- Prosecutors have broad authority to negotiate plea bargains with defendants, including offering leniency in return for a guilty plea or threatening more serious consequences for refusing a plea, but the negotiations remain subject to certain ethical limitations.
- Statements by the defendant about the plea negotiations are usually not admissible at trial; however, any incriminating statements made by the defendant during those negotiations about the offense itself may be admissible.
"[T]there is no constitutional right to plea bargain; the prosecutor need not do so if he prefers to go to trial." See Weatherford v. Bursey, 429 U.S. 545 (1977). However, the prosecutor and the defendant may discuss and enter into a plea arrangement, if they wish, and the judge may participate. The state may not, however, unduly pressure the defendant to enter a plea. See G.S. 15A-1021(a), (b). A prosecutor has the constitutional authority to decide which defendants will be given plea offers, and to which charges, as long as the decision is not based on an impermissible factor such as race. State v. Woodson, 287 N.C. 578 (1975). The prosecutor and the defendant, or the defendant’s attorney, must inform the court of the terms of any plea arrangement before the defendant enters a plea to charges in superior court. G.S. 15A-1021 - 1023. Procedural restrictions on plea negotiations do not apply in district court, but the same general process that is used in superior court should be followed in district court, albeit in a less formal manner. See G.S. 15A-1021, Official Commentary; see generally G.S. 15A-1021 to 1027.
Plea arrangements involving a sentence recommendation are subject to slightly different requirements than negotiations solely about charges. When the terms of the plea include a particular recommended sentence, the proposed sentence must be disclosed to the court at the time the defendant is called upon to plead, and the court will indicate whether it is willing to accept the terms and impose the recommended sentence. See G.S. 15A-1021(c); G.S. 15A-1023(a), (b). By contrast, if the plea agreement only involves a disposition of charges without a specific sentencing recommendation, the judge must accept the plea as long as it the result of the defendant’s informed choice and supported by a factual basis. G.S. 15A-1023(c). This distinction exists because the final decision regarding charge reduction or dismissal rests with the prosecutor, while the final decision regarding a defendant’s sentence always rests with the judge. See G.S. 15A-1021, Official Commentary.
Permissible Subjects of Plea Arrangements
1. Leniency and Charges
Extending leniency in return for a guilty plea is permissible. Corbitt v. New Jersey, 439 U.S. 212 (1979). Similarly, due process is not violated when a prosecutor engaging in plea negotiations charges, or threatens to charge, the defendant with a more serious crime for which he or she is already subject to prosecution. Bordenkircher v. Hayes, 434 U.S. 357 (1978). Charging a more serious crime after plea negotiations have broken down likewise does not violate due process. State v. Ford, 136 N.C. App. 634 (2000); see also United States v. Goodwin, 457 U.S. 368, 380-84 (1982) (presumption of vindictiveness did not apply when defendant was indicted for a felony after he requested a jury trial on misdemeanor charges).
2. Reductions and Dismissals
Charge reductions, charge dismissals, and sentencing recommendations are all proper subjects for negotiation. See G.S. 15A-1054. When an agreement is reached between the prosecutor and a witness that immunity will be granted, charges will be reduced or dismissed, or that recommendations for sentence concessions will be made by the prosecutor in exchange for the truthful testimony of the witness, the prosecutor must give written notice of the terms of the agreement to the defendant’s attorney within a reasonable time before the witness is expected to testify. See G.S. 15A-1051, 15A-1052 (immunity, see also the related entry on Plea Agreements – Grants of Immunity); G.S. 15A-1023 (sentencing, charges). The court must grant a recess if the prosecutor fails to provide advance notice of such an agreement. When a prosecutor agrees to recommend a particular sentence, the procedures described in G.S. 15A-1023 must be followed.
3. Appeal and Collateral Attack
The validity of a waiver in a plea agreement of defendant’s statutory right to appeal or collaterally attack the conviction and sentence has not yet been specifically ruled on by North Carolina appellate courts, but similar waivers in federal cases have been upheld by the Fourth Circuit. See United States v. LeMaster, 403 F.3d 216 (4th Cir. 2005) (“we hold that a criminal defendant may waive his right to attack his conviction and sentence collaterally, so long as the waiver is knowing and voluntary.”); United States v. Davis, 954 F.2d 182 (4th Cir. 1992) (defendant’s waiver of appellate rights was knowing and voluntary, and therefore “we uphold the waiver of appellate rights contained in Davis' plea agreement”); United States v. Wiggins, 905 F.2d 51, 53 (4th Cir.1990) (“It is clear that a defendant may waive in a valid plea agreement the right of appeal”)
4. Third Parties and “Package Pleas”
An offer to show leniency to a third party, such as a spouse or friend of the defendant, has withstood a due process challenge in North Carolina, but the U.S. Supreme Court has indicated that such offers may require some degree of ‘heightened scrutiny.’ See State v. Summerford, 65 N.C. App. 519 (1983) (state's offer to dismiss against wife if husband pled guilty was not an abuse of discretion); but see Bordenkircher v. Hayes, 434 U.S. 357 (1978) (noting that such offers may pose a danger of inducing a false guilty plea by skewing the defendant’s risk assessment).
