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NEW HAMPSHIRE RULES OF CRIMINAL PROCEDURE

ARRAIGNMENT, PLEAS AND PRETRIAL PROCEEDINGS

Rule 11.  Pleas


   
(a) District Court

  
     (1) Violations. A plea of guilty or nolo contendere to a violation may be accepted by the court without formal hearing unless the violation carries a statutorily enhanced penalty upon a subsequent conviction subjecting the defendant to incarceration.

        (2) Plea by Mail. In all cases in which a defendant may enter a plea by mail pursuant to RSA 262:44, the defendant may enter a plea by mail in accordance with the procedures provided by RSA 502-A:19-b. 

  
     (3) Plea by Mail – Time for Filing Complaint. In any and all cases whereby the defendant may enter a plea by mail and a summons has been issued to the defendant, the complaint must be filed with the designated court not later than fifteen days from the date of the issuance of the summons. Any complaint filed with the court after the filing date has passed shall be summarily dismissed by the court unless good cause is shown.

        (4) Misdemeanors and Enhanced Violations. Before accepting a plea of guilty or, with the consent of the court, a plea of nolo contendere, to any misdemeanor, or to a violation that carries a statutorily enhanced penalty upon a subsequent conviction, the court shall personally address the defendant and determine on the record that:

            (A) There is a factual basis for the plea;

            (B) The defendant understands the crime charged and the factual basis of that charge;

            (C) The defendant’s plea is knowing, intelligent and voluntary;

            (D) The defendant’s plea is not the result of any unlawful force, threats or promises; and that

            (E) The defendant understands and waives the statutory and constitutional rights as set forth in the Acknowledgement and Waiver of Rights.

        (5) Acknowledgment and Waiver of Rights Forms. The appropriate Acknowledgment and Waiver of Rights form shall be read and signed by the defendant, counsel, if any, and the presiding justice.

   (b) Superior Court

  
     (1) Deadlines for Filing Plea Agreements. The court may establish deadlines for the filing of plea agreements.

        (2) Pleas. Before accepting a plea of guilty or, with the consent of the court, a plea of nolo contendere, to any felony, misdemeanor, or violation that carries a statutorily enhanced penalty upon a subsequent conviction, the court shall personally address the defendant and determine on the record that:

            (A) There is a factual basis for the plea;

            (B) The defendant understands the crime charged and the factual basis of that charge;

            (C) The defendant’s plea is knowing, intelligent and voluntary;

            (D) The defendant’s plea is not the result of any unlawful force, threats or promises; and that

            (E) The defendant understands and waives the statutory and constitutional rights as set forth in the Acknowledgement and Waiver of Rights.

        (3) Acknowledgment and Waiver of Rights Forms. The appropriate Acknowledgment and Waiver of Rights form shall be read and signed by the defendant, counsel, if any, and the presiding justice.

   (c) Negotiated Pleas District and Superior Courts

  
     (1) Permissibility. If the court accepts a plea agreement, the sentence imposed by the court shall not violate the terms of the agreement.

        (2) Court's Rejection of Negotiated Plea. If the court rejects a plea agreement, the court shall so advise the parties, and the defendant shall be afforded the opportunity to withdraw the plea of guilty or nolo contendere.

        (3) Sentence Review. When a defendant is sentenced to more than one year in state prison pursuant to a plea agreement, both the defendant and the state have the right to have the sentence reviewed by the sentence review division, unless the plea agreement includes a waiver of this review. As a condition of acceptance of the plea agreement, the court may require a written waiver of sentence review from the defendant and the state.


Comments

     
   
This rule should be read in conjunction with Rule 29 regarding sentencing.

   Rule 11(a)(1) permits the district court, without formal hearing, to accept guilty and nolo contendere pleas to violations that do not carry enhanced penalties upon a subsequent conviction subjecting the defendant to incarceration. Such a rule promotes timely resolution of cases where incarceration is not possible, and the rule is consistent with current practice.

