blankShea Denning

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When May a Trial Judge Reject a Plea Entered Pursuant to a Plea Agreement?

A trial judge has broad discretion regarding whether to accept a defendant’s guilty plea entered pursuant to a plea agreement in which the prosecutor has agreed to recommend a particular sentence. G.S. 15A-1023(b). In that circumstance, the judge must advise the parties whether he or she approves of the arrangement and will dispose of the case accordingly. If the judge rejects the arrangement, the judge must so inform the parties, refuse to accept the plea, and advise the State and the defendant that neither is bound by the rejected arrangement. The judge must tell the parties why he or she rejected the arrangement and give them an opportunity to modify it to meet the judge’s approval. The parties are not required to modify the arrangement, and, upon rejection of the arrangement, the defendant is entitled to have the case continued to the next session of court.

The judge’s rejection of the arrangement must be noted in the record, but such a rejection does not appear to preclude another judge from later accepting the arrangement. (The notation of the trial court’s discretionary decision arguably is not a discretionary order of the sort that would require changed circumstances to justify modification by another judge. See generally Michael Crowell, One Trial Judge Overruling Another, Administration of Justice Bulletin No. 2015/06 (UNC School of Government December 2015) (discussing the general rule that one trial judge may modify an order entered by another trial judge on a matter of discretion only if there has been a substantial change in circumstances)).

Those rules apply to a plea agreement in which the State has agreed to recommend a sentence. But what about arrangement where the State makes no such recommendation? Does the trial court retain discretion to reject those?

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State v. Fearns Finds Second Judge Lacked Authority to Enter Order When Hearing Was Held by First Judge

A few weeks ago, I wrote about the circumstances in which one judge may pick up case-related duties that another judge is unable to complete. Yesterday, the court of appeals decided a case in this area, determining in State v. Fearns, COA23-650, ___ N.C. App. ___ (2025), that a judge lacked authority to enter an order denying a defendant’s motion to dismiss when the hearing on that motion was held by another judge. This post will discuss Fearns.

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What happens when the original judge is no longer available?

Questions sometimes arise in criminal cases about whether a new judge may pick up duties initially undertaken by another judge who is no longer available.  Consider the following scenarios.

  1. Trial begins with Judge A presiding. Judge A falls ill on day 3 of trial. May Judge B substitute as the presiding judge?
  2. Judge A presided over a suppression hearing in December 2024, just before her term expired at the end of the year. Judge A announced her ruling in open court and directed the prevailing party to prepare an order containing findings of fact and conclusions of law. Judge A did not sign the order before her term expired. May Judge B enter an order containing findings of fact and memorializing Judge A’s ruling?
  3. Judge A also presided over a probation violation hearing in December 2024. She determined that the defendant violated the terms of his probation, and she modified the judgment, announcing her ruling in court. She did not sign the judgment before her term expired. May Judge B sign the judgment memorializing Judge A’s decision?

The answers to the questions posed above are, respectively (1) yes, (2) no, and (3) maybe. Keep reading to learn why.

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Justice Riggs, Seat 6, and Holdover Status

In September 2023, then-Governor Roy Cooper appointed Allison Riggs to fill a vacancy on the North Carolina Supreme Court created by the retirement of Associate Justice Michael Morgan. As an appointee, Associate Justice Riggs was eligible to hold the seat (Seat 6) until January 1 following the next general election held more than 60 days after the vacancy occurred. In Riggs’ case, that election was held on November 5, 2024. In the normal course of events, the results of that election would have been certified in December 2024 and the prevailing candidate would have taken office on January 1, 2025. The election did not, however, follow the usual path.

The vote tally for Seat 6 was unusually close. After a recount, Riggs maintained a slim 734 vote lead over her challenger, current Court of Appeals Judge Jefferson Griffin. Judge Griffin filed election protests challenging votes cast by more than 60,000 individuals, alleging on various grounds that these persons were ineligible to vote in this election. The North Carolina State Board of Elections (“State Board”) assumed jurisdiction over Griffin’s protests and rejected his challenges. Griffin thereafter sought relief from the North Carolina Supreme Court, and the State Board removed the matter to federal court. The federal court abstained from reaching the merits and remanded the matter to the North Carolina Supreme Court on January 6. The next day (three days before the State Board was to certify the election results) the state supreme court granted Griffin’s motion for a temporary stay barring the State Board from certifying the results.

There is a lot in this situation to unpack, but I wanted to address a top-line issue: Given that the election has not been certified, who holds Seat 6? And what happens for other elected and appointed officers when their terms expire and no successor has yet been elected and qualified or appointed?

