Suppose a defendant is indicted on charges of trafficking, possession with intent to manufacture, sell and deliver, possession of drug paraphernalia, and simple possession. Suppose further that the defendant enters into a plea agreement with the State. Under the terms of the plea agreement, the defendant will plead guilty to one count of misdemeanor possession; the State will dismiss the remaining charges and return the defendant’s personal property that was seized in connection with the investigation, including over $6,000 in cash. The plea is accepted by the judge and the defendant is sentenced to serve a 45-day sentence, suspended, placed on supervised probation for twelve months, and required to pay a fine and costs. The defendant then pays the fine and costs and begins serving the sentence. The State however, does not return the money. When the defendant moves for return of the funds, the State claims that it can’t return the money because it has been forfeited to federal and State authorities. What should the trial court do?
□ Strike the plea because specific performance is impossible?
□ Require the State to return the money?
Those were basically the facts of State v. King, a case recently decided by the N.C. Court of Appeals. In King, the trial court opted for choice one above. The trial court found that the State had breached the agreement but that specific performance was impossible; instead, the trial judge struck the plea. Although the Court of Appeals agreed that the State breached the agreement, it disagreed that specific performance was impossible and went on to order a return of the money. The court reasoned that because the State was in a better position to know whether the money had been forfeited, it bore the risk as to the mistake of fact. It explained:
[When] the district attorney entered into the plea agreement, he was capable of confirming the status of the funds prior to agreeing to return them to defendant. The money was seized from defendant and sent to the DEA the same month. The parties did not enter into the plea agreement until approximately nine months after the forfeiture . . . . The State could have easily confirmed the availability of the funds prior to the execution of the agreement but failed to do so. Therefore, the State must bear the risk of that mistake and the Court erred by rescinding the plea agreement based on a mistake of fact.
In this case, it concluded, rescission could not repair the harm to the defendant because the defendant had already completed approximately nine months of probation and had complied with all the terms of the plea agreement, including payment of fines and costs. The court reasoned that while the particular funds seized were no longer available, “money is fungible” and “there is no requirement that the exact funds seized must be returned to defendant and the State cannot avoid its obligation on this basis.” The court reversed the trial court’s order, reinstated the plea, and ordered the State to return the funds
In a lengthy paper here, I discuss pleas and plea procedures. I note that when the prosecution breaches a plea agreement the remedial options include specific performance and allowing the defendant to withdraw the plea. When determining which remedy is appropriate, courts typically consider the following factors:
- who broke the bargain;
- whether the violation was deliberate or inadvertent;
- whether circumstances have changed between entry of the plea and the present time;
- whether additional information has been obtained that, if not considered, would constrain the court to a disposition that it determines to be inappropriate; and
- the defendant’s wishes.
Although the King court didn’t expressly note these factors, they clearly weigh in the defendant’s favor.
King isn’t the first North Carolina case to have ordered specific performance as a remedy for a breach by the prosecution. See, e.g., State v. Rodriguez, 111 N.C. App. 141 (1993) (prosecutor breached promise to take no position on sentencing; ordering new sentencing hearing at which the state was to take no position on sentencing). What’s new about King is that it’s the first case to address return of money when the precise money seized has been disbursed to other authorities. King makes clear that those circumstances don’t preclude specific performance.