RULE 11. PLEAS
Alternatives Entering a Plea.
(1) In General. A defendant may plead not guilty or guilty.
If a defendant refuses to
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
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, the court must enter a plea of not guilty.
(b) Advice to defendant.
(1) The court may not accept a plea of guilty without first, by addressing the
personally [except as provided in
N.D.R.Crim.P. Rule 43(c)] in open
court, informing the
defendant of and determining 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
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
already been made, or to plead guilty;
(4) That if the defendant pleads guilty there will not be a further trial of any kind,
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.
(A) the right to plead not guilty, or having already so pleaded, to persist in that plea;
(B) the right to a jury trial;
(C) the right to be represented by counsel at trial and at every other stage of the proceeding and, if necessary, the right to have the court appoint counsel under Rule 44;
(D) 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;
(E) the defendant's waiver of these trial rights if the court accepts a plea of guilty;
(F) the nature of each charge to which the defendant is pleading;
(G) any maximum possible penalty, including imprisonment, fine, and mandatory fee;
(H) any mandatory minimum penalty; and
(I) the court's authority to order restitution.
(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 Rule 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 must
also inquire as to whether the
defendant's willingness to plead guilty results from previous discussion
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.
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; or
(C) agree that a specific sentence or sentencing range is the appropriate disposition of the case.
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
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
(A) To the extent the plea agreement is of the type specified in Rule 11 (c)(1)(A) or (C), 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 Rule 11 (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
specified in Rule 11 (c)(1)(A) or (C), the agreed disposition will be included in the
(4)(5) Rejection of Rejecting a Plea
Agreement. If the court rejects the a plea agreement
containing provisions of the type specified in Rule 11 (c)(1)(A) or (C), 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
(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)(6) Time of Plea Agreement Procedure. Except for good cause
shown, notification to the
court of the existence of a plea agreement shall must be given at 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
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.
(d) 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
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)(e) 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 Rule 11 (b) and (c).
(g)(f) 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 made only by the
defendant, in open court, unless the defendant is a corporation, in which case it may be
in made 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. Rule 43(c).
(g) 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),
(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 ______________, in response to the December 1, 2002, revision of the Federal Rules of Criminal Procedure. The language and organization of the rule were changed to make the rule more easily understood 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
The "consequences" which must be explained to the defendant, codifies in the Rule
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)
establishes the requirement that the court address the defendant personally. (See
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
punishment, if any, and the maximum possible punishment. provided by the
the offense to which the plea is offered." The objective is to insure that the defendant
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
for Criminal Justice, Standards Relating to Pleas of Guilty, Approved Draft (1968), p.
Subdivisions (b)(3) and (4) specify Paragraph (b)(1) also specifies the
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
knowing and intelligent waiver of counsel required by Boykin, supra, and other
made. A similar requirement is bound found in
N.D.R.Crim.P. Rule 5(b) governing the
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
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), together with subdivision (c), affords the court an
adequate basis for
rejecting an improper plea agreement induced by threats or inappropriate promises. The
rule specifies that the court personally address the defendant in determining the
of the plea. (See McCarthy v. United States, supra, 394 U.S. 459, 466-67
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
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.
Paragraph (c)(3) gives the court, upon notice of the plea agreement, the court is
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
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
Subdivision (d)(5) Paragraph (c)(6) 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.
(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 N.D.R.Ev. 410 ). governs the
admissibility of plea
discussions. The policy reason for the general rule is to encourage counsel to feel
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
making such an inquiry to satisfy it that there is a factual basis for the plea.
(f)(e) requires that a verbatim record be kept of the
proceedings. The record
is important in the event of a post-conviction attack.
(g)(f) was amended, effective March 1, 1996, to
reference N.D.R.Crim.P. 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.
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
amendment to Fed.R.Crim.P. 11(h) in that respect. A new subdivision (g) was
effective ____________________ to provide that variance from Rule 11's requirements is
harmless error unless substantial rights are effected. However,
N.D.R.Crim.P. Rule 52(a),
Harmless Error, is intended to have general application to all the criminal rules of procedure.
SOURCES: Joint Procedure Committee Minutes of September 23-24, pages 5-9; April 29-30, 2004, pages 28-30; 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.Crim.P. 44 (Right to and Appointment of Counsel); N.D.R.Ev. 410 (Offer to Plead Guilty; Nolo Contendere; Withdrawn Plea of Guilty).