How Does a Colorado Lawyer Determine Whether to Recommend A Plea Deal Or to Take A Case to Trial?

By H. Michael Steinberg, Colorado Criminal Defense Attorney · October 16, 2026

Every person charged with a crime eventually faces the same question: accept the prosecutor’s offer, or make the State prove its case at trial? In most cases it is the most consequential decision of the entire prosecution, and no formula answers it. There is, however, a disciplined way to think it through.

This article explains how an experienced Colorado criminal defense lawyer weighs a plea deal against a trial, what the law says about who makes the final call, and the questions you should ask before you decide. H. Michael Steinberg has handled these decisions for more than 40 years, including 13 years as a career prosecutor in Arapahoe and Douglas Counties, so he has sat on both sides of the plea table.

The Short Answer

A lawyer generally recommends a plea when the offer is better than the realistic risk of losing at trial. A lawyer generally recommends trial when the State’s case is weak, a strong defense exists, or the offer is not worth accepting.

The recommendation turns on six factors: the evidence, available defenses, the offer compared with sentencing exposure, collateral consequences, your personal goals, and timing. Under Colorado Rule of Professional Conduct 1.2(a), the final decision to plead is always yours.

Who Actually Decides: You Do

Your lawyer advises. You decide. In a criminal case, Colorado Rule of Professional Conduct 1.2(a) requires the lawyer to abide by the client’s decision, after consultation, on what plea to enter, whether to waive a jury trial, and whether the client will testify. A lawyer who pressures a client into a plea, or who refuses to convey an offer, has failed at the basic job.

That job has constitutional weight. In Missouri v. Frye, 566 U.S. 134 (2012), the U.S. Supreme Court held that the Sixth Amendment right to effective counsel extends to plea bargaining and that defense counsel generally must communicate formal prosecution offers to the client. In its companion case, Lafler v. Cooper, 566 U.S. 156 (2012), the Court held that deficient advice leading a defendant to reject a favorable plea can also be ineffective assistance. Colorado’s duty to keep clients reasonably informed appears in Rule 1.4.

A good recommendation is not a prediction that you will win. It is an honest comparison of what you gain and what you risk on each path.

Why This Decision Matters So Much

Guilty pleas dominate American criminal justice. The Supreme Court observed in Frye that 97 percent of federal convictions and 94 percent of state convictions result from guilty pleas, and it described plea negotiation as almost always the critical point for a defendant.

That reality cuts two ways. Plea bargaining is a legitimate and often beneficial process, and a good agreement can serve both sides. But the fact that most cases end in a plea does not mean yours should. Statistics describe the system. Your recommendation should describe your case.

How Plea Bargaining Works in Colorado

Colorado authorizes plea discussions by both rule and statute. Crim. P. 11(f) and C.R.S. 16-7-301 allow a district attorney to engage in plea discussions where doing so serves the effective administration of justice, ordinarily through defense counsel. Both also say defendants in similar situations should be afforded similar opportunities for plea agreements. The statute lists the kinds of concessions a prosecutor may agree to, including favorable sentence recommendations.

The judge plays a separate role. Under C.R.S. 16-7-302, the trial judge may not take part in plea negotiations and must exercise independent judgment about whether to grant the charge and sentence concessions the parties propose. If the judge will not honor the concessions, the defendant is told and may either affirm or withdraw the plea. And under C.R.S. 16-7-303, the fact that plea discussions occurred generally cannot be used as evidence, except in proceedings that result from a plea that is not withdrawn.

The Six Factors Behind a Recommendation

No single factor decides the question. An experienced lawyer weighs all six together, and the weighing changes as the case develops.

1. The Strength of the Evidence

The first question is what the State can actually prove. That means reviewing the police reports, body-camera and surveillance video, lab results, digital evidence, and witness statements, then looking for weak links: shaky identifications, credibility problems, gaps in the chain of custody, or conclusions that go beyond the facts. A case that looks strong on a charging document can look very different after full discovery, which is why a responsible lawyer rarely gives a firm recommendation before reviewing the evidence.

2. Legal Defenses and Pretrial Motions

Even strong evidence can be excluded or explained. A successful motion to suppress, based on an unlawful stop, an unconstitutional search, or a statement taken in violation of Miranda, can gut a prosecution. Substantive defenses such as self-defense, lack of intent, consent, or an alternate suspect can raise reasonable doubt. Many of the best plea offers arrive only after the prosecution has seen the defense take these issues seriously, and a denied suppression motion changes the calculus in the other direction.

