Rule 11A. Plea Agreements

(a) In General. The attorney for the State and the attorney for the defendant or the defendant when unrepresented may engage in discussions with a view toward reaching an agreement that, upon the entering of a plea of guilty or nolo contendere to a charged crime or to a lesser or related crime, any or all of the following will occur:

(1) The attorney for the State will dismiss other charges;

(2) The attorney for the State will not oppose the defendant's requested disposition;

(3) The attorney for the State will recommend a particular disposition; or

(4) Both sides will recommend a particular disposition. At any stage of the proceedings, the court may participate in the negotiation of the specific terms of the plea agreement in the manner set forth in Rule 18 relating to dispositional conferences.

(b) Notice of Plea Agreement. If a plea agreement has been reached by the parties, the court shall, on the record, require the disclosure of the agreement in open court at the time the plea is offered.

(c) Statement of Reasons in the Case of a Class C or Higher Crime. If the plea agreement in the case of a Class C or higher crime includes a recommendation of the type specified in subdivision (a)(3) or (a)(4), the attorney for the State shall set forth on the record the reasons for the recommendation. In addition, in the case of a recommendation of the type specified in subdivision (a)(4), the attorney for the defendant shall set forth on the record the reasons for the recommendation. Nothing herein shall relieve the parties of the obligation to present relevant facts to the court.

(d) Acceptance or Rejection by the Court of Recommendation Included in Plea Agreement. If the court accepts the recommendation, it may embody in the judgment and sentence a disposition more favorable to the defendant than that recommended, but it may not embody in the judgment and sentence any disposition less favorable to the defendant than that recommended. The court shall not reject the recommendation without giving the defendant the opportunity to withdraw his plea, as provided in subdivision (e). The court may defer imposition of sentence pending an opportunity to consider the presentence report.

(e) Withdrawal of Plea Upon Rejection of Recommendation. If the plea agreement includes a recommendation of the type specified in subdivision

(a) (3) or (a)(4), and if the court at the time of sentencing intends to enter a disposition less favorable to the defendant than that recommended, the court shall on the record inform the parties of this intention, advise the defendant personally in open court that the court is not bound by the recommendation, advise the defendant that, if the defendant does not withdraw the defendant's plea of guilty or nolo contendere the disposition of the case will be less favorable to the defendant than that recommended, and afford the defendant the opportunity to withdraw the defendant's plea. The court will, if possible, inform the defendant of the intended disposition.

(f) Compliance With Plea Agreement. If the plea agreement is of the type specified in subdivision (a)(1) or (a)(2) of this Rule and if the attorney for the State fails to comply with the plea agreement, the court shall afford the defendant the opportunity to withdraw the defendant's plea or grant such other relief, including enforcing the plea agreement, as the court deems appropriate.

(g) Inadmissibility of Pleas, Offers of Pleas, and Related Statements. The admissibility of evidence of a withdrawn plea of guilty or nolo contendere, or of offers or statements pertaining thereto, is governed by Rule 410 of the Maine Rules of Evidence. A plea of nolo contendere is not admissible in any civil or criminal proceedings against the person who made the plea.

(h) Acceptance of a Negotiated Plea of Not Criminally Responsible by Reason of Insanity. Before accepting a negotiated plea of not criminally responsible by reason of insanity, the court shall conduct a hearing and receive evidence sufficient to support a finding of insanity.

Committee Notes

Committee Advisory Note [December 2014] The Rule parallels the content of Rule 11A of the Maine Rules of Criminal Procedure but differs in the following respects. First, in subdivisions (a), (c), and (f) the letter "s" in the word "state" is capitalized because the word is used in the term "attorney for the State." See

Committee Advisory Note [December 2014] to M.R.U. Crim. P. 3(d) and (f). Second, in subdivision (a), in the first sentence, the word "unrepresented" replaces the word "pro se" as a matter of word choice. Third, the final paragraph in subdivision (a) relating to court participation in plea negotiations is changed to allow a court to "participate in the negotiation of the specific terms of the plea agreement in the manner set forth in Rule 18 relating to dispositional conferences" without such participation being contingent upon a request of or with the agreement of the parties. Fourth, subdivision (b) is modified to require that in any case, notwithstanding the Class of the crime to which the plea relates, if a plea agreement has been reached by the parties, the court must, at the time the plea is offered, require the disclosure of the agreement on the record in open court.

