TITLE TWO — PRELIMINARY PROCEEDINGS
Rule 12. Pleas and Plea Agreements
Pleas In General.
Pleas That May Be Entered and by Whom. A defendant may plead not guilty, or guilty, or with the consent of the judge, nolo contendere, to any crime with which the defendant has been charged and over which the court has jurisdiction. A plea of guilty or nolo contendere shall be received only from the defendant personally, the defendant being present as Rule 18(a) requires. Pleas shall be received in open court and the proceedings shall be maintained on record. If a defendant refuses to plead or if the judge refuses to accept a plea of guilty or nolo contendere, a plea of not guilty shall be entered.
Admission to Sufficient Facts. In a Superior Court, a defendant may, after a plea of not guilty, admit to sufficient facts to warrant a finding of guilty.
Acceptance of Plea of Guilty, a Plea of Nolo Contendere, or an Admission to Sufficient Facts. A judge may accept a plea of guilty or a plea of nolo contendere or an admission to sufficient facts only after first determining that it is made voluntarily with an understanding of the nature of the charge and the consequences of the plea or admission. A judge may refuse to accept a plea of guilty or a plea of nolo contendere or an admission to sufficient facts.
Plea to Fewer Than All Charges. A defendant may plead to one or more counts or to one or more of several charging instruments. A plea to fewer than all charges does not dispose of the remainder, which shall proceed unless disposed of by the prosecutor under Rule 16 or by order of the court.
Plea to a Lesser Included Offense. With the consent of the prosecutor, a defendant may plead guilty or nolo contendere, or admit to sufficient facts, to an offense necessarily included within the offense charged. The charging instrument need not be amended, but the judge shall state upon the record the offense to which the plea is received.
Withdrawal of a Plea of Not Guilty. A defendant who has pleaded not guilty may at any time before verdict or finding withdraw that plea and tender a plea under this rule.
Presence of the Defendant. No plea shall be received from a defendant who is not present. Neither an express waiver of presence under Rule 18(c) nor an absentia authorization entered under Rule 18.3 permits the receipt of a plea in the defendant’s absence, and where a defendant tried in absentia would tender a plea the court shall suspend the trial until the defendant appears. A defendant attending in the manner Rule 18(a)(2) describes is present for the purposes of this subdivision.
Capital Crimes. In a prosecution for an offense for which a sentence of death is permitted by 6 R. Stat. § 131.402, the judge shall additionally inform the defendant that a sentence of death may be imposed and shall determine upon the record that the defendant understands that consequence, before accepting any plea of guilty or admission to sufficient facts.
Counsel. No plea of guilty or nolo contendere and no admission to sufficient facts shall be received from a defendant who is not represented by counsel unless the defendant has waived counsel in accordance with Rule 8.1, and the judge has determined upon the record that the waiver remains knowing and voluntary at the time of the plea. 3 R. Stat. § 161.202(a); Const. art. I, § 6.
Plea Discussions; Pleas Without Plea Agreement and With Plea Agreement.
In General. The defendant may tender a guilty plea, a plea of nolo contendere, or an admission to sufficient facts to warrant a finding of guilty without entering into a plea agreement with the prosecutor. Alternatively, if the defendant intends to tender a plea of guilty or an admission to sufficient facts, the prosecutor and the defendant may enter into a plea agreement pursuant to Rule 12(b)(5).
Plea Discussions. The judge may participate in plea discussions at the request of one or both of the parties if the discussions are recorded and made part of the record. The judge shall not initiate plea discussions, shall not state or imply that a defendant who exercises the right to trial will receive a greater sentence for having done so, and shall not participate in discussions from which the defendant is excluded.
Inquiry as to the Existence of a Plea Agreement. After being informed that a defendant intends to plead guilty or to admit to sufficient facts, the judge shall inquire as to the existence of a plea agreement. The judge shall also inquire of the defendant personally whether any promise, inducement, or threat other than the agreement disclosed has been made, and shall inquire of counsel whether any exists.
Pleas Without an Agreement. If the defendant intends to plead guilty or nolo contendere or to admit to sufficient facts and there is no agreement under Rule 12(b)(5), the judge shall follow the procedures set forth in Rule 12(c).