3. The Offer Compared With Your Sentencing Exposure

A plea only makes sense measured against the alternative. Colorado classifies felonies by level, and C.R.S. 18-1.3-401 sets presumptive sentencing ranges for each class. The Colorado felony sentencing guide summarizes them. For felonies committed on or after July 1, 2018, the standard prison ranges are:

These are the standard ranges. Crimes of violence, offenses presenting an extraordinary risk of harm, drug felony levels, habitual-offender provisions, and other special sentencing rules can change them, sometimes dramatically. Class 1 felonies carry life imprisonment. The point is not the numbers themselves but the gap: a plea that reduces a Class 3 felony to a Class 5, or converts prison exposure into probation or a deferred judgment, can be worth far more than it first appears.

Defense lawyers also account for what the National Association of Criminal Defense Lawyers calls the trial penalty: the tendency for sentences after a trial conviction to exceed what was offered in a plea. A lawyer must price that risk honestly. A lawyer must also be willing to recommend trial when the offer does not justify surrendering the right to make the State prove its case.

4. Collateral Consequences

The sentence is only part of the price. A conviction can trigger consequences that last long after probation ends:

• Immigration. In Padilla v. Kentucky, 559 U.S. 356 (2010), the Supreme Court held that counsel must advise a noncitizen client whether a plea carries a risk of deportation, and must give correct advice when the consequence is clear.
• Firearm rights. Federal law, including 18 U.S.C. 922(g), prohibits firearm possession by people convicted of felonies and by people convicted of a misdemeanor crime of domestic violence. A deal that avoids jail can still end gun ownership permanently.
• Careers and licenses. Professional licensing boards, security clearances, and employers may treat convictions and even certain plea labels very differently.
• Registration and record relief. Some convictions carry registration duties. For drug offenses under Article 18 of Title 18, C.R.S. 16-7-301 bars a plea agreement from requiring you to waive the right to petition to seal your conviction records.

This is why the charge you plead to often matters more than the sentence attached to it. The details differ sharply in domestic violence, sex crime, drug, theft, assault, and DUI cases, and each deserves a lawyer who knows the specific fallout.

5. Your Goals, Circumstances, and Risk Tolerance

Two people with identical evidence can reasonably choose differently. One may need certainty to protect a family or a job. Another may be unwilling to be labeled guilty of something they say they did not do. Custody status matters too: a client sitting in jail faces real pressure to accept whatever resolves the case fastest, and a good lawyer makes sure that pressure is named and weighed rather than ignored. A lawyer cannot decide how much risk you should tolerate. A lawyer can make sure you understand it.

6. Timing and Procedure

Offers do not last forever. Frye itself involved a formal offer with a fixed expiration date. Prosecutors may withdraw or sharpen offers as trial approaches, new evidence emerges, or a motion is decided. Colorado’s speedy trial statute, C.R.S. 18-1-405, generally requires trial within six months of a not-guilty plea, subject to statutory exclusions and delays a defendant requests. Timing cuts both ways: waiting can expose weaknesses in the State’s case, or it can cost you a more favorable early offer. Judgment about when to push and when to settle is part of the craft.

When a Plea Deal Often Makes Sense

• The evidence is strong and the available defenses are thin.
• The offer meaningfully reduces exposure, such as a lower felony class, a misdemeanor, probation instead of prison, or a deferred judgment.
• The deal avoids a collateral consequence you cannot afford, such as deportation or a firearm ban.
• A conviction at trial would carry a lengthy mandatory or enhanced sentence.
• You value certainty and closure, and you understand exactly what you are giving up.

When Going to Trial Often Makes Sense

• The case depends on an unreliable witness, a questionable identification, or contested forensic evidence.
• Key evidence is likely to be suppressed, or a credible defense such as self-defense or an alternate suspect exists.
• The offer requires a conviction with devastating consequences in exchange for very little.
• You maintain your innocence, understand the risks, and want a jury to decide.
• The prosecution has overcharged and will not move to a fair resolution.

Note the word often. These lists are starting points, not rules. The right answer depends on the particular case, the particular prosecutor and judge, and the particular client.

The Middle Path: Deferred Judgments and Negotiated Outcomes

Plea or trial is not always a binary choice. Negotiated outcomes include reduced charges, dismissed counts, stipulated sentence caps, probation, and the deferred judgment. Under C.R.S. 18-1.3-102, a defendant pleads guilty but judgment and sentence are deferred for a set period while the defendant complies with conditions. On full compliance, the guilty plea is withdrawn and the charge is dismissed with prejudice. If the defendant breaches a condition, the court enters judgment and imposes sentence on the guilty plea. By signing the stipulation, the defendant also waives speedy trial rights. A deferred judgment can be an excellent result, but it is a serious commitment that needs to be followed to the letter, as in many probation violation cases.

After You Plead: Limited Second Chances

A guilty plea must be voluntary, knowing, and intelligent, as the Supreme Court explained in Brady v. United States, 397 U.S. 742 (1970). Once entered, however, it is hard to undo. Under Crim. P. 32(d), a motion to withdraw a guilty or no contest plea may be made only before sentence is imposed, and Colorado courts generally require a fair and just reason. After sentencing, relief is narrower and usually runs through Crim. P. 35 postconviction procedures.

