RULE 11. PLEAS
1 (a) Entering a Plea.
2 (1) In General. A defendant may plead not guilty or guilty.
3 (2) Conditional Plea. With the consent of the court and the prosecuting
4 attorney, a defendant may enter a conditional plea of guilty, reserving in writing
5 the right to have an appellate court review an adverse determination of a specified
6 pretrial motion. The defendant, any defendant's attorney, and the prosecuting
7 attorney must consent in writing to a conditional plea filed with the court. If the
8 court accepts the conditional plea, it must enter an order. The resulting judgment
9 must specify it is conditional. A defendant who prevails on appeal must be allowed
10 to withdraw the plea.
11 (3) Failure to Enter a Plea. If a defendant refuses to enter a plea, the court
12 must enter a plea of not guilty.
13 (b) Advice to defendant.
14 (1) The court may not accept a plea of guilty without first, by addressing the
15 defendant personally [except as provided in Rule 43(b)] in open court, informing
16 the defendant of and determining that the defendant understands the following:
17 (A) the right to plead not guilty, or having already so pleaded, to persist in
18 that plea;
19 (B) the right to a jury trial;
20 (C) the right to be represented by counsel at trial and at every other stage of
21 the proceeding and, if necessary, the right to have the counsel provided under Rule
23 (D) the right at trial to confront and cross-examine adverse witnesses, to be
24 protected from compelled self-incrimination, to testify and present evidence, and
25 to compel the attendance of witnesses;
26 (E) the defendant's waiver of these trial rights if the court accepts a plea of
28 (F) the nature of each charge to which the defendant is pleading;
29 (G) any maximum possible penalty, including imprisonment, fine, and
30 mandatory fee;
31 (H) any mandatory minimum penalty;
32 (I) the court's authority to order restitution; and
33 (J) that, if convicted, a defendant who is not a United States citizen may be
34 removed from the United States, denied citizenship, and denied admission to the
35 United States in the future.
36 (2) Ensuring That a Plea is Voluntary. Before accepting a plea of guilty, the
37 court must address the defendant personally in open court, unless the defendant's
38 presence is not required under Rule 43(c), and determine that the plea is voluntary
39 and did not result from force, threats, or promises other than promises in a plea
40 agreement. The court must also inquire whether the defendant's willingness to
41 plead guilty results from discussion between the prosecuting attorney and the
42 defendant or the defendant's attorney.
43 (3) Determining the Factual Basis for a Plea. Before entering judgment on a
44 guilty plea, the court must determine that there is a factual basis for the plea.
45 (4) Acknowledgment by Defendant. Before entering judgment on a guilty
46 plea, the court must determine that the defendant either:
47 (A) acknowledges facts exist that support the guilty plea; or
48 (B) while maintaining innocence, acknowledges that the guilty plea is
49 knowingly, voluntarily and intelligently made by the defendant and that evidence
50 exists from which the trier of fact could reasonably conclude that the defendant
51 committed the crime.
52 (c) Plea Agreement Procedure.
53 (1) In General. The prosecuting attorney and the defendant's attorney, or the
54 defendant when acting pro se, may discuss and reach a plea agreement. The court
55 must not participate in these discussions. If the defendant pleads guilty to either a
56 charged offense or a lesser or related offense, the plea agreement may specify that
57 the prosecuting attorney will:
58 (A) not bring, or will move to dismiss, other charges;
59 (B) recommend, or agree not to oppose the defendant's request, that a
60 particular sentence is appropriate; or
61 (C) agree that a specific sentence or sentencing range is the appropriate
62 disposition of the case.
63 (2) Disclosing a Plea Agreement. The parties must disclose the plea
64 agreement in open court when the plea is offered, unless the court for good cause
65 allows the parties to disclose the plea agreement in camera.
66 (3) Judicial Consideration of a Plea Agreement.
67 (A) To the extent the plea agreement is of the type specified in Rule
68 11(c)(1)(A) or (C), the court may accept the agreement, reject it, or defer a
69 decision until the court has reviewed the presentence report.
70 (B) To the extent the plea agreement is of the type specified in Rule
71 11(c)(1)(B), the court must advise the defendant that the defendant has no right to
72 withdraw the plea if the court does not follow the recommendation or request.
