Rule 11 Pleas

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).

Advisory Commission Comments [2015].

Subdivision (b)(l) was amended to add paragraph (K) to conform the rule to the requirements of case law. "Because the mandatory lifetime supervision requirement is an additional part of a defendant's sentence, the trial court is constitutionally required to inform the defendant of the supervision requirement as part of the plea colloquy." Ward v. State, 315 S.W.3d 461, 474 (Tenn. 2010). See also State v. Nagele, 353 S.W.3d 112 (Tenn. 2011) (defendant allowed to withdraw guilty plea because trial court did not inform defendant of lifetime community supervision requirement and State failed to establish error was harmless beyond a reasonable doubt because defense counsel's advice to defendant about the requirement was ambiguous); Calvert v. State, 342 S.W.3d 477, 491 (Tenn. 2011) (defense counsel's failure to inform defendant about lifetime supervision requirement is deficient performance and defendant will be entitled to post-conviction relief if he establishes "by clear and convincing evidence a reasonable probability that, but for defense counsel's failure to inform him of the mandatory lifetime community supervision aspect of his sentence, he would have declined to plead guilty").