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Can my husband withdraw his guilty plea because his lawyer withheld evidence from the judge and changed the letter he wrote

Denver, CO |

my husband plead guilty to posession of a controlled substance. because his lawyer advised him to, he said they wouldnt win in trial. he was also advised to write a letter to the judge explaining some things about himself and family and things with the case, so he did. his lawyer went through and changed this letter without my husbands knowledge and permission, saying it was better worded. but he left out vital information. my husband at the time of the arrest had a MMJ presciption which includes hash (the controlled substance) as part of that precription. we also found out after he plead guilty that the arresting officer also left out this information in his police report. and while the da was reading the plea agreement she said that there was a vehicle involved, but there wasnt.

Attorney Answers 3

  1. The statements made prior to sentence being imposed will not affect the validity of the guilty plea. The letter your husband wrote was for sentencing, it was not part of the decision to plead guilty. It is very unlikely that the plea can be reversed. Your husband may be able to file a motion to reconsider the sentence - present the mitigating information that he wanted to give to the judge (the information he wanted in the letter) and see if the judge is willing to reduce his sentence.

    You can reach Harkess & Salter LLC at (303) 531-5380 or Stephen Harkess is an attorney licensed in the state and federal courts of Colorado. This answer is for general information only and does not create an attorney client relationship between Stephen Harkess or Harkess & Salter LLC and any person. You should schedule a consultation with an attorney to discuss the specifics of your legal issues.

  2. Mr. Harkess is correct. With respect to his plea, judges (I was a former judge) go through a very detailed questioning of all defendants to make sure that your husband is entering his plea is knowing and voluntary and his decision. Additionally, the written Rule 11 paperwork that your husband signed indicates the same thing. As such, it will be virtually impossible to withdraw his plea under the contention that his attorney forced him to enter his plea. An attorney should advise his or her client if they feel that the case is a loser at trial or has potential for a not guilty finding. So, the attorney was doing his or her job, plain and simple.

    With respect to the letter for sentencing, I have frequently had clients write letters out of what they want to say to the judge. I then review the letter in my office and advise them what to remove and what to add, knowing the specific likes and dislikes of the judge. If your husband was shifting blame to others and not taking responsibility, the attorney would recommend removing or actually remove that - as judges absolutely hate hearing that. Attorneys have the jiob of making tactical decisions for the client. If your husband felt that certain information was removed that should have been included, he could have overridden his attorney and spoken up, even against his attorney's advice.

    Understand that most defense attorneys know the judges much better than the defendants. Some judges are very anti-marijuana and some feel that it is no big deal. If his attorney knew that the judge was anti-marijuana and your husband was using the prescription to try to explain away his behavior, the attorney might have felt that it would actually hurt your husband at sentencing.

    The issue with the car being mentioned in the police report appears to be entirely irrelevant, unless the DA is seeking to forfeit your husband's care as part of the possession of a controlled substance case.

    Regardless, if your husband wants a reconsideration, he needs to file a motion under Rule 35 (b) quickly, as there are strict time limitations and the Court loses jurisdiction to reconsider the case after then.

  3. It is very hard to withdraw a guilty plea and you don't have good grounds based just upon what you said. But if you want to try, you should hire a lawyer and get a copy of the transcript.