IV. ARRAIGNMENT AND PRETRIAL

217

Rule 11: Pleas.

(a) Plea Alternatives.

(1) In General. A defendant may plead not guilty, guilty, or nolo contendere. The court shall enter a plea of not guilty if a defendant refuses to plead or if a defendant corporation, limited liability company, or limited liability partnership fails to appear.

(2) Nolo Contendere. A defendant may plead nolo contendere only with the consent of the court. Before accepting a plea of nolo contendere, the court shall consider the views of the parties and the interest of the public in the effective administration of justice.

(3) Conditional Plea. A defendant may enter a conditional plea of guilty or nolo contendere in accordance with Rule 37(b).

(b) Considering and Accepting a Guilty or Nolo Contendere Plea.

(1) Advising and Questioning the Defendant. Before accepting a guilty or nolo contendere plea, the court shall address the defendant personally in open court and inform the defendant of, and determine that he or she understands, the following:

(A) The nature of the charge to which the plea is offered;

(B) the maximum possible penalty and any mandatory minimum penalty;

(C) if the defendant is not represented by an attorney, the right to be represented by counsel–and if necessary have the court appoint counsel–at trial and every other stage of the proceeding;

(D) the right to plead not guilty or, having already so pleaded, to persist in that plea;

(E) the right to a jury trial;

(F) the right to confront and cross-examine adverse witnesses;

(G) the right to be protected from compelled self-incrimination;

(H) if the defendant pleads guilty or nolo contendere, the defendant waives the right to a trial and there will not be a further trial of any kind except as to sentence;

(I) if the defendant pleads guilty or nolo contendere, the court may ask the defendant questions about the offense to which he or she has pleaded. If the defendant answers these questions under oath, on the record, and in the presence of counsel, the answers may later be used against the defendant in a prosecution for perjury or aggravated perjury;

(J) if the defendant pleads guilty or nolo contendere, it may have an effect upon the defendant's immigration or naturalization status, and, if the defendant is represented by counsel, the court shall determine that the defendant has been advised by counsel of the immigration consequences of a plea.

(2) Insuring That Plea Is Voluntary. Before accepting a plea of guilty or nolo contendere, the court shall address the defendant personally in open court and determine that the plea is voluntary and is not the result of force, threats, or promises (other than promises in a plea agreement). The court shall also inquire whether the defendant's willingness to plead guilty or nolo contendere results from prior discussions between the district attorney general and the defendant or the defendant's attorney.

(3) Determining Factual Basis for Plea. Before entering judgment on a guilty plea, the court shall determine that there is a factual basis for the plea.

(c) Plea Agreement Procedure.

(1) In General. The district attorney general and the defendant’s attorney, or the defendant when acting pro se, may discuss and reach a plea agreement. The court shall not participate in these discussions. If the defendant pleads guilty or nolo contendere to a charged offense or a lesser or related offense, the plea agreement may specify that the district attorney general will:

(A) move for dismissal of other charges;

(B) recommend, or agree not to oppose the defendant's request for, a particular sentence, with the understanding that such recommendation or request is not binding on the court; or

(C) agree that a specific sentence is the appropriate disposition of the case.

(2) Disclosing a Plea Agreement.

(A) Open Court. The parties shall disclose the plea agreement in open court on the record, unless the court for good cause allows the parties to disclose the plea agreement in camera.

(B) Timing of Disclosure. Except for good cause shown, the parties shall notify the court of a plea agreement at the arraignment or at such other time before trial as the court orders.

(3) Judicial Consideration of a Plea Agreement.

(A) Rule 11(c)(1)(A) or (C) Agreement. If the agreement is of the type specified in Rule 11(c) (1)(A) or (C), the court may accept or reject the agreement pursuant to Rule 11(c)(4) or (5), or may defer its decision until it has had an opportunity to consider the presentence report.

(B) Rule 11(c)(1)(B) Agreement. If the agreement is of the type specified in Rule 11(c)(1)(B), the court shall advise the defendant that the defendant has no right to withdraw the plea if the court does not accept the recommendation or request.

(4) Accepting a Plea Agreement. If the court accepts the plea agreement, the court shall advise the defendant that it will embody in the judgment and sentence the disposition provided in the plea agreement.

(5) Rejecting a Plea Agreement. If the court rejects the plea agreement, the court shall do the following on the record and in open court (or, for good cause, in camera):

(A) advise the defendant personally that the court is not bound by the plea agreement;

(B) inform the parties that the court rejects the plea agreement and give the defendant an opportunity to withdraw the plea; and

(C) advise the defendant personally that if the plea is not withdrawn, the court may dispose of the case less favorably toward the defendant than provided in the plea agreement.

(d) Inadmissibility of Pleas, Offers of Pleas, and Related Statements. The admissibility of a plea, plea discussion, or any related statement is governed by Tennessee Rule of Evidence 410.

(e) Record of Proceedings.  There shall be a verbatim record of the proceedings at which the defendant enters a plea. If there is a plea of guilty or nolo contendere, the record shall include the inquiries and advice to the defendant required under Rule 11(b) and (c). The plea of guilty or nolo contendere shall be reduced to writing and signed by the defendant.

