TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: January 9, 2009
RE: Rule 11, N.D.R.Crim.P., Pleas; Rule 32, N.D.R.Crim.P., Sentencing and Judgment
Justice Maring has asked the Committee to take a look at Rule 32's guilty plea withdrawal provision and discuss whether it can be clarified. She also has requested the Committee to address whether this provision should be made part of Rule 11 to better parallel the federal rule.
Justice Maring recently wrote about the interpretation of Rule 32's guilty plea withdrawal provision in State v. Lium. A copy of this opinion is attached.
The Committee reviewed and amended Rule 11 and Rule 32 in 2004 as part of the form and style amendments to the criminal rules. Changes to Rule 11 in line with the federal amendments were proposed, but the Committee rejected this approach. Excerpts from the Committee's discussions of Rule 11 are attached. In general, the Committee was hostile to the idea of changing the state's guilty plea acceptance procedure to match up with the federal procedure. The Committee did not specifically discuss whether the guilty plea withdrawal provision should be transferred to Rule 11.
Because the federal government has transferred the guilty plea withdrawal provision to its Rule 11, and because N.D.R.Crim.P. 32 is probably overstuffed, the Committee may wish to discuss transfer of the guilty plea withdrawal provision to Rule 11. Staff has prepared proposed amendments to Rule 11 and Rule 32 that would accomplish this.
In the alternative, staff has prepared an alternate draft of Rule 32 containing proposed
amendments streamlining and clarifying the rule's guilty plea withdrawal provision.