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Standard 14- 1.4.

(iv) that by pleading guilty the defendant waives the right to a speedy and publ ic trial, including the right to trial by jury; the right to insist at a trial t hat the prosecution establish guilt beyond a reasonable doubt; the right to test ify at a trial and the right not to testify at a trial; the right at a trial to be confronted by the witnesses against the defendant, to present witnesses in th e defendant's behalf, and to have compulsory process in securing their attendanc e; (d) If the defendant is represented by a lawyer, the court should not accept the plea where it appears the defendant has not had the effective assistance of cou nsel. HIS FIRST PUBLIC DEFENDER, , WAS WORKING WITH HIM TO FIGHT HIS CASE , BUT SHE HAD TO PASS HIS CASE ON TO SOMEONE ELSE TO REPRESENT HIM BECAUSE SHE M OVED TO ANOTHER DEPARTMENT. THE NEWEST PUBLIC DEFENDER, HOWARD WINE, HAS NOT MA DE ENOUGH CONTACT WITH DEFENDANT, AND DOES NOTHING BESIDES HAVE HIS SECRETARY, A ND THEIR ASSISTANT CONTACT HIM, BUT HAS NOT DONE SO. WITHDRAWAL OF THE PLEA Standard 14- 2.1. Plea withdrawal and specific performance (a) After entry of a plea of guilty or nolo contendere and before sentence, t he court should allow the defendant to withdraw the plea for any fair and just r eason. In determining whether a fair and just reason exists, the court should al so weigh any prejudice to the prosecution caused by reliance on the defendant's plea. (b) After a defendant has been sentenced pursuant to a plea of guilty or nolo contendere, the court should allow the defendant to withdraw the plea whenever the defendant, upon a timely motion for withdrawal, proves that withdrawal is ne cessary to correct a manifest injustice. A timely motion for withdrawal is one m ade with due diligence, considering the nature of the allegations therein. (i) Withdrawal may be necessary to correct a manifest injustice when the defe ndant proves, for example, that: (A) the defendant was denied the effective assistance of counsel guaranteed b y constitution, statute, or rule; (B) the plea was not entered or ratified by the defendant or a person authori zed to so act in the defendant's behalf; (C) the plea was involuntary, or was entered without knowledge of the charge or knowledge that the sentence actually imposed could be imposed; (D) the defendant did not receive the charge or sentence concessions contempl ated by the plea agreement and the prosecuting attorney failed to seek or not to oppose these concessions as promised in the plea agreement; or (E) the defendant did not receive the charge or sentence concessions contempl ated by the plea agreement, which was either tentatively or fully concurred in b y the court, and the defendant did not affirm the plea after being advised that the court no longer concurred and after being called upon to either affirm or wi thdraw the plea; or (F) the guilty plea was entered upon the express condition, approved by the j udge, that the plea could be withdrawn if the charge or sentence concessions wer e subsequently rejected by the court.

(ii) The defendant may move for withdrawal of the plea without alleging that he or she is innocent of the charge to which the plea has been entered. (c) As an alternative to allowing the withdrawal of a plea of guilty or nolo contendere, the court may order the specific performance by the government of pr omises or conditions of a plea agreement where it is within the power of the cou rt and the court finds, in its discretion, that specific performance is the appr opriate remedy for a breach of the agreement. Return to this Standards' Table of Contents to the Listing of Standards Ordering Information Return

Standard 14- 2.2. Withdrawn plea and discussions not admissible (a) A plea of guilty or nolo contendere that has been withdrawn should not be admitted as evidence against the defendant in any criminal or civil action or a dministrative proceedings. (b) Any statement made in the course of any proceedings concerning a plea of guilty or nolo contendere that has been withdrawn, or in plea discussions with t he prosecuting attorney that result in a plea of guilty or nolo contendere that is later withdrawn, should not be admitted as evidence against the defendant in any criminal or civil action or administrative proceedings, except that such a s tatement may be admitted: (i) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record, and in the presence of coun sel; or (ii) in any proceeding in which another statement made in the course of the s ame plea or plea discussions has been introduced and the statement ought in fair ness be considered contemporaneously with it. Return to this Standards' Table of Contents to the Listing of Standards PART III. PLEA DISCUSSIONS AND PLEA AGREEMENTS Standard 14- 3.1. Responsibilities of the prosecuting attorney (a) The prosecuting attorney may engage in plea discussions with counsel for the defendant for the purpose of reaching a plea agreement. Where the defendant has properly waived counsel, the prosecuting attorney may engage in plea discuss ions with the defendant. Where feasible, a record should be made and preserved f or all such discussions with the defendant. (b) The prosecuting attorney should make known any policies he or she may hav e concerning disposition of charges by plea or diversion. (c) The prosecuting attorney, in considering a plea agreement, may agree to o ne or more of the following, as dictated by the circumstances of the individual case: (i) to make or not to oppose favorable recommendations or to remain silent as to the sentence which should be imposed if the defendant enters a plea of guilt y or nolo contendere, including such terms of the sentence as criminal forfeitur e, restitution, fines and alternative sanctions; Ordering Information Return