The law also protects the bargain itself. In Santobello v. New York, 404 U.S. 257 (1971), the Supreme Court held that when a guilty plea rests on a prosecutor’s promise, the promise must be kept. Make sure every term of the deal is on the record.

How We Approach the Decision

After 13 years as a career prosecutor, H. Michael Steinberg knows how the State evaluates a case and what it needs to see before it improves an offer. That experience helps separate a best-available offer from a first offer. The approach is consistent: review everything the State has, investigate independently, challenge the evidence through motions where warranted, and negotiate hard while preparing the case for trial. Credible trial preparation is often what produces a better offer.

Once the picture is clear, the client gets a candid recommendation, the reasons behind it, and the risks on both sides. Then the decision belongs to the client, as the ethics rules require.

The best plea decisions are made by clients who understand exactly what they are accepting and exactly what they are risking.

Eight Questions to Ask Your Lawyer Before You Decide

1. What exactly would I plead to, and what sentence does the offer allow?
2. What is my realistic exposure if I go to trial and lose?
3. What are the weaknesses in the State’s evidence, and which motions could change the case?
4. How would a conviction affect my immigration status, firearm rights, license, or job?
5. Can the offer be improved, and what would it take?
6. When does the offer expire, and what happens to it if I wait?
7. Is the judge bound by the agreement, and what happens if the judge rejects it?
8. What would you do in my position, and why?

Frequently Asked Questions

Can I change my mind after accepting a plea deal in Colorado?

Before sentencing, you may move to withdraw a plea under Crim. P. 32(d), and courts generally look for a fair and just reason. After sentencing, options are much narrower. Treat a plea as a final decision, not a trial run.

Is a plea deal the same as admitting guilt?

A guilty plea is a formal admission and results in a conviction. Colorado also recognizes no contest (nolo contendere) pleas, which the court may accept under C.R.S. 16-7-301 and Crim. P. 11. Whether one is available, and how it affects other proceedings, depends on the case.

Will I get a harsher sentence if I go to trial?

You may. A conviction at trial exposes you to the full statutory range, while a plea often reduces the charge or caps the sentence. The National Association of Criminal Defense Lawyers has documented this trial penalty. But every case differs, and a lawyer should weigh that risk against the strength of the defense rather than assume the outcome.

Can the judge reject a plea agreement?

Yes. Under C.R.S. 16-7-302, the judge must exercise independent judgment on charge and sentence concessions. If the judge will not honor them, you are told and may affirm or withdraw your plea.

Does the prosecutor have to offer me a plea deal?

No. As the Supreme Court noted in Missouri v. Frye, a defendant has no right to be offered a plea. Under Colorado’s rule and statute, prosecutors may negotiate, and similarly situated defendants should have similar opportunities.

How long do I have to decide on an offer?

It depends on the offer. Some carry firm deadlines and some change as the case develops. Talk with your lawyer promptly, and do not negotiate directly with police or prosecutors without counsel.

Facing a Plea Decision? Talk to a Lawyer Before You Decide.

Attorney H. Michael Steinberg will review the evidence, explain your exposure, and give you a candid recommendation. Contact us for a free case consultation.

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Sources and Authorities

• Colorado Rule of Criminal Procedure 11 (Pleas)
• Colorado Rule of Criminal Procedure 32 (Sentence and Judgment)
• Colorado Rule of Criminal Procedure 35 (Postconviction)
• C.R.S. 16-7-301: Propriety of plea discussions and plea agreements
• C.R.S. 16-7-302: Responsibilities of the trial judge
• C.R.S. 16-7-303: Fact of discussion and agreement not admissible
• C.R.S. 18-1.3-102: Deferred sentencing of defendant
• C.R.S. 18-1.3-401: Felonies classified, presumptive penalties
• C.R.S. 18-1-405: Speedy trial
• Colorado Crime Classification Guide: felony sentencing tables
• Colorado Rule of Professional Conduct 1.2
• Colorado Rule of Professional Conduct 1.4
• Missouri v. Frye, 566 U.S. 134 (2012)
• Lafler v. Cooper, 566 U.S. 156 (2012)
• Padilla v. Kentucky, 559 U.S. 356 (2010)
• Brady v. United States, 397 U.S. 742 (1970)
• Santobello v. New York, 404 U.S. 257 (1971)
• 18 U.S.C. 922 (unlawful acts, firearms)
• NACDL: The Trial Penalty report

Disclaimer: This article is provided for general informational purposes and is not legal advice. Reading it does not create an attorney-client relationship. Every case is different, laws change, and past results do not guarantee a similar outcome. Please consult a licensed Colorado criminal defense attorney about your specific situation. Do not send confidential information through the website contact form.