Pleas Conditioned Upon an Agreement. The defendant may enter into a plea agreement with the prosecutor if the defendant intends to plead guilty or admit to sufficient facts but not if the defendant intends to plead nolo contendere.
A plea agreement may specify both that the parties agree on a specific sentence, including the length of any term of probation, and that the prosecutor will make one or more of the following charge concessions: amend an indictment or complaint; dismiss, reduce, or partially dismiss charges; not seek an indictment; or not bring other charges. The judge shall follow the procedures set forth in Rule 12(d) when the parties enter into a plea agreement that includes both an agreement to a specific sentence and a charge concession. If the judge accepts the plea agreement and the defendant’s plea, Rule 12(d) requires the judge to sentence the defendant according to the terms of the plea agreement.
When the plea is conditioned on a plea agreement other than one described in Rule 12(b)(5)(A), the judge shall follow the procedures set forth in Rule 12(c).
A plea agreement shall be in writing, signed by the prosecuting attorney, by the defendant, and by defense counsel if any, and shall be filed in the case or read verbatim into the record. The electronic filing system provides no document-level sealing; an agreement filed in the case is served upon every participant upon acceptance and, on a case type that is not confidential, appears upon the public docket.
No plea agreement shall provide for the posting of bond or any other monetary condition of release, 6 R. Stat. § 131.205; for a sentence exceeding the maximum permitted by sentencing game mechanics, 6 R. Stat. § 131.310; for a waiver of the defendant’s right to counsel; for a waiver of a claim of ineffective assistance of counsel; for a waiver of the right to seek relief under Rule 30; or for any term the court has no power to impose.
A plea agreement binds no one until the judge accepts it. Until acceptance, either party may withdraw from the agreement upon notice stated in the proceeding communications.
Pleas Reserving Appellate Review. With the written agreement of the prosecutor, the defendant may tender a plea of guilty or an admission to sufficient facts while reserving the right to appeal any ruling or rulings that would, if reversed, render the State’s case not viable on one or more charges. The written agreement must specify the ruling or rulings that may be appealed, and must state that reversal of the ruling or rulings would render the State’s case not viable on one or more specified charges. The judge, in an exercise of discretion, may refuse to accept a plea of guilty or an admission to sufficient facts reserving the right to appeal. If the defendant prevails in whole or in part on appeal, the defendant may withdraw the guilty plea or the admission to sufficient facts on any of the specified charges. If the defendant withdraws the guilty plea or the admission to sufficient facts, the judge shall dismiss the complaint or indictment on those charges, unless the prosecutor shows good cause to do otherwise. The appeal shall be governed by the Ridgeway Rules of the Supreme Court, provided that a notice of appeal is filed within twenty-four hours of the acceptance of the plea. A reservation under this subdivision is the express reservation of a legally dispositive issue contemplated by 6 R. Stat. § 131.804; a plea tendered without such a reservation carries no right of direct appeal.
Procedure If No Plea Agreement or If Plea Agreement Does Not Include Both a Specific Sentence and a Charge Concession.
Disclosure of the Terms of Any Plea Agreement. If the parties have entered into a plea described in Rule 12(b)(5)(B), the parties shall disclose the terms of that agreement on the record in open court unless the judge for good cause allows the parties to disclose the terms of the plea agreement through other means.
Tender of Plea. The defendant’s plea or admission shall be tendered to the judge.
Colloquy. The judge shall:
Provide notice to the defendant of the consequences of a plea. The judge shall inform the defendant:
that by a plea of guilty or nolo contendere, or an admission to sufficient facts, the defendant waives the right to trial with or without a jury dependent upon the existence of this right, the right to confrontation of witnesses, the right to be presumed innocent until proved guilty beyond a reasonable doubt, and the right against self-incrimination;
of the maximum possible sentence on the charge, and, if applicable,
any different or additional punishment based upon subsequent offense provisions of the state statutes;
the mandatory minimum sentence on the charge; and
that where the offense charged is one for which the state statutes provide a different or additional punishment, or a habitual offender designation, upon a second or subsequent conviction, the defendant may upon this plea become subject to that different or additional punishment as provided by the state statutes; and the judge shall identify upon the record the statutory provision relied upon and shall state no consequence not provided by it;
that, if the defendant is not a resident of the State of Ridgeway, the guilty plea, plea of nolo contendere, or admission may have the consequence of deportation, exclusion of admission, or denial of residency dependent on the policies of immigration.
