Introduction – Newly Discovered Evidence: Following a Plea Bargain
One of the most troubling areas of Colorado criminal law is a situation where a Defendant, who is completely innocent or who may have a defense to a criminal charge, agrees to take a plea bargain because of a fear of a bad result at trial.
In this context, following the entry into a plea bargain, new evidence is discovered that has the potential to open the door to a withdrawal from that plea bargain.
Colorado Rule of Criminal Procedure 35(c)(2)(V) (Crim.P. 35(c)) provides that “every person convicted of a crime” has the right and opportunity to apply for post-conviction remedies if their good faith motion alleges:
“[t]hat there exists evidence of material facts, not theretofore presented and heard, which, by the exercise of reasonable diligence, could not have been known to or learned by the defendant or his attorney prior to the submission of the issues to the court or jury, and which requires vacation of the conviction or sentence in the interest of justice
The seminal case in this area is People v Schneider which was decided by the Colorado Supreme Court in 2001 and is still good law.
There are three Schneider “tests” or “prongs” examined more closely below that must be established by the defense to successfully withdraw from a plea agreement under Colorado Rule 35 (c) following a validly entered plea under Colorado Rule 11.
In order for a court to permit a defendant’s withdrawal from a plea agreement, a Colorado judge must reasonably conclude that:
(1) the newly discovered evidence was discovered after entry of the plea, and, in the exercise of reasonable diligence by the defendant and his or her counsel, could not have been earlier discovered;
(2) the charges that the People filed against the defendant, or the charge(s) to which the defendant pleaded guilty were actually false or unfounded; and
(3) the newly discovered evidence would probably bring about a verdict of acquittal in a trial.
The Relevant Facts of the Schneider Case – Newly Discovered Evidence: Following a Plea Bargain
What follows is a shortlist of the relevant facts of the Schneider case:
1. The defendant, Duane Schneider, was originally charged with four counts of aggravated incest against his daughter.
2. Schneider took a plea deal and pleaded nolo contendere (no contest under the Alford decision) to an added fifth count of sexual assault on a child in exchange for a dismissal of the original four counts.
3. The defendant agreed that the State of Colorado had evidence sufficient to prove the charge (a factual basis existed that would support guilt).
4. The parties stipulated a sentence to probation, and Schneider received 8 years of probation.
5. Two years after the entry of the conviction, Schneider’s daughter, the alleged victim of the sexual assault, recanted her statements about the abuse.
6. Thereafter, the defendant filed a motion under Colorado Rule of Criminal Procedure Rule 35(c) seeking to withdraw his plea on the basis of newly discovered evidence.
7. At the hearing on the 35 (c) motion the alleged victim testified that she “lied in her previous statements accusing her father of sexual abuse to her mother, family therapist, a social worker, and a police officer and that she recanted those statements of her own free will.”
8. Schneider testified that he accepted the plea agreement on the advice of his lawyer “because he feared that a jury might believe his daughter’s allegations rather than his denials in this type of situation.”
Compare: Newly Discovered Evidence – Following a Trial and Guilty Verdict
For the first time in People v. Schneider, a new rule was created that distinguished the Crim. P. 35(c) tests when newly discovered evidence follows a trial and a guilty verdict from a situation where the new evidence was discovered after a defendant has already accepted a plea bargain.
To fully understand the new rule – the old rule, before it was modified in Schnieder, must be examined.
Why was the old rule changed? What were the policy reasons for the new formulation?
Before Schneider, there was only one standard – one set of tests – for a defendant alleging the discovery of new evidence. That standard was taken from the case of People v. Gutierrez. The Gutierrez tests were applied whenever a defendant raised the discovery of new evidence whatever the stage of the proceedings at the time of the discovery of that evidence.
In Gutierrez – an independent trier of fact, a jury, determined the defendant’s guilt based upon the evidence presented at the trial. There was never an admission of guilt.
The Gutierrez court held that, upon examining the 35(c) motion filed by the defendant alleging newly discovered evidence, the trial judge, having presided over the trial was in a good position to weigh the evidence admitted at the trial as against the new evidence provided by the Defendant in the motion. More specifically that the trial judge could effectively assess whether a second jury would acquit the defendant in a new trial based on the new evidence.
The Schneider case was very different. In Schneider, the defendant acknowledged his guilt, accepted a plea bargain, and, of course, there was no trial on the charges. In that environment, a trial judge would have great difficulty assessing the strength of the new evidence as against the evidence produced by law enforcement but tested by cross-examination in the courtroom.