A “package” plea deal refers to a similar arrangement in which all co-defendants must agree to plead guilty before any one defendant will be allowed to benefit from it. This arrangement might place additional pressure on each defendant to accept the plea for the sake of others, but North Carolina courts have rejected the argument that this make such pleas per se involuntary. See State v. Salvetti, 202 N.C. App. 18 (2010) (insufficient evidence to show that the state brought improper pressure on the defendant to induce his guilty plea to felony child abuse where plea offer to wife was conditional upon defendant pleading guilty – court found there was a sufficient factual basis for the plea, and the defendant was not threatened with a sentence more severe than would normally be imposed for pleading not guilty).
Restrictions on Prosecutorial Conduct in Plea Negotiations
A prosecutor may not seek to induce a plea of guilty or no contest by:
- Charging or threatening to charge the defendant with a crime not actually supported by the facts believed by the prosecutor to be provable;
- Charging or threatening to charge the defendant with a crime not ordinarily charged in the jurisdiction for the conduct at issue;
- Threatening the defendant that if he or she pleads not guilty, his or her sentence may be more severe than that which is ordinarily imposed in the jurisdiction in similar cases on defendants who plead not guilty.
See G.S. 15A-1021, Official Commentary; State v. Salvetti, 202 N.C. App. 18, 32 (2010) (finding that none of these forms of pressure were applied). Additionally, North Carolina statutes, State Bar Ethics Opinions, and the Rules of Professional Conduct state that the prosecutor may not use improper influence or engage in other improper negotiations such as:
- Using or threatening to use the prosecutor’s statutory calendaring power to coerce a defendant to plead guilty. See North Carolina State Bar Ethics Opinion, 1997 RPC 243 (unethical for prosecutor to threaten that if the defendant did not accept the plea bargain, the prosecutor would make the defendant sit in the courtroom all week and place the defendant’s case “on the calendar every Monday morning for weeks to come”).
- Offering more advantageous pleas to the defendant in exchange for a donation to a specified charitable organization. See N.C. State Bar Ethics Opinion, 1995 RPC 204 (prosecutors could not ethically offer special treatment to offenders who were charged with violating traffic laws or minor criminal offenses in exchange for their donation to the local school board).
- Agreeing to refrain from informing the court of the defendant’s prior record. See G.S. 15A-1340.14(f); North Carolina Rules of Professional Conduct, Rule 3.3 (duty of candor to court); North Carolina State Bar Ethics Opinion, 2003 FEO 5; North Carolina State Bar Ethics Opinion, 1998 FEO 5.
Admissibility of Evidence of Plea Discussions and Agreements
The fact that any plea negotiations occurred, that a plea arrangement was discussed, or that a guilty plea was withdrawn may not be offered into evidence. See G.S. 8C-1, Rule 410; G.S. 15A-1025; State v. Walker, 167 N.C. App. 110 (2004) (defendant’s letters to prosecutor offering to confess in return for a probationary sentence were plea negotiations and could not be used to cross-examine the defendant at trial); but see State v. Curry, 153 N.C. App. 260 (2002) (defendant’s incriminating statements to law enforcement, made in the hopes of receiving a favorable plea offer but with a warning that no such offer was on the table or guaranteed, were not part of plea negotiations and were therefore admissible).
However, other statements made during the course of plea negotiations may be admissible in certain circumstances, such as to impeach a defendant’s testimony by showing a contradictory statement, as long as the fact of plea bargaining itself is not revealed. See State v. Jenkins, 292 N.C. 179 (1977); see also State v. Haymond, 203 N.C. App. 151 (2010) (defendant’s statements during pretrial hearing were not excluded under Rule 410 because they were made during defendant’s various requests to trial court and defendant did not subjectively believe he was negotiating a plea with the prosecutor or with the prosecutor’s express authority); State v. Flowers, 347 N.C. 1 (1997) (defendant’s incriminating letter sent to district attorney was admissible; mention of possibility of plea bargain did not make letter inadmissible); State v. Bostic, 121 N.C. App. 90 (1995) (defendant’s statement to inmate was admissible: “Yeah, I killed the bitch. I’ve done my time. I’ll take a plea bargain and walk.”).
In United States v. Mezzanatto, 513 U.S. 196 (1995), the Supreme Court held that a defendant may waive the statutory protections of the rules of evidence and procedure which would normally exclude statements made during plea negotiations from admission into evidence against the defendant. In Mezzanatto, the defendant agreed that any statements he made during plea negotiations could be used later to impeach him, and his statements were, in fact, used in this way at trial. North Carolina appellate courts are not required to interpret North Carolina’s evidentiary rules and statutes the same way the federal courts have, but G.S. 8C-1, Rule 410, and G.S. 15A-1025 are very similar to the federal rules that were involved in this case.
No Specific Performance of Plea Agreement When Terms Violate Law
If a defendant pleads guilty based on a plea agreement containing negotiated terms that are in violation of statutory law (for example, where the parties agree that the defendant will receive concurrent sentences but state law requires consecutive sentences), the defendant is not entitled to specific performance of the agreement. Instead, the defendant is entitled to withdraw the guilty plea. See State v. Ellis, 361 N.C. 200 (2007); State v. Wall, 348 N.C. 671 (1998).