RULE 11. PLEAS
(1) In General. A defendant may plead not guilty or guilty. If a defendant refuses to plead or if a defendant corporation fails to appear, the court shall enter a plea of not guilty.
(2) Conditional Pleas. With the approval of the court and the consent of the prosecuting attorney, a defendant may enter a conditional plea of guilty reserving in writing the right, on appeal from the judgment, to review of the adverse determination of any specified pretrial motion. A defendant who prevails on appeal must be allowed to withdraw the plea.
(b) Advice to Defendant. The court may not accept a plea of guilty without first
, byaddressing the defendant personally [except as provided in Rule 43(c)] in open court, or through interactive audio-visual transmission, and informing the defendant of and determining thatthe defendant understands the following:
(1) The nature of the charge to which the plea is offered;
(2) The mandatory minimum punishment, if any, and the maximum possible punishment provided by the statute defining the offense to which the plea is offered;
(3) That the defendant has the right to plead not guilty, or to persist in that plea if it has already been made, or to plead guilty;
(4) That if the defendant pleads guilty there will not be a further trial of any kind, so that by pleading guilty the defendant waives the right to a trial by jury or
otherwisea trial by the court, and the right to be confronted with adverse witnesses; and
(5) If the defendant is not represented by an attorney, that the defendant has the right to be represented by an attorney at every stage of the proceeding against the defendant and, if necessary, one will be appointed to represent the defendant, as provided in Rule 44, North Dakota Rules of Criminal Procedure.
(c) Insuring That the Plea is Voluntary. The court
shallmay not accept a plea of guilty without first , byaddressing the defendant personally [except as provided in Rule 43(c)] in open court, or through interactive audio-visual transmission, and determining thatthe plea is voluntary and not the result of force or threats or of promises apart from a plea agreement. The court shall also inquire as to whether the defendant's willingness to plead guilty results from previous discussion between the prosecuting attorney and the defendant or the defendant's attorney.
(d) Plea Agreement Procedure.
(1) In General. The prosecuting attorney, the attorney for the defendant, or the defendant when acting pro se may engage in discussions with a view toward reaching an agreement that, upon
the enteringentry of a plea of guilty to a charged offense or to a lesser or related offense, the prosecuting attorney will move for dismissal of other charges, or will recommend or not oppose the imposition of a particular sentence, or will do both. The court shallmay not participate in any such discussion.
(2) Notice of Such Agreement. If a plea agreement has been reached by the parties, the court, on the record, shall require the disclosure of the agreement in open court, or through interactive audio-visual transmission, or on a showing of good cause, in camera, at the time the plea is offered.
Thereupon theThe court may accept or reject the agreement, or the court may defer its decision as to acceptance or rejectionuntil receipt of a presentence report.
(3) Acceptance of Plea. If the court accepts the plea agreement, the court shall inform the defendant
thatit will embody in the judgment and sentence the disposition provided for in the plea agreement or another disposition more favorable to the defendant than thatprovided for in the plea agreement.
(4) Rejection of a Plea Agreement. If the court rejects the plea agreement, the court, on the record, shall
inform the parties of this fact, advise the defendant personally in open court, or through interactive audio-visual transmission, or on a showing of good cause, in camera, that the court is not bound by the plea agreement, and the plea agreement is rejected. The court shall afford the defendant the opportunity to thenwithdraw the plea, and advise the defendant that if the defendant persists in a guilty plea, the disposition of the case may be less favorable to the defendant than thatcontemplated by the plea agreement.
(5) Time of Plea Agreement Procedure. Except for good cause shown,
notification to the court of the existence of athe court must be notified of any plea agreement shall be givenat the arraignment or at such other time, prior to trial, as may be fixed by the court.
(6) Plea Discussions. If a plea discussion does not result in a plea of guilty, or if a plea of guilty is not accepted or is withdrawn, or if judgment on a plea of guilty is reversed on direct or collateral review, any statement made in connection with and relevant to the plea discussion or any resulting agreement, plea, or judgment is not admissible in any criminal or civil action or administrative proceeding against the person who made the plea or offer. This rule does not apply to the introduction of voluntary and reliable statements made in court on the record in connection with any of the foregoing pleas or offers where offered for impeachment purposes or in a subsequent prosecution of the declarant for perjury or false statement, but only if in any case the statement was made under oath, on the record, and in the presence of counsel.
(e) Determining Accuracy of Plea. Notwithstanding the acceptance of a plea of guilty, the court should not enter a judgment or dispositional order upon
suchthe plea without making such inquiry as shall satisfy itensuring through inquiry that there isa factual basis exists for the plea.
(f) Record of Proceedings. A verbatim record of the proceedings at which the defendant enters a plea
shallmust be made and, if there is a plea of guilty, the record shallmust include, without limitation, the court's advice to the defendant, the inquiry into the voluntariness of the plea including any plea agreement, and the inquiry into the accuracy of a guilty plea.
