A while back I inquired about practices in negotiating for "true" pleas on revocation/adjudication motions, particularly where the punishment had previously been set when a defendant was sent to boot camp or for shock therapy. I see there is a new case which holds that such bargains are binding on the court (or the defendant gets to withdraw his plea). Gutierrez, 65 S.W.3d at 365. IF this is indeed the law, will it change how these motions are handled? I don't think most trial judges will want the prosecutor tying their hands. By the same token, if you get an agreement from the defendant to a certain sentence or modification, can the judge undercut it? Obviously the dynamics are changed, I'm just not sure how it plays out.

I think the Guitierrez case is dead wrong. As the strong dissenting opinion indicates, there is no statutory right to withdraw a plea of true. For that matter, there is no statutory right to withdraw a plea of guilty in a misdemeanor case. Only in a felony case, in which there was an agreed punishment rejected by the judge, does a defendant have the absolute right to withdraw the guilty plea.

I hope someone is seeking a PDR. I don't know what is going on in the Corpus Christi Court of Appeals, but they seem to be intent on setting some sort of a record for decisions that are destined to be reversed by the Court of Criminal Appeals.

Our paperwork informs the defendant he has no right to withdraw a plea of true, even if the judge does not follow the plea agreement. So long as the defendant knows that going into the plea, how can he say due process requires anything more? Until the Court of Criminal Appeals says otherwise, we will not be changing our paperwork.

The issue will be decided by the CCA. Nueces County's PDR was granted on this point on June 19. Anyone had a trial judge who has relied on Gutierrez to allow withdrawal of a true plea? My judge has often (but not always) done this all along, so a clear ruling on the issue may be useful. I am still uncertain how the willingness of a defendant to plead true will be affected by this ruling whichever way it goes.

I have another question. Do you routinely and effectively use the threat of a stacking order under Pettigrew, 48 S.W.3d 769 as a basis to secure a true plea? Our judge does not very often stack a sentence at time of revocation on that for another subsequent offense, so I have difficulty using this as a credible threat. Would it be possible and advisable for the legislature to provide that the sentence for any new felony offense by someone while on probation must run consecutively? To me that seems not only fair but would create a truly viable deterrent (much as the "offense while confined" provision supposedly does). It would, of course, mean the new offense must be separately prosecuted-- something which doesn't seem to occur very often now. But maybe just the presence of a mandatory provision would create enough of a threat that we would get more true pleas on MTRs.

The Corpus Christi court was as wrong as you predicted JB. I question how the true plea can be characterized as involuntary or not knowing, but I guess that will leave the 13th Court a basis to resurrect its original decision on remand. Still no one has any insight into the other question I posed?

The key to avoiding an involuntary plea for a motion to adjudicate or revoke is to let the defendant know that it is essentially an open plea, albeit with a known state's recommendation.

In the Perfect Plea, the form for the waivers includes a statement in boldfaced lettering that reminds the defendant the judge is not bound by any plea agreement and need not permit the defendant withdraw a plea of true. (page 163).

There is no statutory right to withdraw a misdemeanor plea of guilty? Can someone point me to either the case law or statutory law on that? This appears to be an issue comming up in one of our cases.

On page 86 of the The Perfect Plea, there is a discussion on how a defendant has no constitutional or statutory right to withdraw a misdemeanor guilty plea. McGuire v. State, 617 SW2d 259 (Tex. Crim. App. 1981).

The right to withdraw a plea of guilty is created by statute. And, in Texas, the statutes dealing with a plea of guilty are addressed to felony guilty pleas, leaving no law for misdemeanors, except whatever constitutional requirements apply.

Now, as a matter of practice, many county court at law judges do allow a defendant to withdraw a guilty plea if the judge rejects the punishment recommendation. And, absent a warning to the defendant that there is no right to withdraw, that is probably the better practice. But it isn't the law.