“Actually Not Guilty” – For those who thought they had drugs but really didn’t

If you’re accused of possessing a controlled substance, you shouldn’t take a deal until the lab report comes back. That’s the advice dispensed recently in a concurring opinion in the Court of Criminal Appeals per curium caseĀ  Ex parte Saucedo, WR-87,190-02.

Easy for a high court judge to say. But sometimes reality forces your hand. You can’t stomach multiple court dates. You’re accused of possessing marijuana and no one will pay for a lab report. Or you know you’re guilty and just want to get the case over with. So you take a deal.

But what if the lab report eventually comes back and proves everyone wrong (including you)? If the report shows the stuff in your possession wasn’t a controlled substance, or even if the report just shows it was a different controlled substance that what the indictment or information alleged, you can probably get your plea overturned.

The legal mechanism to do that is a writ of habeas corpus. The argument you would use is that your plea was involuntary. Why involuntary? Because if you’d known at the time that all you were possessing was a baggie of oregano or laundry detergent, then you would have rejected the plea offer.

The appellate courts are giving you a do-over even though you could have just waited to see what the State’s evidence showed and even though, if we are all being honest, you had the intention of possessing a controlled substance and just got ripped off by your supplier.

But in Saucedo, some of the CCA judges have put defendants on notice that they don’t like the “involuntary plea” argument. They think the Court should instead hold that the defendant is “actually not guilty” of the charged offense — essentially granting relief on a due process argument.

Judges Keaser, Hervey, and Yeary think that finding out new facts about your case after you’ve already pled guilty can’t render your plea involuntary, just like a subsequent change in the law that would have favored your case at trial also can’t render a plea involuntary. These judges also think the CCA’s current “involuntary plea” rationale actually violates binding Supreme Court precedent.

Why should we care? After all, the judges still reach the same conclusion as those adopting the “involuntary plea” rationale and would continue to grant relief.

The problem is that with a substantial minority of the Court unhappy with the current legal framework, a slightly more complicated or contentious set of facts could disrupt precedent and lead to a surprise denial of relief. We’ve already seen certain fact patterns — charges of manufacturing or delivery of drugs rather than just possession — where the Court was unwilling to grant relief even though the defendant pled guilty to delivering one substance and the post-plea labs showed the substance in question to be something else.

To mitigate risk, writ attorneys trying to overturn a conviction based on post-plea lab work should at the very least expand their pleadings to include an alternative “due process” ground that argues for relief based on a plea to a factual impossibility. This ground should not rely on or even mention the voluntariness of the plea. Additionally, it would be wise to track Judge Keaser’s language in his concurrence and argue that the defendant is “actually not guilty” of the charged offense — a catch phrase that Keaser developed to mean a person who might be guilty of something (like possessing a controlled substance other than that described in the indictment, or attempting to possess the substance described in the indictment), but is not guilty of what he or she was actually charged with.

This alternative argument gives the Court the ability to move away from its prior “involuntary plea” reasoning if it finds that reasoning problematic or at odds with Supreme Court precedent. The “actually not guilty” argument also allows the Court to grant relief without relying on the much stronger “actual innocence” legal basis, which would require acquittal rather than a new trial.

Look for the Court to continue to struggle with the proper framework to ultimately apply in these kinds of cases, especially where the State opposes granting relief.