Some guilty pleas are “open,” where the defendant pleads guilty to agreed-upon charges without any promises from the State about the ultimate sentence. Other pleas include an arrangement as to sentencing. G.S. 15A-1021(c). In cases where there is an arranged sentence, if the judge ultimately imposes a sentence other than the one provided for in the agreement, the judge must inform the defendant that he or she has a right to withdraw the plea. G.S. 15A-1024. If the defendant does withdraw, the court must grant a continuance to the next session of court. Id.
For a seemingly simple rule, G.S. 15A-1024 can be tricky. A threshold question is when the law applies at all. It applies when “the judge for any reason determines to impose a sentence other than provided for in a plea arrangement between the parties.” The statute covers changes “for any reason” and in either direction—less or more severe. The Official Commentary to the law noted that the original proposal of the Criminal Code Commission in 1973 was to allow the defendant to withdraw if the sentence was “more severe” than specified in the arrangement, but, “[a]fter some discussion in a legislative committee as to whether a short sentence of imprisonment was more severe than a substantially longer probationary period, the section was amended to apply if there is any change at all concerning the sentence.” G.S. 15A-1024 (Official Commentary). So, a judge can’t box a defendant in by giving what the judge believes to be a “better deal.” If there’s any change, the court must give the defendant notice of the right to withdraw.
The thing is, it’s not always clear what amounts to a change sufficient to make the sentence “other than provided for.” And sometimes agreements simply don’t spell out all the details. How much latitude does the judge have to fill in the blanks before the obligation to give the defendant notice of the right to withdraw kicks in? The appellate cases give some guidance on a few common scenarios.
A different term of imprisonment. Some differences will be obvious. If the agreement called for a sentence at the bottom of the presumptive range and the judge gave a sentence at the top of the range, the defendant clearly would have a right to withdraw.
What if the judge gives a different sentence because he or she has to? For example, suppose the defendant’s prior record level changed between the time of agreement and sentencing. That’s exactly what happened in State v. Latta, 299 N.C. App. 103 (2025). In Latta, the defendant pled guilty in 2002, pursuant to an agreement that he would testify against a co-defendant. At that time he was prior record level I, and the agreed-upon sentence was 61–83 months. He apparently did cooperate with the investigation of the co-defendant, but unfortunately didn’t show up for sentencing. Twenty years later, he was picked up on an unrelated charge and the old charge was reinstated. In the meantime, he had picked up some new convictions and was now prior record level IV. As a result of his higher record level, he ultimately received a sentence of 71–95 months. On appeal, the defendant argued that the trial court erred by failing to inform him of the right to withdraw his plea when the judge gave a sentence different from that agreed to back in 2002. The Court of Appeals agreed, indicating that the G.S. 15A-1024 procedure applies even when a different sentence is required by law. The Supreme Court granted the State’s petition for discretionary review and the case is pending before the high court. 388 N.C. 739 (2025).
Prison instead of probation. If the judge imposes an active term when the agreement calls for probation, then G.S. 15A-1024 is clearly implicated and the judge must inform the defendant of the right to withdraw. See State v. Rhodes, 163 N.C. App. 191 (2004) (vacating an active sentence when the agreement specified an intermediate sentence and the judge did not follow the G.S. 15A-1024 procedure).
Consecutive, concurrent, and consolidated terms. If a defendant is pleading guilty to multiple charges and the agreement speaks to whether they will be consolidated or whether they will run consecutively or concurrently, any change to that agreement triggers G.S. 15A-1024. In State v. Wentz, 284 N.C. App. 736 (2022), the defendant pled guilty to multiple felonies as an habitual felon. The agreement said “The State does not oppose consolidating the offenses for sentencing. . . . Presumptive 77–105.” At sentencing, the trial judge said “I’m not inclined to do that,” and that he would instead “sentence him separately [for the Class C and Class D felonies.]” Id. at 737. The trial judge denied the defendant’s subsequent motion to withdraw, stating that the agreement did not require a consolidated sentence, but rather said only that the State does not oppose one. The judge imposed a 77–105 month sentence and a consecutive 67–93 month term.
