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General Rules and Consequences of Challenging a Plea Bargain

Criminal defendants can enter into plea bargains by which they give up the right to go to
trial, and agree to be convicted. 


Sometimes a plea includes agreement that certain charges will be dropped or that the court will impose a particular sentence or a sentence within a specified range.

Occasionally, defendants enter “open pleas” to all the charges against them, with no sentencing promises. By agreeing to plead guilty or no contest, a defendant often can avoid the risk of being convicted of more serious crimes or receiving a longer sentence.

Nonetheless, many defendants later regret entering a guilty plea and want to challenge their convictions and/or sentences. However, mere “buyer’s remorse” is not good grounds for undoing a plea bargain.

These rules limit the types of issues that defendants can raise and require special procedures for raising some issues. Generally, issues fall into four categories:
          • issues that cannot be raised at all
          • issues that can be raised on direct appeal without a                                        certificate of probable cause
          • issues that can be raised on direct appeal only with a certificate of probable cause
          • issues that can be raised only in a state court petition for writ of habeas corpus.

Which category an issue falls into depends on the legal argument being made and on whether the facts supporting the argument are already in the court records.

But beware! Before you try to challenge your plea bargain, you should think very carefully about the possible benefits and risks of doing so. If you are claiming that your plea bargain was unlawful, and a court agrees with you, the remedy likely will be to allow you to undo or withdraw your plea.

Then your case will go back to the local superior court, where you will
be in the same position that you were in before the plea was entered. This means that you will probably be facing the same charges that were originally filed against you, including any charges that were dismissed in the plea bargain. The prosecutor might even file additional charges.

When your case goes back to the superior court, the prosecutor does not have to offer you a better plea bargain or even the same plea bargain that you took before. You could be facing a less favorable plea offer or a trial on the same evidence as when you decided to plead guilty.

If you are convicted again, the judge does not have to give you a lesser sentence or the same sentence you received the first time; depending on the circumstances, you might receive a much longer sentence the second time around.

Thus, before trying to withdraw your plea, you should weigh
your chances of ending up with a better outcome against the risk of a more serious conviction and a longer sentence.


If you are not claiming that your plea was invalid, your legal challenge most likely won’t carry the same risks. For example, you might argue that the trial court mistakenly sentenced you on a charge that was not part of your plea or imposed a sentence that was longer than you agreed to, or improperly imposed fines or other requirements that were not part of the plea agreement and not necessarily required by law.

In such cases, the court of appeal could order the superior court to re-sentence you in accord with the plea agreement. Also, if the plea gave the superior court sentencing leeway, but the court made a calculation mistake or did not apply the sentencing factors properly, the court of appeal could modify the sentence or remand the case for resentencing.


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