133.2Plea Agreements

Entry and Enforcement of Plea
Last Updated: 07/13/21

Key Concepts

  • Defendant’s guilty plea must be knowingly and voluntarily made, with a full understanding of the charges and the consequences of the plea.
  • A guilty plea taken in violation of defendant’s right to counsel, or without satisfying the other requirements of being knowing and voluntary, cannot be used against the defendant in a later proceeding.
  • If a defendant moves to withdraw from a guilty plea, the court will consider the timing of the request, the reasons offered for it, and any prejudice caused to the state.
  • If the defendant appeals from a guilty plea in district court and seeks a trial de novo in superior court, the state is not bound by the terms of the prior plea.

Overview

A defendant may plead guilty or not guilty, or, with the consent of both the prosecutor and the judge, may plead “no contest.” G.S. 15A-1011(a), (b). If the defendant fails (or refuses) to enter any plea, the court must record that fact and proceed to try the defendant as if he or she had entered a plea of not guilty. G.S. 15A-941.  Plea proceedings in superior court must be recorded, see G.S. 15A-1026, as must pleas to H and I felonies entered in district court, see G.S. 7A-191.1. Jeopardy does not attach with a guilty or no contest plea until the judge accepts the plea and a judgment is entered. State v. Wallace, 345 N.C. 462 (1997).

A judge may not accept a defendant’s plea to a lesser offense over the state’s objection. State v. Brown, 101 N.C. App. 71 (1990). Even if the judge did so, the double jeopardy clause would not bar the state from trying the defendant for the greater offense. Ohio v. Johnson, 467 U.S. 493 (1984).

Procedure for Entering a Plea

Before accepting a plea agreement, the court must be satisfied that the defendant understands his or her rights, and that his or her decision to plead guilty is knowing and voluntary. See Boykin v. Alabama, 395 U.S. 238 (1969). The questions listed on the transcript of plea for use in superior court (AOC-CR-300) adequately address these issues. The prosecutor should ensure that the court reads each question aloud and receives a verbal response from the defendant. For felony pleas in district court, form AOC-CR-322 is used instead. To properly accept a plea, the court must do the following:

  1. Inform defendant of his or her rights. G.S. 15A-1022(a); Boykin v. Alabama, 395 U.S. 238 (1969); State v. Pait, 81 N.C. App. 286 (1986) (guilty plea was involuntary).
  2. Ensure the defendant’s right to counsel. G.S. 15A-942; 15A-1012(a).
  3. Determine if the defendant understands the charge, possible sentence, and consequences of plea. G.S. 15A-1022(a); Bryant v. Cherry, 687 F.2d 48 (4th Cir. 1982); State v. Reynolds, 218 N.C. App. 433 (2012) (error when trial court told defendant that maximum possible sentence would be 168 months' imprisonment but the maximum possible sentence, and the sentence ultimately imposed, was actually 171 months; appellate court rejected state’s argument that defendant was not prejudiced by this error).
  4. Determine if there is a plea arrangement. See G.S. 15A-1022(b); 15A-1021; 15A-1023; 15A-1026.
  5. Determine whether plea is product of informed choice. G.S. 15A-1022(b); State v. Simmons, 81 N.C. App. 286 (1986) (defendant was prejudiced by attorney’s failure to inform him of plea bargain offer).
  6. Determine if there is a factual basis for the plea. G.S. 15A-1022(c); State v. Sinclair, 301 N.C. 193 (1980). This may be satisfied by a statement of facts from the prosecutor, sworn testimony, written statements, or other information.
  7. Inform the defendant about the consequences of a no contest plea, if applicable. G.S. 15A-1022(d).
Practice Pointer

Less formal in district court
Although Article 58 of Chapter 15A applies only to taking guilty pleas in superior court, the Boykin requirements (freely and voluntarily made, fully understanding the nature of the charges) apply to any guilty plea, including misdemeanor pleas in district court. See State v. Harris, 14 N.C. App. 268 (1972) (defective guilty plea to misdemeanor assault charge originating in district court).
In practice, however, the process for accepting pleas in district court is somewhat less formal than the process used in superior court. The district court may, for example, collectively advise all defendants of their rights, or have them sign a pre-printed waiver of trial form. Additionally, having the defendant’s own attorney (rather than the judge) advise the defendant of his rights and the consequences of a guilty plea will adequately satisfy the Boykin requirements in most cases. See Bradshaw v. Stumpf, 545 U.S. 175 (2005) (“we have never held that the judge must himself explain the elements of each charge to the defendant on the record. Rather, the constitutional prerequisites of a valid plea may be satisfied where the record accurately reflects that the nature of the charge and the elements of the crime were explained to the defendant by his own, competent counsel”); North Carolina v. Alford, 400 U.S. 25, n. 3 (1970) (finding no Boykin issue existed where "Alford had been fully informed by his attorney as to his rights on a plea of not guilty and as to the consequences of a plea of guilty").