Other than the practical difficulties of evaluating the new evidence, there were also strong policy reasons for treating the cases differently.
A request for postconviction relief under Rule 35(c) for a new trial following a trial and verdict of guilty- raises different policy considerations than the same Crim. P. Rule 35(c) motion following a guilty plea.
Schneider addresses those different policy considerations.
In a Gutierrez type of case, the conviction follows a trial and verdict, – the Defendant has not pleaded guilty and has not accepted responsibility for the crime.
In a Schnieder type of case, there has been a full providency hearing and the Defendant HAS pleaded guilty and accepted the judgment in the context, (usually), of a favorable plea agreement.
Scheider, makes clear that there:
“[M]ust be some consequence attached to the decision to plead guilty.
A defendant who voluntarily and knowingly enters a plea accepting responsibility for the charges is properly held to a higher burden in demonstrating to the court that newly discovered evidence should allow him to withdraw that plea.
Defendants should be allowed to withdraw properly entered guilty pleas only in order to avoid manifest injustice.”
The change in standards was intended by the Colorado Supreme Court to “maintain the appropriate balance between finality and fundamental fairness.”
The Guitierrez Tests – After a Trial Has Occurred and a Guilty Verdict Has Been Rendered
Again, Gutierrez sought a new trial based on newly discovered evidence after having been convicted at trial.
Under the Gutierrez tests a defendant must show:
1. That the evidence was discovered after trial;
2. That defendant and his counsel exercised diligence to discover all possible evidence favorable to the defendant prior to and during the trial;
3. That the newly discovered evidence is material to the issues involved, and not merely cumulative or impeaching; and
4. That on retrial, the newly discovered evidence must be of such a character as to probably bring about an acquittal verdict if presented at another trial.
The Schnieder Tests – After a Plea Has Entered and a Sentence Imposed
The defendant must present evidence from which the trial court may reasonably conclude that:
1. The newly discovered evidence was discovered after the entry of the plea, and, in the exercise of reasonable diligence by the defendant and his or her counsel, could not have been earlier discovered;
2. The charges that the People filed against the defendant, or the charge(s) to which the defendant pleaded guilty were actually false or unfounded; and
3. The newly discovered evidence would probably bring about a verdict of acquittal in a trial.
Analysis of the Change
The first and third prongs of the Schnieder tests were obviously taken from Rule 35(c) and the Gutierrez case.
The second prong of the test is new. To succeed in a Crim. P Rule 35(c) motion to withdraw from a plea agreement, the defendant must demonstrate to the trial court’s satisfaction that the charges filed by the People (or the charges to which the defendant pleaded guilty) were actually false or unfounded.
This is a very high bar.
Example: When the “Newly Discovered Evidence” is a Recanting Witness – Questions of Credibility
Where the newly discovered evidence is based on the credibility of a recanting witness, the Colorado Supreme Court, in Schnieder, provided further guidance in the analysis of these difficult cases.
Prong 1: Whether the Newly Discovered Evidence Could Have Been Discovered
Prong 1 – requires that the new evidence was discovered after the entry of the plea, and, in the exercise of reasonable diligence by the defendant and his or her counsel, could not have been earlier. It is usually the easiest of the 3 prongs to establish and the requirements of this prong are not examined further here.
Prong 2: Whether the Original Charges Were False
Prong 2 – of the analysis focuses on whether the original charges were false. Proving this prong, unlike the other two prongs, is a very high bar. The second prong of the Schneider tests focuses on whether earlier accusations against the defendant were actually false.
Under this prong, the trial court is charged with the responsibility to properly weigh the evidence and determine the credibility of the key witness or other evidence offered by the defendant. This is a very difficult task where there has not been a trial.
Criminal charges are often filed based solely on the direct testimony of one or two witnesses. In many cases, there is no “forensic” supporting or corroborating evidence. Where there is corroborating physical evidence the task is much easier. In the case of a recanting victim, as in Scheider, the task is very difficult and complex.
In making the decision as to whether the original statement of the witness was true or the recanting statement is true – the direct and inescapable question that must be asked is this – who was lying and when did they lie?
