How Clear is the Law on Withdrawing From Plea Agreements?

State Supreme Court went with straightforward reading, but law might be muddier than majority’s interpretation

On July 1, the Colorado Supreme Court decided a criminal case that left the justices divided on the impact of not allowing prosecutors to withdraw from plea agreements if a trial court decides a different sentence than what’s in the plea is appropriate. 


The majority read the law and an applicable rule of criminal procedure as unambiguous. Trial courts are required by Section 16-7-302(3) of state law and Rule of Criminal Procedure 16-7-302(3) to use independent judgment in deciding whether to go along with or reject sentence concessions in plea agreements. 

If a trial court decides not to accept the sentencing agreement, Section 16-7-302(2) of Colorado law and Rule of Criminal Procedure 32(d) direct a trial court to “advise the defendant and the district attorney” that it is not accepting the sentence concession “and then call upon the defendant to either affirm or withdraw the plea of guilty.”

Justice Carlos Samour wrote in the majority opinion that neither the law nor Rule 32(d) mention the prosecution’s ability to confirm or withdraw from a plea agreement after a trial court has said it rejects a sentencing agreement. 

The lack of mention of prosecutors is significant, he said, because the statute and the rule do mention the prosecution elsewhere.

In the original case, Christopher Mazzarelli pled guilty to a charge of criminally negligent child abuse resulting in serious bodily injury. The plea included a sentence of two to eight years in prison. But the trial court decided a prison sentence did not fit the situation, noting Mazzarelli’s child had not suffered permanent injuries and that Mazzarelli had made significant progress in a related dependency and neglect proceeding.

The court ultimately denied the prosecutor’s request to withdraw from the plea agreement as a sanction for misstatements she made during a hearing. The prosecution appealed, and the Court of Appeals upheld the trial court’s decision to not allow the prosecution to withdraw from the plea agreement. The Court of Appeals said the prosecution wasn’t entitled to withdraw and the trial court had discretion to sentence Mazzarelli outside of the agreed-on range.

But as straightforward as the Supreme Court majority read Colorado law and the Rules of Criminal Procedure, the impact of the decision may not be so simple.

Sean Connelly, an appellate lawyer and former Court of Appeals judge, said the decision likely came as a surprise to the parties because case law seems to indicate the prosecution in the Mazzarelli case did have the right to withdraw from the plea.

In Keller v. People, the state Supreme Court said because plea agreements are essentially contracts, a prosecutor can only withdraw from a plea agreement modified by a trial court when the modification constitutes a “material and substantial” breach of the agreement. In his dissent in Mazzarelli, Justice Brian Boatright disagreed with the majority’s characterization that the Keller decision only applies to situations where the defendant causes the plea agreement breach.

“Clearly, the plea agreement [in Mazzarelli] was modified in a material and substantial way,” Boatright wrote.

The majority tried to add clarity to its interpretation of the law and Rule 32(d) by saying neither allows the prosecution to include a provision in a plea agreement that gives them the ability to withdraw from it if the trial court disagrees with the parties’ sentence concessions.

But Connelly said he’s not so sure that part of the ruling is on solid footing. The issue of prosecutors writing plea agreements around the opinion to protect their ability to withdraw wasn’t raised in the lower courts. And if prosecutors can’t work into plea agreements their ability to withdraw, he said, cases may come up in which the prosecution instead argues the defense tried to influence the judge to impose a more lenient sentence and breached the agreement. 

Connelly said there’s an “inherent tension” in the fact that plea agreements are essentially a three-party process — with prosecutors, defendants and judges — but only two of the parties are involved in negotiating the contract.

“One thing I think is apparent from this opinion is the rules on that are anything but clear in this area,” Connelly said. “The holding in the majority was really done by negative inference.”

He noted the Federal Rules of Criminal Procedure contain clearer guidance on withdrawing from plea agreements. Under Rule 11, some types of pleas known as “(B) pleas” don’t allow either side to withdraw regardless of whether a trial court follows the sentence recommendation. But sentences in “(C) pleas” are binding on trial courts, and then also bind both parties.

Defense attorney Jay Tiftickjian said he believes the decision will act as a sentencing “cap,” turning stipulations the prosecution and defendant agree on into a maximum sentence. If a judge believes a more severe sentence is appropriate, the defendant can withdraw, he said.

Tiftickjian said he worries about lobbying targeting the legislature to overturn the Mazzarelli decision. 

“That would be very disappointing, because the whole purpose of having a judge is to determine what the legal and just sentence would be based on the background of the client, the facts of the case” and all the circumstances, he said. 

Connelly doesn’t think the legislature should directly address the Mazzarelli decision’s effects. Since it’s purely a procedural issue, Connelly said, it should be up to the Supreme Court to address through rule making if the court chooses, and the issue should stay out of the fray of partisan politics. The legislature’s role may be to repeal the law and then allow the Supreme Court to step in.

“I think this is an issue where clarity is paramount,” he said. “I think what would be best is to get out of the way and leave this to rulemaking [by the courts].”

—Julia Cardi

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