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. A defendant who prevails on appeal must be allowed to withdraw
7 the plea.
8 (3) Failure to Enter a Plea. If a defendant refuses to enter a plea, the court
9 must enter a plea of not guilty.
10 (b) Advice to defendant.
11 (1) The court may not accept a plea of guilty without first, by addressing
12 the defendant personally [except as provided in Rule 43(b)] in open court,
13 informing the defendant of and determining that the defendant understands the
15 (A) the right to plead not guilty, or having already so pleaded, to persist in
16 that plea;
17 (B) the right to a jury trial;
18 (C) the right to be represented by counsel at trial and at every other stage of
19 the proceeding and, if necessary, the right to have the counsel provided under Rule
21 (D) the right at trial to confront and cross-examine adverse witnesses, to be
22 protected from compelled self-incrimination, to testify and present evidence, and
23 to compel the attendance of witnesses;
24 (E) the defendant's waiver of these trial rights if the court accepts a plea of
26 (F) the nature of each charge to which the defendant is pleading;
27 (G) any maximum possible penalty, including imprisonment, fine, and
28 mandatory fee;
29 (H) any mandatory minimum penalty;
30 (I) the court's authority to order restitution; and
31 (J) that, if convicted, a defendant who is not a United States citizen may be
32 removed from the United States, denied citizenship, and denied admission to the
33 United States in the future.
34 (2) Ensuring that a plea is voluntary. Before accepting a plea of guilty, the
35 court must address the defendant personally in open court, unless the defendant's
36 presence is not required under Rule 43(c), and determine that the plea is voluntary
37 and did not result from force, threats, or promises other than promises in a plea
38 agreement. The court must also inquire whether the defendant's willingness to
39 plead guilty results from discussion between the prosecuting attorney and the
40 defendant or the defendant's attorney.
41 (3) Determining the factual basis for a plea. Before entering judgment on a
42 guilty plea, the court must determine that there is a factual basis for the plea.
43 (4) Acknowledgment by defendant. Before entering judgment on a guilty
44 plea, the court must determine that the defendant either:
45 (A) acknowledges facts exist that support the guilty plea; or
46 (B) while maintaining innocence, acknowledges that the guilty plea is
47 knowingly, voluntarily and intelligently made by the defendant and that evidence
48 exists from which the trier of fact could reasonably conclude that the defendant
49 committed the crime.
50 (c) Plea agreement procedure.
51 (1) In general. The prosecuting attorney and the defendant's attorney, or the
52 defendant when acting pro se, may discuss and reach a plea agreement. The court
53 must not participate in these discussions. If the defendant pleads guilty to either a
54 charged offense or a lesser or related offense, the plea agreement may specify that
55 the prosecuting attorney will:
56 (A) not bring, or will move to dismiss, other charges;
57 (B) recommend, or agree not to oppose the defendant's request, that a
58 particular sentence is appropriate; or
59 (C) agree that a specific sentence or sentencing range is the appropriate
60 disposition of the case.
61 (2) Disclosing a plea agreement. The parties must disclose the plea
62 agreement in open court when the plea is offered, unless the court for good cause
63 allows the parties to disclose the plea agreement in camera.
64 (3) Judicial consideration of a plea agreement.
65 (A) To the extent the plea agreement is of the type specified in Rule
66 11(c)(1)(A) or (C), the court may accept the agreement, reject it, or defer a
67 decision until the court has reviewed the presentence report.
68 (B) To the extent the plea agreement is of the type specified in Rule
69 11(c)(1)(B), the court must advise the defendant that the defendant has no right to
70 withdraw the plea if the court does not follow the recommendation or request.
71 (4) Accepting a plea agreement. If the court accepts the plea agreement, it
72 must inform the defendant that, to the extent the plea agreement is of the type
73 specified in Rule 11(c)(1)(A) or (C), the agreed disposition will be included in the
75 (5) Rejecting a plea agreement. If the court rejects a plea agreement
76 containing provisions of the type specified in Rule 11(c)(1)(A) or (C), the court
77 must do the following on the record and in open court:
78 (A) inform the parties that the court rejects the plea agreement;
79 (B) advise the defendant personally that the court is not required to follow
80 the plea agreement and give the defendant an opportunity to withdraw the plea;
82 (C) advise the defendant personally that if the plea is not withdrawn, the
83 court may dispose of the case less favorably toward the defendant than the plea
84 agreement contemplated.
