Deferred Prosecutions and Guilty Pleas

Local procedures vary when it comes to deferred prosecutions. In general, there’s nothing wrong with that; the district attorney has broad discretion in the deferred prosecution realm. Lately, though, several people have asked me a particular question related to deferred prosecution procedure: Does the defendant actually plead guilty when the deferral is entered? At the risk of oversimplifying the issue, I think the answer is no. If the defendant pleads guilty—as in, actually goes through the full transcript of plea with a judge—it seems to me that it wouldn’t be a deferred prosecution any longer. It would be a conviction. And once you cross that Rubicon, you’d be on shaky legal footing if you required the defendant to do anything that amounted to punishment. See State v. Popp, 197 N.C. App. 226 (2009) (discussed here). Moreover, neither the prosecutor nor the court would have clear authority to dismiss it, even if the defendant did everything he or she was supposed to do under the agreement. Id. There's a risk that everyone winds up unhappy. The statutes setting out the endgame possibilities of a deferred prosecution corroborate the view that a plea should not be entered as a deferral begins. When a defendant violates a deferred prosecution agreement the court may “order that charges as to which prosecution has been deferred be brought to trial.” G.S. 15A-1344(d) (emphasis added). When a defendant’s deferred prosecution probation expires or terminates without violation, the defendant “shall be immune from prosecution.” G.S. 15A-1342(i) (emphasis added). Neither statute would make [...]