Earlier this year, I published an article in the Camden County, NJ Barrister in which I argued for clarification of the standard for guilty plea withdrawals. The article focuses on New Jersey law, although the standard is similar in Pennsylvania. The article is reprinted in full below.
Textual Tension and the Retraction Trap
The NJ Supreme Court should clarify State v. Slater & the standard for guilty plea retraction
It’s an all too common scenario for defense counsel: after a series of discussions with your client and negotiations with the prosecutor, you reach a plea agreement. You reduce the agreement to writing using the standard five-page form, review each question on the form with your client, and place the plea on the record in open court. Then, sometime before sentencing – or maybe on the date of sentencing – your client has a change of heart. Your client now wants to go to trial, or maybe wants a better deal. What’s the standard for withdrawing a guilty plea? Must the client simply show a good faith reason for wanting to withdraw, or must he or she show something much more?
Plea withdrawals in New Jersey are controlled by the state Supreme Court’s opinion in State v. Slater, 198 N.J. 145 (2009). In Slater, two police officers wanted to question a man named Hass in connection with a string of burglaries. An informant told them that Hass, along with another man, Neider, might be found in a certain room at the Millville Motor Inn. The informant provided a description of the men and said that they likely had a small amount of cocaine with them in the room.
The officers went to the motel room, knocked on the door, and Slater answered. Slater did not fit the informant’s description, and he appeared to be alone in the room. The officers asked if they could come in, and Slater agreed to let them enter. Again with Slater’s permission, the officers checked the room for other people, found no one, but did see marijuana in a partially open drawer. The officers then arrested Slater, opened the drawer further, and found 15 grams of crack cocaine and a digital scale.
Slater was indicted and charged with three drug offenses. He moved to suppress the evidence, and after suppression was denied, he reached a plea agreement with the state. During his plea colloquy, Slater acknowledged on the record that he understood the terms of the plea; waived his right to a trial; had not been forced or threatened to enter the plea; had not been promised anything else regarding the agreement; and was not under the influence of drugs or alcohol. He then provided a factual basis for the plea in which he admitted that at the time of his arrest, he was in possession of a certain quantity of cocaine and was “going to sell or share some or a portion of that cocaine.” Id. at 152.
Twelve days later, Slater filed a pro se motion to withdraw his guilty plea. He attached a handwritten certification in which he stated that he “had no control over the drugs that was found in motel room [, and] therefore I should not be punished.” Id. Slater’s presentence report, dated two weeks after his pro se motion, said that Slater repeatedly told police that the motel room was rented by his brother-in-law, named Fowler, and that Slater was just visiting the room. The PSR further stated that Slater denied culpability for the offense, and that his sister’s boyfriend had brought him to the motel room “to chill.” Slater said that neither the cocaine nor marijuana belonged to him and that he wanted to retract his plea.
At sentencing, Slater told the trial court that he was only visiting the motel room and that the drugs were not his. He said he accepted the plea only because he had served so much time in jail that he thought he would be released soon after his plea. “And that’s the only reason I did it. ‘Cause I’m not guilty,” Slater said. Id. at 153. The trial court found that Slater had simply changed his mind about the plea and lacked a sufficient basis for withdrawal. The Appellate Division affirmed, agreeing that a “change of mind” provided no basis to withdraw a guilty plea.
The Supreme Court reversed, holding that Slater had asserted sufficient reasons to withdraw his plea. The Court first noted that guilty plea withdrawals are governed by the New Jersey Court Rules. Before sentencing, plea withdrawal applications are controlled by Rule 3:9-3(e), which provides that a trial court may grant a motion to withdraw “in the interests of justice.” Postsentencing motions to withdraw face a higher standard under Rule 3:21-1, which states that motions may be granted to correct a “manifest injustice.”
The Court stated that trial courts should exercise their discretion liberally to allow pre-sentencing plea withdrawals. The burden rests on the defendant “to present some plausible basis for his request, and his good faith in asserting a defense on the merits.” Id. at 156, quoting State v. Smullen, 118 N.J. 408, 416 (1990). The Court noted that while defendants must show more than a change of mind, the inquiry cannot end there, since all withdrawal motions by definition entail some change of mind.
At this point, we can see that Slater presented a plausible basis for his request, as well as a good faith defense on the merits: he would argue at trial that he was simply visiting the room, which was not registered to him, and he had no knowledge of what was in the room. Whether or not this is the strongest case for the defense, it certainly meets the plausible basis/good faith standard set out by the Court.
However, the Court did not stop with the plausible basis/good faith standard, but rather went on to establish four factors that trial courts should use to evaluate plea withdrawal motions: (1) Has the defendant asserted a colorable claim of innocence? (2) What are the nature and strength of the defendant’s reasons for withdrawal? (3) Was the plea entered as part of a plea bargain? and (4) Would withdrawal of the plea result in unfair prejudice to the State or unfair advantage to the accused?
The Court applied these factors to Slater’s case and held that he should be allowed to withdraw his plea. Despite the fact that Slater was the sole occupant of a motel room with drugs in plain view, the Court found that he had alleged facts sufficient to support an assertion of innocence. The Court further found that Slater’s attorney did not well advise him of his possible defenses – for example, that police received a tip that they would find two males who did not fit Slater’s description, and that the room apparently was not registered to Slater.
The problem lies with the phrase “colorable claim of innocence.” Certainly, some defendants are innocent of the crimes charged. But by using the term “innocence,” the Court created a nearly insurmountable barrier. While Slater was successful in his motion, in most cases it is almost impossible for a defendant to withdraw his or her guilty plea, so long as the plea was knowing and voluntary and supported by a factual basis on the record. In applying the Slater factors, trial courts often focus on “innocence” – a very high standard, higher than any other in our criminal justice system – rather than the “colorable claim” in the first Slater factor.
The Supreme Court should address the tension in the Slater language and clarify whether trial courts should evaluate plea retractions according to a plausible basis/good faith/colorable claim standard, which would make retractions more common, or the innocence standard, which makes retractions exceptionally rare. At present in our courts, the latter is the norm. Whichever the Court intends, it should clarify the standard for practitioners and judges alike.
© 2017 William R. McLaughlin, Esq.
Reprinted with permission from the Camden County Bar Association.
Published by the Camden County Bar Association
VOL. 65, No. 7 • March 2017
William R. McLaughlin, Esq.