Authority of the Prosecutor

• According to Rule 33.2, the prosecutor of a criminal case may not approach the defendant to initiate a plea bargain before the defendant has had the opportunity to retain a defense attorney or have an attorney appointed by the state if determined indigent. Once the defendant obtains an attorney's services, additional time may be requested prior to entering a plea to allow the attorney and his client to confer. Rule 33.3 mandates that any discussion of a plea deal be addressed directly to the defendant's attorney. This rule grants the prosecution the authority to recommend either a sentence or dismissal of related charges, in case the defendant chooses to enter a plea of guilty or no contest.
  
  

Role of the Trial Judge

• Rule 33.5 prevents the trial judge presiding over the case from participating in the plea discussion. If the prosecution and defense reach a tentative agreement, then the parties may informally present the deal to the trial judge. The trial judge may then indicate if he will support the agreement. If the judge indicates support of the agreement, but later issues a differing disposition, then this rule requires that the judge provides, for the record, the reason for the disposition and the pretrial information used in the determination.
  
  

Considerations of the Court

• Rule 33.6 outlines factors that a trial judge must consider in accepting a plea deal as proposed by the prosecution and defense. The judge must ensure that the defendant accepts responsibility for her criminal actions and that the agreement includes access for the defendant to the appropriate rehabilitative and correctional programs. The judge must also take into account whether the defendant cooperated in the prosecution of other offenders charged with crimes of the same or greater severity level. Besides the appropriateness of the proposed sentence, the judge must also consider the public interest and the effect of a trial. A defendant who refuses the offered plea deal cannot be penalized by an excessive sentence.
  
  

Voluntary Agreement

• The defendant must voluntarily decide to accept a plea bargain, as Rule 33.4 mandates. The defense attorney must make every effort to educate the defendant of the possible outcomes in the case of a jury trial. Rule 33.7 assigns the trial judge the responsibility for determining on record that the defendant entered the plea of his own volition. The judge must ensure that no promises or threats were made to the defendant. The defendant must also be advised that the judge is under no legal obligation to accept the plea deal as discussed between the prosecutor and defense attorney.
  
  

Informing the Defendant

• Prior to entering a plea of guilty or no contest to a criminal charge, the judge must confirm that the defendant understands the charges against her. Rule 33.8 also requires that the defendant be advised that certain rights are waived by pleading guilty, including the right to a jury trial, to confront or subpoena witnesses and to present evidence, as well as the constitutional right not to incriminate herself. The defendant must be informed that pleading guilty may adversely affect immigration status. The defendant must also be made aware of the maximum and mandatory minimum sentences associated with the charge.