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. Continue reading
Tag Archives: guilty pleas
Challenging a Plea
Breach of a Plea Agreement
Once a plea is entered pursuant to a plea agreement, the parties are bound by the agreement and failure to comply with it constitutes a breach. Occasionally questions arise about whether a breach has occurred and if so, what remedy should apply. Continue reading →
Sometimes a party to a plea agreement has buyer’s remorse and wants to get out of the deal. The standard for evaluating such a request varies, depending on when the motion is made. Continue reading →
Advising a Defendant of the Maximum Possible Sentence During a Habitual Felon Plea
When a defendant pleads guilty, the judge is required to “inform him of the maximum possible sentence” associated with his offense. G.S. 15A-1022(a)(6). When a defendant pleads guilty to being a habitual felon, he must be informed of the maximum sentence he faces as a habitual felon, because the enhanced sentence is a “direct consequence of [the defendant’s] plea.” State v. McNeill, 158 N.C. App. 96 (2003). See also State v. Bailey, 157 N.C. App. 80 (2003) (“[A] trial court may not accept a defendant’s plea of guilty as an habitual felon without first addressing the defendant personally and making the . . . inquiries of that defendant as required by” G.S. 15A-1022, including regarding the maximum possible sentence). A failure to advise the defendant properly may violate the constitutional principles outlined in Boykin v. Alabama, 395 U.S. 238 (1969), in addition to contravening the statute.
But what exactly is the “maximum possible sentence”? Should it be adjusted for the defendant’s prior record level? Based on any provisions in his plea agreement, if there is one? In a case in which the state is not pursuing any aggravating factors, should it be the top of the aggravated range or the top of the presumptive? Jessie Smith explored some of these issues outside the habitual felon context in this prior post. The most common (and probably safest) practice under current law is for the judge to inform the defendant of the maximum sentence that corresponds to the highest minimum sentence in the aggravated range of prior record level VI for the enhanced offense class. (Recall that under prior law, habitual felons were always sentenced as Class C offenders, but for substantive felonies committed on or after December 1, 2011, the Justice Reinvestment Act provides that they should be sentenced “four classes higher” than their natural class, capped at Class C. G.S. 14-7.6.) See State v. Hayes, 2005 WL 1669612 (N.C. Ct. App. July 19, 2005) (unpublished) (the defendant pled guilty to several substantive felonies and to being a habitual felon; during the plea colloquy, the trial judge advised the defendant that he could be sentenced to as little as 44 months [the minimum term at the bottom of the mitigated range for Class C, prior record level I] or as many as 261 months [the maximum term corresponding to the minimum term at the top of the aggravated range for Class C, prior record level VI]; this was proper).
What if the judge doesn’t do that? In some cases, the appellate courts have been quite exacting about the information a trial judge must provide to a defendant. For example, in State v. Reynolds, __ N.C. App. __, 721 S.E.2d 333 (2012), the defendant pled guilty to felony breaking and entering and felony larceny, and to being a habitual felon. His plea agreement provided specifically for a minimum term of 135 months, and the trial judge advised him that he would receive a minimum of 135 months and a maximum term of 168 months. In fact, the maximum term that corresponded to a 135 month minimum term was 171 months, and that was what the written judgment reflected. The court of appeals found that the trial judge had failed to advise the defendant properly of the maximum sentence he faced and that the error was not harmless. Cf. State v. Smith, 2012 WL 4878878 (N.C. Ct. App. Oct. 16, 2012) (unpublished) (the trial judge did not conduct a full plea colloquy, instead allowing the defendant to “stipulate” to being a habitual felon; among the defects in this procedure was that the judge “neglected to explain the maximum and minimum sentence for the underlying offense that would apply with [the defendant’s] conviction for attaining habitual felon status”).
