RULE 11. PLEAS
Alternatives Entering a Plea.
(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.
Pleas Plea. With the approval consent 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 have an appellate court review of the an adverse determination of any a specified pretrial motion. A defendant who prevails on appeal must be allowed to withdraw the plea.
(3) Failure to Enter a Plea. If a defendant refuses to enter a plea or if a defendant organization fails to appear, the court must enter a plea of not guilty.
Advice to defendant Advising and Questioning the Defendant. The court may not accept a plea of guilty without first, by addressing the defendant personally [except as provided in N.D.R.Crim.P. 43(c)] in open court, informing the defendant of and determining that the defendant understands the following:
(1) Before the court accepts a plea of guilty, the court must address the defendant personally in open court, unless the defendant's presence is not required under N.D.R.Crim.P. 43(c). During this address, the court must inform the defendant of, and determine that the 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 otherwise 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 N.D.R.Crim.P. 44.
(A) the state's right, in a prosecution for perjury or false statement, to use against the defendant any statement that the defendant gives under oath;
(B) the right to plead not guilty, or having already so pleaded, to persist in that plea;
(C) the right to a jury trial;
(D) the right to be represented by counsel--and if necessary have the court appoint counsel under N.D.R.Crim.P. 44--at trial and at every other stage of the proceeding;
(E) the right at trial to confront and cross-examine adverse witnesses, to be protected from compelled self-incrimination, to testify and present evidence, and to compel the attendance of witnesses;
(F) the defendant's waiver of these trial rights if the court accepts a plea of guilty;
(G) the nature of each charge to which the defendant is pleading;
(H) any maximum possible penalty, including imprisonment, fine, and term of supervised release;
(I) any mandatory minimum penalty;
(J) any applicable forfeiture;
(K) the court's authority to order restitution; and
(J) the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence.
(c) Insuring that the (2) Ensuring That a Plea is Voluntary. The court shall not accept Before accepting a plea of guilty, the court must address without first, by addressing the defendant personally [except as provided in N.D.R.Crim.P. 43(c)] in open court, unless the defendant's presence is not required under N.D.R.Crim.P. 43(c), and determine determining that the plea is voluntary and did not the result of from force, or threats, or of promises apart from other than promises in 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.
(3) Determining the Factual Basis for a Plea. Before entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea.
d c) Plea Agreement Procedure.
(1) In General. The prosecuting attorney, and the defendant's attorney
for the defendant, or the defendant when acting pro se, may discuss and reach a plea agreement. engage in discussions with a view toward reaching an agreement that, upon the entering 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 shall must not participate in any such discussion these discussions. If the defendant pleads guilty to either a charged offense or a lesser or related offense, the plea agreement may specify that the prosecuting attorney will:
(A) not bring, or will move to dismiss, other charges;
(B) recommend, or agree not to oppose the defendant's request, that a particular sentence is appropriate.
Notice of Such Disclosing a Plea 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 on a showing of good cause, in camera, at the time the plea is offered. Thereupon the court may accept or reject the agreement, or may defer its decision as to acceptance or rejection until receipt of a presentence report. The parties must disclose the plea agreement in open court when the plea is offered, unless the court for good cause allows the parties to disclose the plea agreement in camera.
Acceptance of plea Judicial Consideration of a Plea Agreement.
(A) To the extent the plea agreement is of the type specified in N.D.R.Crim.P. (c)(1)(A), the court may accept the agreement, reject it, or defer a decision until the court has reviewed the presentence report.
(B) To the extent the plea agreement is of the type specified in N.D.R.Crim.P. (c)(1)(B), the court must advise the defendant that the defendant has no right to withdraw the plea if the court does not follow the recommendation or request.
(4) Accepting a Plea Agreement. If the court accepts the plea agreement,
the court shall it must inform the defendant that it will embody in the judgment and sentence the disposition provided for in the plea agreement or another disposition more favorable to the defendant than that provided for in the plea agreement to the extent the plea agreement is of the type specified in N.D.R.Crim.P. (c)(1)(A), the agreed disposition will be included in the judgment.
4 5) Rejection of Rejecting a Plea Agreement. If the court rejects the a plea agreement containing provisions of the type specified in N.D.R.Crim.P. (c)(1)(A), the court must do the following , on the record and in open court: , shall inform the parties of this fact, advise the defendant personally in open court or on a showing of good cause, in camera, that the court is not bound by the plea agreement, afford the defendant the opportunity to then withdraw 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 that contemplated by the plea agreement.
(A) inform the parties that the court rejects the plea agreement;
(B) advise the defendant personally that the court is not required to follow the plea agreement and give the defendant an opportunity to withdraw the plea; and
(C) advise the defendant personally that if the plea is not withdrawn, the court may dispose of the case less favorably toward the defendant than the plea agreement contemplated.
(5) Time of plea agreement procedure. Except for good cause shown, notification to the court of the existence of a plea agreement shall be given at the arraignment or at such other time, prior to trial, as may be fixed by the court.
(d) Withdrawing a Guilty Plea. A defendant may withdraw a plea of guilty:
(1) before the court accepts the plea, for any reason or no reason; or
(2) after the court accepts the plea, but before it imposes sentence if:
(A) the court rejects a plea agreement under N.D.R.Crim.P. 11(c)(5); or
(B) the defendant can show a fair and just reason for requesting the withdrawal.