[As amended by order filed January 2, 2007, effective July 1, 2007; and by order filed December 21, 2010, effective July 1, 2011.]

Advisory Commission Comments.

This rule is substantially the same as the federal rule. Entry by the court of a not guilty plea for one refusing to plead or standing mute is included in section (a). In addition, Rule 11 establishes a plea of nolo contendere, under limitations set out in section (a).

Although the rules do not require a plea of not guilty by reason of insanity, notice of the defendant's intention to defend on the basis of mental incompetency at the time of the offense is required under Rule 12.2. See also T.C.A. §§ 40-18-117 and 33-7-303.

The matters of specific advice to the defendant and explicit procedures for insuring on the record that pleas of guilty and nolo contendere are voluntarily and understandingly made are designed to produce finality in the proceedings. In addition to the matters specified in section (b)(1), Tennessee law requires that the defendant be further advised, "if applicable, that a different or additional punishment may result by reason of his prior convictions or other factors which may be established in the present action after the entry of his plea."  Mackey v. State, 553 S.W.2d 337, 341 (Tenn. 1977). And, in addition to the matters specified in subdivision (b)(1), the Mackey decision requires the trial court to warn the defendant  "further, that upon the sentencing hearing, evidence of any prior convictions may be presented to the judge or jury for their consideration in determining punishment."

As does the current federal rule, section (c) recognizes and approves the practice of plea negotiation and agreement, and brings that process into the light of the open courtroom. Although subdivision (c)(1) purports to list possible alternative plea "bargains," it is not contemplated that this list be taken as exclusive. Common to state practice (but not to federal practice) are guilty pleas entered in exchange for reduction of the charge to a lesser-included offense, recommendation by the prosecutor that any sentence be suspended and the defendant placed on probation, etc.

The provision in subdivision (c)(2)(B) specifically permits the trial judge to impose reasonable pretrial time limits on the court's consideration of plea agreements, a practice which will allow maximum efficiency in the docketing of cases proceeding to trial on pleas of not guilty.

It should be noted in connection with the record requirements of section (e) that the Mackey opinion, supra, requires additionally an inquiry by the court "into the defendant's understanding of his entering a plea of guilty."

The commission feels that uniformity of procedure with the federal courts in procedural matters such as those contemplated under Rules 11 and 12 is beneficial to the public and to the legal profession.

The provisions of Rule 11(c) are similar to the Federal Rules of Criminal Procedure. Rule 11(c)(1) contains the plea bargaining options. A (c)(1)(A) and a (c)(1)(C) agreement are binding on the court only in the sense that the plea is contingent on the agreement as stated. The court may accept the plea agreement under (c)(3) or it may reject the plea agreement under circumstances set forth in (c)(4). As per prior law, acceptance or rejection of the plea may be deferred until consideration of a presentence report. This is essentially the procedure contemplated by T.C.A. § 40-35-203(b).

When the court rejects the plea agreement, the defendant is given the opportunity to withdraw the plea under (c)(5). When the court rejects the plea agreement but the defendant does not withdraw a guilty plea, T.C.A. § 40-35-203 gives the defendant the right to a sentencing hearing and presentence report.

The above discussion is relevant for pleas contingent on a specific sentence. Rule 11(c)(3)(B) addresses those agreements which are not plea contingent. These types of agreements are (c)(1)(B) agreements which are clearly not binding on the court. The important distinction is that where the court does not follow the agreement the defendant may not withdraw the plea. The essence of Rule 11(c)(3)(B) is for the court to so advise the defendant at the time of the plea.

The type of plea agreements have greatly expanded in recent years because judges now impose non-capital sentences. Consequently, it is important for the lawyers to have a clear understanding as to those aspects of the agreement which are plea contingent and those that are not. The defendant must also have an understanding so that the plea is knowing.

A simple example should illustrate the type of contingent and noncontingent agreements contemplated. The state may agree that in exchange for a plea to burglary the state will recommend four years and that at the time of the sentencing hearing the state will recommend probation but the latter is a nonbinding recommendation. Two separate agreements have thus been made. The first, the four years, is a (c)(1)(C) agreement. The defendant's plea is wholly contingent on getting exactly four years. The sentence is not binding on the court but the alternative to rejection of the sentence agreement is a potential withdrawal of the plea. The second agreement, the recommendation of probation, is, under this example, a (c)(1)(B) agreement. The plea is contingent only on the state's recommendation of probation and not on probation actually being granted. If the court denies probation the defendant cannot withdraw the plea.

Advisory Commission Comments [2007].

Prior subsection (b)(1)(I) provided that a defendant may be subject to prosecution for “perjury or false statement.” False statement is no longer an offense in Tennessee, and aggravated perjury is a new offense enacted in 1989. Thus, the subsection was amended to “perjury or aggravated perjury.”

Tenn. Code Ann. §40-1-109 requires a written guilty plea for misdemeanors. The amendment to subsection (e) conforms the rule to the statute but expands the concept so that all guilty or nolo contendere pleas are written. This has long been the practice in general sessions and criminal courts.

Advisory Commission Comments [2011].

Subsection (b)(1)(J) was added to address the United States Supreme Court's holding in Padilla v. Kentucky, _____ U.S. _____ (2010).

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