85 (6) Time of plea agreement procedure. Except for good cause shown,
86 notification to the court of the existence of a plea agreement must be given at the
87 arraignment or at such other time, prior to trial, as may be fixed by the court.
88 (d) Withdrawing a guilty plea.
89 (1) In general. A defendant may withdraw a plea of guilty:
90 (A) before the court accepts the plea, for any reason or no reason; or
91 (B) after the court accepts the plea, but before it imposes sentence if:
92 (i) the court rejects a plea agreement under Rule 11(c)(5); or
93 (ii) the defendant can show a fair and just reason for the withdrawal.
94 (2) Finality of a guilty plea. Unless the defendant proves that withdrawal is
95 necessary to correct a manifest injustice, the defendant may not withdraw a plea of
96 guilty after the court has imposed sentence.
97 (3) Prosecution reliance on plea. If the prosecution has been substantially
98 prejudiced by reliance on the defendant's plea, the court may deny a plea
99 withdrawal request.
100 (e) Admissibility or inadmissibility of a plea, plea discussions, and related
101 statements. The admissibility or inadmissibility of a plea, a plea discussion, and
102 any related statement is governed by N.D.R.Ev. 410.
103 (f) Recording the proceedings. A verbatim record of the proceedings at
104 which the defendant enters a plea must be made. If there is a plea of guilty, the
105 record must include the court's inquiries and advice to the defendant required
106 under Rule 11(b) and (c).
107 (g) Defendant's presence at plea proceeding. A plea of guilty may be made
108 only by the defendant, in open court, unless the defendant is a corporation, in
109 which case it may be made by counsel; or in a non-felony case, the defendant may
110 petition to enter a plea of guilty as provided in Rule 43(b).
111 EXPLANATORY NOTE
112 Rule 11 was amended, effective March 1, 1986; March 1, 1990; March 1,
113 1996; March 1, 2006; June 1, 2006; March 1, 2010; March 1, 2014; March 1,
115 Rule 11 is similar to Fed.R.Crim.P. 11. The rule is designed to accomplish a
116 number of objectives: (1) it prescribes the advice that the court must give to ensure
117 the defendant who pleads guilty has made an informed plea; and (2) it provides for
118 a plea agreement procedure designed to give recognition to the propriety of plea
119 discussions between counsel, to bring the existence of a plea agreement out in
120 open court, and to provide methods for court acceptance or rejection of the plea
122 Rule 11 was amended, effective March 1, 2006, in response to the
123 December 1, 2002, revision of the Federal Rules of Criminal Procedure. The
124 language and organization of the rule were changed to make the rule more easily
125 understood and to make style and terminology consistent throughout the rules.
126 Subdivision (a) provides for the various alternative pleas which the
127 defendant may enter. This subdivision does not permit a defendant to enter a plea
128 of nolo contendere and differs from the federal rule in that respect.
129 Paragraph (a)(2) was adopted effective March 1, 1986. This provision
130 allows the defendant, with the approval of the court and the consent of the
131 prosecuting attorney, to enter a conditional plea of guilty and reserve in writing the
132 right, on appeal of the adverse determination of any specified pretrial motion. The
133 conditional plea procedure is intended to conserve prosecutorial and judicial
134 resources and advance speedy trial objectives by avoiding the necessity of a trial
135 simply to preserve pretrial issues for appellate review.
136 Subdivision (b) prescribes the advice which the court must give to the
137 defendant as a prerequisite to the acceptance of a plea of guilty. The court is
138 required to determine that a plea is made with an understanding of the nature of the
139 charge and the consequences of the plea. Subdivision (b) also establishes the
140 requirement that the court address the defendant personally.