(e) Finality of a Guilty Plea. After the court imposes sentence, the defendant may not withdraw a plea of guilty and the plea may be set aside only on direct appeal or collateral attack.
(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.
(f) Admissibility or Inadmissibility of a Plea, Plea Discussions, and Related Statements. The admissibility or inadmissibility of a plea, a plea discussion, and any related statement is governed by N.D.R.Ev. 410.
(e) Determining accuracy of plea. Notwithstanding the acceptance of a plea of guilty, the court should not enter a judgment or dispositional order upon such plea without making such inquiry as shall satisfy it that there is a factual basis for the plea.
f g) Record of Recording the Proceedings. A verbatim record of the proceedings at which the defendant enters a plea shall must be made. and, if If there is a plea of guilty, the record shall must include , without limitation, the court's inquiries and 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 required under subdivisions (b) and (c) above.
g h) Plea Put in by Defendant unless defendant is a corporation or offense a non-felony Defendant's Presence at Plea Proceeding. A plea of guilty may be put in only by the defendant, in open court, unless the defendant is a corporation, in which case it 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 N.D.R.Crim.P. 43(c).
(i) Harmless Error. A variance from the requirements of this rule is harmless error if it does not affect substantial rights.
Rule 11 was amended, effective March 1, 1986; March 1, 1990; March 1, 1996; _____________.
Rule 11 is similar to Fed.R.Crim.P. 11. The
Rule rule is designed to accomplish a number of objectives: (1) it prescribes the advice which that the court must give to ensure that the 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. 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.
Rule 11 was amended, effective ________. The language and organization of the rule were changed to make the rule more easily understandable and to make style and terminology consistent throughout the rules.
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 Paragraph (a)(2) was adopted effective March 1, 1986 , and follows the 1983 amendment to Fed.R.Crim.P. 11(a)(2). This subdivision provision 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 the acceptance of a plea of guilty. The court is required to determine that a 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 that the defendant must be apprised of the fact that the defendant relinquishes certain constitutional rights when the defendant pleads guilty. Subdivision (b) also 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 Paragraph (b)(1) requires the court to determine that if the defendant understands the nature of the charge . Subdivision (b)(2) and requires that the court to 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 is to insure that the defendant knows what minimum sentence the judge MUST impose and the maximum sentence the judge MAY impose, and further to explain the consecutive sentencing possibilities when the defendant pleads to more than one offense. This provision is included so that the judicial warning effectively serves to 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 Paragraph (b)(1) also specifies 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 and ensures a knowing and intelligent waiver of counsel required by Boykin, supra, and other cases is made. A similar requirement is bound found in N.D.R.Crim.P. 5(b) governing the initial appearance. Subdivision (c) Paragraph (b)(2) requires that the court to determine that the a plea of guilty is voluntary before accepting it. 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 that any promise made in reaching a proper plea agreement does not render a plea involuntary. Subdivision (c) and (d) afford Paragraph (b)(2) affords the court an adequate basis for rejecting an improper plea agreement induced by threats or inappropriate promises. The Rule 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).)
Paragraph (b)(3) 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.
d c) provides for a plea agreement procedure. In doing so it gives recognition to the propriety of plea discussions and plea agreements, provided they are disclosed in open court 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 c) is designed to prevent abuse of plea discussions and agreements by providing appropriate and adequate safeguards. Subdivision (d) Paragraph (c)(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 also makes clear that there 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) Paragraph (c)(2) provides that the judge shall require the disclosure of parties must disclose any plea agreement in open court or, for good cause, in camera. Upon Paragraph (c)(3) gives the court, 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. The court must inform the defendant that it may choose not to accept a sentence recommendation made as part of a plea agreement. This decision is Decisions on plea agreements are left to the discretion of the individual trial judge. Subdivision (d)(3) Paragraph (c)(4) requires the court, if it accepts the plea agreement, to inform the defendant that it 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 that the agreement will be implemented. Subdivision (d)(4) Paragraph (c)(5) 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, that the 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 that if 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 that the court 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 that the 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.
Subdivisions (d) and (e) were added, effective ___________________. These provisions are transferred from N.D.R.Crim.P. 32--Judgment.
(d)(6) (f) 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 N.D.R.Ev. 410 ). governs the admissibility of plea discussions. The policy reason for the general rule 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.
f g) requires that a verbatim record be kept of the proceedings. The record is important in the event of a post-conviction attack.
g h) was amended, effective March 1, 1996, to reference N.D.R.Crim.P. 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, 33 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 Fed.R.Crim.P. 11(h) in that respect. Subdivision (i) was added, effective ___________ to provide that variance from Rule 11's requirements is harmless error unless substantial rights are effected. However, N.D.R.Crim.P. 52(a), Harmless Error, is intended to have general application to all the criminal rules of procedure.
SOURCES: Joint Procedure Committee Minutes of _____________ pages ______; 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: N.D.C.C. §§ 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.
CROSS REFERENCE: N.D.R.Crim.P. 43.--Presence of the Defendant; N.D.R.Ev. 410.--Offer to Plead Guilty or Nolo Contendere; Withdrawn Plea of Guilty.