Once a plea is entered pursuant to a plea agreement, the parties are bound by the agreement and failure to comply with it constitutes a breach. Occasionally questions arise about whether a breach has occurred and if so, what remedy should apply. Typically the issue arises in a defense motion asserting a breach by the State. Common prosecutorial breaches include breaking a promise to take no position on sentencing, see Santobello v. New York, 404 U.S. 257, 259 (1971) (prosecutor breached by recommending a sentence); State v. Rodriguez, 111 N.C. App. 141, 146 (1993) (prosecutor breached by noting for the trial court certain available non-statutory aggravating factors), and breaking a promise to recommend a particular sentence. See, e.g., United States v. McQueen, 108 F.3d 64, 66 (4th Cir. 1997) (prosecutor breached promise to recommend that the defendant receive a sentence of no more than 63 months and an adjustment for acceptance of responsibility). Of course, other types of prosecutorial breaches may occur. See State v. Blackwell, 135 N.C. App. 729, 730-32 (1999) (State breached promise not to use plead-to felony as a theory of first-degree murder under the felony-murder rule; although the State did not use the plead-to felony as the underlying felony, it used it derivatively to prove the underlying felonies). Note that a promise to take no position on sentencing means that the prosecutor is to make no comment to the sentencing judge, either orally or in writing, that “bears in any way upon the type or severity of [...]
Faculty Coordinators