Admission of Guilt Is Not Required – Alford Plea

The defendant may elect to plead guilty “pursuant to Alford.” Under such a plea, even though a defendant does not admit committing the offense and protests his or her innocence, the judge may accept defendant’s guilty or no contest plea if the record strongly supports the defendant’s guilt and the defendant intelligently concludes that it is in his or her interest to enter such a plea. North Carolina v. Alford, 400 U.S. 25 (1970); State v. McClure, 280 N.C. 288 (1972); State v. Hunter, 11 N.C. App. 573 (1971).

Unlike a no contest plea, which requires the consent of both the prosecutor and the judge under G.S. 15A-1011, there is no comparable statutory requirement that requires the state's consent to enter an Alford plea.

Standard for the Defendant’s Withdrawal from a Plea Agreement

If the motion to withdraw is made before sentencing, the court should allow it for any “fair and just” reason. Courts will consider a variety of factors under this standard, including defendant’s asserted legal innocence, strength of the state’s evidence, length of time between entry of the plea and requested withdrawal, presence of competent counsel at all times, confusion, and coercion, as well as any prejudice to the state caused by allowing the withdrawal. See State v. Handy, 326 N.C. 532 (1990) (withdrawal allowed where defendant changed his mind overnight after praying and talking with family and counsel); but see State v. Meyer, 330 N.C. 738 (1992) (defendant offered no fair and just reasons to support motion other than citing “changed circumstances” after his escape from jail, and motion was properly denied – state may show prejudice from allowing withdrawal, but it is not required); State v. Marshburn, 109 N.C. App. 105 (1993) (defendant’s claim eight months after plea that  he did not really know whether he was guilty when he entered the plea, and did not realize it would count as a conviction for federal sentencing was not a fair and just reason for withdrawal of guilty plea); State v. Davis, 150 N.C. App. 205 (2002) (trial judge did not err in denying defendant’s motion to withdraw guilty plea when, seven days after entry of plea and one day before sentencing hearing, defendant claimed he had entered the agreement hastily and was confused about the charge, assertions belied by the transcript); State v. Robinson, 177 N.C. App. 225 (2006) (defendant’s claim more than three months after plea, that he was confused about terms requiring him to testify was not a fair and just reason for withdrawal of plea); State v. Hatley, 185 N.C. App. 93 (2007) (trial judge did not err in refusing to allow defendant to withdraw plea after judge found that defendant failed to comply with plea agreement by failing to provide truthful statement to SBI agent).

When a motion to withdraw a guilty plea is made after sentencing, the standard is to allow the withdrawal only when it is necessary to avoid “manifest injustice.” State v. Handy, 326 N.C. 532 (1990). This higher standard is warranted based on: (i) the likelihood that the defendant may decide the plea was a ‘tactical mistake’ once a sentence is imposed; (ii) the prosecutor will often have already dismissed other charges or disposed of evidence in reliance on the guilty plea; and (iii) the well-settled public policy of protecting the “finality” of criminal convictions, as long as they were entered into voluntarily and with advice of counsel. Id. at 536-37.

Requests to withdraw a plea agreement frequently arise in two other circumstances. First, a defendant who successfully challenges a sentence under a motion for appropriate relief has a right to withdraw a guilty plea when the error in the original sentencing is not merely clerical or administrative. State v. Wall, 167 N.C. App. 312 (2004).  Second, a judge who resentences a defendant inconsistently with the plea agreement must allow the defendant to withdraw his or her guilty plea. State v. Rhodes, 163 N.C. App. 191 (2004).