   Rule 11(a)(2) is derived from current District Court Rule 2.5, entitled “Plea By Mail.”  Current District Court Rule 2.5 cites RSA 262:44 (“Waiver in Lieu of Court Appearance”) which permits pleas by mail in certain motor vehicle cases. Rule 11(a)(2) further provides that in the case of motor vehicle offenses covered by RSA 262:44, the defendant may enter a plea by mail in accordance with the detailed procedures outlined in RSA 502-A:19-b, entitled “Pleas by Mail; Procedure.” As the two cited statutes have been amended several times over the years, the Committee decided it is appropriate to simply reference the two laws in this rule.

   Rule 11(a)(3) is derived from current District Court Rule 2.5A entitled “Plea By Mail – Time For Filing Complaint.” The rule states that in cases where the defendant may plea by mail and where a summons was issued to the defendant, a complaint must be filed in the appropriate court within 15 days of the summons being issued. If this filing  provision is not met, the complaint may be summarily dismissed by the court unless good cause is shown by the state.

   Rule 11(a)(4) and (a)(5), applicable to district court pleas, and Rule 11(b)(2) and (b)(3), applicable to superior court pleas, address the colloquy required between the court and defendant in cases where incarceration upon conviction is possible. In sum, these provisions require the record to reflect that a factual basis for the charge exists; the defendant understands the crime charged and its factual basis; the plea is knowing, intelligent, and voluntary; the plea is not the result of threats or promises; and the defendant appreciates the constitutional rights being waived as part of the plea. In practice, the factual basis for the charge referred to in Rule 11(a)(4)(A) and (b)(2)(A) is provided by the state in its offer of proof during the plea hearing.

   The rule reflects the constitutional requirement that the trial court affirmatively inquire, on the record, into the defendant's volition in entering the plea. Boykin, 395 U.S. 238, 89 S. Ct. 1709, 23 L.Ed.2d 274 (1969); Richard v. MacAskill, 129 N.H. 405 (1987).  For a plea to be knowing, intelligent, and voluntary, the defendant must understand the essential elements of the crime to which a guilty plea is being entered. Thornton, 140 N.H. 532, 537 (1995). To find that a plea has been intelligently made, the court must fully apprise the defendant of the consequences of the plea and the possible penalties that may be imposed. State v. Ray, 118 N.H. 2 (1978); State v. Manoly, 110 N.H. 434 (1974). A defendant need not be apprised, however, of all possible collateral consequences of the plea. State v. Elliot, 133 N.H. 190 (1990); see State v. Chace, 151, N.H. 310, 313 (2004) (defendant need not be advised that loss of license will be collateral consequence of pleading guilty to DWI). If the record does not reflect that a plea is voluntarily and intelligently made, it may be withdrawn as a matter of federal constitutional law. Boykin, 395 U.S. at 238.

   Rule 11(c) addresses negotiated pleas. Rule 11(c)(2) provides that if a court rejects the plea agreement, the defendant has the right to withdraw the negotiated plea. This provision is consistent with practice and case law. State v. Goodrich, 116 N.H. 477 (1976). As a guilty plea must be “voluntary” to be valid, a defendant cannot be forced to plead guilty even if the defendant has reached an unexecuted plea agreement with the state. State v. LaRoche, 117 N.H. 127 (1977). Similarly, in the ordinary course, neither the state nor federal constitutions bar a prosecutor from refusing to perform an executory plea agreement. State v. O'Leary, 128 N.H. 661 (1986); Mabry v. Johnson, 467 U.S. 504, 104 S. Ct. 2543 81 L.Ed.2d 437 (1984). N.H. Rule of Evidence 410 provides that a plea of guilty or nolo contendere which was later withdrawn, and statements made in the course of plea proceedings or plea discussions, are generally inadmissible.  Rule 11(c)(3) provides that in cases where a defendant is sentenced to more than one year in state prison, both the defendant and the state have the right to seek review of the disposition by the sentence review division, unless such a review is waived as part of the plea agreement. Additionally, the court may require written waivers of sentence review from the parties as a condition of accepting the plea agreement. Rule 29(k) addresses sentence review procedures in more detail.


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