Overstating Possible Punishment and the (In)voluntary Nature of the Plea — Part II

In a blog post here, I wrote about overstating possible punishment and the voluntary nature of a plea. In that post, I discussed the dangers of overstating the possible maximum sentence with respect to consecutive sentences and recent changes to post-release supervision. That post prompted questions about a related issue. Here’s the set up: At a plea proceeding in North Carolina, it’s my understanding that the trial judge typically advises a defendant of the maximum sentence that could be imposed by going “all the way up and all the way over” on the sentencing grid. This results in the judge advising the defendant of a maximum associated with an aggravated sentence at prior record level (PRL) VI. And now the questions: What if the State hasn’t given notice of any aggravating factors? What if the defendant has no PRL points? In these scenarios has the trial judge overstated the maximum possible sentence and opened the plea up to a challenge? Since my prior post didn’t address this issue, I’ll do that now.

G.S. 15A-1022(a)(6) provides that when taking a plea, the trial judge must inform the defendant of “the maximum possible sentence on the charge for the class of offense for which the defendant is being sentenced” (emphasis added). At least two unpublished decisions have held that “nothing in G.S. § 15A-1022(a)(6) requires the trial court to adjust the ‘maximum possible sentence’ based on a particular defendant’s projected prior record level.” State v. Felton, 167 N.C. App. 807 (2005) (unpublished); see also State v. Hayes, 171 N.C. App. 515 (2005) (unpublished) (“Contrary to defendant’s assertion, nothing in N.C. Gen. Stat. § 15A-1022(a)(6) requires a trial court to tailor the information regarding the maximum and minimum possible sentences for an offense by inquiring into each defendant’s projected prior record level.”). One of those cases reasoned: “Such a requirement would conflict with the procedural framework established for guilty pleas under Article 58, since at the time of the plea colloquy . . . the defendant’s prior record level is indeterminate.” Hayes, 171 N.C. App. 515. The fact that both cases are unpublished lessens their value. Additionally, both relied in part on State v. Byrd, 164 N.C. App. 522 (2004) (Byrd I), a pre-Blakely case that made the cited statement in the context of wrongly deciding a Blakely issue. State v. Byrd, 175 N.C. App. 247 (2005) (so holding on a post-Blakely appeal after a new sentencing hearing was held following Bryd I). On the other hand, amplifying the holding of those cases is G.S. 15A-1340.11(7), which provides that PRL is determined at sentencing, not at the plea proceeding. As my colleague Jamie (“Sentencing Guru”) Markham noted to me, if there is a time lag between the plea and the sentence and the defendant accrues another conviction in that time period, that conviction can count for PRL purposes under State v. Pritchard, 186 N.C. App. 128 (2007). If that happens and the judge has under-advised as to sentence, error occurs. State v. Reynolds, __ N.C. App. __, 721 S.E.2d 333, 334 (2012) (the defendant’s plea was not constitutionally valid where the trial judge misinformed the defendant of the maximum sentence he would receive; the trial court told the defendant that the maximum possible sentence would be 168 months’ imprisonment when the maximum sentence (and the maximum ultimately imposed) was 171 months; the court rejected the State’s argument that the defendant was not prejudiced by this error).

What about the “all the way up” (and into the aggravated range) part of the typical advisement? If the State hasn’t given notice of any aggravating factors the defendant cannot—as a matter of law—receive an aggravated sentence. See G.S. 15A-1340.16(a6) (State must give notice of aggravating factors); State v. Mackey, __ N.C. App. __, 708 S.E.2d 719, 722 (2011) (error to impose an aggravated range sentence when the State failed to provide proper written notice). On this issue, arguments can be made both ways. On the one hand, it might be argued that by analogy to the PRL cases, nothing in G.S. 15A-1022(a)(6) requires the trial court to adjust the “maximum possible sentence” based on a particular defendant’s situation. On the other hand, that argument is undercut by the fact that unlike PRL which is “indeterminate” at the time of plea, whether a defendant can receive an aggravated sentence isn’t entirely indeterminate; if the State failed to give notice, an aggravated sentence can’t be imposed. If this latter argument carries the day with respect to a defendant who hasn’t been given notice of aggravating factors, the maximum possible sentence is at the top of the presumptive range.

But that’s not all! There is a constitutional overlay to this issue. By entering a guilty plea the defendant waives several constitutional rights. To be valid, the defendant’s waiver must be knowing, voluntary, and intelligent. Regardless of how the statutory interpretation issue plays out, a defendant still can argue that when the judge over-advised him or her of the consequences of the plea using a “generic” maximum versus a “defendant-specific” maximum this undercut the knowing, voluntary, and intelligent nature of the plea. As I discussed in my prior post, if the overstatement is significant enough and if the defendant suffers prejudice as a result, there may be a basis to invalidate the plea. See also LaFave, Israel, King & Kerr, 5 Criminal Procedure 830 (“it would seem that a significant overstatement of the maximum possible punishment would be objectionable whenever it skewed defendant’s understanding of the value of his plea bargain”).

I have not done exhaustive research on the issue but my work hasn’t turned up good N.C. authority that answers this question directly, either on the statutory interpretation issue or the constitutional issue. If you know of any law on point, please post a comment.