(g) Plea Put in by Defendant Unless Defendant Is a Corporation or Offense a Non-felony. A plea of guilty may be put in only by the defendant, in open court or through interactive audio-visual transmission, unless the defendant is a corporation in which case
itthe plea may be put in by counsel; or in a non-felony case, the defendant may petition to enter a plea of guilty as provided in Rule 43(c).
Rule 11 was amended, effective January 1, 1980; March 1, 1986; March 1, 1990; March 1, 1996; ____________________.
Rule 11 is similar to FRCrimP 11. The Rule is designed to accomplish a number of objectives: (1) it prescribes the advice which the court must give to ensure
thatthe defendant who pleads guilty has made an informed plea; and (2) it provides for a plea agreement procedure designed to give recognition to the propriety of plea discussions between counsel, to bring the existence of plea agreement out in open court, and to provide methods for court acceptance or rejection of the plea agreement.
Rule 11 was amended, effective ________________, to allow pleas through interactive audio-visual transmission in the discretion of the court. See Rule 10 for the requirements governing interactive audio-visual transmissions.
Subdivisions (a) (b) (c) (d) and (g) were amended, effective March 1, 1990. The amendments are technical in nature and no substantive change is intended.
Subdivision (a) provides for the various alternative pleas which the defendant may enter. This subdivision does not permit a defendant to enter a plea of nolo contendere and differs from the federal rule in that respect.
Subdivision (a)(2) was adopted effective March 1, 1986, and follows the 1983 amendment to FRCrimP 11(a)(2). This subdivision allows the defendant, with the approval of the court and the consent of the prosecuting attorney, to enter a conditional plea of guilty
and reserve in writing the right, on appeal of the adverse determination of any specified pretrial motion. The conditional plea procedure is intended to conserve prosecutorial and judicial resources and advance speedy trial objectives by avoiding the necessity of a trial simply to preserve pretrial issues for appellate review.
Subdivision (b) prescribes the advice which the court must give to the defendant as a prerequisite to
theacceptance of a plea of guilty. The court is required to determine thata plea is made with an understanding of the nature of the charge and the consequences of the plea. The "consequences" which must be explained to the defendant, codifies in the Rule the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), which held thatthe defendant must be apprised of the fact thatthe defendant relinquishes certain constitutional rights when the defendant pleads guilty. Subdivision (b) establishes the requirement that the court address the defendant personally. (See McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969)). Subdivision (b)(1) requires the court to determine that the defendant understands the nature of the charge. Subdivision (b)(2) requires that the court inform the defendant of and determine that the defendant understands "the mandatory minimum punishment, if any, and the maximum possible punishment provided by the statute defining the offense to which the plea is offered." The objective isSubdivision (b)(2) is intended to insure thatthe defendant knows what minimum sentence the judge MUST impose and the maximum sentence the judge MAY impose, and further to explainthe consecutive sentencing possibilities when the defendant pleads to more than one offense. This provision is included so that the judicial warning effectively servesto overcome subsequent objections by the defendant that the defendant's counsel gave the defendant erroneous information. (A.B.A. Project on Standards for Criminal Justice, Standards Relating to Pleas of Guilty, Approved Draft (1968), p. 27.) Subdivisions (b)(3) and (4) specify the constitutional rights that the defendant waives by a plea of guilty (to satisfy the requirements of waiver as set forth in Boykin, supra). The purpose of subdivision (b)(5) is to ensure a knowing and intelligent waiver of counsel required by Boykin, supra, and other cases. A similar requirement is found in Rule 5(b) governing the initial appearance.
Subdivision (c) requires
thatthe court to determine thatthe plea of guilty is voluntary before accepting itthe plea. It also requires the court to inquire whether the defendant's willingness to plead guilty results from plea discussions between the defense attorney and the prosecuting attorney. Implicit in the Rule is the assumption thatany promise made in reaching a proper plea agreement does not render a plea involuntary. Subdivisions (c) and (d) affordgive the court an adequatea basis for rejecting an impropera plea agreement induced by threats or inappropriate promises. The Rule specifies that the court personally address the defendant in determining the voluntariness of the plea. (See McCarthy v. United States, supra, 394 U.S. 459, 466-67 (1969)).
Subdivision (d) provides
fora plea agreement procedure. In doing so it gives recognition toIt recognizes the propriety of plea discussions and a plea agreement s, provided they are disclosed in open courtthe agreement is disclosed and subject to acceptance or rejection by the trial judge. It is believed that where the defendant by the defendant's plea aids in insuring prompt and certain application of correctional measures, the proper ends of the criminal justice system are furthered because swift and certain punishment serves the ends of both general deterrence and the rehabilitation of the individual defendant. The procedure described in subdivision (d) is designed to prevent abuse of plea discussions and agreements by providing appropriate and adequate safeguards.Subdivision (d)(1) specifies that both the attorney for the prosecution and the attorney for the defense, or the defendant when acting pro se, participate in plea discussions. It alsomakes clear thatthere are three possible concessions that may be made in a plea agreement: first, the charge may be reduced to a lesser or related offense; second, the attorney for the prosecution may agree not to recommend or not oppose the imposition of a particular sentence; or third, the attorney for the prosecution may promise to move for a dismissal of other charges. The court is not permitted to participate in plea discussions because of the possibility that the defendant would believe that the defendant would not receive a fair trial, if no agreement had been reached or the court rejected the agreement, and a subsequent trial ensued before the same judge.
