This statement caught many by surprise because of the commonly held belief that a guilty plea forecloses any appeal. But, while a plea forecloses most issues that might be raised on appeal, it does not foreclose all of them. Lowell, an experienced and able lawyer, understands this and clearly plans to pursue an appeal to overturn Biden’s tax convictions.

In federal court, the vast majority of guilty pleas are entered pursuant to plea agreements between the government and the defendant, in which the government makes certain concessions such as dropping some charges or agreeing to limits on the sentence. In return, the government usually demands that the defendant waive the right to all appeals, and to habeas corpus filings post-conviction. //

Thus, in most cases, a guilty plea in federal court does mean that there will be no appeal.

Further, because a waiver of appeal rights is standard in most plea agreements, the federal rule of criminal procedure governing pleas requires the court to address this issue and ensure that the defendant understands that he or she is waiving the right to appeal – but only if there is a plea agreement that addresses waiving appellate rights. //

The law provides that unqualified guilty pleas do constitute a waiver of the right to appeal the vast majority of claims that there were defects or errors in the case prior to the plea. Thus, defendants cannot appeal on any ground that challenges factual guilt, evidentiary errors, procedural errors, and even most constitutional errors.

Defendants can still appeal certain kinds of claims even with a guilty plea, however. These exceptions to the usual rule that the plea waives the right to appeal basically fall into three categories.

First, a defendant can almost always appeal on the grounds that the court itself lacked jurisdiction over the case. //

Secondly, the defendant can appeal based on claims that the government lacked the power to prosecute the person in the first place. These are usually constitutional claims, such as immunity, double jeopardy, selective prosecution, or an argument that the charged statute is unconstitutional in some way. These appeals are permitted because they question the legality of the prosecution itself, not whether the person engaged in the charged conduct.

Thirdly, the law provides that the right to appeal certain defects in a criminal case simply cannot be waived by a defendant, whether there is a plea agreement or not. These issues lie at the heart of the functioning of the criminal justice system. So, for example, a defendant cannot waive the right to appeal an illegal sentence (such as one that exceeds the statutory maximum), or the ineffective assistance of the defense lawyer, or misconduct by the prosecutor in the case or the plea bargaining process.