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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.”

Colorado Rule of Criminal Procedure Rule 11

….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.

Colorado Motion to Withdraw From 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.

The Rule is This

“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.

Client Reviews
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"I found myself in criminal trouble, that I wasn't guilty of and thanks to Mr. Steinberg's dedication and hard work, right before we we're looking at having to continue on to trial level Mr. Steinberg was able to use his vast knowledge of the law and his many respected years in the system to find a way to show my innocence. After a very unsure and somewhat difficult time for me, this very skilled and knowledgeable attorney was able to find the right path to take to reach a dismissal in my case. For that I can't tell you how much I appreciate his representation and his excellent understanding and helpful personality. He's a great man and an even better attorney but don't misunderstand him, he is an attorney not a therapist. Thanks H." Josh
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"Working with Michael Steinberg was a wonderful experience. Truly people need to know that he is a expert in what he does. His personality is compassionate, intellectual, and down to earth. I glean that Michael is fun to be around. In the time I worked with him, it was a pleasure to be around him. As for my case, the outcome was amazing and couldn’t be better. He has made my life more manageable because of the outcome of my case. I’ve worked with other lawyers in the Denver area. He is superior to them all. If you’re in need of a lawyer and you come across Mr. Steinberg look no further he’s going to be the one you need. Thank you again Michael." Renee Taylor
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"Being someone who had never been in trouble choosing the law office of Michael Steinberg was absolutely the most amazing decision I've made. The way Micheal handles these situations is absolutely amazing! He gives thorough explanation on what your options actually are and makes sure you understand them from top to bottom. He speaks to you like a human and not a dollar bill sign. I'm out in CO alone my entire family is out of state so not only was he my lawyer but he was my support system. He new how scared I was and he was kind and comforting but straight and to the point when he needed to be. I'm very grateful to him. And I thank him through and through. You would be making a huge mistake not to choose this law firm." Bryonda Copiskey