Pleas & Plea Negotiations in NC Superior Court

Jessica Smith, School of Government, UNC-Chapel Hill

N.C. Conference of Superior Court Judges

June 2005

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2,887

69,649

# of criminal cases by jury trial

# of criminal cases by guilty plea

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Types of pleas

• not guilty

• guilty

• no contest

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Types of pleas

• not guilty

• guilty

• no contest

fact that D pled not guilty may not be considered @ sentencing

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Boone, 293 N.C. 702 (sentence induced by D’s not guilty plea)Cannon, 326 N.C. 37 (after negotiations broke down & D demanded a jury trial, judge said that if convicted, D would get maximum sentence)Peterson, 154 N.C. App. 515 (sentencing judge said D “rolled the dice in a high stakes game” & lost the “gamble”)Pavone, 104 N.C. App. 442 (noting the negotiations broke down, judge said “having moved through the jury process & having been convicted . . . you are in a different posture.”). •

Alford Pleas

• “Strong evidence of actual guilt”• Same consequences as guilty plea• Sex offender rehabilitation• Not required to accept . . .

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“Our holding does not mean that a trial judge must accept every constitutionally valid guilty plea merely because a defendant wishes to so plead. A criminal defendant does not have an absolute right under the Constitution to have his guilty plea accepted by the court, although the States may by statute or otherwise confer such a right.” •

No Contest Pleas

• Prosecutor & judge must consent• Can be used later to prove D was convicted of the offense• Must inform D will be treated as guilty• Main benefit: not admission in civil proceedings

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QUESTION 1:

DURING PLEA NEGOTIATIONS, PROSECUTOR THREATENS THAT IF D DOESN’T PLEAD GUILTY, MORE SERIOUS CHARGES WILL BE INSTITUTED.

IS THAT PERMISSIBLE?

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QUESTION 2:

SUPPOSE D PLEADS NOT GUILTY & THE PROSECUTOR CARRIES OUT THE THREAT.

IS THAT PERMISSIBLE?

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Yes, both practices are permissible.

Bordenkircher v. Hayes, 434 U.S. 357.

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Plea Bargaining

• Waiver of right to appeal & collateral attack (MAR)

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QUESTION 3: D PLEADS GUILTY TO A MISD. IN DISTRICT COURT UNDER A PLEA ARRANGEMENT IN WHICH OTHER MISD. CHARGES ARE DISMISSED. D APPEALS FOR TRIAL DE NOVO. THE PROSECUTOR WANTS YOU TO TRY ALL OF THE ORIGINAL MISDEMEANOR CHARGES.

CAN YOU?•

QUESTION 4: D PLEADS GUILTY TO A MISD. IN DISTRICT COURT UNDER A PLEA ARRANGEMENT WHICH REDUCED A FELONY CHARGE. D APPEALS FOR TRIAL DE NOVO. THE PROSECUTOR HAS INDICTED ON THE ORIGINAL FELONY CHARGE & IS PREPARED TO TRY THAT CHARGE.

CAN YOU? •

Yes, to both questions.

For authority to try all of the original misd. charges, see GS 7A-271(b); 15A-1431(b).

For authority to try the felony, see State v. Fox, 34 NC App 576.

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Plea Bargaining• Arrangements as to sentence

If at sentencing you decide to impose a sentence other than that provided for in the plea arrangement, you must tell D he/she can withdraw plea

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GS 15A-1024 provides:

“If at the time of sentencing, the judge . . . determines to impose a

sentence other than provided for in a plea arrangement between the

parties, the judge must inform the defendant of that fact and inform

the defendant that he may withdraw his plea.”

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QUESTION 5:

A PLEA AGREEMENT PROVIDES THAT D WILL RECEIVE A SENTENCE OF 151-191 MONTHS. THE SENTENCING JUDGE IMPOSES 133-169 MONTHS. D APPEALS, SAYING HE SHOULD HAVE BEEN ALLOWED TO WITHDRAW HIS PLEA. IS HE RIGHT?

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Yes.

State v. Wall, __ NC App __ (Dec. 7, 2004), held that the phrase “other than that provided for in a plea arrangement” includes sentences that are lighter than those agreed to.

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Plea Bargaining

• Enforcing a Plea Agreement• Backing Out• Breach

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QUESTION 6: A NEGOTIATED PLEA HASN’T YET BEEN ACCEPTED BY THE COURT. PURSUANT TO IT, THE PROSECUTOR HAS DISMISSED CHARGES & D HAS PROVIDED DETAILED INFORMATION ABOUT HIS INVOLVEMENT & THE INVOLVEMENT OF OTHERS. CAN D BACK OUT? CAN THE PROSECUTOR BACK OUT? WHAT RULES APPLY? •

D can back out but the State probably can’t.

