Plea Withdrawal Case Analysis

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The Lackershire decision seems unlikely to be cited as precedent often, but the Howell decision may have great impact.

The facts in Lackershire — a legally blind, cognitively disabled defendant charged and convicted of sexual assault of a child, despite her claims of being raped and admissions by the “victim” that he was the instigator of the conduct, and an aggressive instigator at that — will be easy to distinguish in many cases.

The Howell case is different, however, because of the frequency with which defendants are charged as party-to-a-crime.

Even in cases where the facts in the complaint allege active participation in the crime as a principal, defendants are routinely charged as PTAC, whenever multiple defendants are involved.

Suppose, for example, that two defendants enter a store and rob it, both armed with guns. The complaint will likely charge both with armed robbery, PTAC, even though, assuming the facts in the complaint are true, both are guilty as principal actors. Charging the defendants in this manner enables the State to obtain guilty verdicts against both, even if the jury may doubt whether both were actually armed.

If the defendants plead guilty, the decision in Howell imposes a duty on the circuit court to inquire of them whether they understand that they cannot be found guilty merely for being in the store and not preventing the robbery by the other defendant, even if they admit that the facts in the complaint are true.

In the vast run of cases, this will be a pointless formality.

The most likely reason that this case presented an issue of first impression for the court is that even defendants who are willing to say almost anything to withdraw their pleas never thought they could do so by making a contention as implausible as that they thought they could be convicted just for being there.

Admittedly, it will not be a great burden on trial courts during plea colloquies to inquire of defendants whether they understand they can’t be convicted for mere presence at a crime. Nevertheless, it should not be necessary at all, except perhaps in very rare cases.

Suppose, for example, that a defendant is charged with possession of a controlled substance with intent to deliver, PTAC, not based on any dealing or possession of his own, but merely on his admission that he knows the co-defendant is a drug dealer, and the defendant “looks out for him.”

Is “looking out for him” aiding and abetting the distribution of drugs, or not? In such a case, a greater factual inquiry, and inquiry into the defendant’s understanding of PTAC liability would be warranted during the plea colloquy.

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However, the case at bar is not such a rare case.

There are three possibilities: Howell was the shooter; Howell was not the shooter, but was involved; or Howell was just an innocent bystander.

The defense contention in this case is that Howell was an innocent bystander, but thought he could be convicted anyway, even though he was represented by counsel, and the court asked during the colloquy, “the State would have to prove either that you were the person who did all those things [alleged in the complaint] or that you intentionally assisted someone else who was doing those things, knowing what they were doing. ‘Do you understand what the State would have to prove?’”

Lackershire’s claim is plausible, given the record before the trial court; Howell’s contention is not; if the trial court was obligated to make even greater inquiry into the defendant’s understanding of PTAC liability in his case, then such inquiry is effectively required, whenever a defendant pleads guilty as party-to-a-crime, lest an appellate court identify a “red flag” somewhere in the record.

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David Ziemer can be reached by email.