NEW GUILTY PLEA RULING FROM FOURTH CIRCUIT[Posted September 5, 2007] Criminal practitioners take note: The Fourth Circuit today hands down a published opinion that defines the point at which a guilty plea has been accepted and cannot be unilaterally withdrawn. The decision is US v. Battle.
Fed.R.Crim.P. 11(d) provides that if a defendant enters a guilty plea, it can be withdrawn under certain circumstances, depending on how much has gone on in the case. If the plea has been accepted and sentence imposed, then the defendant is almost certainly out of luck; he has to resort to an appeal or habeas corpus. If he seeks to withdraw the appeal after the plea has been accepted but before sentencing, then he has to convince the district judge that he has a “fair and just reason” for changing the plea. But if he does so before the plea is accepted, then he can force that decision on the court, even if he doesn’t have a reason. The right to withdraw an unaccepted plea is absolute.
This case turns on just what “accepted” means in Rule 11. Battle offered a guilty plea on a firearms possession charge. After conducting a colloquy on the plea, the district judge determined that the plea was made knowingly and intelligently, with full knowledge of the consequences. But instead of accepting the plea, the judge said this: “Your plea of guilty is provisionally accepted pending receipt of the presentence investigation, and the court will defer final acceptance of the plea agreement and the adjudication of guilt until we’ve all had an opportunity to review that report.” In an order confirming the day’s proceedings, the court noted that it had “conditionally accepted” the plea. The order also contained an adjudication I had never seen before reading this opinion: “[T]he defendant now stands provisionally guilty of Count One . . .”
As an aside, I didn’t think that you could be “provisionally guilty” any more than you could be “provisionally pregnant.” But I always try to learn something new every day, and this will suffice for today’s enhancement of my knowledge base.
Okay; you see what’s coming here. Some days later, Battle had a change of heart, and moved to withdraw his plea. (Yet another aside: Why on earth would he want to do that? Part of the colloquy is to spill your guts as to your involvement in the crime, presumably under oath. By that point, and with that testimony on the record, who wants to face a jury? But I digress.) The trial judge asked if he had a fair and just reason for doing so. “Sure,” Battle replied, “I don’t wanna go to prison for ten years, like it says in this cockamamie report.” Not good enough, the district judge ruled, and sentenced Battle according to the report. This appeal followed.
Today’s ruling includes yet another in the seemingly endless string of Booker challenges to sentencings, but the real story is the Fourth’s resolution of the question of whether a “provisionally accepted” plea has, in fact, been accepted for Rule 11 purposes. If the answer is no, then Battle had an absolute right to change his plea, and the district court was wrong in applying the fair-and-just-reason test. The answer, in a 2-1 ruling, is yes. The district judge’s addition of the term “provisionally” merely reflects the fact that all sentences are provisional until the time of sentencing, the majority (authored by South Carolina District Judge Norton, and joined by Judge Niemeyer) reasons.
The “1” in that 2-1 is Judge Gregory, and he has some choice words for the majority. He insists that a “provisionally accepted” plea has not, in fact been accepted. He points to the several instances in which this district judge had taken pains to point out that this ruling was not final, and that something more had to happen before the plea would be fully accepted. He agrees that if the extra word had been a throwaway or offhand comment in the sentencing colloquy, then he might go along, but this judge made it clear that the plea had not yet been fully accepted.
While I don’t do a great deal of criminal work, I have to admit that this ruling took me by surprise, and my sentiment is with the dissent. Suppose this were in another context, that of a real estate contract. I offer to sell you my home, Blackacre, for $3 million. You reply that you “provisionally accept” the offer, subject to seeing an appraisal report on the value. Aside from the fact that you would be nuts to pay $3 million for MY Blackacre, and therefore lack the capacity to enter into a contract, could such a conditional “acceptance” be enforced against me? I believe the answer has to be no; only an unconditional acceptance is sufficient to make a binding contract. So why should the standard for acceptance be even less strenuous when one’s liberty is at stake?
Both of today’s opinions cite decisions from other circuits that come down on both sides of this issue. The fact patterns in those cases are slightly different, of course, so I don’t think you can genuinely call this a split in the circuits, which could make it more likely that the Supreme Court would grant cert. But given the recency of this rule (until 2002, the rules for withdrawals of pleas were quite different), and the concomitant lack of precedent, it is at least reasonably foreseeable that the Supremes might choose to take a look at this case.