N.H. R. Crim. P. 11

As amended through May 2, 2024

Rule 11 - Pleas

(a)Circuit Court-District Division .

(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)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 requires the defendant to appear for arraignment and 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

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

(4)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

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

(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 - Circuit Court-District Division 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.

(1-a) Conditional Pleas. As part of a plea agreement, the defendant may tender a plea of guilty while reserving the right to appeal any ruling or rulings that would, if reversed, render the State's case not viable on one or more charges. The written agreement must specify the ruling or rulings that may be appealed, and must state that reversal of the ruling or rulings would render the State's case not viable on one or more specified charges. If the defendant prevails in whole or in part on appeal, the defendant may withdraw the guilty plea. If the defendant withdraws the guilty plea, the judge shall dismiss the complaint or indictment on those charges, unless the State shows good cause to do otherwise. The appeal shall be governed by Supreme Court Rules, provided that a notice of appeal is filed within thirty days of the acceptance of the plea.

(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. See Rule 29(k)(14)(c).

N.H. R. Crim. P. 11

Adopted effective 1/1/2016 in Strafford and Cheshire counties and 7/1/2016 in Belknap County; amended effective 4/15/2024.

Comment

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

Rule 11(a)(3) and (a)(4), applicable to circuit 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)(3)(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 v. Alabama, 395 U.S. 238 (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. State v. 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. Roy, 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. Elliott, 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). In Padilla v. Kentucky, 559 U.S. 356 (2010), the Supreme Court made clear counsel's obligation to ensure that a defendant understands the deportation implications, if any, of a conviction. 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.