that the defendant has the right to be represented by counsel at every stage, and, if indigent, to appointed counsel under Rule 8 and 3 R. Stat. § 161.102;
that the defendant waives the right to compel the attendance of witnesses under Rule 17 and the right to present a defense secured by Const. art. I, § 6;
that, except upon a reservation made under Rule 12(b)(6), a defendant who pleads guilty or nolo contendere has no right to a direct appeal, as provided by 6 R. Stat. § 131.804, but may seek relief under Rule 29 or Rule 30;
that the judge may impose a period, not exceeding six months, that the defendant must wait before petitioning to expunge the conviction, as provided by 6 R. Stat. § 131.312; and
that if a term of probation or community control is imposed, its violation may result in the revocation of probation and the imposition of sentence, and that notice of the order will be given to the sheriff’s office as provided by 6 R. Stat. § 131.614.
Factual basis for the charge. The prosecutor shall present the factual basis of the charge.
Inquire of the defendant personally, in the proceeding communications and upon the record, whether the defendant understands each matter stated under subdivision (c)(3)(A), whether the defendant has had adequate opportunity to consult counsel, and whether the plea is the defendant’s own free act.
Disposition Requests.
When there is no agreed-upon recommendation as to sentence. The judge shall give both parties the opportunity to recommend a sentence to the judge. In the Superior Court, the judge shall inform the defendant that the disposition imposed will not exceed the terms of the prosecutor’s recommendation without first giving the defendant the right to withdraw the plea. At any time prior to accepting the plea or admission, the judge may continue the hearing on the judge’s own motion to ensure that the judge has been provided with, and has had an opportunity to consider, all of the facts pertinent to a determination of a just disposition in the case.
Where there is an agreed-upon recommendation as to disposition. The judge shall inform the defendant that the sentence imposed will not exceed the terms of the agreement without first giving the defendant the right to withdraw the plea. At any time prior to accepting the plea or admission, the judge may continue the hearing on the judge’s own motion to ensure that the judge has been provided with, and has had an opportunity to consider, all of the facts pertinent to a determination of a just disposition in the case.
Findings of Judge; Acceptance of Plea. The judge shall inquire whether the defendant still wishes to plead guilty or nolo contendere or admit to sufficient facts. If so, the judge will then make findings as to whether the plea or admission is knowing and voluntary, and whether there is an adequate factual basis for the charge. The defendant’s failure to acknowledge all aspects of the factual basis shall not preclude a judge from accepting a guilty plea or admission. At the conclusion of the hearing, the judge shall accept or reject the tendered plea or admission.
Sentencing. After acceptance of a plea of guilty or nolo contendere or an admission, the judge shall sentence the defendant.
Conditions of Probation. If the judge’s disposition includes a term of probation, the judge, with the assistance of probation where appropriate and after considering the recommendations of the parties, shall impose appropriate conditions of probation. The court’s authority to place a defendant on probation upon a plea of guilty or nolo contendere is as provided by 6 R. Stat. § 131.613.
Intent to Impose Sentence Exceeding Requested Disposition. In Superior Court, if the judge decides to impose a sentence that will exceed the prosecutor’s request for disposition under Rule 12(c)(4)(A) or the parties’ request for disposition under Rule 12(c)(4)(B), the judge shall, on the record, advise the defendant of that intent and shall afford the defendant the opportunity to withdraw the plea or admission. In Superior Court, the judge may indicate to the parties what sentence the judge would impose.
Credit for Time Served. The judge may allow credit for time served where the defendant was previously arrested for the same incident, as provided by 6 R. Stat. § 131.311, and shall state upon the record whether credit is allowed.
Allocution. Before imposing sentence the judge shall proceed in accordance with subdivision (j) of this rule.
Procedure If Plea Agreement Includes Both a Specific Sentence and a Charge Concession.
Disclosure of the Terms of the Plea Agreement. The parties shall disclose the terms of the plea agreement on the record in open court unless the judge for good cause allows the parties to disclose the terms of the plea agreement in camera on the record.
