Shea wrote about changes to the law around the practice of entering low-level felony pleas in district court last fall, here. More and more districts have begun adopting the practice of accepting guilty pleas to class H and I felonies in district court since then. In light of the expansion of the practice across North Carolina, I wanted to remind defenders of the rules and best practices when entering a felony guilty plea in district court. Read on for the details.
Jurisdiction. Pursuant to G.S. 7A-272(c), a district court has jurisdiction to accept guilty or no contest pleas for class H and class I felonies in two scenarios. Under G.S. 7A-272(c)(1), the district court has this authority when the case is pending at the district court level, the case has not yet been indicted, and a bill of information charging the felony offense has been filed. Under G.S. 7A-272(c)(2), the district court may also act when a class H or I felony has been indicted but has been transferred from superior court to district court to conduct the plea hearing pursuant to G.S. 15A-1029.1. The more common method of conferring jurisdiction on the district court to accept felony pleas is for a bill of information to be filed, so I want to focus on those.
Bills of Information. G.S. 15A-641(b) defines a bill of information as a written accusation by a prosecutor that is filed in superior court and charges a represented defendant with the commission of one or more noncapital crimes. When the case is being heard in district court pursuant to G.S. 7A-272(c)(1), the bill of information may be filed in district court. The document acts to inform the defendant of the charge(s) and to waive the defendant’s right to a grand jury indictment. The bill of information must be signed by the defendant and defense counsel. G.S. 15A-642.
A few points for defenders to remember here: One, a bill of information may not be used against an unrepresented defendant, nor can it be used to charge a capital offense, because the right to grand jury indictment cannot be waived in those situations. G.S. 15A-642(b). Two, the failure of either the defense lawyer or the defendant to sign the document renders it invalid. State v. Futrelle, 266 N.C. App. 207 (2019) (trial court lacked jurisdiction where defense counsel did not sign the bill of information). Three, if there is not an express waiver of the right to grand jury indictment attached to the bill of information or executed on it, the bill of information will be invalid. State v. Nixon, 263 N.C. App. 676, 679 (2019) (trial court lacked jurisdiction where bill of information did not contain an express waiver of the right to grand jury indictment). Four, the bill of information should contain everything that would normally be required of an indictment, except that the bill of information does not require the signature of a grand jury foreperson (because there is no grand jury). G.S. 15A-644. Relatedly, the accusation contained in the bill of information must, at a minimum, provide enough detail to give notice of the charge(s) so that the defendant can prepare a defense and to ensure that the defendant is protected from being twice placed in jeopardy. State v. Singelton, 386 N.C. 183, 220 (2024) (you can read more about Singleton here and here).
Superior Court Procedures Apply. G.S. 7A-272(d) requires that the procedures relating to a superior court guilty plea in Chapter 15A of the General Statutes apply to district court felony pleas. Without exhaustively reviewing all those requirements, there are a few notable ones to keep in mind. One, the proceedings must be recorded in full and preserved for potential appeal. G.S. 15A-1026.
There must be a full superior court plea colloquy pursuant to G.S. 15A-1022, whereby the judge must personally address the defendant to ensure that he or she understands the rights being waived by the plea, the nature of the charges, the maximum possible punishment the defendant is facing, the potential for the plea to have immigration consequences for noncitizens, inquiry into whether the plea is the result of a plea bargain and, if so, the terms of the bargain, and more. There must also be a factual basis for the plea.
Defenders should also keep in mind the provisions of G.S. 15A-1023. A district court judge hearing felony pleas, like a superior court judge, has limited authority to reject a guilty plea. When a plea bargain recommends or mandates a particular sentence, the judge may reject it. When there is no agreement as to the sentence, the judge must accept the plea when there is a sufficient factual basis for the plea and the plea is the product of the defendant’s informed choice. See State v. Chandler, 376 N.C. 361 (2020) (trial judge reversibly erred by rejecting a negotiated Alford plea where a factual basis existed and there was no agreement as to sentencing). When a judge has the authority to reject a plea and chooses to do so, a record of the rejection should be made, and the defendant is entitled to a continuance to the next term of court. G.S. 15A-1022(b).
