A conviction is void where the charging paper plainly fails to allege an act made criminal by federal law,[491] or if the statute defining the offense is unconstitutional.[492]  These claims are not waived by a guilty plea.[493]

 

            The United States Supreme Court overruled prior law, and held that defects in the indictment, such as failure to state an offense, do not deprive the court of jurisdiction over the case.[494]

[491] E.g., United States v. Cuch, 79 F.3d 987 (10th Cir. 1996)(claim that federal court had no jurisdiction because offense did not occur in Indian country, and therefore occurred at a place over which the federal government lacked jurisdiction); Standing Bear v. United States, 68 F.3d 271 (8th Cir. 1995); Frank v. United States, 914 F.2d 828 (7th Cir. 1990)(custody resulting from indictment that fails to state an offense violates the laws of the United States).

[492] E.g., Sunal v. Large, 332 U.S. 174 (1947); Baender v. Barnett, 255 U.S. 224 (1921); Ex parte Siebold, 100 U.S. 371 (1880).

[493] Haring v. Prosise, 462 U.S. 306 (1983); D. Wilkes, supra, at § § 4-13 and 4-14.

[494]  United States v. Cotton, 535 U.S. 625, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (failure to allege drug quantity in indictment did not deprive court of jurisdiction to convict).

Other

CAL POST CON " MOTION TO WITHDRAW PLEA " RIGHT TO BE SENTENCED BY JUDGE WHO TOOK THE PLEA INAPPLICABLE WHERE SENTENCING DISCRETION EXPRESSLY CONSTRAINED BY PLEA AGREEMENT
People v. McIntosh, 177 Cal.App.4th 534, 98 Cal.Rptr.3d 901 (September 8, 2009)(affirming denial of pre-judgment motion to withdraw plea when sentencing discretion is expressly constrained by the terms of a plea agreement and the judge who accepted the plea becomes unavailable for reasons beyond the court's or the prosecutor's control, and the defendant is not automatically entitled to withdraw his plea under People v. Arbuckle (1978) 22 Cal.3d 749 in the absence of evidence that exercise of individualized judicial discretion was material element of the consideration for the plea agreement). at least in circumstances where sentencing discretion is constrained by the terms of a plea agreement and the sentencing judge becomes unavailable for reasons beyond the court's or the prosecution's control, the defendant is not entitled to withdraw his or her plea in the absence of evidence that exercise of individualized judicial discretion was a material element of the plea agreement. A. Arbuckle and the Problem of Unavailability In Arbuckle, the defendant argued that a term of his plea agreement was violated because he was sentenced by a different judge from the judge who took his plea. ( Arbuckle, supra, 22 Cal.3d at p. 753, 150 Cal.Rptr. 778, 587 P.2d 220.) Because of delays caused by motions and a writ petition brought by defendant himself in relation to the sentencing, by the time of the sentencing hearing the judge who took the defendant's plea had been reassigned to a different department. ( Ibid.) The defendant claimed that sentencing by the same judge was an implied term of his plea agreement that he had the right to specifically enforce. ( Id. at pp. 756-757, 150 Cal.Rptr. 778, 587 P.2d 220.) The Supreme Court, in a relatively brief discussion, agreed that the change of the sentencing judge violated an implied term of the plea agreement and that the defendant was entitled to a remedy. ( Ibid.) B. Application of Arbuckle to the Facts of this Case [2] [3] As many courts have recognized, Arbuckle does not stand for the blanket proposition that under all circumstances, a defendant is entitled to assert his or her right to have the same judge who presided over the plea hearing also preside over the sentencing hearing. ( Hsu, supra, 168 Cal.App.4th at p. 409, 85 Cal.Rptr.3d 566.) It is not always an implied term of a plea bargain that the judge who accepts the plea will impose the sentence; rather, the record must affirmatively demonstrate some basis upon which a defendant *543 may reasonably expect that the judge who accepts the plea will retain sentencing discretion. [Citation.] ( People v. Ruhl (1985) 168 Cal.App.3d 311, 315, 214 Cal.Rptr. 93.) We agree with the view expressed in Letteer that ultimately the issue is simply whether sentencing by a different judge constitutes a significant deviation from the terms of the plea bargain, permitting a defendant to withdraw the plea. ( Letteer, supra, 103 Cal.App.4th at p. 1318, 127 Cal.Rptr.2d 723.)