Tender of Plea. The defendant’s plea or admission shall be tendered to the judge.
Colloquy. The judge shall:
Provide notice to the defendant of the consequences of a plea. The judge shall inform the defendant:
that by a plea of guilty or an admission to sufficient facts, the defendant waives the right to trial with or without a jury, dependent upon the existence of this right, the right to confrontation of witnesses, the right to be presumed innocent until proved guilty beyond a reasonable doubt, and the privilege against self-incrimination;
of the maximum possible sentence on the charge, and, if applicable,
any different or additional punishment based upon subsequent offense provisions of the state statutes;
that where the offense charged is one for which the state statutes provide a different or additional punishment, or a habitual offender designation, upon a second or subsequent conviction, the defendant may upon this plea become subject to that different or additional punishment as provided by the state statutes; and the judge shall identify upon the record the statutory provision relied upon and shall state no consequence not provided by it;
that, if the defendant is not a resident of the State of Ridgeway, the guilty plea, plea of nolo contendere, or admission may have the consequence of deportation, exclusion of admission, or denial of residency dependent on the policies of immigration.
each matter stated in Rule 12(c)(3)(A)(iv) through (viii); and
that if the judge rejects the plea agreement, the defendant may withdraw the plea or admission as provided by Rule 12(d)(4)(B).
Factual basis for the charge. The prosecutor shall present the factual basis of the charge.
Inquire of the defendant personally, in the proceeding communications and upon the record, as required by Rule 12(c)(3)(C).
Review; Acceptance or Rejection of Plea Agreement. The judge must accept or reject the plea agreement before the judge accepts a guilty plea or admission. The judge should not accept a plea agreement without considering whether the proposed disposition is just. At any time prior to the acceptance or rejection of the plea agreement, the judge may continue the plea hearing on the judge’s own motion to ensure that the judge has been provided with, and has had an opportunity to consider, all of the facts pertinent to a determination whether the plea agreement provides for a just disposition in the case.
Accepted Plea Agreement. If the judge accepts the plea agreement, the judge shall inform the defendant that the judge will impose the sentence, including the length of any term of probation, provided in the plea agreement.
Rejected Plea Agreement. If the judge rejects the plea agreement, the judge shall, on the record and in open court (or, for good cause, in camera on the record):
inform the parties that the judge rejects the plea agreement, but the judge may indicate to the parties what sentence the judge would impose or what additional information the judge will require before the judge may make this determination;
allow either party to withdraw from the plea agreement; and
allow the defendant to withdraw his or her plea or admission.
The judge shall reject any plea agreement that provides for a term the court has no power to impose, including any term prohibited by Rule 12(b)(5)(E).
Findings of Judge as to Plea Agreement and Plea; Acceptance of Plea. If the judge has accepted the plea agreement, the judge shall inquire whether the defendant still wishes to plead guilty or admit to sufficient facts. If so, the judge will then make findings as to whether the plea agreement and plea or admission are knowing, voluntary, and supported by an adequate factual basis. The defendant’s failure to acknowledge all aspects of the factual basis shall not preclude a judge from accepting a guilty plea or admission. At the conclusion of the hearing, the judge shall accept or reject the tendered plea or admission.
Sentencing. After accepting the plea agreement and the plea or admission, the judge shall impose sentence according to the terms of the plea agreement. If the plea agreement includes a term of probation, the judge, with the assistance of probation where appropriate and after considering the recommendations of the parties, shall impose appropriate conditions of probation. Before imposing sentence the judge shall proceed in accordance with subdivision (j) of this rule.
Availability of Criminal Record and Presentence Report. Prior to sentencing under Rule 12(c)(6) or to the judge’s decision to accept or reject a plea agreement under Rule 12(d)(4), the judge, prosecutor, and counsel for the defendant shall have an opportunity to review the defendant’s criminal record and any report of the presentence investigation as described in Rule 28(d)(2). In extraordinary cases, the judge may exempt from disclosure to the parties parts of the report which are not relevant to a proper sentence, diagnostic opinion which might seriously disrupt a program of rehabilitation, sources of information obtained upon a promise of confidentiality, or any other information which, if disclosed, might result in harm, physical or otherwise, to the defendant or other persons. If the report is not made fully available, the portions thereof which are not disclosed shall not be relied upon in determining sentence.
