4.6 Entering a Guilty Plea

• Library: Trial of Capital Murder Cases in Virginia (Virginia CLE) (2019 Ed.)

4.6 ENTERING A GUILTY PLEA

A valid plea of guilty waives many important constitutional rights, such as:

1.	The privilege against self-incrimination; 207
2.	The right to trial by jury;
3.	The right to confront witnesses;
4.	The right to demand that the prosecution prove its case beyond a reasonable doubt; and
5.	The right to object to illegally obtained evidence, such as the fruits of an illegal search or an illegally obtained confession. 208

In essence, the defendant's plea of guilty reduces his grounds for appeal or collateral attack to issues of jurisdiction, ²⁰⁹ the power of the government to constitutionally prosecute the case, ²¹⁰ the voluntariness of his guilty plea, ²¹¹ and ineffective assistance of counsel. ²¹²

[Page 330]

The Fourth Circuit recently "untangled the relationship" between the voluntariness of a guilty plea and a denial of a request for substitute counsel. The court held that "a constitutionally compelled finding of involuntariness would immediately follow from the underlying Sixth Amendment violation; . . . [thus] a distinct voluntariness inquiry is not necessary. . . ." Inversely, if there is no Sixth Amendment violation, "it is difficult to imagine that a conflict with counsel would so taint [the] guilty plea as to make it involuntary." ²¹³

Because important constitutional rights are waived by a plea of guilty, the plea must be made voluntarily and knowingly. ²¹⁴ The accused's awareness of the constitutional rights he waives and his understanding of the nature of the charge and the consequences of his plea must appear on the record. ²¹⁵ "The constitutional requirement is satisfied when the trial court informs the accused of the nature of the charges against him, ²¹⁶ of his right to be counseled regarding his plea, and of the range of allowable punishment attendant upon the entry of a guilty plea." ²¹⁷

"Where a defendant is represented by competent counsel, the court usually may rely on that counsel's assurance that the defendant has been properly informed of the nature and elements of the charge to which he is pleading guilty." ²¹⁸ However, counsel's admission of a client's guilt over the

[Page 331]

client's express objection is structural error, for it denies the defendant's right to make a fundamental choice about his own defense. As structural error, a new trial is required without any need to show prejudice, and the error is not subject to harmless-error review. ²¹⁹

The Rules of the Supreme Court of Virginia suggest questions to be put by the trial court to an accused who pleads guilty. ²²⁰ These questions (i) advise the accused of the nature of the charge and the possible punishment, ²²¹ (ii) inquire as to any pressures brought upon the accused, (iii) ascertain the existence and nature of any plea bargain, ²²² and (iv) attempt to ensure that the plea of guilty is a voluntary and knowing decision of the accused. ²²³ "Absent clear and convincing evidence to the contrary, [the defendant] is bound by the representations he made during the plea colloquy." ²²⁴

[Page 332]

"A defendant's solemn declarations in open court affirming [a guilty plea agreement] carry a strong presumption of verity." However, "no procedural device for the taking of guilty pleas is so perfect in design and exercise as to warrant a per se rule rendering it 'uniformly invulnerable to subsequent challenge.'" ²²⁵

The entry of a plea of guilty or nolo contendere cannot be used as the basis for denying appointment of counsel. "The Due Process and Equal Protection Clauses require the appointment of counsel for defendants, convicted on their pleas, who seek access to first-tier review" in a court of appeals. ²²⁶

The trial court must accept a guilty plea knowingly and voluntarily tendered at any point before a verdict is returned by the jury. ²²⁷

[A] defendant may plead guilty at any time prior to the return of the jury's verdict concluding the guilt phase of a bifurcated trial. However, following publication of a guilty verdict and its acceptance by the trial court, a plea of guilty is untimely and may not upset the procedural course of a bifurcated trial. ²²⁸

Pleading guilty to a first-degree murder indictment does not preclude the simultaneous prosecution of a capital murder indictment involving the same transaction. ²²⁹

Mitchell v. United States²³⁰ held that entry of a guilty plea is not a waiver of the Fifth Amendment privilege against self-incrimination for sentencing purposes, nor may a sentencing court draw an adverse inference from the defendant's silence at sentencing. The Court expressed no opinion on the separate question of "whether silence bears upon the determination of a lack of remorse, or upon acceptance of responsibility. . . ." However, Smith v. Commonwealth²³¹ noted that "a trial court may consider a defendant's lack

[Page 333]

of remorse at sentencing, even when the defendant has chosen to enter an Alford plea." Lawlor v. Commonwealth²³² stated that "[w]hile it is proper for a court to consider a defendant's 'present tense refusal to accept responsibility or show remorse,' . . . [a] defendant must not be penalized at sentencing for having mounted a legal defense to the charge against him." However, at least in dicta, United States v. Runyon²³³ suggested that "penalizing a capital defendant for failure to articulate remorse burdens his Fifth Amendment privilege against self-incrimination and . . . the Fifth Amendment may well prohibit considering a defendant's silence regarding the non-statutory aggravating factor of lack of remorse."

Although evidence obtained in violation of the Sixth Amendment right to counsel is inadmissible at sentencing proceedings, ²³⁴ "a defendant who pleads guilty unconditionally while represented by counsel may not assert independent claims relating to events occurring prior to the entry of the guilty plea." Thus, a statement obtained in violation of the Sixth Amendment from a defendant who subsequently pleads guilty could be used at sentencing. ²³⁵

A motion to withdraw a guilty plea before sentence has been imposed "should be granted even if the guilty plea was merely entered 'inadvisedly' when the evidence supporting the motion shows that there is a reasonable defense to be presented to the judge or jury trying the case." ²³⁶ The issue is not whether a court thinks a jury or other factfinder would necessarily accept the defense, but rather whether the proffered defense is one that the law would recognize as such if the factfinder found credible the facts supporting it." ²³⁷

[Page 334]

Cobbins v. Commonwealth. ²³⁸ held that the standard for withdrawing a guilty plea "requires the defendant (i) to establish a good-faith basis for making the guilty plea and later seeking to withdraw it, and (ii) to proffer evidence of a reasonable basis for contesting guilt." The Virginia Supreme Court explained further that a timely motion to withdraw a guilty plea should be granted when the court...