Vacating a plea
It's always interesting to see my clients coming to grips with some of life's lessons. Earlier this week, for example, one of them learned that when someone approaches you and says, "I need to go over to E. 152nd St. to buy some crack. Will you drive me there?," of the two possible answers, the wiser one is "no." And last week, another one of my clients learned that it's not a good idea to get arrested for a new drug case two days after you've pled guilty to one. When confronted with the fact that the judge's thoughts on disposition had changed radically, the client decided that he wanted to vacate the plea in his first case.
Helpfully, just the day before the 8th District had handed down a decision on vacating a plea, State v. Lowe. As most criminal lawyers know, with motions to vacate a plea, as in comedy, timing is everything: a motion to vacate after sentence is imposed should only be allowed in "to correct a manifest injustice," but should be "freely and liberally granted" if made before sentence.
Unfortunately, "freely and liberally" doesn't mean what it sounds like, because just about every week there's a decision or two from some appellate court in Ohio affirming a trial court's denial of a pre-sentence motion to vacate. That's what happened in Lowe, as a matter of fact: the defendant pled guilty to aggravated murder and some other charges, then changed his mind and asked that the plea be vacated. The judge denied it and sentenced him to life without parole, and the 8th District affirmed.
The opinion does give a non-exclusive set of criteria by which the trial courts are to consider such motions:
(1) whether the accused is represented by highly competent counsel; (2) whether the accused was given a full Crim.R. 11 hearing before entering the plea; (3) whether a full hearing was held on the motion; (4) whether the trial court gave full and fair consideration to the motion; (5) whether the motion was made within a reasonable time; (6) whether the motion sets out specific reasons for the withdrawal; (7) whether the accused understood the nature of the charges and possible penalties; and (8) whether the accused was perhaps not guilty of or had a complete defense to the charge or charges.
Some of these are obviously relevant, especially the latter. Introducing some evidence of a defense virtually guarantees that the plea will be vacated, as the 9th District held back in March in State v. Wheeland, where it reversed the denial of a motion to vacate in a shaken-baby case where the defense produced two witnesses who testified that the child's mother had confessed to them that she might have done it.
Actually, the Lowe criteria aren't as helpful as they might seem at first glance, because they appear to have been cobbled together from a number of other cases. (Wheeland contains a slightly different, and a bit more cogent, list.) It's not clear why any special weight should be given to whether counsel is "highly" competent, let alone what that means. The issue of "whether a full hearing was held on the motion" is mooted by the fact that the court has to conduct a hearing. Given the usually short lapse of time between the plea and the sentencing, what's a "reasonable time" for the filing of a motion? It's one thing to say that a motion to vacate is untimely because it was filed eight months after the defendant became aware of the judgment against him, but is a motion to vacate a plea untimely because it was filed three weeks after the plea instead of one or two?
That allusion to a civil motion to vacate isn't far-fetched, because the same competing interests are involved: finality versus the the interest in resolving cases on their merits. On the one hand, the finality concern is perhaps a little stronger in this context. After all, it's not like the defendant has defaulted through oversight, such as failing to file an answer; here, a defendant has walked into court and pled guilty to a crime. In many cases where a defendant later seeks to vacate the plea, there's been some indication of his uneasiness at the plea hearing, and if the judge has considered that and gone out of his way to make sure that the defendant knows what he's doing, that should count for something.
On the other hand, we're not talking about somebody getting a money judgment here, we're talking about somebody's liberty, so the counterbalancing interest in ensuring that cases are decided on their merits takes on much more weight. To be sure, an appellate court is somewhat limited in this, because a trial judge's decision can only be reviewed for abuse of discretion. Still, given that such relief should be "freely and liberally" given, a less deferential attitude might be in order.