Can a plea deal be reversed? If so, how?

As a general rule, once you plead guilty to a criminal charge, the terms of the agreement are binding and you cannot back out of the plea deal just because you change your mind.

However, there are three situations where a plea bargain can be reversed in criminal cases. These are when:

1. you successfully bring a motion to withdraw a plea,
2. the prosecutor backs out of the deal, or
3. the judge nullifies the bargain because you violated a term of the plea agreement.

California law recognizes these three instances of reversal. As to a motion to withdraw, Penal Code 1018 PC is the state statute that allows you to withdraw your plea of guilty or no contest upon a showing of good cause.

Some of the top reasons why you might enter into a plea bargain are:

1. you avoid the uncertainty of a jury trial,
2. the prosecutor agrees to a reduction of charges (for example, perhaps a felony charge gets reduced to a misdemeanor), and
3. the deal results in a favorable sentence.

California law recognizes three instances of plea deal reversal.

What is a motion to withdraw a plea?

A motion to withdraw a plea is when you ask the court to reverse a plea bargain.

According to the Federal Rules of Criminal Procedure, you may withdraw a plea of guilty or nolo contendere (upon bringing a motion) when:

1. the court has not yet accepted your guilty plea, or
2. after the court accepts your plea, but before it imposes a sentence. 1

As to this second condition, note that you can only withdraw a plea if you can show a fair and just reason for requesting the withdrawal. 2

Most states in the United States have laws that resemble the Federal Rule in some form.

As to a “fair and just reason” for a plea withdrawal, a court is likely to make this finding if:

1. allowing a criminal conviction or a certain plea-bargaining arrangement would result in a clear injustice,
2. you entered a plea, or conducted plea negotiations, without a criminal defense lawyer,
3. the trial judge believes you have a good case to present at a jury trial,
4. new evidence arises that shows your innocence,
5. upholding your plea would violate your constitutional rights (for example, your right to due process),
6. your criminal defense lawyer was incompetent, or you successfully assert ineffective assistance of counsel, or
7. you did not understand the consequences of a plea of guilty. 3

You or your defense attorney can raise a motion to withdraw in either state court or federal court (depending on whether your criminal charges are federal or state in nature).

When can a prosecutor back out of a deal?

If a prosecutor gets “buyer’s remorse” and wants out of a deal, most states criminal laws say that they can back out of a plea if it is done prior to you entering the plea in court, and the court entering judgment.

Note, though, that certain ethical guidelines set forth by the American Bar Association (ABA) disfavor prosecutors from backing out of plea deals. In particular, ABA 3-4.2 states that it is unprofessional for a prosecutor to:

• back out of a plea agreement, and
• do so after they offer it to you and you give some indication that it will be accepted. 4

Most states, though, do not follow the above guideline.

If you enter into a plea, but later violate a term of the agreement, then the judge has the authority to reverse the bargain.

What happens if I violate a term of the plea deal?

If you enter into a plea, but later violate a term of the agreement, then the judge may have authority to reverse the bargain.

When a plea agreement is made, it will outline the consequences for you violating its terms. Depending on the case, violating a plea bargain agreement can result in:

• a mere slap on the wrist,
• a reversal of the plea,
• fines,
• additional sentencing terms, or
• incarceration.

If the plea bargain included a suspended jail sentence, the judge has the discretion to impose that sentence as punishment for failure to carry out the terms of the plea bargain.

Note, though, that if you had a good excuse for violating the terms of the plea bargain, the judge may give you a pass.

What is the law in California?

California’s criminal laws and criminal justice system recognize the three instances of reversal discussed above.

With regards to a motion to withdraw, Penal Code 1018 allows you to withdraw your guilty or no contest pleas upon a showing of good cause. 5

Examples of good cause include:

1. you not having a criminal defense attorney or defense counsel at the time the plea was made,
2. you not being aware of the consequences of the deal, 6
3. you getting coerced into a plea bargain, 7
4. a bargain violating your rights, and
5. your defense counsel being incompetent. 8

Note that as to this last showing, if you wish to raise a claim of ineffective assistance of counsel, you should get help from a new law firm or new law office.

In California, you normally have to bring a motion to withdraw either:

1. before you are sentenced, or
2. within six months of your probationary sentence.

Why would I enter into a plea deal?

Some of the most common reasons as to why it is advantageous to agree to a plea are:

1. you avoid the expense and uncertainty of a jury trial,
2. a plea may involve a reduction in charges,
3. a plea deal ensures you avoid the maximum sentence for the crime(s) charged, and
4. a plea may help avoid harsher penalties if you have any prior convictions.

In addition, you retain an element of feeling “in control” by taking a plea.

What are the disadvantages of a plea bargain?

The main reason why a plea is not favorable at times is that it means you waive your right to a trial or a new trial.

In sum, taking a plea requires you to acknowledge some responsibility for a crime and perhaps even plead guilty to a crime. By taking the plea, you lose the possibility of a “not guilty” verdict at trial that could exonerate you completely.

Additional resources

For more in-depth information about plea bargains, refer to these scholarly articles:

• The Prisoners’ (Plea Bargain) Dilemma – Journal of Legal Analysis.
• Fairness and the Willingness to Accept Plea Bargain Offers – Journal of Empirical Legal Studies.
• The Plea-Bargain Crisis for Noncitizens in Misdemeanor Court – Immigration and Nationality Law Review.
• Felony Plea Bargaining in Six Colorado Judicial Districts: A Limited Inquiry into the Nature of the Process – Denver University Law Review.
• Colorado Counsel Conundrum: Plea Bargaining, Misdemeanors, and the Right to Counsel – Denver University Law Review.

Legal References:

1. Fed.R.Crim.Pro 11d.
2. See same.
3. See, for example, Santobello v. New York, 404 U.S. 257 (1971).
4. ABA Standard 3-4.2 – Decisions to Charge Are the Prosecutor’s.
5. California Penal Code 1018 PC.
6. See, for example, People v. Superior Court (Giron) (1974) 11 Cal.3d 793.
7. See, for example, People v. Sandoval (2006) 140 Cal.App.4th 111.
8. See, for example, People v. Smith (1993) 6 Cal.4th 684.