The Court of Appeals vacated the sentence, reasoning that the agreement included a specific agreed-upon sentence of 77–105 months. Reading that together with the agreement’s reference to consolidation, the appellate court concluded that it was reasonable to rely upon consolidation as part of the inducement for his plea. The court distinguished State v. Blount, 209 N.C. App. 340 (2011), a case where it concluded that an agreement saying only that “The State shall not object to punishment in the mitigated range” did not implicate G.S. 15A-1024 at all, because it did not include a specific agreed-upon sentence. To the extent that the agreement in Wentz was ambiguous, the court said any ambiguity should be construed against the State, and that “due process and basic contract principles” required “strict adherence” to the terms of the agreement. Id. at 740. The court vacated the sentence and remanded.
Wentz isn’t the only case in which the appellate courts have construed G.S. 15A-1024 strictly. In State v. Marsh, 265 N.C. App. 652 (2019), the plea agreement called for consolidation of multiple crimes, some from 1998 and some from 2015. The trial judge was concerned about consolidating sentences imposed under different sentencing grids, and so instead imposed two concurrent sentences that would result in the same overall term of imprisonment. Still, the Court of Appeals deemed the two separate judgments to be different from the single consolidated judgment to which the defendant agreed. Because the trial judge did not advise the defendant of his right to withdraw the guilty plea, the appellate court vacated the sentences and remanded.
Special probation. A common issue that arises under G.S. 15A-1024 is whether the right to withdraw a plea is triggered when the plea agreement calls for a generic probationary sentence and the judge imposes a split. In State v. Robertson, 290 N.C. App. 360 (2023), the defendant pled guilty pursuant to an arrangement in which the prosecutor agreed to recommend that the defendant “receive a suspended sentence in the presumptive range.” The trial court accepted the plea and imposed a suspended sentence in the presumptive range, but added a requirement “that [the defendant] serve a split sentence of 30 days.” Id. at 361. Defense counsel flagged the issue at sentencing, saying, “Our understanding of what the agreement was with the State was just plead to supervised.” The judge replied, “Wasn’t on here. I looked. There’s nothing [tying] my hands.” Id. at 362. There’s something to that notion, as special probation is a form of probation and the incarceration days are merely a condition of probation. However, on appeal, the Court of Appeals held that the addition of jail days through a split sentence was a deviation from the agreed-upon sentence, and that the defendant was therefore authorized to withdraw the plea and have the case continued to the next term. Id. at 363–64. Again, the court reasoned that “due process and basic contract principles require strict adherence” to the terms of the agreement. If any of the terms were unclear, the appellate court said the trial court should have sought clarification from the parties.
In light of Robertson, the rule appears to be that a vanilla agreement to probation does not authorize imposition of a split (at least not without triggering G.S. 15A-1024). I have an anecdotal sense that that’s the opposite of the rule of thumb typically applied in practice. Regardless, the better practice is surely to address any split in the express language of the agreement.
Specific probation conditions. In State v. Carricker, 180 N.C. App. 470 (2006), the defendant, a nurse, pled guilty to possession of drug paraphernalia. The plea agreement stated that she would receive a suspended sentence and pay a fine and costs. At sentencing, the court gave a suspended sentence, but also ordered the defendant to surrender her nursing license. The judge denied the defendant’s motion to withdraw the plea. The Court of Appeals vacated the sentence, concluding that the additional requirement of the license surrender qualified as a “sentence other than as provided in the plea agreement.” Id. at 471.
I’m not sure I read Carricker to stand for the proposition that any special condition of probation added by the court without express prior agreement implicates G.S. 15A-1024. But if an important condition like a license surrender did, I could imagine a condition like inpatient treatment raising a similar concern.
Ultimately, for probation conditions or any aspect of an agreed-upon sentence, it’s best for the parties to include the details in the agreement if they are essential to the bargain. And if the judge is left with any doubt, best to follow Robertson and ask for clarification, and then advise under G.S. 15A-1024 if the court intends to deviate from the agreement.