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S 382 Enacts Provisions that Impact the Courts

Yesterday, the General Assembly overrode Governor Cooper’s veto to enact S.L. 2024-57 (S 382). The legislation, which was focused in part on disaster recovery following Hurricane Helene, impacts the court system in several notable ways:

  • It appropriates $8.2 million to the Office of Indigent Defense Services (IDS) to ensure timely payments to private assigned counsel representing indigent defendants (Section 2D.3);
  • It creates two new special superior court judgeships to be filled by legislative appointment (Section 2D.4(a));
  • It eliminates, as of January 1, 2029, two superior court districts, one in Wake County and one in Forsyth County (Section 2D.5);
  • It modifies the process for filling vacancies on the appellate courts (Section 3C.1);
  • It abolishes the Courts Commission (Section 3C.2);
  • It provides for appointment of senior resident superior court judges by the Chief Justice of the North Carolina Supreme Court (Section 3C.3); and
  • It authorizes the Director of the Administrative Office of the Courts (AOC) to employ or retain counsel to represent judicial branch officers and employees (Section 3D.2).

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Book Review: The Devil at His Elbow

I work in the field of criminal law and have penchant for Southern Gothic (and also I am human) so of course I followed Alex Murdaugh’s 2023 trial for the murder of his wife and son. The story was sensational, and the facts spooled out like an old-school television mini-series, weaving a tale in which a small-town southern family dynasty was strangled by the privilege that once helped it flourish. But if you watched the new-school Netflix series, Murdaugh Murders: A Southern Scandal, I’m not telling you anything you don’t already know.

What I am here to tell you about is The Devil at His Elbow, a non-fiction work by Valerie Bauerlien, which chronicles the Murdaugh family through five generations, the intertwined history of Hampton County, South Carolina, where they lived, and the investigation, prosecution, and conviction of Alex Murdaugh for murder and numerous financial crimes. Bauerlien, a reporter for the Wall Street Journal, attended and reported on both the murder trial and the court proceedings in the fraud cases, and her recounting of those matters, including the investigation and the attorneys’ trial tactics, is a riveting read. But the aspect of the work that I found most compelling–indeed haunting–was the institutionalized behavior that affronted my notions about justice and fair play, the role of the courts as the protector of individual rights, and the inviolate right to trial by jury. Bauerlien exposed the manner in which generations of Murdaugh men co-opted their public positions and exploited the justice system to serve their own ends. Until Alex’s downfall in 2023, this behavior had gone unchecked for nearly a century.

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New Pattern Jury Instructions Now Available

Each year the School of Government publishes new and revised pattern jury instructions for civil, criminal, and motor vehicle negligence cases. Those instructions are created and compiled by the North Carolina Conference of Superior Court Judges Committee on Pattern Jury Instructions. The 2024 updates are available for free download here. Among this year’s changes are new instructions for crimes recently defined by the state legislature, including patient brokering, street takeovers, new death by distribution offenses, the new misdemeanor crime of domestic violence, and elevated versions of the offense of breaking or entering a motor vehicle. Several existing criminal instructions also have been amended, including the instruction for substituting alternate jurors after deliberations begin (N.C.P.I. – Crim. 100.40). That instruction now includes a note well advising of the ruling in State v. Chambers, 292 N.C. App. 459 (2024), and the stay entered by the North Carolina Supreme Court.

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Smith v. Arizona and So Many Unanswered Questions

I recently gave a criminal law case update to a group of judges.  I had quite a few cases that I planned to cover in relatively short order. I started with Smith v. Arizona, 602 U.S. 779 (2024), in which the United States Supreme Court held that statements from an absent laboratory analyst that a testifying analyst conveyed to support his expert opinion about the chemical composition of the substances seized from the defendant were hearsay. For that reason, their admission at the defendant’s trial on drug charges raised Confrontation Clause concerns. To my chagrin, twenty minutes later, I was still talking about Smith, attempting to helpfully respond to a barrage of questions from trial court judges about the practical import of the decision for various kinds of testimony frequently proffered by the State during a criminal trial. Those questions included the following:

  • The substitute analysts I see don’t typically rely on another analyst’s report. Instead, they examine the underlying testing data and reach an opinion based on that. Is that testimony admissible?
  • May a supervising analyst who reviewed the testing done by and conclusions of another analyst pursuant to laboratory protocols testify to the conclusions the supervising analyst reached about the identity of the substance?
  • Suppose a new analyst retests a substance. Will he or she be able to establish a sufficient chain of custody for the substance tested given that the substance was initially received and examined by an analyst who is not available to testify?

This post will review what we knew about substitute analyst testimony before Smith was decided, will recap the Court’s analysis in Smith (analyzed in detail here), and will provide some thoughts about Smith’s import that may inform a court’s analysis of the questions posed above.

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Annual Report from the North Carolina Judicial College (2023-2024)

I am excited to share the latest annual report from the North Carolina Judicial College. Spoiler alert: In fiscal year 2023-2024, we offered more courses (51!) to more participants (more than 3,200!) than we have in my previous years as Judicial College Director. And our participants were pleased with the content, awarding our courses an … Read more