However, the appellate courts are not always so particular. They have repeatedly affirmed cases in which the trial judge gave rather cursory explanations of the maximum possible sentence. For example:
- State v. Szucs, 207 N.C. App. 694 (2010) (trial court advised defendant that pleading guilty to being a habitual felon would expose him to a “much higher” sentence than would otherwise apply and that he would be sentenced as a Class C offender; following Williams, infra, the court of appeals ruled that this was sufficient compliance with G.S. 15A-1022(a)(6))
- State v. Pope, 2008 WL 4911803 (N.C. Ct. App. Nov. 18, 2008) (unpublished) (during defendant’s guilty plea to being a habitual felon, the trial court simply asked him whether he understood “what habitual felon status means . . . [i]nsofar as the sentence,” and received an affirmative response; although this did not comply with G.S. 15A-1022(a), it was harmless error as the plea overall appeared to be knowing and voluntary)
- State v. Handy, 2007 WL 2034111 (N.C. Ct. App. July 17, 2007) (unpublished) (defendant was convicted at trial of possession of cocaine and pled guilty to being a habitual felon; following Williams, infra, the court of appeals found that the trial judge sufficiently advised the defendant that he would be “punished as a Class C felon” based on his guilty plea)
- State v. Williams, 133 N.C. App. 326 (1999) (defendant was sufficiently made “aware of the direct consequences of her guilty plea” where the trial court advised her that she would be sentenced as a Class C felon under the habitual felon statutes rather than as a Class G felon; the judge did not specify how many months of imprisonment could be imposed)
It seems to me that the judge in Reynolds came much closer to complying with G.S. 15A-1022(a)(6) than the judge in Pope, yet the former was reversed while the latter was not. Maybe that’s just an anomaly, or maybe the appellate courts view providing inaccurate information – even if only slightly inaccurate – as inherently more troubling than providing too little information.
A lot of defendants plead guilty. And many of those defendants later try to challenge their pleas through the post-conviction process. Not surprisingly then, I get a lot of questions about what types of claims can be asserted in a motion for appropriate relief (MAR) challenging an unconditional guilty plea.
As a general rule, a defendant who 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). Thus, for example, once a defendant enters an unconditional guilty plea, he or she is barred from challenging the constitutionality of the stop that lead to his or her arrest. There are however several exceptions to this general rule.
First, a defendant who enters an unconditional guilty plea isn’t barred from challenging “the very power of the State to bring the defendant into court to answer the charge brought against him.” Blackledge v. Perry, 417 U.S. 21, 30 (1974); Reynolds, 298 N.C. at 395 (discussing Perry). Thus, a defendant who has pleaded guilty still can assert a jurisdictional defect, such as a fatal defect in the indictment or that no part of the crime occurred in North Carolina. See, e.g., State v. Neville, 108 N.C. App. 330, 333 (1992) (guilty plea does not waive a jurisdictional defect) (citing State v. Stokes, 274 N.C. 409, 412 (1968). See generally G.S. 15A-1415(b)(2) (MAR may assert jurisdictional issues).
Second, a defendant who enters an unconditional guilty plea isn’t barred from a claim that the plea itself wasn’t knowing, voluntary, and intelligent. A plea waives a wheelbarrow full of constitutional rights, including the right to a trial by jury and the right to confront witnesses. Waivers of constitutional rights must be knowing, voluntary, and intelligent. If a plea isn’t knowing, voluntary, and intelligent, it isn’t valid. Thus, a defendant who enters an unconditional guilty plea isn’t barred from claiming, for example, that the trial judge failed to inform him or her of the maximum punishment or that defense counsel rendered ineffective assistance in connection with the plea. See generally G.S. 15A-1415(b)(3) (MAR may assert claim that conviction was obtained in violation of constitutional law). Challenges to the knowing, voluntary, and intelligent nature of the plea are commonly known as Boykin challenges. See Boykin v. Alabama, 395 U.S. 238, 242 (1969) (articulating the constitutional requirements of a plea).
And finally, a defendant who enters an unconditional guilty plea isn’t barred from challenging the legality of the sentence imposed. For example, if a trial judge imposes a sentence after an unconditional guilty plea using the wrong Structured Sentencing Act grid, the defendant isn’t barred from challenging the sentence by way of a MAR. See generally, G.S. 15A-1444(a2) (defendants who plead guilty have an appeal as a matter of right with respect to listed sentencing issues); G.S. 15A-1415(b)(8) (MAR may challenge sentence imposed).
I’m not aware of any other MAR claims that survive an unconditional guilty plea. If you are, please post a comment.
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.
In a post here discussing application of post-release supervision periods to multiple sentences Jamie raised the question of whether over-advising a defendant as to the maximum possible sentence associated with pending charges can undercut the knowing, voluntary and intelligent nature of a plea. Let’s recap the issue. Suppose a defendant is contemplating pleading guilty to two Class C felony reportable sexual assault charges committed after December 1, 2011. The highest possible minimum for each offense is 182 months. The corresponding maximum is 279 months. Built into this maximum is a 60-month period of post-release supervision. Suppose that when advising the defendant as to the maximum possible sentence, accounting for consecutive sentences, the trial judge doubles 279, getting a maximum of 558 months. The judge so advises the defendant and the defendant pleads guilty and is sentenced.
