a court to withdraw a guilty plea is the defendant’s. The defense lawyer is obligated to advise the defendant about the consequences of such a decision, but the defendant should “have the final word on whether to seek withdrawal.”

The one exception is where the Colorado Supreme Court held that defense counsel, when permitted by the court, may raise the defense of not guilty by reason of insanity over the defendant’s objection.

Defendants who have entered guilty pleas do not have an absolute right to withdraw them.

Although Colorado Rule of Criminal Procedure Rule 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.

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

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

….circumstances justifying withdrawal of guilty plea may exist where “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.

Assuming that a defendant can overcome these hurdles, he faces significant risks if the court allows him to withdraw his guilty pleas. There may be significant risks that must be considered before making a decision to withdraw from a plea bargain.

For example, the prosecutor, if defendant is allowed to withdraw his guilty pleas, can “up” the charges if the evidence warrants this – refuse to further plea bargain and take the case to trial – or in certain cases the prosecution can add or reinstate the habitual criminal charges that had been dismissed as part of the plea agreement.