Standard for the State’s Withdrawal from a Plea Agreement

“The State may withdraw from a plea bargain arrangement at any time prior to, but not after, the actual entry of the guilty plea by defendant or any other change of position by him constituting detrimental reliance upon the arrangement.” State v. Collins, 300 N.C. 142, 148 (1980); see also State v. Hudson, 331 N.C. 122 (1992) (defendant was not entitled to enforcement of plea agreement that state had withdrawn from before guilty plea had been entered, and defendant had not detrimentally relied on agreement); State v. Marlow, 334 N.C. 273 (1993) (similar ruling). The defendant’s acceptance of a prosecutor’s plea offer does not create a constitutional right to have the agreement specifically enforced when the defendant has not yet entered a plea in court in reliance upon the offer. Mabry v. Johnson, 467 U.S. 504 (1984). After a defendant pleads guilty, however, the defendant has a due process right to enforce the plea agreement or to withdraw the plea if the prosecutor does not conform to the agreement. Santobello v. New York, 404 U.S. 257 (1971).

State Is Not Bound by Plea Arrangement if Defendant Appeals for Trial De Novo

Unless there was a specific waiver of the right to appeal as part of the plea agreement, a defendant who is convicted of a misdemeanor in district court may appeal to superior court for trial de novo, even when the conviction results from a plea of guilty according to a plea arrangement. See G.S. 7A-290; State v. Fox, 34 N.C. App. 576 (1977). However, if the original charge against the defendant was a misdemeanor and defendant pled guilty under a plea arrangement to a lesser misdemeanor, then the state may, upon defendant’s appeal for trial de novo, reinstate the original charge. See G.S. 7A-271(b). If the original charge was a felony that was dismissed or reduced to a misdemeanor as part of a plea arrangement in which defendant pled guilty to a misdemeanor in district court, the state may reinstate the original charge on defendant’s appeal for trial de novo by indicting and trying the defendant for the felony in superior court. State v. Fox, 34 N.C. App. 576, 578 (1977).

Procedure If the Judge Rejects (or Fails to Abide by) Plea Arrangement

  1. If the judge refuses to go along with a plea arrangement in which the prosecutor has agreed to recommend a particular sentence, the parties may renegotiate the agreement or the case may be continued. See G.S. 15A-1023(b) (defendant is entitled to a continuance until next session of court if plea is rejected); State v. Tyndall, 55 N.C. App. 57 (1981).
  2. If the judge imposes a different sentence than what was agreed upon in the plea negotiations, the defendant can withdraw the plea and have the case continued until the next session of court. G.S. 15A-1024; State v. Marsh, 265 N.C. App. 652 (2019) (where trial court entered two concurrent sentences instead of one sentence as agreed to in the plea, it was error not to allow defendant to withdraw his plea). But see State v. Hatley, 185 N.C. App. 93 (2007) (G.S. 15A-1024 did not apply when judge found that defendant had failed to comply with plea agreement and thus no plea agreement existed when sentencing occurred).
  3. A judge must accept a plea arrangement that involves only charges and no sentence recommendation, as long as the judge determines the plea is the product of an informed choice of the defendant and there is a factual basis for the plea. See G.S. 15A-1023(c).
  4. After a judge rejects a plea agreement, the defendant may not accept it at a later date unless the state negotiates another plea agreement with the defendant. State v. Daniels, 164 N.C. App. 558 (2004).
  5. If a judge rejects a plea agreement disclosed in open court, then the judge must order that the rejection be noted on the plea transcript. See G.S. 15A-1023(b).

Breach of a Plea Agreement

Once a plea agreement is entered, the prosecutor must strictly adhere to the terms of the agreement. For example, a prosecutor who agrees to "take no position" on sentencing must refrain from doing so. State v. Rodriguez, 111 N.C. App. 141 (1993) (prosecutor violated agreement not to take position on sentencing when the prosecutor alerted judge to existence of aggravating factors); see also State v. Blackwell, 135 N.C. App. 729 (1999) (state breached agreement by making derivative use of guilty plea). Similarly, the defendant must uphold his or her end of any bargain, such as agreeing to testify truthfully whenever called upon to do so. See Rickets v. Adamson, 483 U.S. 1 (1987) (defendant breached plea agreement by not testifying against accomplice).

If the state breaches the plea agreement, the defendant’s remedy is to ask the court to order specific performance, if possible, or allow withdrawal (rescission) of the plea. See Santobello v. New York, 404 U.S. 257 (1971); State v. King, 218 N.C. App. 384 (2012) (state ordered to return seized funds as agreed to in the plea - rescission of plea would have been inadequate, since defendant had already been substantially punished).