73 (4) Accepting a Plea Agreement. If the court accepts the plea agreement, it
74 must inform the defendant that, to the extent the plea agreement is of the type
75 specified in Rule 11(c)(1)(A) or (C), the agreed disposition will be included in the
77 (5) Rejecting a Plea Agreement. If the court rejects a plea agreement
78 containing provisions of the type specified in Rule 11(c)(1)(A) or (C), the court
79 must do the following on the record and in open court:
80 (A) inform the parties that the court rejects the plea agreement;
81 (B) advise the defendant personally that the court is not required to follow
82 the plea agreement and give the defendant an opportunity to withdraw the plea;
84 (C) advise the defendant personally that if the plea is not withdrawn, the
85 court may dispose of the case less favorably toward the defendant than the plea
86 agreement contemplated.
87 (6) Time of Plea Agreement Procedure. Except for good cause shown,
88 notification to the court of the existence of a plea agreement must be given at the
89 arraignment or at such other time, prior to trial, as may be fixed by the court.
90 (d) Withdrawing a Guilty Plea.
91 (1) In general. A defendant may withdraw a plea of guilty:
92 (A) before the court accepts the plea, for any reason or no reason; or
93 (B) after the court accepts the plea, but before it imposes sentence if:
94 (i) the court rejects a plea agreement under Rule 11(c)(5); or
95 (ii) the defendant can show a fair and just reason for the withdrawal.
96 (2) Finality of a Guilty Plea. Unless the defendant proves that withdrawal is
97 necessary to correct a manifest injustice, the defendant may not withdraw a plea of
98 guilty after the court has imposed sentence.
99 (3) Prosecution Reliance on Plea. If the prosecution has been substantially
100 prejudiced by reliance on the defendant's plea, the court may deny a plea
101 withdrawal request.
102 (e) Admissibility or Inadmissibility of a Plea, Plea Discussions, and Related
103 Statements. The admissibility or inadmissibility of a plea, a plea discussion, and
104 any related statement is governed by N.D.R.Ev. 410.
105 (f) Recording the Proceedings. A verbatim record of the proceedings at
106 which the defendant enters a plea must be made. If there is a plea of guilty, the
107 record must include the court's inquiries and advice to the defendant required
108 under Rule 11(b) and (c).
109 (g) Defendant's Presence at Plea Proceeding. A plea of guilty may be made
110 only by the defendant, in open court, unless the defendant is a corporation, in
111 which case it may be made by counsel; or in a non-felony case, the defendant may
112 petition to enter a plea of guilty as provided in Rule 43(b).
113 EXPLANATORY NOTE
114 Rule 11 was amended, effective March 1, 1986; March 1, 1990; March 1,
115 1996; March 1, 2006; June 1, 2006; March 1, 2010; March 1, 2016; March 1,
117 Rule 11 is similar to Fed.R.Crim.P. 11. The rule is designed to accomplish a
118 number of objectives: (1) it prescribes the advice that the court must give to ensure
119 the defendant who pleads guilty has made an informed plea; and (2) it provides for
120 a plea agreement procedure designed to give recognition to the propriety of plea
121 discussions between counsel, to bring the existence of a plea agreement out in
122 open court, and to provide methods for court acceptance or rejection of the plea
124 Rule 11 was amended, effective March 1, 2006, in response to the
125 December 1, 2002, revision of the Federal Rules of Criminal Procedure. The
126 language and organization of the rule were changed to make the rule more easily
127 understood and to make style and terminology consistent throughout the rules.
128 Subdivision (a) provides for the various alternative pleas which the
129 defendant may enter. This subdivision does not permit a defendant to enter a plea
130 of nolo contendere and differs from the federal rule in that respect.
131 Paragraph (a)(2) was adopted effective March 1, 1986. This provision
132 allows the defendant, with the approval of the court and the consent of the
133 prosecuting attorney, to enter a conditional plea of guilty and reserve in writing the
134 right, on appeal of the adverse determination of any specified pretrial motion. The
135 conditional plea procedure is intended to conserve prosecutorial and judicial
136 resources and advance speedy trial objectives by avoiding the necessity of a trial
137 simply to preserve pretrial issues for appellate review.
138 Paragraph (a)(2) was amended, effective March 1, 2017, to clarify the
139 procedure for entering a conditional plea of guilty.
140 Subdivision (b) prescribes the advice which the court must give to the
141 defendant as a prerequisite to the acceptance of a plea of guilty. The court is
142 required to determine that a plea is made with an understanding of the nature of the
143 charge and the consequences of the plea. Subdivision (b) also establishes the
144 requirement that the court address the defendant personally.