The state may withdraw at any time before actual entry of the plea or before there is an act of detrimental reliance by D. D is free to withdraw before entry of the plea, regardless of any prejudice to the prosecution.

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• Breach by StateExample:Breach of promise to take no position on sentencing

Can the prosecutor say anything at sentencing?

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• Ambiguous plea agreement• It’s a contract• But not an ordinary contract• Ambiguities construed against the state

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QUESTION 7:

THE STATE HAS BREACHED A PLEA AGREEMENT. WHAT REMEDIES ARE AVAILABLE? WHAT FACTORS SHOULD YOU CONSIDER IN DETERMINING THE REMEDY?

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When the State breaches, the remedies are specific performance or allowing withdrawal of the plea.

Santobello, 404 US 257.

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Factors to consider:

• who broke the bargain;• whether violation was deliberate or not;• changed circumstances since the plea;• whether there is additional information that, if not considered, would constrain the court to a disposition that it determines to be inappropriate; • D’s wishes

See Blackwell, 135 NC App.729. •

Notes:

1) D not entitled to specific performance when the plea agreement contains terms that violate statutory law.

2) If specific performance, best to have a new sentencing judge

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Plea Procedure• Plea must be intelligent & voluntary. Boykin, 395 US 238.

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Plea Procedure• Plea must be intelligent & voluntary. Boykin, 395 US 238.

• Intelligent means, in part, that D understands nature of the charges & the elements of the offenses

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“[Defendant]’s guilty plea would indeed be invalid if he had not been aware of the nature of the charges against him, including the elements of the aggravated murder charge to which he pleaded guilty”

Bradshaw v. Stumpf, 545 U.S. __ (June 13, 2005)

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QUESTION 8:

DOES THAT MEAN THAT THE JUDGE MUST INFORM D OF THE ELEMENTS OF THE CHARGE?

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No. “[W]e have never held that the judge must himself explain the elements of each charge to the [D] on the record. Rather, the constitutional prerequisites of a valid plea may be satisfied where the record accurately reflects that . . . elements of the crime were explained to the [D] by his own, competent counsel.” Stumpf, 545 U.S. __ (6/13/2005) •

Plea Procedure• Plea must be intelligent & voluntary. Boykin, 395 US 238.

• Intelligent also means D understands consequences

COLLATERAL

DIRECT •

Plea Procedure• Plea must be intelligent & voluntary. Boykin, 395 US 238.

• Intelligent means D understands consequences of the plea

COLLATERAL

DIRECT

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Direct Consequences:

Have a definite, immediate and largely automatic effect on the range of punishment.

Such as:• maximum sentence• mandatory minimum• additional term b/c of habitual offender status •

QUESTION 9:

D PLED GUILTY TO 1st DEGREE MURDER & 3 FELONIES. ON APPEAL HE ARGUES THE JUDGE FAILED TO INFORM HIM OF A DIRECT CONSEQUENCE OF HIS PLEA: THAT BECAUSE HE WAS PLEADING GUILTY TO 1st DEGREE P & D MURDER, HIS PLEAS TO THE FELONIES OTHER THAN MURDER WOULD ESTABLISH AGG. CIRCUMSTANCES AT THE CAPITAL SENTENCING PHASE. IS HE RIGHT? •

No. State v. Smith, 352 NC 531

“Nothing is automatic or predicable about how a . . . jury may weigh these aggravating circumstances or whether countervailing mitigating circumstances will be offered or how they will be weighed.”

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Other Collateral Consequences:

• Enhancing effect on future sentences by operation of career offender law• Use of the conviction as an aggravating circumstance for an unrelated pending charge• Civil implications, such as suspension of a driver’s license.

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NC Statutes

• GS 15A-1022 • Designed to effectuate constitutional requirements• Must address D “personally” & inform of rights & consequences of plea• Must address D, prosecutor & defense lawyer “personally” & ask about a plea agreement •

QUESTION 10:

D CHALLENGES A PLEA ON APPEAL, ALLEGING HE WAS NOT INFORMED OF THE RIGHTS WAIVED BY THE PLEA. ALTHOUGH THE TRANSCRIPT OF PLEA FORM IS COMPLETED PERFECTLY, THE VERBATIM TRANSCRIPT REVEALS THAT THE TRIAL JUDGE FAILED TO ADDRESS D PERSONALLY. DOES D WIN ON APPEAL? •

Yes. State v. Hendricks, 138 NC App. 668.

“our legislature's explicit reference to the trial judge addressing [D] personally and informing him of his rights illustrates that reliance on the transcript of plea alone (with which the judge has no involvement in the first place) is insufficient to meet section 15A-1022’s procedural requirements.”

