Delinquent/Unruly Proceedings

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Rule 209: Plea of Guilty or No Contest - Judicial Diversion.

(a)   Court's Inquiry of Child.  Before accepting a plea of guilty or no contest,and in addition to the requirements set out in Rule 205, the court must address the child personally in open court and inform the child of, and determine that the child understands, the following:

(1)         The nature of the charge to which the plea is offered and the possible dispositional consequences of the plea; if a specific disposition is the basis of the plea, the child should be informed specifically of the nature of that disposition;

(2)          That if the child is not represented by an attorney, the child has a right to be represented by an attorney at every stage of the proceedings including the guilty plea, and that, if necessary, one will be appointed;

(3)         That the child has the right to plead not guilty or to persist in that plea if it has already been made;

(4)         That if the child has been charged with a delinquent offense, the child has a right to a trial to determine whether the child is guilty of the charged offense; and that, at that trial, the judge may only find the child guilty if the judge finds that the state has proven the child’s guilt of the offense or a lesser included offense beyond a reasonable doubt;

(5)         That if the child has been charged with being unruly, the child has a right to a trial to determine whether the child is unruly; and that, at that trial, the judge may only find the child unruly if the judge finds that the charge has been proven by clear and convincing evidence;

(6)         At the trial, the child has the right to call witnesses and present evidence, including the right to subpoena witnesses and documents to the proceeding and the right to confront and cross-examine adverse witnesses, and the right to testify;

(7)         That the child has the right against self-incrimination, including the right not to testify at the trial;

(8)         That if the child pleads guilty or no contest, there will not be a trial (except as to the disposition in cases in which disposition is not part of the plea agreement), and that by pleading guilty, the child waives the right to a trial on the merits;

(9)         That if the child pleads guilty or no contest, the child admits there is a need of treatment and rehabilitation;

(10)    That if the child pleads guilty or no contest, the child waives the right to appeal the adjudication to the circuit court or to have a hearing before the judge on the issue of adjudication if the matter is being heard by a magistrate;

(11)    That if the plea includes an agreement as to disposition, the child also waives the right to appeal the disposition to the circuit court or to have a hearing before the judge on the issue of disposition if the matter is being heard by a magistrate;

(12)    That if the child pleads guilty or no contest, the court may ask the child questions about the offense to which the plea was made;  if the child answers these questions falsely under oath, the child's answers may later be used against the child in a prosecution for perjury or false statement, unless the plea is a best interest guilty plea; and

(13)    That if the child pleads guilty or no contest, the plea may have an effect upon the child's immigration or naturalization status, and, if the child is represented by counsel, the court shall determine that the child has been advised by counsel of the immigration consequences of a plea.

(b)  Determination of Voluntariness of Plea.  The court shall not accept a guilty or no contest plea without first, by addressing the child personally in open court, determining that the plea is voluntary and not the result of force or threats or promises apart from a plea bargain agreement. If a child stands mute or pleads evasively, a plea of not guilty shall be entered by the court.

(c)    Factual Basis for Guilty Plea.  The court shall neither enter a judgment upon a guilty plea nor approve an agreed disposition without satisfying itself that there is a factual basis for the guilty plea.

(d)  No Contest.  A child may plead no contest only with the consent of the court. Before accepting a plea of no contest, the court shall consider the views of the parties and the interest of the public in the effective administration of justice.

(e)   Agreement on Disposition.  If the court accepts a guilty or no contest plea pursuant to an agreement on disposition, the court shall approve the agreed disposition. If the court rejects a guilty or no contest plea, the dispositional agreement shall be null and void. 

(f)     Judicial Diversion.  If the court accepts a guilty or no contest plea pursuant to a judicial diversion and approves the conditions of probation, the plea shall not be entered as a judgment of guilty and the child shall not be found delinquent. If the child violates the terms of the diversion and the court so finds, then the plea may be entered as a judgment of guilty, and the child shall be found delinquent.

Advisory Commission Comments.

Pursuant to North Carolina v. Alford, 400 U.S. 25 (1970), and with the consent of the court, a child may enter a “best interests” guilty plea.  This is not a no contest plea. When the child enters an Alford plea, he or she is pleading guilty because it is in his or her best interests, but he or she does not necessarily agree to the factual basis of the plea as set out by the state’s attorney.  A guilty plea entered pursuant to Alford has all the legal effects of a guilty plea, except that the child cannot be charged with perjury or false statement if he or she later disputes the facts that serve as a basis for the guilty plea or denies his or her guilt of the offense.

The 2016 amendment to this rule adds a provision to allow the child to enter a no contest (nolo contendere) plea.  Latin for “I do not wish to contend,” Black’s Law Dictionary defines a nolo contendere plea as follows: “A plea by which the defendant does not contest or admit guilt.”  Black’s Law Dictionary1269 (9th ed. 2009).  See also Tenn. R. Crim. Proc. 11(a)(1) and (2).  The no contest plea requires the court’s approval and is similar in legal effect to an Alford plea.

The court is required to inquire about any prior discussions the child may have had regarding potential dispositions.  The court should properly make itself aware of such interactions and “bargains,” and of their effect on the child’s willingness to plead guilty or no contest, before it makes a decision whether to accept any such plea. The court should also ascertain, through this inquiry, with whom any such discussions took place, and whether the child’s attorney or parent, guardian or custodian was present. 

The 2016 amendment adds the provision that if the child pleads guilty or no contest, the child waives the right to appeal the adjudication to the circuit court, or to have a hearing before the judge on the issue of adjudication if the matter is being heard by a magistrate.

The court may at any time prior to the beginning of a dispositional hearing permit a plea of guilty or no contest to be withdrawn, and if an adjudication has been entered thereon, set aside such adjudication and allow another plea to be substituted for the plea of guilty or nolo contendere.  In the subsequent adjudicatory hearing, the court may not consider the plea which was withdrawn as an admission.  Evidence of a guilty or no contest plea, later withdrawn, or of statements made in connection therewith, would not be admissible in any proceeding against the child.

The 2016 amendment adds that if the plea includes an agreement as to disposition, the child waives the right to appeal the disposition to the circuit court or to have a hearing before the judge on the issue of disposition, if the matter is being heard by a magistrate.

Finally, the 2016 amendment allows the court to accept a plea of guilty or no contest on a judicial diversion, pursuant to T.C.A. § 37-1-129(a), and defer further proceedings while placing a child on probation. In doing so, the plea shall not be entered as a judgment, and the child shall not found delinquent.

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