Can You Appeal a Plea Bargain?

Created by FindLaw's team of legal writers and editors | Last updated February 04, 2019

You've been charged with a string of high-profile bank robberies that occurred in the downtown area. Sure, you look like the brazen little old lady who held a gun up to the bank teller and yelled the clichéd phrase "Stick ‘em up!" but you swear it wasn't you. However, several eyewitnesses put you at the scene and the bank teller picked you out of a lineup.

The bad news keeps getting worse. Your criminal defense lawyer doesn't seem particularly excited about your case and less enthusiastic about taking it to trial. The odds are against you, so you take your lawyer's advice and "strike a deal," as they say. The prosecutor agreed to reduce the number of charges and your maximum sentence will be much shorter than you expected.

At least, that’s what you thought. But when you tried to discuss this with your lawyer before pleading guilty, she shrugged you off and began texting on her phone.

You aren't sure you understood all the terms of the agreement, but did it anyway because you've been told you have a "dynamite lawyer." Later, you realize your sentence is much different than you expected and a conviction on your record is going to bar you from certain employment opportunities. Now what? Can you appeal a plea bargain? Let’s find out what grounds may qualify.

Waiving a Right to Appeal

One of the first things to know when pleading guilty or no contest, is that you're effectively giving up your right to appeal the sentence, absent an egregious error by your attorney or the court. The United States Supreme Court has consistently held that a defendant can elect to waive many important constitutional and statutory rights during the plea bargaining process including the right to appeal the sentence later.

Basically courts want to safeguard against a "buyer’s remorse" situation where the defendant knowingly and voluntarily enters into a plea deal, but later decides that they want to gamble and go to trial instead. Absent any other facts or circumstances, a defendant won't be able to appeal the sentence or withdraw a plea simply because they changed their mind later.

Ineffective Assistance of Counsel

But what happens when your lawyer doesn't properly advise you on your plea bargain? You may have a viable claim for ineffective assistance of counsel if your lawyer doesn’t adequately represent you at the plea bargaining stage.

The standard for this type of an appeal is extremely high and one that isn’t granted unless you can show a serious error by your lawyer. What constitutes serious error? While each case is different, examples may your lawyer's failure to explain the charges to which you are pleading, or that your lawyer didn't explain collateral consequences such as immigration or possible deportation proceedings that would result in your plea.

No matter how dynamite your attorney's reputation is, if they don't clearly advise or explain everything to you or fail to negotiate a plea bargain on your behalf, then you may have a claim for ineffective assistance of counsel. More recently, courts have held that that it's equally a violation of defendants' rights to effective assistance of counsel if lawyer's bad advice results in the rejection of a plea bargain that would've resulted in a more favorable sentence than the outcome of a subsequent jury trial or guilty plea.