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Withdrawing your Guilty Plea in Washington

Pleading guilty is never the best outcome when you're charged with a crime—obviously being found not guilty or getting your case dismissed is the best outcome. 

But sometimes pleading guilty makes sense and may be the best outcome in your case.  This is especially true if the State is offering a favorable plea bargain (i.e. pleading guilty to a reduced charge) and you face a long prison sentence if you're convicted.

A guilty plea must be knowing and intelligent and voluntary

In Washington, your guilty plea must be knowing, voluntary, and intelligent, and there must be a factual basis to support it. This is your right to due process under the law. This means basically the following:

  • You have to understand the charge against you
  • You have to understand the consequences of pleading guilty
  • You can't be coerced into pleading guilty
  • The evidence must support your plea

The Court cannot accept your guilty plea unless the judge can make these findings.

Withdrawing your guilty plea in Washington

But what if your due process rights were violated? Then you can (and definitely should) file a motion to withdraw your guilty plea. 

When can you a motion to withdraw your guilty plea?

You can file a motion to withdraw your guilty plea before you are sentenced or after you are sentenced. 

Filing a motion before you are sentenced (CrR 4.2)

The criminal rule that applies to a motion to withdraw your guilty plea pre-sentence is CrR 4.2. 

To win, you have to convince the judge that not granting your motion would result in “manifest injustice.”  In practice, this means that there was an obvious error in your guilty plea proceedings.  Here are examples of manifest injustice:

  • The judge did not inform you of the maximum possible sentence that you were facing for the charge—or advised you incorrectly
  • Your attorney didn't tell you that pleading guilty could result in your getting deported
  • Your attorney didn't properly inform you of the elements of the crime
  • You did not have an interpreter, and English is not your native language

If the judge finds evidence of manifest injustice, then the court “shall” grant your motion and allow you to withdraw your guilty plea. 

You can make a CrR 4.2 motion orally or in writing. 

Filing a motion after you are sentenced (CrR 7.8)

More commonly, you will be filing a motion to withdraw your guilty plea after you were sentenced. These motions fall under CrR 7.8. 

Unfortunately, these are more difficult to win because you have a higher burden of proof. 

Under CrR 7.8, you must establish two things: error and prejudice.

Step #1: Error

If you can prove manifest injustice under CrR 4.2, then you can prove error for purposes of CrR 7.8.  In other words, you show the court that your plea was involuntary because your attorney was ineffective or the trial judge erred in her description of the law.

Step #2: Prejudice

Under CrR 7.8, you have to prove that you suffered “actual and substantial prejudice” by pleading guilty.  You would nothave pleaded guilty, for example, had you known there was a chance you would be deported.  Or had you known that you were only facing a maximum possible sentence of 5 years in prison (as opposed to life in prison, as the judge told you), you would have rolled the dice and gone to trial instead.

Unlike CrR 4.2, where you automatically prevail if you show manifest injustice, under CrR 7.8. a court “may” allow you to withdraw your plea (but doesn't have to). 

What is the procedure for filing a CrR 7.8 motion?

Unlike a CrR 4.2 motion, your CrR 7.8 motion must be in writing.  You must file a motion establishing grounds for your relief, and you must attach affidavits.  An affidavit is a written declaration under penalty of perjury. These can come from you and your original attorney, for example. 

Unless you attach affidavits, the trial judge will automatically deny your motion.

Then, if your motion establishes a basis for relief, the court will schedule an evidentiary hearing, at which point the court will hear arguments from both you and the State, after which the court will rule on your motion.    

Where do you file your motion?

Regardless of whether you're filing a motion under CrR 4.2 or CrR 7.8, you must file your motion in the court in which you pleaded guilty. 

Do you have a right to an attorney?

You always have the right to hire an attorney.  But if you can't afford one, you only have the right to a public defender if you are filing a pre-sentence CrR 4.2 motion, not a post-sentence CrR 7.8 motion. 

Why is this?

Under the Sixth Amendment, you have the constitutional right to an attorney at all “critical stages” of your criminal case, and sentencing is obviously a critical stage.  That's why you have the right to a public defender for a CrR 4.2 motion.  

But post-sentence is different.  A criminal defendant does not have the constitutional right to counsel in a post-conviction proceeding such as a motion to withdraw a guilty plea.

The reason is as follows:  In Washington, you have an automatic right to appeal your conviction or sentence in a higher court, so you have the right to an attorney even if you can't afford one.  A so-called “collateral attack” is different, because you don't have an automatic right to file a collateral appeal. A collateral proceeding is therefore NOT a critical stage under the Sixth Amendment.  

Is there a time limit for filing your motion?

Yes. You must file a motion to withdraw a guilty plea within 1 year of being sentenced.  This one-year time limit is strictly applied. 

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