145 Paragraph (b)(1) requires the court to determine if the defendant
146 understands the nature of the charge and requires the court to inform the defendant
147 of and determine that the defendant understands the mandatory minimum
148 punishment, if any, and the maximum possible punishment. The objective is to
149 insure that the defendant knows what minimum sentence the judge MUST impose
150 and the maximum sentence the judge MAY impose and, further, to explain the
151 consecutive sentencing possibilities when the defendant pleads to more than one
152 offense. This provision is included so that the judicial warning effectively serves to
153 overcome subsequent objections by the defendant that the defendant's counsel gave
154 the defendant erroneous information. Paragraph (b)(1) also specifies the
155 constitutional rights the defendant waives by a plea of guilty and ensures a
156 knowing and intelligent waiver of counsel is made. A similar requirement is found
157 in Rule 5(b) governing the initial appearance.
158 Paragraph (b)(1) was amended, effective June 1, 2006, to remove a
159 reference to court appointment of counsel for indigents. Courts ceased appointing
160 counsel for indigents on January 1, 2006, when the North Dakota Commission on
161 Legal Counsel for Indigents became responsible for defense of indigents.
162 Paragraph (b)(1) was amended, effective March 1, 2016, to include a new
163 subparagraph (J) requiring the court to include a general statement that there may
164 be immigration consequences of conviction in the advice provided to the defendant
165 before the court accepts a plea of guilty or nolo contendere. The amendment,
166 which is based on an amendment to Fed.R.Crim.P. 11, mandates a generic
167 warning, not specific advice concerning the defendant's individual situation.
168 Paragraph (b)(2) requires the court to determine that a plea of guilty is
169 voluntary before accepting it. Paragraph (b)(2), together with subdivision (c),
170 affords the court an adequate basis for rejecting an improper plea agreement
171 induced by threats or inappropriate promises. The rule specifies that the court
172 personally address the defendant in determining the voluntariness of the plea.
173 Paragraph (b)(3) requires that the court not enter judgment on a plea of
174 guilty without making an inquiry to ensure that there is a factual basis for the plea.
175 Paragraph (b)(4) was added to the rule, effective March 1, 2014, and
176 requires the court to obtain an acknowledgment from the defendant on whether the
177 defendant is admitting guilt, or instead is maintaining innocence but pleading
178 guilty because evidence exists from which the trier of fact could reasonably
179 conclude the defendant committed the crime.
180 Subdivision (c) provides for a plea agreement procedure. In doing so it
181 gives recognition to the propriety of plea discussions and plea agreements,
182 provided they are disclosed in open court and subject to acceptance or rejection by
183 the trial judge. It is believed that where the defendant by the defendant's plea aids
184 in insuring prompt and certain application of correctional measures, the proper
185 ends of the criminal justice system are furthered because swift and certain
186 punishment serves the ends of both general deterrence and the rehabilitation of the
187 individual defendant. The procedure described in subdivision (c) is designed to
188 prevent abuse of plea discussions and agreements by providing appropriate and
189 adequate safeguards.
190 Paragraph (c)(1) specifies that both the attorney for the prosecution and the
191 attorney for the defense, or the defendant when acting pro se, participate in plea
192 discussions. It also makes clear that there are three possible concessions that may
193 be made in a plea agreement: first, the charge may be reduced to a lesser or related
194 offense; second, the attorney for the prosecution may agree not to recommend or
195 not oppose the imposition of a particular sentence; or third, the attorney for the
196 prosecution may promise to move for a dismissal of other charges. The court is not
197 permitted to participate in plea discussions because of the possibility that the
198 defendant would believe that the defendant would not receive a fair trial, if no
199 agreement had been reached or the court rejected the agreement, and a subsequent
200 trial ensued before the same judge.
201 Paragraph (c)(2) provides that the parties must disclose any plea agreement
202 in open court or, for good cause, in camera. Paragraph (c)(3) gives the court, upon
203 notice of the plea agreement, the option of accepting or rejecting the agreement or
204 deferring its decision until receipt of the presentence report. The court must inform
205 the defendant that it may choose not to accept a sentence recommendation made as
206 part of a plea agreement. Decisions on plea agreements are left to the discretion of
207 the individual trial judge.
208 Paragraph (c)(4) requires the court, if it accepts the plea agreement, to
209 inform the defendant that it will embody in the judgment and sentence the
210 disposition provided in the plea agreement, or one more favorable to the defendant.