To answer this question, the trial court will scrutinize such factors as:
Statements made by the recanting witness or other witnesses at the time the charges were filed,
The surrounding circumstances at the time the statements were made, and
The new testimony offered at the Motion 35(c) hearing
A judge also examines and will usually make findings on factors that include, but are not limited to, the following lines of inquiry:
Whether there was a motive to fabricate the initial accusation;
Whether there were any observations by witnesses of the recanting witness when he or she made the initial accusations;
The nature and detail of both the accusations and the recantation; and
Whether the accusations were made under oath.
Prong 3 – Whether the New Evidence Would Probably Bring about a Verdict of Acquittal at Trial.
If the 35(c) petitioner (the defendant) establishes the second prong – the original charges were false, – the trial court turns to the third prong of the test. The third prong focuses on the “materiality” of the new evidence.
Even if the newly discovered evidence meets the first two tests, the evidence must be sufficiently material to impact the outcome of a trial.
In prong 3 the question before the court is whether the newly discovered evidence would probably bring about an acquittal – specifically:
“… whether the new evidence, as developed in trial, when considered with all the other evidence is such that a reasonable jury would probably conclude that there existed a reasonable doubt as to defendant’s guilt and thereby bring about an acquittal verdict”.
If it is determined that the recanting witness’s earlier statement was false, the next step in the analysis raises even more questions – questions of the “materiality” of the new evidence:
Did the statement concern only a tangential matter?
Does it amount to only cumulative testimony?
Is the new statement truly significant in the “mix” of the other evidence in the case?
Is the newly discovered evidence “of such a character as probably to bring about a verdict of acquittal if presented at trial?
The judge, as the finder of fact in a 35(c) motion hearing. is tasked with examining the credibility of a recanting witness to determine which rendition of events the fact finder would believe at trial.
In this context:
“the recantation should be sufficient to cause a reasonable jury to conclude that there exists a reasonable doubt.”
The Public Policy of Finality of Colorado’s Rule 11 Entry of a Plea – Providency Hearing
Fully complying with Colorado’s Rule of Criminal Procedure Rule 11 is required before a Colorado court will accept a plea of guilty.
By entering a plea of guilty, the defendant waives a series of constitutional rights. Courts take such waivers very seriously and trial courts engage in very comprehensive advisements such that the defendant fully understands the import of his decision to plead guilty.
“It is essential, for practical reasons as well as for fundamental fairness, that there be a point at which litigation reaches a conclusion and that parties be permitted to rely on the outcome.”
The “closure” following a guilty plea is therefore juxtaposed against the decision of the innocent defendant who decides to plead guilty.
In Schneider, the reality of innocent defendants who decide to plead guilty is reflected in the Court’s words:
We recognize that defendants do choose to enter guilty pleas for reasons other than clear guilt, although we hasten to add that the court system must treat such pleas as final for most purposes.
(T)he right to withdraw a plea of guilty or …. due to newly discovered evidence cannot be broad and unconstrained.
The policy underlying the “closure” that follows a plea of guilty after a Rule 11 advisement cannot be understated. Withdrawing a plea of guilty following sentencing is one of the most difficult tasks confronting the 35(c) petitioner.
On this issue of closure, the Schneider Court, struggling with this issue also said this:
We … recognize that when a defendant pleads guilty, the case is effectively closed. The District Attorney believes that he or she will no longer need to develop the case for presentation to a jury, and investigation and witness identification ceases.
Similarly, victims believe that the case is over.
Unlike a conviction by trial, which the defendant can appeal and continue to contest vigorously, when a defendant enters a plea, he or she admits wrongdoing.
These are important policy considerations to fully understand when seeking to withdraw from a plea agreement following the discovery of new evidence.
Summary and Conclusion – Newly Discovered Evidence After a Plea – Colorado Rule 35(c) Motion
Motions are permitted to be filed under Crim. P. Rule 35(c) for post-conviction proceedings for two reasons. The two basic, but fundamentally different and opposing, purposes are:
For the Defendant – to prevent constitutional injustice, and
For the Criminal Justice System – to bring finality to judgment (finality in the adjudication of controversies and conclusiveness of judgments is crucial to the administration of justice.)
The Schneider case announced an important new standard in this area that may make it more difficult for Rule 35(c) petitioner to have success based on newly discovered evidence. While the Schneider tests appear to be more tailored to the post-conviction review following a conviction based on a guilty plea – the standards in prong 2 seem to make the task of a Defendant seeking to withdraw from a plea agreement much more difficult.
“A person charged with a crime requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.”
United States Supreme Court – Powell v. Alabama, 287 U.S. 45, 69 (1932)
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