(ii) to dismiss, to seek to dismiss, or not to oppose dismissal of the offens e charged if the defendant enters a plea of guilty or nolo contendere to another offense reasonably related to defendant's conduct; (iii) to dismiss, to seek to dismiss, or not to oppose dismissal of other cha rges or potential charges if the defendant enters a plea of guilty or nolo conte ndere; (iv) where appropriate, to enter an agreement with the defendant regarding th e disposition of related civil matters to which the government is or would be a party, including civil penalties and/or civil forfeiture; or (v) in lieu of a plea agreement, to enter an agreement permitting the diversi on of the case from the criminal process where appropriate and permissible to do so. (d) Similarly situated defendants should be afforded equal plea agreement opp ortunities. (e) The prosecuting attorney should make every effort to remain advised of th e attitudes and sentiments of victims and law enforcement officials before reach ing a plea agreement. (f) The prosecuting attorney should not knowingly make false statements or re presentations as to law or fact in the course of plea discussions with defense c ounsel or the defendant. (g) The prosecuting attorney should not, because of the pendency of plea nego tiations, delay any discovery disclosures required to be made to the defense und er applicable law or rules. (h) In connection with plea negotiations, the prosecuting attorney should not bring or threaten to bring charges against the defendant or another person, or refuse to dismiss such charges, where admissible evidence does not exist to supp ort the charges or the prosecuting attorney has no good faith intention of pursu ing those charges. Return to this Standards' Table of Contents to the Listing of Standards Ordering Information Return

Standard 14- 3.2. Responsibilities of defense counsel (a) Defense counsel should keep the defendant advised of developments arising out of plea discussions conducted with the prosecuting attorney, and should pro mptly communicate and explain to the defendant all plea offers made by the prose cuting attorney. (b) To aid the defendant in reaching a decision, defense counsel, after appro priate investigation, should advise the defendant of the alternatives available and address considerations deemed important by defense counsel or the defendant in reaching a decision. Defense counsel should not recommend to a defendant acce ptance of a plea unless appropriate investigation and study of the case has been completed. (c) Defense counsel should conclude a plea agreement only with the consent of the defendant, and should ensure that the decision whether to enter a plea of g uilty or nolo contendere is ultimately made by the defendant. (d) Defense counsel should not knowingly make false statements or representat