Subdivision (d)(2) provides that the judge shall require the disclosure of any plea agreement in open court or, for good cause, in camera. Upon notice of the plea agreement, the court is given the option of accepting or rejecting the agreement or deferring its decision until receipt of the presentence report. This decision is left to the discretion of the individual trial judge.
Subdivision (d)(3) requires the court, if it accepts the plea agreement, to inform the defendant
thatit will embody in the judgment and sentence the disposition provided in the plea agreement, or one more favorable to the defendant. This provision serves the dual purpose of informing the defendant immediately thatthe agreement will be implemented.
Subdivision (d)(4) requires the court, on the record, upon its rejection of the plea agreement, to inform the defendant of this fact and to advise the defendant
personally, in open court, or for good cause, in camera, thatthe court is not bound by the plea agreement. The defendant must be afforded an opportunity to withdraw the defendant's plea and must be advised thatif the defendant persists in the defendant's guilty plea, the disposition of the case may be less favorable to the defendant than contemplated by the plea agreement.
Subdivision (d)(5) requires
thatthe court to be notified of the existence of a plea agreement at the arraignment or at another time prior to trial fixed by the court unless it can be shown that for good cause this was not done. Having a plea entered at this stage provides a reasonable time for the defendant to consult with counsel and for counsel to complete any plea discussions with the attorney for the prosecution.The objective of the provision is to make clear thatthe court has authority to require a plea agreement to be disclosed sufficiently in advance of trial so as not to interfere with the efficient scheduling of criminal cases.
Subdivision (d)(6) makes it clear that generally if a plea discussion does not result in a plea of guilty, if a plea is not accepted or is withdrawn, or if a judgment on a plea of guilty is reversed on direct or collateral review, neither the plea discussion nor any resulting agreement, plea, or judgment shall be admissible against the defendant in any criminal or civil action or administrative proceeding. The only exception to this general rule is if the statements are voluntary, reliable, made under oath, on the record, in court, and in the presence of counsel. Even under these circumstances the exception applies only if the plea or offer is used for impeachment purposes or in a subsequent prosecution of the declarant for perjury or false statement (see Rule 410, NDREv). The policy reason for the general rule is toThe purpose of subdivision(d)(6) is to encourage counsel to feel free to engage in plea discussions involving the defendant with the knowledge that plea-related statements may be used against the defendant only under very limited circumstances.
Subdivision (e) requires that the court not enter judgment upon a plea of guilty without making such an inquiry to satisfy it that there is a factual basis for the plea.
Subdivision (f) requires that a verbatim record be kept of the proceedings. The record is important in the event of a post-conviction attack.
Subdivision (g) was amended, effective March 1, 1996, to reference Rule 43(c). In a non-felony case, if the defendant wants to plead guilty without appearing in court, a written form must be used which advises the defendant of his or her constitutional rights and creates a record showing that the plea was made voluntarily, knowingly, and understandingly. See Appendix Form 17; Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); Mills v. Municipal Court, 10 Cal.3d 288, 515 P.2d 273, 110 Cal.Rptr. 329 (Cal. 1973).
Rule 11 does not include a subdivision entitled harmless error and differs from the 1983 amendment to FRCrimP 11(h) in that respect. However, NDRCrimP 52(a), Harmless Error, is intended to have general application to all the criminal rules of procedure.
SOURCES: Procedure Committee Minutes of __________________________; January 26-27, 1995, pages 5-6; September 29-30, 1994, pages 2-4; April 28-29, 1994, pages 10-12; April 20, 1989, page 4; December 3, 1987, page 15; June 22, 1984, pages 11-16; April 26, 1984, pages 2-3; April 26-27, 1979, pages 4-7; May 25-26, 1978, pages 31-34; March 16-17, 1978, page 20; January 12-13, 1978, pages 5-6; January 10, 1977, page 4; April 24-26, 1973, pages 8-9; December 11-15, 1972, page 43; May 11-12, 1972, pages 2-6; November 18-20, 1971, pages 34-38; September 17-18, 1970, pages 1-6; May 3-4, 1968, page 9.
SUPERSEDED: 29-13-02, 29-14-01, 29-14-02, 29-14-14, 29-14-15, 29-14-16, 29-14-17, 29-14-18, 29-14-19, 29-14-20, 29-14-21, 29-14-22, 29-14-23, 29-14-24, 29-14-26, 29-14-27, 33-12-17, 33-12-18, NDCC.
CROSS REFERENCE: Rule 43.-Presence of the Defendant, NDRCrimP.