Manner of Disclosure. The electronic filing system provides no document-level sealing and no redaction. A part of a report exempted from disclosure under this subdivision shall not be filed in the case and shall not be transmitted through the electronic filing system. The judge shall state upon the record the fact of the exemption and the general nature of the material exempted, and shall state that the exempted material was not relied upon in determining sentence.
Defendant Without Counsel. Where the defendant is not represented by counsel, disclosure required by this subdivision shall be made to the defendant personally.
Inadmissibility of Pleas, Offers of Pleas, and Related Statements. Evidence of a plea of guilty, a plea of nolo contendere, an admission, an offer to plead guilty or nolo contendere or to admit to the crime charged or any other crime, later withdrawn, and statements made in connection with and relevant to any of the foregoing pleas or offers, is inadmissible against the person who made the plea or offer as provided by Rid. R. Evid. 410. The exception for a proceeding for perjury is as provided by Rid. R. Evid. 410(2). Nothing in this rule enlarges or restricts Rid. R. Evid. 410.
Record of Plea Proceedings.
Where Conducted. Proceedings under this rule shall be conducted in the proceeding communications of the case, which for this purpose constitute open court, and shall be maintained upon the record.
Contents of the Record. The record of a proceeding under this rule shall reflect: the charge or charges to which the plea is tendered; the presence of the defendant and of counsel, or a waiver of counsel under Rule 8.1; the existence and full terms of any plea agreement, or the absence of one; each advisory given under subdivision (c)(3) or (d)(3) and the defendant’s response to each; the factual basis presented by the prosecutor; the defendant’s statement or declination under subdivision (j); the judge’s findings as to knowledge, voluntariness, and factual basis; the judge’s acceptance or rejection of any plea agreement; the judge’s acceptance or rejection of the plea; and the sentence imposed.
Entry. The judge shall enter in the case, through the electronic filing system, a written record of the plea and the judgment consistent with Rule 28. A plea is effective upon its acceptance stated upon the record; the entry of the written record does not alter the time of acceptance, and a defect or delay in that entry does not affect the validity of the plea.
Immutability of the Record. A document once received by the electronic filing system cannot be amended or withdrawn. A correction to a written record of plea is made by a corrected filing, which bears its own later filing date and supersedes the earlier document as a statement of the record; the earlier document remains upon the docket.
Withdrawal of a Plea.
Before Acceptance. A defendant may withdraw a tendered plea or admission at any time before the judge accepts it, and may do so orally upon the record. Where the judge rejects a plea agreement, the defendant may withdraw as provided by Rule 12(d)(4)(B)(iii), and either party may withdraw from the agreement as provided by Rule 12(d)(4)(B)(ii).
After Acceptance and Before Sentence. After the judge accepts a plea or admission and before sentence is imposed, the judge shall permit withdrawal upon a showing of any fair and just reason, and shall permit withdrawal as of right where subdivision (c)(4), (c)(6)(B), or (d)(4)(B)(iii) of this rule so provides. In ruling, the judge shall consider whether the defendant asserts innocence, the reason for the delay in moving, the extent to which the defendant received the benefit of the agreement, and any prejudice to the State, including the unavailability of witnesses.
After Sentence. After sentence is imposed, a plea or admission may be withdrawn only to correct a manifest injustice. A motion under this subdivision shall be made within the time and in the manner provided by Rule 30. Manifest injustice is established where:
the plea was not knowing or voluntary;
the record discloses no adequate factual basis for the charge to which the plea was entered;
the judge failed to give an advisory required by subdivision (c)(3) or (d)(3) of this rule and the defendant was thereby prejudiced;
the sentence imposed exceeds the terms of an accepted plea agreement, or exceeds the maximum permitted by 6 R. Stat. § 131.310;
the State failed to perform a charge concession or other material term of an accepted plea agreement; or
the defendant was denied the effective assistance of counsel in connection with the plea.
