What is a change of plea hearing?

A change of plea hearing is a hearing held by the court wherein the defendant changes his or her plea. Typically, a defendant will plead “not guilty” at the beginning of a criminal case at the arraignment. If the defendant reaches an agreement with the prosecution (the State), it will usually involve the defendant pleading guilty to some criminal charge, or pleading responsible to a civil charge if all of the criminal charges are dismissed. If a case is dismissed, there would be no need for a change of plea hearing.

If the defendant and the prosecution reach an agreement, this is called a plea agreement. The change of plea hearing is a time for the judge to review the plea agreement and either accept or reject the agreement. In misdemeanor cases, the judge will almost always accept the plea agreement. The judge will also ask a series of questions to the defendant to make sure the defendant understands what he or she is agreeing too. Those questions are discussed below.

A change of plea hearing can also occur without an agreement between the defendant and the prosecution. Absent an agreement, the defendant can choose to plead guilty or no contest to the court and let the court impose a penalty.

What is it NOT?

It is not a trial. A change of plea hearing is not an opportunity to plead your case to the judge. If you want to do that, you will need to set your case for trial.

It is not an opportunity to ask the judge to change or reduce the charges, or change or reduce the punishment. The judge cannot do those things. By the time a defendant is at a change of plea hearing, he charges and punishment have already been agreed upon. All the judge can do is accept or reject the agreement.

When does it happen?

A change of plea hearing happens at the end of a case when the defendant and the prosecution have reached an agreement, or when a defendant simply desires to plead guilty or no contest to the court. Sometimes, the court will schedule  a particular date for a pretrial conference. Sometimes, a pretrial conference can turn into a change of plea hearing if the defendant and the prosecution reach an agreement during the pretrial conference or decides to plead to the court.

The Change of Plea Hearing

Most change of plea hearings are conducted as a sort of cattle-call. In other words, numerous cases are generally scheduled at the same time and you will have to wait until your case is called. This wait can sometimes take a little while, so don’t be surprised if your hearing does not start at the scheduled time.

Once your case is called, you will approach the judge with your attorney. Your attorney will announce his name and your name.

Generally, the judge asking if you signed the plea agreement and understood what it means.

The judge will state to you what you were originally charged with. The judge will also go through an explanation of the minimum and maximum potential penalties that could be imposed for that charge.

The judge will review the charges that you are pleading guilty to and any sentencing that is included in the plea agreement.

The judge will ask you whether or not you are aware that if you are not a citizen of the United States, that pleading guilty to a criminal charge may result in deportation or removal even if the charge is later dismissed or may prevent you from becoming a U.S. citizen.

The judge will ask you a series of questions, generally including whether or not you understand that you are waiving the following rights by pleading guilty (note if you have questions about these, ask):

• The right to make the State prove its case beyond a reasonable doubt;
• The right to a trial and/or in some cases a jury trial;
• The right to confront witnesses against you;
• The right to present evidence on your own behalf or through an attorney;
• The right to remain silent and to not incriminate yourself;
• The right to an appeal.

The judge will also advise that you retain the right to “post-conviction relief” or “Rule 32 relief.” This means that if your rights were violated in some way during this hearing or in what lead up to it, that you may be able to come back later and challenge the entry of the plea agreement.

Some judges will lecture you in some fashion. They may ask you something along the lines of whether or not you understand how dangerous your conduct was and how important it is to not repeat your behavior. For example, if you have been charged with criminal speeding, the judge may lecture you about how many people are injured or die as a result of speeding. Respond with a simple acknowledgement that you understand and/or that you will be more careful.

Be prepared to discuss with the judge whether or not you will need a payment plan for any fines you have to pay. Be aware that if you do not setup a payment plan, there is generally an expectation that you pay the fine by the end of the day. You can usually pay at the courthouse or by calling the court before the end of the business day and paying by credit card.

The Judge may ask a few other questions at his or her discretion. Answer them as honestly as you can. If you are uncertain how to answer, ask your attorney.

After the Change of Plea Hearing

Make sure that you promptly pay or arrange for payment any fines.

Make sure that you timely take care of any additional requirements the Court has imposed. For example, if you have to take any sort of coursework as part of your plea agreement, make sure that you work on it right away. Your attorney can assist you later with procuring information related to scheduling courses if it is not provided directly by the Court.

Things to Remember

Before the hearing:

If you have questions about your plea agreement or the change of plea hearing, ask your attorney before the change of plea hearing.

If you are physically going to the Courthouse, dress nicely.

During the hearing:

Be very cautious of what you say when you are in the courtroom before or after your hearing. If you are on the phone, don’t say anything unless someone is directly asking you something. The judge or his staff may hear anything said, and proceedings are all recorded. Do not bad-mouth the judge, the judge’s staff, or the prosecutor.

If the judge directly asks you a question, answer it. If you are uncertain how to answer, feel free to say so or ask your attorney what you should say.

If the Judge asks you questions, you can address him or her as “your honor” or “judge”.