As Jamie’s post clarifies, the judge’s advisement overstated the total maximum sentence that could be imposed for the consecutive sentences. If the sentences run consecutively, only one post-release supervision period is imposed. Because our defendant has two offenses, one 60-month post-release period must be subtracted from the maximum. This means that the maximum sentence is 558 minus 60 months, or 498 months. Assume now that the defendant files a motion for appropriate relief (MAR). He alleges that his plea was not knowing, voluntary, and intelligent because the judge overstated the maximum possible sentence and his lawyer never corrected the error. He further alleges that had he known the correct maximum, he would not have pleaded guilty. How does our defendant fare?
Case law suggests that a dramatic overstatement as to the maximum possible sentence can invalidate a plea. In Manley v. United States, 588 F.2d 79 (4th Cir. 1978), for example, the defendant was charged with six drug offenses and decided to enter a plea of nolo contendere to all counts. There was no plea bargain. At the plea proceeding, the trial court accurately told the defendant that the maximum punishment that could be imposed on each count was 15 years in prison, a fine not to exceed $25,000, or both, along with a special parole term of at least 3 years. The court further explained that because Manley faced six charges, the maximum term to which he might be sentenced would be 90 years plus $150,000 in fines. This latter advisement was incorrect. Under the relevant law, a number of the counts had to be merged and as a result the maximum sentence he could have received if the sentences ran consecutively was 60 years. The judge thus overstated the maximum by thirty years. The judge went on to accept Manley’s plea and sentence him to twelve years’ in prison with three years of special parole.
Manley later moved to have his sentence vacated arguing that because he was misinformed about the maximum sentence, his plea was not knowing, voluntary, and intelligent. The Fourth Circuit began by acknowledging that for a plea to be knowing, voluntary, and intelligent, a defendant “must have ‘a complete understanding of the possible sentence.’” Id. at 81. However, it noted, this rule did not “establish a per se rule that every error in sentence advice will permit the accused later to upset his guilty plea.” Id. For example, the court stated, if Manley’s lawyer correctly informed him of the maximum sentence, the judge’s error would not invalidate the plea. Id. Thus, the court determined, the “central question” is whether Manley “actually knew” what sentence might be imposed. Id. at 82. On this point, the court determined that a remand was required:
[B]ecause Manley’s counsel stated only that he was satisfied his client understood the nature of the charges and the consequences of the pleas, it is possible that Manley’s counsel had correctly advised his client of the sentencing possibilities, and by that provided the requisite understanding, or Manley may have been otherwise so advised. Accordingly, we vacate the judgment . . . and remand for further proceedings to determine whether Manley was informed of the maximum sentence that might have been imposed. If Manley were so informed, it follows that, despite the misapprehensions of court and prosecutor, his plea as to this point was in fact voluntary and intelligent. If the court below should find that he was not so informed, Manley’s conviction must be vacated and he should be allowed to plead anew. A thirty-year error in sentence advice cannot, we think, satisfy the requirement . . . that the defendant have “a complete understanding of the possible sentence.”
Id. The court made clear if Manley did not actually know the correct maximum, the magnitude of the error in this case would invalidate the plea. See also Hammond v. United States, 528 F.2d 15 (4th Cir. 1975) (maximum overstated by 45 years). But what about a lesser error? Elsewhere, the court suggested that an error as to “a few years” with respect to a “long term” may not invalidate a plea. Manley, 588 F.2d at 82. It’s noteworthy that Manley stated that its rule would apply regardless of whether or not a plea agreement was in place. Id. at 81 (“[T]he requirement that a guilty plea be voluntary and intelligent applies to all guilty pleas, not merely those in which a plea bargain has been struck.”).
In the example above the judge overstated the maximum by five years. That’s well short of the thirty years at issue in Manley but it’s not an insignificant period of time. In the end, regardless of whether a defendant can invalidate a plea on this basis, the best practice for the trial judge is to correctly advise the defendant with respect to the maximum possible sentence. This may mean some fancy calculations when the charges have different post-release supervision periods but I don’t see a way to avoid this difficulty. If you think otherwise, let me know.