211 This provision serves the dual purpose of informing the defendant immediately
212 that the agreement will be implemented.
213 Paragraph (c)(5) requires the court, on the record, upon its rejection of the
214 plea agreement, to inform the defendant of this fact and to advise the defendant
215 personally, in open court, or for good cause, in camera, that the court is not bound
216 by the plea agreement. The defendant must be afforded an opportunity to withdraw
217 the defendant's plea and must be advised that if the defendant persists in the
218 defendant's guilty plea, the disposition of the case may be less favorable to the
219 defendant than contemplated by the plea agreement.
220 Paragraph (c)(6) requires that the court be notified of the existence of a plea
221 agreement at the arraignment or at another time prior to trial fixed by the court
222 unless it can be shown that for good cause this was not done. Having a plea
223 entered at this stage provides a reasonable time for the defendant to consult with
224 counsel and for counsel to complete any plea discussions with the attorney for the
225 prosecution. The objective of the provision is to make clear that the court has
226 authority to require a plea agreement to be disclosed sufficiently in advance of trial
227 so as not to interfere with the efficient scheduling of criminal cases.
228 A new subdivision (d) on plea withdrawal was transferred to Rule 11 from
229 Rule 32 effective March 1, 2010.
230 Subdivision (e) makes it clear that N.D.R.Ev. 410 governs the admissibility
231 of plea discussions.
232 Subdivision (f) requires that a verbatim record be kept of the proceedings.
233 The record is important in the event of a post-conviction attack.
234 Subdivision (g) was amended, effective March 1, 1996, to reference Rule
235 43(c). In a non-felony case, if the defendant wants to plead guilty without
236 appearing in court, a written form must be used which advises the defendant of his
237 or her constitutional rights and creates a record showing that the plea was made
238 voluntarily, knowingly, and understandingly. See Appendix Form 17. A court may
239 accept a guilty plea via contemporaneous audio or audiovisual transmission by
240 reliable electronic means using the procedure set out in N.D. Sup. Ct. Admin. Rule
242 Rule 11 does not include a subdivision entitled harmless error and differs
243 from the 1983 amendment to Fed.R.Crim.P. 11(h) in that respect. Rule 52(a),
244 Harmless Error, is intended to have general application to all the criminal rules of
246 SOURCES: Joint Procedure Committee Minutes of January 28-29, 2016,
247 page 7; April 23-24, 2015, page 14; January 29-30, 2015, page 23;
248 January 31-February 1, 2013, page 12; September 27, 2012, pages 18-21; January
249 29-30, 2009, pages 11-13, 19-20; April 27-28, 2006, pages 2-5, 15-17; September
250 22-23, 2005, pages 17-18; September 23-24, 2004, pages 5-9; April 29-30, 2004,
251 pages 28-30; January 26-27, 1995, pages 5-6; September 29-30, 1994, pages 2-4;
252 April 28-29, 1994, pages 10-12; April 20, 1989, page 4; December 3, 1987, page
253 15; June 22, 1984, pages 11-16; April 26, 1984, pages 2-3; April 26-27, 1979,
254 pages 4-7; May 25-26, 1978, pages 31-34; March 16-17, 1978, page 20; January
255 12-13, 1978, pages 5-6; January 10, 1977, page 4; April 24-26, 1973, pages 8-9;
256 December 11-15, 1972, page 43; May 11-12, 1972, pages 2-6; November 18-20,
257 1971, pages 34-38; September 17-18, 1970, pages 1-6; May 3-4, 1968, page 9.
258 STATUTES AFFECTED:
259 SUPERSEDED: N.D.C.C. §§ 29-13-02, 29-14-01, 29-14-02, 29-14-14,
260 29-14-15, 29-14-16, 29-14-17, 29-14-18, 29-14-19, 29-14-20, 29-14-21, 29-14-22,
261 29-14-23, 29-14-24, 29-14-26, 29-14-27, 33-12-17, 33-12-18.
262 CONSIDERED: N.D.C.C. § 31-13-03.
263 CROSS REFERENCE: N.D.R.Crim.P. 43 (Defendant's Presence);
264 N.D.R.Crim.P. 44 (Right to and Appointment of Counsel); N.D.R.Ev. 410 (Offer
265 to Plead Guilty; Nolo Contendere; Withdrawn Plea of Guilty);
266 N.D.Sup.Ct.Admin.R. 52 (Contemporaneous Transmission by Reliable Electronic