[Advisory Notes to former Maine Rules of Criminal Procedure]

Advisory Committee Note—1971 [M.R. Crim. P. 11A.] Rule 11A is completely new and is required because of the adoption of Maine Laws, 1971, c. 175 granting jurisdiction to the District Court to accept pleas of guilty in felony cases. The first paragraph of the Rule makes the information procedure of Rule 7(b) applicable in the District Court after a defendant has been bound over and before he has been indicted. The defendant is required to execute a written waiver of appearance in the Superior Court. A copy of this waiver must be filed with the Clerk of Courts in order to clear the Superior Court docket since as soon as there is a bind over the papers in the case are forwarded to the Superior Court. The second paragraph is designed to make clear that the Judges of the District Court must comply with the provisions of Rule 11. In the event the plea of guilty is not accepted or the defendant refuses to plead guilty, the waivers are considered withdrawn and the case must be presented to the grand jury. The taking of guilty pleas frequently results in post-conviction petitions; it is therefore essential that the proceedings in the District Court be reported. Since there are no court reporters in District Court, electronic recording can be used as authorized by Maine Laws, 1971, c. 382. The District Court will have to develop some administrative procedures for preserving the tapes or recordings, but it did not seem necessary to include those in the Rule.

Advisory Committee Note—1983 [M.R. Crim. P. 11A.] The amendment proceeds from the perception that a bindover hearing need no longer be a necessary predicate to the exercise of the jurisdiction conferred by 17-A M.R.S. § 9(3). The amendment to the second paragraph corrects an erroneous cross reference.

Advisory Committee Note—1989 [M.R. Crim. P. 11A.] Present Rule 11 has become cumbersome as it tries to deal with pleas, prerequisites to accepting pleas and plea agreements. New Rule 11A has been created to deal with plea agreements, containing provisions previously contained in Rules 11(e) and (g). New Rule 11 carries forward the provisions dealing with pleas (former subdivision (a)) and prerequisites to accepting pleas (former subdivisions (b), (c), (d) and (f)). New subdivision (f) carries forward the provisions of former Rule 11A in authorizing the District Court to accept a plea of guilty to a charge of a Class C or higher crime. New subdivision (g) carries forward the provisions of Rule 20 in authorizing a plea of guilty to one or more additional charges. New Rule 11A carries forward the provisions of former Rules 11(e) and (g). The requirements of disclosure of a plea agreement to the court and of a statement of reasons for certain plea agreements continue to be applicable as before. Thus in the case of a plea of guilty to a Class D or Class E crime, the District Court need not require notice of a plea agreement on the record in open court. New subdivision (h) is added to insure that an adequate record is made in the case of a negotiated plea of not criminally responsible by reason of insanity.

Advisory Note – 2008 The amendment to M.R. Crim. P. 11A(a) clarifies the current limitation on a court participating "in the negotiation of the specific terms of the plea agreement" by making a positive statement regarding the court's capacity to participate in such negotiations. The purposes of the amendment are to (1) avoid confusion with M.R. Crim. P. 11A(e) in which the court is required to disclose its view of an appropriate sentence in certain negotiated pleas, and (2) promote sound policy and good judicial case management practice, while retaining the protection of the due process rights of the defendant and the prosecutorial role of the attorney for the State as a member of the Executive Department. The amendment supports maintenance of current judicial practices that encourage the parties, with participation of the court, to engage in meaningful plea negotiation discussions. Further, the amendment recognizes that a justice or judge may explore the current state of party pre-plea discussions, including the specific terms under consideration by the parties and may facilitate a plea agreement by suggesting or addressing a specific aspect of the pre-plea discussions when requested by the parties to do so. The amendment contemplates that the court and the parties should continue to respect the core interests identified in Matter of Cox , 553 A.2d 1255, 1257-58 (Me. 1989) – namely, avoiding risk of coercion of the defendant; avoiding risk of coercion of the attorney for the state; promoting judicial efficiency; and preserving public respect for the judiciary. To avoid concerns about coercion, courts, in plea negotiation discussions, should (1) avoid suggestions to defendants or defense counsel that the refusal to enter a plea may lead to a higher sentence than otherwise may be appropriate if there is a conviction after trial, and (2) avoid suggestions to prosecutors that failure to agree to a plea may result in dismissal of a charge, a lower sentence than otherwise may be appropriate if there is a conviction after trial, or adverse consequences in other cases. These comments recognize that a trial is a live, dynamic event in which facts may be disclosed or observed that, if there is a conviction, may support a sentence very different from a sentence that may have been contemplated prior to trial. See State v. Farnham, 479 A.2d 887, 889-93 (Me. 1984).