Suppose that after judgment is entered a defendant wants to challenge a plea. Maybe he alleges that the plea wasn’t knowing and voluntary. Or maybe he claims that the judge imposed an illegal sentence. Can the defendant do this? I like to break this question into two parts: (1) Does the claim survive the plea? (2) If so, what procedural mechanism can be used to assert it? This post addresses both issues.
As a general rule, a defendant who knowingly, voluntarily and intelligently enters an unconditional guilty plea waives all defects in the proceeding, including constitutional defects, that occurred before entry of the plea. See State v. Reynolds, 298 N.C. 380, 395 (1979) (fourth amendment claim waived); see also State v. Harwood, __ N.C. App. __, 746 S.E.2d 445, 451-52 (2013) (double jeopardy claim waived). There are however some exceptions to this general rule:
Exception: Claims Challenging Power of State to Prosecute.
A guilty plea doesn’t waive a claim challenging “the power of the State to bring the defendant into court to answer the charge.” Blackledge v. Perry, 417 U.S. 21, 30 (1974); Reynolds, 298 N.C. at 395. Thus, a defendant who has pleaded guilty would not be barred from asserting, for example, a jurisdictional defect in the proceedings. See, e.g., State v. Neville, 108 N.C. App. 330, 333 (1992) (pleaded-to offense was not charged in the indictment and the defendant never signed a waiver of a bill of indictment).
Exception: Defect in the Plea Itself.
Also, entry of a guilty plea doesn’t bar a defendant from alleging a defect in the plea─such as a claim asserting that the plea was not knowing, voluntary and intelligent. See State v. Tyson, 189 N.C. App. 408, 416 (2008); 5 La Fave Criminal Procedure § 21.6(a), at 920 (3d ed.).
Exception: Claim Preserved by Statute.
As discussed below, a defendant has a statutory right to appeal certain sentencing issues, a denial of a motion to withdraw the plea, and an adverse ruling on a motion to suppress; additional claims may be raised in a motion for appropriate relief (MAR). Although the statute giving the defendant the right to appeal an adverse ruling on a suppression motion allows a defendant to preserve a claim that arose before the plea, it is not clear that the MAR statute preserves such claims.
Procedural Mechanism for Review
Let’s say that the claim survives the plea. What’s the proper procedure for review? Here’s a review of the options:
Appeal.
A defendant who has entered a guilty plea is not entitled to appellate review as a matter of right except when the appeal pertains to sentencing issues, the denial of a motion to withdraw the plea, and, in certain circumstance, an adverse ruling on a motion to suppress. G.S. 15A-1444; State v. Santos, 210 N.C. App. 448, 450 (2011). Thus, absent a motion to withdraw the plea, a defendant does not have an appeal as a matter of right to challenge a plea on grounds that it was not knowing, voluntary, and intelligent. Santos, 210 N.C. App. at 450.
Sentencing Errors.
As just noted, a defendant who pleads guilty or no contest has a right to appeal certain issues regarding the sentence. G.S. 15A-1444(a1)-(a2). Specifically, a defendant may appeal:
- Whether a felony sentence is supported by the evidence. G.S. 15A-1444(a1) (appealable only if the minimum term of imprisonment does not fall within the presumptive range).
- Whether a sentence results from an incorrect finding of the defendant’s prior record or conviction level. G.S. 15A-1444(a2)(1).
- Whether a sentence contains an unauthorized type of sentence disposition. G.S. 15A-1444(a2)(2).
- Whether a sentence contains a term of imprisonment that is for an unauthorized duration. G.S. 15A-1444(a2)(3).
However, when the defendant enters into a plea agreement that includes an agreement as to sentencing, the defendant may waive the right to appeal the sentence. State v. Hamby, 129 N.C. App. 366, 369-70 (1998).
Denial of Motion to Withdraw Plea.
A defendant who pleads guilty or no contest has a right to appeal from a denial of a motion to withdraw a plea of guilty or no contest. G.S. 15A-1444(e); see, e.g., State v. Handy, 326 N.C. 532, 535 (1990).
Adverse Ruling on Suppression Motion.
A defendant who pleads guilty or no contest has a right to appeal from an adverse ruling on a suppression motion, in certain circumstances. G.S. 15A-1444(e); G.S. 15A-979(b). For the rules on how a defendant preserves this right, see Jeff’s Benchbook chapter here.
Certiorari.
Defendants who are not entitled to an appeal as a matter of right may obtain review by writ of certiorari. G.S. 15A-1444(a1); 14A-1444(e). Rule 21 of the N.C. Rules of Appellate Procedure provides that a writ of certiorari may be issued to permit review:
- when the right to prosecute an appeal has been lost by failure to take timely action,
- when no right of appeal from an interlocutory order exists, or
- for review pursuant to G.S. 15A-1422(c)(3) of an order of the trial court denying a motion for appropriate relief.
Citing the limited bases for certiorari review in Rule 21, the Court of Appeals has denied petitions for writs of certiorari challenging guilty pleas. State v. Pimental, 153 N.C. App. 69, 77 (2002). However, that court has interpreted state supreme court case law as allowing certiorari review of claims that the trial court improperly accepted the plea, nothwithstanding Rule 21. See, e.g., State v. Demaio, 216 N.C. App. 558, 562-64 (2011); see generally State v. Rhodes, 163 N.C. App. 191, 193-94 (2004) (distinguishing Pimental and similar decisions; interpreting supreme court case law and G.S. 15A-1027 as authorizing the court “to review pursuant to a petition for writ of certiorari during the appeal period a claim that the procedural requirements of Article 58 were violated”).
Motion for Appropriate Relief (MAR).
In certain circumstances a defendant may be able to challenge a plea through a post-conviction MAR. For example, the MAR statutes allow a defendant to assert a claim that the plea was not knowing and voluntary, that the trial court lacked jurisdiction, or that there has been a retroactive change in the law. For a discussion of the types of claims that can be asserted in a MAR and the procedure for making such a motion, see Motions for Appropriate Relief in my judges’ Benchbook.