ions as to law or fact in the course of plea discussions with the prosecuting at torney. (e) At the outset of a case, and whenever the law, nature and circumstances o f the case permit, defense counsel should explore the possibility of a diversion of the case from the criminal process. (f) To the extent possible, defense counsel should determine and advise the d efendant, sufficiently in advance of the entry of any plea, as to the possible c ollateral consequences that might ensue from entry of the contemplated plea. Return to this Standards' Table of Contents to the Listing of Standards Standard 14- -3.3. Responsibilities of the judge (a) The judge should not accept a plea of guilty or nolo contendere without f irst inquiring whether the parties have arrived at a plea agreement and, if ther e is one, requiring that its terms and conditions be disclosed. (b) If a plea agreement has been reached by the parties which contemplates th e granting of charge or sentence concessions by the judge, the judge should: (i) order the preparation of a preplea or presentence report, when needed for determining the appropriate disposition; (ii) give the agreement due consideration, but notwithstanding its existence reach an independent decision on whether to grant charge or sentence concessions ; and (iii) in every case advise the defendant whether the judge accepts or rejects the contemplated charge or sentence concessions or whether a decision on accept ance will be deferred until after the plea is entered and/or a preplea or presen tence report is received. (c) The judge should not through word or demeanor, either directly or indirec tly, communicate to the defendant or defense counsel that a plea agreement shoul d be accepted or that a guilty plea should be entered. (d) A judge should not ordinarily participate in plea negotiation discussions among the parties. Upon the request of the parties, a judge may be presented wi th a proposed plea agreement negotiated by the parties and may indicate whether the court would accept the terms as proposed and if relevant, indicate what sent ence would be imposed. Discussions relating to plea negotiations at which the ju dge is present need not be recorded verbatim, so long as an appropriate record i s made at the earliest opportunity. For good cause, the judge may order the reco rd or transcript of any such discussions to be sealed. (e) In cases where a defendant offers to plead guilty and the judge decides t hat the final disposition should not include the charge or sentence concessions contemplated by the plea agreement, the judge shall so advise the defendant and permit withdrawal of the tender of the plea. In cases where a defendant pleads g uilty pursuant to a plea agreement and the court, following entry of the plea, d ecides that the final disposition should not include the contemplated charge or sentence concessions, withdrawal of the plea shall be allowed if: (i) the judge had previously concurred, whether tentatively or fully, in the proposed charge or sentence concessions; or (ii) the guilty plea is entered upon the express condition, approved by the j Ordering Information Return

udge, that the plea can be withdrawn if the charge or sentence concessions are s ubsequently rejected by the court. In all other cases where a defendant pleads guilty pursuant to a plea agreeme nt and the judge decides that the final disposition should not include the conte mplated charge or sentence concessions, withdrawal of the plea may be permitted as set forth in standard 14-2.1. Return to this Standards' Table of Contents to the Listing of Standards Ordering Information Return

Standard 14- 3.4. Inadmissibility of nolo contendere pleas, pleas not accepted, and plea discussions (a) A plea of nolo contendere should not be admitted as evidence against the defendant in any criminal or civil action or administrative proceedings. (b) A plea of guilty or nolo contendere that is not accepted by the court sho uld not be admitted as evidence against the defendant in any criminal or civil a ction or administrative proceedings. (c) Any statement made in the course of any proceedings concerning a plea of nolo contendere or a plea of guilty or nolo contendere that is not accepted by t he court, or in the course of plea discussions with the prosecuting attorney tha t do not result in a plea of guilty or that result in a plea of nolo contendere or a plea of guilty or nolo contendere that is not accepted by the court, should not be admitted as evidence against the defendant in any criminal or civil acti on or administrative proceedings, except that such a statement may be admitted: (i) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record, and in the presence of coun sel; or (ii) in any proceeding in which another statement made in the course of the s ame plea or plea discussions has been introduced and the statement ought in fair ness be considered contemporaneously with it. "Drug dependent person" means a person who is using a substance that is listed i n paragraph 6, 19, 20, 21 or 28 of this section and who is in a state of psychol ogical or physical dependence, or both, arising from the use of that substance. "Threshold amount" means a weight, market value or other form of measurement of an unlawful substance as follows: (a) One gram of heroin. (b) Nine grams of cocaine. (c) Seven hundred fifty milligrams of cocaine base or hydrolyzed cocaine. (d) Four grams or 50 milliliters of PCP. (e) Nine grams of methamphetamine, including methamphetamine in liquid suspensi on. (f) Nine grams of amphetamine, including amphetamine in liquid suspension. (g) One half milliliter of lysergic acid diethylamide, or in the case of blotter dosage units fifty dosage units. (h) Two pounds of marijuana. (i) For any combination consisting solely of those unlawful substances listed i n subdivisions (a) through (h) of this paragraph, an amount equal to or in exces s of the threshold amount, as determined by the application of section 13 3420. The factors to be considered by the district court in determining

whether to grant a motion to withdraw a guilty plea before sentencing are: (1) whether defendant established a fair and just reason to withdraw his plea; (2) whether defendant asserts his legal innocence of the charge; (3) the length of time between the guilty plea and the motion to withdraw; and (4) if the defendant established a fair and just reason for withdrawal, whether the government will be prejudiced. "Alford plea, in which a defendant does not admit guilt but agrees he might be c onvicted by a jury." The Arizona Daily Star (2003)[20] "Under an Alford plea, a defendant does not admit guilt but acknowledges the pro secution has enough evidence to obtain a conviction."