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NC Statutes

• GS 15A-1021: No improper pressure

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QUESTION 11:

AFTER D PLEADS NOT GUILTY, JUDGE TELLS DEFENSE COUNSEL THAT HE THINKS THE JURY WILL CONVICT AND IF SO, HE’LL BE INCLINED TO GIVE A LONG SENTENCE. THEREAFTER D CHANGES HIS PLEA TO GUILTY. WAS THE PLEA VOLUNTARY?

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No. State v. Benfield, 264 NC 75.

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Plea Procedure

• Factual basis• Record required

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Plea Procedure

• Capital casesNow can plead guilty & state

may agree to life sentence, even if aggravating circumstance exists

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Plea Procedure

• Counsel

Right to counsel @ plea & in plea negotiations

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Plea Procedure

• Competency• Standard for capacity it same as at trial• Prescription medicines

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Plea Procedure

• SentencingBlakely applies

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QUESTION 12:

AS PART OF A PLEA AGREEMENT, D STIPULATES TO MINIMUM & MAXIMUM TERMS OF IMPRISONMENT. AT SENTENCING THE STATE DOES NOT PRODUCE EVIDENCE SUPPORTING D’S PRIOR RECORD LEVEL. D IS SENTENCED TO THE STIPULATED TERMS. D CHALLENGES PRL ON APPEAL. DOES HE WIN? •

Yes, at least under State v. Alexander, __ NC App. __ (Nov. 16, 2004)

Holding that stipulation as to minimum & maximum terms without accompanying stipulation as to PRL doesn’t relieve the state of its burden to prove PRL

Note that if D admits to PRL & agrees to a specified sentencing range as part of the plea, D cannot later challenge PRL •

QUESTION 13:

D1 & D2 HAVE ENTERED GUILTY PLEAS. D1 MOVES TO WITHDRAW THE PLEA BEFORE SENTENCING. D2 DOES SO AFTER SENTENCING. WHAT STANDARDS APPLY?

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Withdrawal before sentencing should be allowed for any “fair and just reason”

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Factors to consider:

• whether D has asserted legal innocence• strength of the State's evidence• length of time between entry of the plea and the desire to change it• whether D had competent counsel• whether D understood the consequences of the plea• whether plea was entered in haste, under coercion or when D was confused •

State may refute showing with evidence of concrete prejudice e.g.,

• destruction of physical evidence• death of W• long trial of co-Ds

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State v. Handy, 326 N.C. 532 (fair and just reason existed; D asserted innocence, sought to withdraw within 24 hours & felt pressured to plead; state did not argue prejudice)

State v. Deal, 99 N.C. App. 456 (D had a basic misunderstanding as to the result of the plea would be; D had low intellectual abilities & misunderstood the plea process; 4 month time lag; state did not argue prejudice).

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After sentencing, the standard is:

Manifest Injustice

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After sentencing, the standard is:

Manifest Injustice

• denied effective assistance of counsel• plea was involuntary

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Challenging a Plea• Claims the survive the plea

• Knowing & voluntary unconditional plea waives all defects that occurred before the plea

Exception: power of the state

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• Claims that survive the plea1) Defects in the plea itself e.g., Boykin claims2) G.S. 15A-1444 claim as to sentence3) Denial of motion to withdraw plea 4) Adverse ruling on suppression motion5) Noncompliance with plea procedures, if asserted before appeal period expires •

Challenging a Plea• The Record

• The Ambiguous Record• The Unambiguous Record

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QUESTION 14:WHEN D PLED GUILTY, JUDGE QUESTIONED D & LAWYERS ABOUT A PLEA AGREEMENT & NONE WAS REVEALED. THE PLEA FORM WAS COMPLETED & A VERBATIM RECORD MADE. D NOW ASSERTS THAT COUNSEL SAID “JUST ANSWER THE JUDGE’S QUESTIONS, THE STATE HAS AGREED THAT YOU’LL ONLY GET 48 MONTHS.” D GOT 64 MONTHS. WILL THE PLEA STAND? •

Yes. If the record unambiguously reveals that the judge scrupulously followed proper plea procedures, D representations at the time of the plea constitute a “formidable barrier” in any collateral challenge to the plea; a contention that those representations were false will entitle a defendant to an evidentiary hearing only in the most extraordinary circumstances. See Blackledge, 431 U.S. 63; see also Dickens, 299 NC 76.

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QUESTION 15:D PLED GUILTY 20 YEARS AGO. HE IS NOW CHALLENGING HIS PLEA, ARGUING THAT HE WAS NEVER TOLD OF HIS RIGHT TO A JURY TRIAL. THE FILE HAS BEEN DESTROYED, AS PART OF NORMAL RECORD DESTRUCTION PROCEDURES. WHAT KEY PRESUMPTION APPLIES HERE?

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The presumption of regularity.

This presumption--that the acts of the court were properly done absent “ample evidence to the contrary”—applies when a D collaterally attacks a guilty plea. See Parke, 506 US 20; Bass, 133 NC App. 646.

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