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Can you file for an appeal after a plea bargain has been taken when new evidence is found? Motion to change plea motion?

San Jose, CA |
Filed under: Criminal defense

My son took a plea bargain since he felt the was the safest route since his public defender did not investigate the case as he should. Marsden was denied and he could not afford a private attorney.

If we hire a private investigator and find new evidence or able to prove that the attorney had evidence there in the discovery package and refused to bring to the plea bargain table or investigate (which there is and was brought to his attention which he told my son "I won't explain and I refuse to discuss that further, I just want to know if you will take the deal"), can my son file for an appeal? I won't go into details but there is proof there was no force. His PD admitted he never read the discovery package. My son filed a Marsden motion but was denied. He couldn't risk trial with this PD

Attorney Answers 3

Posted

I have added Criminal Defense to your categories which is where this question is more appropriately directed. Good luck.

I am licensed in California only and my answers on Avvo assume California law. The above answer is for general information only and is based on the information you posted. Every case is fact dependent, so to get a thorough analysis of your situation, you will need to consult face to face with an attorney licensed to practice in the jurisdiction where the incident took place. Do not conclusively rely on any information posted online when deciding what to do about your case. No attorney-client relationship shall be created through the use reading of this response on Avvo. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information in this response.

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Posted

You face an uphill battle. As always, talking with an attorney about exactly what happened is your best bet, but here are some general thoughts.

First, you may face a time bar -- you must file a notice of appeal soon after your plea is entered.

Second, most plea bargains include a waiver of your right to appeal -- that is, you agreed not to appeal as part of the deal. You would be very, very unlikely to overcome that waiver and appeal. You also probably told the court that the plea was not a result of coercion (even if your son felt coerced, he probably signed something that said he was not coerced). It is very, very difficult to overcome that statement on appeal.

If you missed the deadline to appeal, the other possible option is what is called a collateral attack on the conviction -- a habeas corpus petition. Your burden in these proceedings, again, is very high. This is a very complex area of law and you would want to hire an attorney to help you.

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Posted

Unfortunately, there are a lot of unanswered questions in your query. Has your son been sentenced? If so, how long since he was sentenced? If he hasn't been sentenced, then a motion to withdraw his plea can be made if there are sufficient grounds, although they are rarely successful. Instead of hiring a private investigator, find a good criminal defense attorney and ask for an initial consultation. Most attorneys offer a free consultation or charge a minimal amount. By the way, when you say there is no force, it sounds like a sexual assault case. Whatever the case, do not discuss facts and details of the case on this site or any internet site because DA's can access this site too and may use the information they get against your son at some future date.

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