141 Paragraph (b)(1) requires the court to determine if the defendant
142 understands the nature of the charge and requires the court to inform the defendant
143 of and determine that the defendant understands the mandatory minimum
144 punishment, if any, and the maximum possible punishment. The objective is to
145 insure that the defendant knows what minimum sentence the judge MUST impose
146 and the maximum sentence the judge MAY impose and, further, to explain the
147 consecutive sentencing possibilities when the defendant pleads to more than one
148 offense. This provision is included so that the judicial warning effectively serves to
149 overcome subsequent objections by the defendant that the defendant's counsel gave
150 the defendant erroneous information. Paragraph (b)(1) also specifies the
151 constitutional rights the defendant waives by a plea of guilty and ensures a
152 knowing and intelligent waiver of counsel is made. A similar requirement is found
153 in Rule 5(b) governing the initial appearance.
154 Paragraph (b)(1) was amended, effective June 1, 2006, to remove a
155 reference to court appointment of counsel for indigents. Courts ceased appointing
156 counsel for indigents on January 1, 2006, when the North Dakota Commission on
157 Legal Counsel for Indigents became responsible for defense of indigents.
158 Paragraph (b)(1) was amended, effective March 1, 2016, to include a new
159 subparagraph (J) requiring the court to include a general statement that there may
160 be immigration consequences of conviction in the advice provided to the defendant
161 before the court accepts a plea of guilty or nolo contendere. The amendment,
162 which is based on an amendment to Fed.R.Crim.P. 11, mandates a generic
163 warning, not specific advice concerning the defendant's individual situation.
164 Paragraph (b)(2) requires the court to determine that a plea of guilty is
165 voluntary before accepting it. Paragraph (b)(2), together with subdivision (c),
166 affords the court an adequate basis for rejecting an improper plea agreement
167 induced by threats or inappropriate promises. The rule specifies that the court
168 personally address the defendant in determining the voluntariness of the plea.
169 Paragraph (b)(3) requires that the court not enter judgment on a plea of
170 guilty without making an inquiry to ensure that there is a factual basis for the plea.
171 Paragraph (b)(4) was added to the rule, effective March 1, 2014, and
172 requires the court to obtain an acknowledgment from the defendant on whether the
173 defendant is admitting guilt, or instead is maintaining innocence but pleading
174 guilty because evidence exists from which the trier of fact could reasonably
175 conclude the defendant committed the crime.
176 Subdivision (c) provides for a plea agreement procedure. In doing so it
177 gives recognition to the propriety of plea discussions and plea agreements,
178 provided they are disclosed in open court and subject to acceptance or rejection by
179 the trial judge. It is believed that where the defendant by the defendant's plea aids
180 in insuring prompt and certain application of correctional measures, the proper
181 ends of the criminal justice system are furthered because swift and certain
182 punishment serves the ends of both general deterrence and the rehabilitation of the
183 individual defendant. The procedure described in subdivision (c) is designed to
184 prevent abuse of plea discussions and agreements by providing appropriate and
185 adequate safeguards.
186 Paragraph (c)(1) specifies that both the attorney for the prosecution and the
187 attorney for the defense, or the defendant when acting pro se, participate in plea
188 discussions. It also makes clear that there are three possible concessions that may
189 be made in a plea agreement: first, the charge may be reduced to a lesser or related
190 offense; second, the attorney for the prosecution may agree not to recommend or
191 not oppose the imposition of a particular sentence; or third, the attorney for the
192 prosecution may promise to move for a dismissal of other charges. The court is not
193 permitted to participate in plea discussions because of the possibility that the
194 defendant would believe that the defendant would not receive a fair trial, if no
195 agreement had been reached or the court rejected the agreement, and a subsequent
196 trial ensued before the same judge.
197 Paragraph (c)(2) provides that the parties must disclose any plea agreement
198 in open court or, for good cause, in camera.
199 Paragraph (c)(3) gives the court, upon notice of the plea agreement, the
200 option of accepting or rejecting the agreement or deferring its decision until receipt
201 of the presentence report. The court must inform the defendant that it may choose
202 not to accept a sentence recommendation made as part of a plea agreement.
203 Decisions on plea agreements are left to the discretion of the individual trial judge.
204 Paragraph (c)(4) requires the court, if it accepts the plea agreement, to
205 inform the defendant that it will embody in the judgment and sentence the
206 disposition provided in the plea agreement, or one more favorable to the defendant.
207 This provision serves the dual purpose of informing the defendant immediately
208 that the agreement will be implemented.
