Can a criminal defense lawyer stay silent about, or stipulate to, a sentencing worksheet that understates a defendant's prior record level?

Plain-English summary

North Carolina's Structured Sentencing Act sets a sentence range from the offense class and the offender's prior record level, which is calculated from points assigned to prior convictions. The opinion addresses three sentencing scenarios where the worksheet given to the court understates a defendant's prior record.

In the first, the prosecutor presents a worksheet that omits out-of-state convictions, and neither the defendant nor the lawyer concealed those convictions criminally or fraudulently. The opinion concludes the lawyer may respond to the court's stipulation question by saying the State bears the burden of proving prior record. It follows Formal Ethics Opinion 98-5, which permits a defense lawyer to remain silent while a prosecutor presents an inaccurate record, so long as the lawyer and client did not criminally or fraudulently misrepresent it.

In the second, the prosecutor agrees, as part of a plea, to leave known convictions off the worksheet to reduce the defendant's exposure, and tenders that worksheet to the court. The opinion concludes the lawyer may not stipulate to it and may not deflect with the burden-of-proof answer. Both the prosecutor and the defense lawyer have duties of honesty and candor to disclose all material terms of the negotiated plea, citing RPC 152 and Rule 3.3(b).

In the third, the result is the same even if the judge is told of and agrees to the reduced prior-record level. The opinion concludes the lawyer and prosecutor may not collude with the judge to avoid the Structured Sentencing Act; doing so violates Rule 8.4(c) (dishonesty and misrepresentation), Rule 8.4(d) (conduct prejudicial to the administration of justice), and Rule 8.4(f) (knowingly assisting a judge to violate the rules of judicial conduct or other law).

In practice

Under this opinion, the line turns on whether the lawyer participates in presenting a falsehood. Passively declining to stipulate and noting the State's burden, where neither lawyer nor client created the inaccuracy, is permitted. Affirmatively stipulating to, or otherwise helping present, a worksheet the lawyer knows is incomplete as part of a negotiated plea is prohibited, because it withholds a material term of the plea from the court. The opinion treats a judge's agreement to the omission as no cure, characterizing it as collusion to circumvent the sentencing statute.

Common questions

Q: Can a defense lawyer stay silent when the prosecutor hands the court an inaccurate prior-record worksheet?

A: Yes, in the first scenario. Opinion #1 concludes the lawyer may decline to stipulate and answer that the State has the burden of proving prior record, provided the lawyer and client did not criminally or fraudulently misrepresent the record, following FEO 98-5.

Q: May the lawyer stipulate to a worksheet that the prosecutor agreed to shorten as part of a plea deal?

A: No. Opinion #2 concludes the lawyer may not stipulate to it, and may not use the burden-of-proof answer, because both lawyers owe the court a duty of candor to disclose all material terms of the negotiated plea under RPC 152 and Rule 3.3(b).

Q: Does it change anything if the judge knows about and agrees to the reduced prior-record level?

A: No. Opinion #3 concludes the lawyer and prosecutor may not collude with the judge to avoid the Structured Sentencing Act, and that doing so violates Rule 8.4(c), (d), and (f).

Background and rules framework

The opinion interprets Rule 3.3(b) of the North Carolina Rules of Professional Conduct (candor toward the tribunal, the state counterpart to Model Rule 3.3) and Rule 8.4(c), (d), and (f) (misconduct, the state counterpart to Model Rule 8.4), together with the prior FEO 98-5 and RPC 152. It applies those rules against the Structured Sentencing Act (N.C. Gen. Stat. Chapter 15A, Article 81B), under which the prior record level drives the mandatory sentence range.

Citations and references

Rules of Professional Conduct:

• Model Rule 3.3 (candor toward the tribunal)
• Model Rule 8.4 (misconduct)
• N.C. Rule 3.3(b); N.C. Rule 8.4(c), (d), (f)

Statutes:

• N.C. Gen. Stat. Chapter 15A, Article 81B (Structured Sentencing Act); §§ 15A-1340.13, 15A-1340.14, 15A-1340.20, 15A-1340.21

Other opinions cited:

• RPC 152: disclosure of material terms of a negotiated plea
• Formal Ethics Opinion 98-5: remaining silent while a prosecutor presents an inaccurate record

See also

• ABA Formal Op. 93-376: Client Lying in Discovery
• NC State Bar 2009 FEO 15: Prosecutor Must Dismiss
• ABA Formal Op. 06-439: Truthfulness in Negotiation

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2003-formal-ethics-opinion-5/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Introduction:

Chapter 15A, Article 81B of the North Carolina General Statutes provides for the structured sentencing of persons convicted of crimes (the "Structured Sentencing Act"). The Act requires the court to sentence an offender to a term of imprisonment within the range specified in the Act for the class of offense and the offender's prior record level. See N.C. Gen. Stat. §15A-1340.13 and §15A-1340.20. An offender's prior record level is determined by the calculation of points assigned, by statute, to various kinds of convictions. See N.C. Gen. Stat. §15A-1340.14 and §15A-1340.21.

Inquiry #1:

Lawyer represents Defendant who is convicted of a crime. At the sentencing hearing, Prosecutor gives the court a sentencing worksheet showing a prior record level for Defendant. Lawyer knows that the worksheet does not include some prior convictions from other jurisdictions that would increase Defendant's point level. Defendant and Lawyer did not criminally or fraudulently conceal the prior convictions. When the court asks Lawyer, "Do you stipulate to the prior record level as shown on the worksheet," may Lawyer respond, "The State has the burden of proof to establish the defendant's prior record?"

Opinion #1:

Yes. Formal Ethics Opinion 98-5 rules that a defense lawyer may remain silent while the prosecutor presents an inaccurate driving record to the court provided the lawyer and the client did not criminally or fraudulently misrepresent the driving record to the prosecutor or the court.

Inquiry #2:

Prosecutor and Lawyer are negotiating a plea for Defendant #2. Prosecutor is unwilling to reduce the charge but she is willing to leave some of Defendant's prior convictions off of the worksheet. This will reduce the prior record level and thereby reduce Defendant #2's exposure to active prison time. Defendant #2 instructs Lawyer to accept the plea offer. At the plea hearing, Prosecutor tenders a sentencing worksheet to the court that does not include some of Defendant #2's prior convictions. The court asks Lawyer to stipulate to the worksheet. May Lawyer do so? May Lawyer respond by telling the court that the prosecutor has the burden of proof?

Opinion #2:

No. Both the prosecutor and the defense lawyer are required by the duties of honesty and candor to the tribunal to disclose to the court all the material terms of the negotiated plea. RPC 152; Rule 3.3(b) of the Revised Rules of Professional Conduct (2003).

Inquiry #3:

Would the response to inquiry #2 be different if the judge was advised and agreed that Defendant #2's prior record level would exclude some of Defendant's known prior convictions?

Opinion #3:

No. Prosecutor and Lawyer may not collude with the judge to avoid the requirements of the Structured Sentencing Act. Such conduct violates Rule 8.4 (c) because it involves dishonesty and misrepresentation. It also violates the prohibitions in Rule 8.4(d) and (f) on conduct that is prejudicial to the administration of justice and on knowingly assisting a judge to violate the rules of judicial conduct or other law.