40-d-2 Factors Making a Plea Not Voluntary, Knowing, or Intelligent
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40-D-2. Factors Making a Plea Not Voluntary, Knowing, or Intelligent
(a) Coercion
Your guilty plea must be entered voluntarily, which means that you were not threatened or forced by the court, the prosecutor, or your defense attorney.99 The judge will ask you about the facts of the crime. If your statement of the facts presents significant doubt as to whether you are actually guilty or not, the court is required to ask follow up questions before accepting the plea.100 This questioning is simply to ensure you entered the plea agreement on your own free will.101 If you later claim that you did not enter the plea voluntarily or you want to challenge the constitutionality of the plea, the judge will need to find ample evidence in the record that supports your contention.102
The court cannot coerce you into accepting a plea bargain by threatening to give you a more severe sentence if you decide to go to trial instead of entering a guilty plea.103 However, merely receiving a higher sentence after trial than was offered in plea negotiations is not in itself an indication that you were punished for exercising your right to a trial.104 Unless there is a large difference between your actual sentence and the plea offer made to you, or your sentence is excessive for the crime you were convicted of, your constitutional rights have not been violated.105 The court may inform you of the possible sentences you would receive if convicted on the charges at trial.106 The court is acting coercively if it indicated that you will receive the maximum sentence if you go to trial, but a significantly lighter sentence if you plead guilty.107 However, the Court requiring that you accept or decline a plea offer within a brief period of time is not considered coercive.108
Guilty pleas that are coerced by threats or deception by the prosecutor cannot meet the standard of knowing, voluntary, and intelligent agreement.109 However, the prosecutor does have the ability to control the charges against you, and in the course of plea negotiations, the prosecutor may increase the charges or seek additional charges if you do not plead guilty.110 As long as you have the choice to accept or reject the prosecutor's offer regardless of the offer's consequences, the offer does not have an element of coercion.111
It is not coercion for your defense attorney to encourage you to accept a favorable plea agreement as long as the record demonstrates the plea was made knowingly, intelligently, and voluntarily.112 However, a hearing may be required if there is evidence that your defense attorney engaged in coercive conduct and you made a motion to withdraw your plea.113
(b) Duress
Your guilty plea may not be voluntary if you entered the plea under circumstances of duress.114 Circumstances of duress include situations where you were threatened or otherwise forced to plead guilty. If you are claiming that you were under duress, your claim must be well supported by evidence in the record.115
Even if duress was only part of the reason for your plea, you must still be given the option to withdraw your plea.116 The situation causing duress must be severe enough to make your decision involuntary or unintelligent.117 Simply claiming to be frightened or upset at the time of your plea will not be severe enough to constitute duress. Further, fear of the death penalty is also not enough to render your guilty plea unconstitutional.118 The United States Supreme Court has found that a guilty plea encouraged by fear of the death penalty is not considered involuntary.119
(c) Not Understanding the Charges
If you do not know or understand the true nature of the charges against you, your plea cannot be voluntary and intelligent.120 In assessing whether you fully understand the charges, the court will attempt to determine that a factual relationship exists between the acts that you say you have committed and the crime to which you are pleading guilty.121 This is accomplished in the "plea allocution" or "plea colloquy," where the court will require you to admit the facts of your case that are the necessary elements of the crime with which you are charged.122 If your description of the case presents doubt that you are guilty of the charged crime, the court must conduct further inquiry to determine that you understand the charges to which you are pleading guilty.123 If you do not or will not admit a fact that is an element of the crime, the judge should not accept your guilty plea without further inquiry or clarification, unless it can easily be inferred from the facts.124
However, if you plead guilty to a lesser crime than the one you were charged with originally, the court is not required to match the facts of your case with the elements necessary for that charge.125 Additionally, if you plead guilty while asserting that you are innocent or do not recall the crime, the court may sentence you without requiring you to admit the facts making up the crime, as long as your plea is entered knowingly, voluntarily, and intelligently.126 If the court is aware of a possible defense given the facts of your case, the judge must inform you of it and determine that you knowingly waive the defense.127
While the court will attempt to ensure that you understand the charges through the plea discussion, it will consider all of the circumstances surrounding your plea. Failure to admit an element of the crime may not in itself raise a constitutional question if the court determines based on the circumstances that you understood the nature of the charges against you and that you voluntarily and intelligently pleaded guilty to the charges.128 Additionally, your defense counsel's explanation of the nature of the offense may be enough to guarantee that you understand the nature of the charges.129
(d) Not Understanding the Consequences of a Guilty Plea
In order to plead guilty, you must understand the rights you are giving up by doing so.130 In most states, the trial judge will inform you of your rights and ask you to acknowledge that you are waiving these rights. The judge is not required to recite any specific list of rights you are giving up before accepting a guilty plea, but must ensure that you were not coerced, that you know what you are doing, and that you generally understand the rights you give up by pleading guilty.131 If your defense counsel explains the effects of a guilty plea, that explanation may be enough to ensure your plea is knowledgeable and intelligent.132 In addition to the direct consequences of your guilty plea, if you are not a United States citizen, your defense counsel must inform you of the risk of deportation.133
However, the judge is only required to make sure you know the direct consequences of your plea, not the collateral consequences.134 A direct consequence "is one which has a definite, immediate and largely automatic effect on defendant's punishment."135 A collateral consequence is something that affects you in particular because of your personal characteristics, such as your immigration or parole status.136 Examples of collateral consequences are the "loss of the right to vote or travel abroad, loss of civil service employment, loss of a driver's license, loss of the right to possess firearms, or an undesirable discharge from the Armed Services."137
If the judge or your attorney fails to inform you of the collateral consequences of a conviction, it will not usually make your plea unknowing, involuntary, or unintelligent.138 However, one collateral consequence that your defense counsel must inform you about is the possibility of deportation.139 Depending on where you live, the trial court may not have to inform you of the risk of deportation, even if your defense counsel does.140
(e) Misrepresentation or Incorrect Information
If you plead guilty based on the judge's or prosecutor's misrepresentation of fact or false information that they provided, your plea was not voluntary and intelligent.141 In challenging a plea based on misrepresentation, you must show that you relied on the incorrect information when you entered your guilty plea, and that you would have pleaded not guilty and gone to trial if you had received the correct information.142 For example, if you received incorrect or misleading sentencing information and you would have pled "not guilty" if you had received the correct information, a guilty plea would not be voluntary, knowing, and intelligent.143
(f) Broken Promises
If you pleaded guilty because you were persuaded by a promise that was not kept or a misrepresentation by the prosecutor or the court, your plea was not voluntary and not intelligent, and it must either be removed or the promise must be honored.144 However, the court is not required to impose the sentence you agreed upon with the prosecutor. But if the court determines the sentence in the plea bargain agreement is not acceptable and should be increased, it must give you the option to withdraw the plea or accept the harsher sentence.145 Furthermore, if the court states on the record the sentence it expects to impose when it accepts the guilty plea, it must grant the sentence unless the pre-sentence report or facts that later become available show that the sentence would not be appropriate.146
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