As a general rule, the state may not withdraw from a plea agreement once the defendant has pled guilty. See State v. Collins, 300 N.C. 142, 148 (1980); State v. Isom, 119 N.C. App. 225 (1995) (the “consideration” given by the defendant in return for the plea bargain is the fact that he is pleading guilty to the charges). However, the state may be able to proceed on other charges dismissed pursuant to the plea if the defendant breaches the agreement. See Rickets, 483 U.S. 1 (no double jeopardy violation where state prosecuted defendant for original murder charges after defendant failed to testify against co-defendant as agreed in plea agreement to a lesser charge, and plea agreement specifically stated that such failure would make the agreement ‘null and void’ and prior charges would be ‘automatically reinstated’); see also State v. Fox, 34 N.C. App. 576 (1977) (on issue of appeal for trial de novo after plea by agreement in district court: “where a defendant elects not to stand by his portion of a plea agreement, the State is not bound by its agreement to forego the greater charge”); cited by State v. Rodriguez, 111 N.C. App. 141 (1993).

Practice Pointer

Plan ahead for enforcement
Given the limitations on the state’s ability to withdraw from a plea agreement after it has been entered, the better practice to ensure that the defendant upholds a promise to testify or provide some other assistance to the state is to postpone the sentencing hearing until the defendant has completed all of his cooperation. If the defendant fails to fulfill his obligations, the prosecutor can so inform the court, and the judge may consider that information at sentencing.
If a specific sentencing recommendation was already negotiated as part of the plea, then the prosecutor should make sure he or she has some other means to guarantee the defendant upholds the agreement, such as dismissed charges which could be reinstated for trial upon breach of the plea.

Later Plea of Guilty or No Contest to Other Crimes

After a conviction based on a plea of not guilty or after the entry of a guilty or no contest plea, a defendant may request permission to plead guilty or no contest to other crimes charged against the defendant in the same or in another prosecutorial district. G.S. 15A-1011(c). The defendant’s plea according to these procedures constitutes a waiver of venue. G.S. 15A-133.

Later Use of Invalid Guilty or No Contest Pleas

If a guilty or no contest plea is taken in violation of defendant’s right to counsel, or where the record fails to show that the plea was freely and voluntarily made with a full understanding of the charges against the defendant, that conviction may not be used against the defendant in a subsequent proceeding. However, the defendant bears the burden of proving such a violation, since there is a “presumption of regularity” in all cases where a final judgment has been entered. See Parke v. Raley, 506 U.S. 20 (1992) (“the presumption of regularity that attaches to final judgments makes it appropriate to assign a proof burden to the defendant”); State v. Sanders, 280 N.C. 67 (1971); State v. Jordan, 174 N.C. App. 479 (2005); State v. Williams, 34 N.C. App. 744 (1977) (“there is a presumption of regularity, and the State has no burden to prove the regularity of the convictions before it can use the convictions to impeach the defendant.”).

Moreover, a defendant may not “collaterally attack” a prior conviction in the current proceeding – if there was a Boykin violation in the prior case, the proper remedy is to pursue an MAR in that case. See Custis v. United States, 511 U.S. 485 (1994); Parke v. Raley, 506 U.S. 20 (1992)Boykin v. Alabama, 395 U.S. 238 (1969); State v. Dammons, 128 N.C. App. 16 (1997); State v. Muscia, 115 N.C. App. 498 (1994); State v. Stafford, 114 N.C. App. 101 (1994); State v. Hester, 111 N.C. App. 110 (1993); State v. Pickard, 107 N.C. App. 94 (1992); State v. Smith, 96 N.C. App. 235 (1989); see also Robert L. Farb, Boykin v. Alabama and Use of Invalid Guilty Pleas, (School of Government, February 1, 2010).

Ineffective Assistance of Counsel Involving Plea Offers

Defense counsel must communicate all plea offers to the defendant in a timely manner, and provide competent advice regarding taking or rejecting the offer. See Missouri v. Frye, 566 U.S. 134 (2012) (defense lawyer rendered ineffective assistance by allowing a plea offer to expire without advising defendant of the offer or allowing him to consider it); Laffler v. Cooper, 566 U.S. 156 (2012) (defense counsel rendered ineffective assistance by advising a defendant to reject a plea offer based on counsel’s flawed interpretation of the law).

Portions of this entry were excerpted from the 2015 North Carolina Superior Court Judge’s Benchbook, “Pleas and Plea Negotiations.”