Pleas & Plea Negotiations in NC Superior Court

1. Pleas & Plea Negotiations in NC Superior Court Jessica Smith, School of Government, UNC-Chapel Hill N.C. Conference of Superior Court Judges June 2005

2. 2,887 69,649

3. 2,887 69,649 # of criminal cases by jury trial # of criminal cases by guilty plea

4. Types of pleas • not guilty • guilty • no contest

5. Types of pleas • not guilty • guilty • no contest fact that D pled not guilty may not be considered @ sentencing

6. 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.”).

7. Types of pleas • not guilty • guilty • no contest Alford pleas

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

9. “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.”

10. Types of pleas • not guilty • guilty • no contest

11. 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

12. Plea Bargaining

13. QUESTION 1: DURING PLEA NEGOTIATIONS, PROSECUTOR THREATENS THAT IF D DOESN’T PLEAD GUILTY, MORE SERIOUS CHARGES WILL BE INSTITUTED. IS THAT PERMISSIBLE?

14. QUESTION 2: SUPPOSE D PLEADS NOT GUILTY & THE PROSECUTOR CARRIES OUT THE THREAT. IS THAT PERMISSIBLE?

15. Yes, both practices are permissible. Bordenkircher v. Hayes, 434 U.S. 357.

16. Plea Bargaining • Waiver of right to appeal & collateral attack (MAR)

17. 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 ALLOF THE ORIGINAL MISDEMEANOR CHARGES. CAN YOU?

18. 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?

19. 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.

20. 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

21. 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.”

22. 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?

23. 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 lighterthan those agreed to.

24. Plea Bargaining • Enforcing a Plea Agreement • Backing Out • Breach

25. 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?

26. 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.

27. Breach by State • Example: • Breach of promise to take no position on sentencing

28. Breach of promise to take no position on sentencing • Can the prosecutor say anything at sentencing?

29. Ambiguous plea agreement

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

31. Remedies for State’s breach

32. QUESTION 7: THE STATE HAS BREACHED A PLEA AGREEMENT. WHAT REMEDIES ARE AVAILABLE? WHAT FACTORS SHOULD YOU CONSIDER IN DETERMINING THE REMEDY?

33. When the State breaches, the remedies are specific performance or allowing withdrawal of the plea. Santobello, 404 US 257.

34. 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.

35. Notes: • 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

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

37. 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

38. “[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)

39. QUESTION 8: • DOES THAT MEAN THAT THE JUDGE MUST INFORM D OF THE ELEMENTS OF THE CHARGE?

40. 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)

41. Plea Procedure • Plea must be intelligent & voluntary. Boykin, 395 US 238. • Intelligent also means D understands consequences of the plea

42. Plea Procedure • Plea must be intelligent & voluntary. Boykin, 395 US 238. • Intelligent also means D understands consequences • COLLATERAL • DIRECT

43. Plea Procedure • Plea must be intelligent & voluntary. Boykin, 395 US 238. • Intelligent means D understands consequences of the plea X • COLLATERAL • DIRECT

44. 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

45. 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?

46. 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.”

47. 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.

48. 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

49. 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?

50. 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.”