209 Paragraph (c)(5) requires the court, on the record, upon its rejection of the
210 plea agreement, to inform the defendant of this fact and to advise the defendant
211 personally, in open court, or for good cause, in camera, that the court is not bound
212 by the plea agreement. The defendant must be afforded an opportunity to withdraw
213 the defendant's plea and must be advised that if the defendant persists in the
214 defendant's guilty plea, the disposition of the case may be less favorable to the
215 defendant than contemplated by the plea agreement.
216 Paragraph (c)(6) requires that the court be notified of the existence of a plea
217 agreement at the arraignment or at another time prior to trial fixed by the court
218 unless it can be shown that for good cause this was not done. Having a plea
219 entered at this stage provides a reasonable time for the defendant to consult with
220 counsel and for counsel to complete any plea discussions with the attorney for the
221 prosecution. The objective of the provision is to make clear that the court has
222 authority to require a plea agreement to be disclosed sufficiently in advance of trial
223 so as not to interfere with the efficient scheduling of criminal cases.
224 A new subdivision (d) on plea withdrawal was transferred to Rule 11 from
225 Rule 32 effective March 1, 2010.
226 Subdivision (e) makes it clear that N.D.R.Ev. 410 governs the admissibility
227 of plea discussions.
228 Subdivision (f) requires that a verbatim record be kept of the proceedings.
229 The record is important in the event of a post-conviction attack.
230 Subdivision (g) was amended, effective March 1, 1996, to reference Rule
231 43(c). In a non-felony case, if the defendant wants to plead guilty without
232 appearing in court, a written form must be used which advises the defendant of his
233 or her constitutional rights and creates a record showing that the plea was made
234 voluntarily, knowingly, and understandingly. See Appendix Form 17. A court may
235 accept a guilty plea via
contemporaneous audio or
236 audiovisual transmission by reliable electronic means using the procedure set out
237 in N.D. Sup. Ct. Admin. R. 52.
238 Rule 11 does not include a subdivision entitled harmless error and differs
239 from the 1983 amendment to Fed.R.Crim.P. 11(h) in that respect. Rule 52(a),
240 Harmless Error, is intended to have general application to all the criminal rules of
242 Sources: Joint Procedure Committee Minutes of April 23-24, 2015, page
243 14; January 29-30, 2015, page 23; January 31-February 1, 2013, page 12;
244 September 27, 2012, pages 18-21; January 29-30, 2009, pages 11-13, 19-20; April
245 27-28, 2006, pages 2-5, 15-17; September 22-23, 2005, pages 17-18; September
246 23-24, 2004, pages 5-9; April 29-30, 2004, pages 28-30; January 26-27, 1995,
247 pages 5-6; September 29-30, 1994, pages 2-4; April 28-29, 1994, pages 10-12;
248 April 20, 1989, page 4; December 3, 1987, page 15; June 22, 1984, pages 11-16;
249 April 26, 1984, pages 2-3; April 26-27, 1979, pages 4-7; May 25-26, 1978, pages
250 31-34; March 16-17, 1978, page 20; January 12-13, 1978, pages 5-6; January 10,
251 1977, page 4; April 24-26, 1973, pages 8-9; December 11-15, 1972, page 43; May
252 11-12, 1972, pages 2-6; November 18-20, 1971, pages 34-38; September 17-18,
253 1970, pages 1-6; May 3-4, 1968, page 9.
254 Statutes Affected:
255 Superseded: N.D.C.C. §§ 29-13-02, 29-14-01, 29-14-02, 29-14-14, 29-14-
256 15, 29-14-16, 29-14-17, 29-14-18, 29-14-19, 29-14-20, 29-14-21, 29-14-22, 29-14-
257 23, 29-14-24, 29-14-26, 29-14-27, 33-12-17, 33-12-18.
258 Considered: N.D.C.C. § 31-13-03.
259 Cross Reference: N.D.R.Crim.P. 43 (Defendant's Presence); N.D.R.Crim.P.
260 44 (Right to and Appointment of Counsel); N.D.R.Ev. 410 (Offer to Plead Guilty;
261 Nolo Contendere; Withdrawn Plea of Guilty); N.D.Sup.Ct.Admin.R. 52
Interactive Television Contemporaneous Transmission by