Time; Form. A motion to withdraw a plea made before sentence shall be made upon the record at the plea or sentencing proceeding, or by a filing within twenty-four hours of the event giving rise to the ground asserted. A motion under this subdivision is a pretrial motion within the meaning of Rule 13(a) and shall comply with Rule 13(a)(2), including the requirement of an affidavit by a person with personal knowledge.
Effect of the Motion. The filing of a motion under this subdivision does not withdraw the plea. A plea is withdrawn only upon an order allowing withdrawal. The inability of the electronic filing system to withdraw or amend a filing has no bearing upon a motion under this subdivision.
Effect of Withdrawal. Upon the allowance of withdrawal:
the plea or admission, the judge’s findings upon it, and any sentence imposed upon it are vacated;
a plea of not guilty is entered and the case stands as it did immediately before the plea was tendered;
any charge amended, reduced, dismissed, or not brought pursuant to the plea agreement is reinstated upon the motion of the prosecutor, and the prosecutor is relieved of every concession made in that agreement;
the withdrawn plea, the agreement, and statements made in connection with them are inadmissible as provided by subdivision (f) of this rule; and
the judge shall fix a new trial date and shall state upon the record the effect of the withdrawal upon the period prescribed by Rule 46(a) and upon Rule 19.
Withdrawal After Successful Appeal. A defendant who prevails in whole or in part upon an appeal reserved under Rule 12(b)(6) may withdraw the plea or admission upon the specified charges as that subdivision provides.
The State. The State may not withdraw from an accepted plea agreement except as Rule 12(d)(4)(B)(ii) permits. A prosecutor who fails to perform a material term of an accepted agreement is subject to the remedies of subdivision (h)(3)(E) of this rule and to sanction under Rule 48.
Effect of a Plea upon the Right to Appeal.
No Direct Appeal. A defendant who pleads guilty, or nolo contendere, with no express reservation of the right to appeal a legally dispositive issue has no right to a direct appeal. 6 R. Stat. § 131.804. The judge shall so inform the defendant as required by Rule 12(c)(3)(A)(vi).
Reservation. A reservation of the right to appeal is effective only if made in compliance with Rule 12(b)(6). The appeal is governed by the Ridgeway Rules of the Supreme Court and shall be taken within the time provided by those rules, 6 R. Stat. § 131.806, provided that a notice of appeal is filed within twenty-four hours of the acceptance of the plea.
What Is Not Barred. A plea does not bar a motion under Rule 29 to revise or revoke sentence, a motion under Rule 30 for post-conviction relief, a motion under subdivision (h) of this rule, or a petition under Title Five of these rules. A plea does not waive an objection that the court lacked jurisdiction of the offense or that the charging instrument charges no offense.
Preservation. Where an appeal is available, only error that is preserved, or that constitutes fundamental error, may be raised. 6 R. Stat. § 131.803.
Allocution; Defendant Who Declines to Allocute.
Right to Allocute. Before imposing sentence upon a plea or admission accepted under this rule, the judge shall address the defendant personally in the proceeding communications and shall afford the defendant an opportunity to make a statement and to present any information in mitigation. The judge shall afford the same opportunity to counsel for the defendant and to the prosecutor.
Declining to Allocute. A defendant is not required to allocute. A defendant’s declination to speak, in whole or in part, is not a ground to reject a plea or admission, is not an aggravating circumstance, and shall not be weighed against the defendant in determining sentence. The judge shall draw no adverse inference from the defendant’s silence and shall state upon the record that the opportunity was afforded and declined. Const. art. I, § 6; Rid. R. Evid. 505(a)(4).
Incomplete Acknowledgment of the Factual Basis. As provided by Rule 12(c)(5) and Rule 12(d)(5), the defendant’s failure to acknowledge all aspects of the factual basis does not preclude the judge from accepting a plea or admission where the record otherwise establishes an adequate factual basis.
Affirmative Denial of Guilt. If the defendant affirmatively denies an element of the offense or asserts a defense that, if credited, would defeat the charge, the judge shall not accept a plea of guilty. The judge may instead:
reject the plea and enter a plea of not guilty under Rule 12(a)(1);
with the judge’s consent, accept a plea of nolo contendere; or
accept an admission to sufficient facts under Rule 12(a)(2), where the record establishes an adequate factual basis.