Appeals. Appeal of a district court’s judgment in a class H or I felony case is directly to the Court of Appeals. G.S. 7A-272(d). Defense counsel has a duty to advise the defendant about the right of appeal. Notice of appeal may be given in open court after the pronouncement of the judgment or may be filed in writing within 14 days of the judgment. N.C. R. App. P. Rule 4(a); 15A-1448(b). Defense counsel should ask the judge to appoint the appellate defender for qualifying defendants and should request that appellate entries be made by the clerk at the time notice of appeal is given. Defenders should follow up with both the clerk and the Office of the Appellate Defender to ensure that these actions were taken.
Unlike an appeal of a misdemeanor conviction from district court to superior court, the grounds on which a defendant can appeal following a felony guilty plea are very limited, although review of other issues by the appellate division may be possible via writ of certiorari. G.S. 15A-1444. Also, unlike misdemeanor de novo appeals, notice of appeal from a felony conviction does not automatically stay an active sentence. G.S. 15A-1451. A probationary sentence, including one with special conditions of probation (such as imposition of a split sentence), is stayed by the notice of appeal. Id. at (a)(4); see also State v. Adams, 285 N.C. App. 379 (2022) (reversible error to order defendant into a parenting class as a condition of probation while the case was on appeal).
Discovery. One consideration for defenders handling felony pleas in district court is discovery. The statutory right to open file discovery under G.S. 15A-903 applies to all “cases within the original jurisdiction of the superior court,” per G.S. 15A-901. Some practitioners have interpreted this to mean that a defendant is not entitled to discovery until the case is bound over to superior court. To the extent this is the practice in a district, this presents a problem for defenders handling class H and I felonies in district court. Defenders in this situation can argue that statutory open file discovery applies to such cases, because all felonies are within the original jurisdiction of the superior court under G.S. 7A-271(a). In addition to statutory discovery, defenders should also request constitutional discovery Brady v. Maryland, 373 U.S. 83 (1963). Defenders may also remind prosecutors of their ethical duty to provide discovery under Rule 3.8(d) of the North Carolina Rules of Professional Conduct. Presumably, the prosecution, defense, and the trial court have an interest in ensuring that the defendant is aware of the evidence in the case so the plea is the result of the defendant’s fully informed choice, both as a matter of fairness and to limit potential collateral attacks on the conviction down the road. Of course, a defendant may choose to resolve a case without receiving complete discovery. When that is the case, defenders should advise the client of the potential consequences of pleading guilty pre-discovery and document the client’s informed choice to waive those rights.
What if the prosecution refuses to provide discovery in these cases? What if defense counsel and the prosecution disagree about whether information is discoverable? A blanket policy to refuse to provide discovery in district court felony cases may be a good reason for defenders to not consent to entering a felony plea in district court. Even when some discovery is provided, defense attorneys may want to litigate other discovery issues before a judge. If so, the motions must be heard by a superior court judge per G.S. 15A-902(c).
Suppression. Similarly, defenders wanting to litigate a suppression issue before taking a guilty plea will probably have to decline the offer to resolve the case in district court. G.S. 7A-272 only authorizes the district court to act in felony cases in a narrow role—it can accept guilty pleas and impose sentences, no more, and no less. If a defender intends to litigate suppression issues, that must happen in superior court. The district court has no authority to litigate suppression motions in felony cases. Where there is a potentially meritorious suppression issue, defense counsel has a couple of options. The issue can of course be waived if the client does not wish to wait for indictment and a suppression hearing in superior court, but defenders should again be sure to explain to the client the consequences of doing so and document the strategic reasons for not pursuing the issue. Otherwise, they can wait until the case is indicted and litigate the motion in superior court as usual.
Probation. For misdemeanor district court probation cases, there is a right to appeal an order revoking probation to superior court for de novo review (as long as the defendant does not waive the district court hearing). G.S. 15A-1347. When a district court imposes probation as a sentence in a felony case, the superior court has original jurisdiction over any probation violation hearing. G.S. 7A-271(e). However, if the State and defendant agree to have the matter heard in district court, the district court can act. Appeals from a district court’s revocation of felony probation are to the superior court per G.S. 15A-1347. See also State v. Hooper, 358 N.C. 122 (2004) (so holding).
The rule is slightly different if the felony probation arose from treatment court. In this specific context, the district court may act to hear the probation violation if the chief district court judge and the resident superior court judge agree that it is in the interests of justice for the proceedings to be conducted in district court. G.S. 7A-721(f). In these cases, if a violation is heard in district court and the defendant is revoked, appeal is to the appellate division. Id.
Readers, what are the practices around felony district court pleas in your district? If there are other issues I’ve missed or if you have any questions, I can always be reached at dixon@sog.unc.edu.