
265 S.E.2d 172 (1980)
300 N.C. 142
STATE of North Carolina
v.
Keith Eugene COLLINS.
No. 48.
Supreme Court of North Carolina.
May 6, 1980.
*174 Rufus L. Edmisten, Atty. Gen. by W. A. Raney, Jr., Sp. Deputy Atty. Gen., Raleigh, for the State.
B. Ervin Brown, II, Winston-Salem, for defendant-appellant.
BRANCH, Chief Justice.
The sole question presented by this appeal is whether the trial court erred in denying defendant's motion to dismiss. Defendant contends that he was deprived of his sixth amendment right to effective assistance of counsel and his fourteenth amendment right to due process of law by the judge's refusal to enforce the plea arrangement between defendant and Assistant District Attorney Cole.
This is a case of first impression before this Court. Defendant relies primarily upon Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), and the subsequent decision in Cooper v. United States, 594 F.2d 12 (4th Cir. 1979). In Santobello, the defendant was originally indicted on gambling-related charges. As part of a plea arrangement, the prosecutor had promised to make no sentence recommendation and to have more serious charges dismissed on the condition that Santobello would plead guilty to a lesser included offense. After entering his guilty plea, Santobello appeared for sentencing and a new prosecutor unknowingly violated the agreement by recommending the maximum sentence. The judge expressly disclaimed any reliance on that recommendation, but nonetheless imposed the maximum imprisonment of one year. The United States Supreme Court vacated the judgment and held that the State's failure to keep its commitment concerning the sentence recommendation required that the case be remanded for reconsideration. Chief Justice Burger writing for the Court stated that an acceptance of a plea of guilty under such circumstances
must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.
404 U.S. at 262, 92 S.Ct. at 499, 30 L.Ed.2d at 433.
In Cooper v. United States, the United States Court of Appeals for the Fourth Circuit added a new dimension to this area of the law. Defendant Cooper was convicted of federal violations on two counts of bribery of a witness and two counts of obstruction of justice. Before trial, defendant's counsel had negotiated with an assistant United States attorney, who had proposed a plea agreement under which defendant would, inter alia, cooperate with the federal authorities and plead guilty to one count of obstruction of justice, while the government would bring defendant's cooperation to the judge's attention at sentencing and would dismiss all other counts of the indictment. When defense counsel obtained the defendant's consent later that day and called the assistant United States attorney to accept, he was informed that the offer had been withdrawn on the instructions of the assistant United States attorney's superior. Although defense counsel protested, defendant was ultimately convicted on all four counts.
Writing for the court, Judge Phillips noted that although courts in the past have drawn analogies to contract law in affording relief to defendants aggrieved in the negotiating process, Santobello stands for the proposition that defendants have a constitutional right to be treated with "fairness" throughout the process. In earlier cases in which a defendant's rights in a plea *175 negotiation had been violated, the defendant had already entered a guilty plea and in some instances performed other obligations before the government disavowed the plea agreement. Under these circumstances, a specific agreement had already been reached and the defendant had substantially performed in reliance thereon. Consequently, the courts have found these cases to be analogous to a breach of an express contract, or to an unfulfilled promise on which the other party relies to his tangible detriment, and have granted relief on this basis. See Harris v. Superintendent, 518 F.2d 1173 (4th Cir. 1975) (per curiam); United States v. Brown, 500 F.2d 375 (4th Cir. 1974); United States v. Carter, 454 F.2d 426 (4th Cir. 1972), cert. denied, 417 U.S. 933, 94 S.Ct. 2646, 41 L.Ed.2d 237 (1974); State ex rel. Gray v. McClure, 242 S.E.2d 704 (W.Va.1978), and cases cited therein.
The Court of Appeals in Cooper recognized that the case there involved neither a completed contract nor any detrimental reliance on defendant's part. Nevertheless, in finding that the constitutional requirement of "fairness" was not limited by the law of contracts, the court stated:
We hold instead that under appropriate circumstanceswhich we find herea constitutional right to enforcement of plea proposals may arise before any technical "contract" has been formed, and on the basis alone of expectations reasonably formed in reliance upon the honor of the government in making and abiding by its proposals.
594 F.2d at 18. The court noted further that although Santobello was unclear as to the source or content of the constitutional right involved, in reality that right was derived from two constitutional guarantees, namely, the right to fundamental fairness of substantive due process and the sixth amendment right to effective assistance of counsel.
The subsequent decision of the fourth circuit in United States v. McIntosh, 612 F.2d 835 (4th Cir. 1979), sheds considerable light on the constitutional rights involved in both Cooper and the case sub judice. The defendant McIntosh was charged by both Virginia state and federal authorities with running illegal gambling operations. His attorneys reached an agreement with the prosecutor, and the defendant pleaded guilty accordingly. At the subsequent hearing on the federal charges of tax evasion, a defense attorney testified that the state prosecutor had promised to pay the $3,000 seized from the defendant as evidence of gambling to the Internal Revenue Service and that the defendant would consequently not be prosecuted by the I.R.S. Although the prosecutor denied promising to clear the defendant with the I.R.S., he had agreed to give the money seized to the I.R.S. in order to satisfy any jeopardy assessments arising out of the defendant's gambling activities.
The defendant relied on the Cooper decision in arguing that the state prosecutor's promise should suffice to bar federal prosecution, if it was in fact made to and was reasonably believed by the defense attorneys. Judge Hall, writing for the court in McIntosh, distinguished the holding in Cooper with the following language:
We held [in Cooper] that the technical rules of offer and acceptance in contract law should not defeat a criminal defendant's personal acceptance, since, under the facts presented, it could irreparably affect the defense attorney's credibility, impairing the effectiveness of his representation.
The issues here do not involve technical rules of contract; they concern the content of the plea bargain and whether any authority existed which could make it binding on parties who were not privy to it. These issues were not presented in Cooper, and we do not think its thoughtful analysis leads to the proposition that authority to make an offer to forego prosecution can rest upon a subjective belief of the defendant or his counsel.
Contrary to appellant's argument, Cooper does not shun fundamental contract and agency principles where the content and validity of a plea bargain is at issue. *176 Id., at 837. Thus, "where the content of a plea bargain and the authority for its offer are at issue . . . traditional precepts of contract and agency should apply." Id. The court in McIntosh found no evidence that any federal official had authorized the state prosecutor to make such a promise or had done anything to clothe him with apparent authority. Thus, traditional precepts of contract and agency were applied to defeat defendant's claim. "A bare representation by an unauthorized party cannot bind federal prosecutors to forego prosecution." Id. at 837.
We reject the holding in Cooper and elect to follow the decisions in other jurisdictions which we interpret to be consistent with Santobello. We therefore hold that there is no absolute right to have a guilty plea accepted. The State may withdraw from a plea bargain arrangement at any time prior to, but not after, the actual entry of the guilty plea by defendant or any other change of position by him constituting detrimental reliance upon the arrangement. Santobello v. New York, supra; Shields v. State, 374 A.2d 816 (Del.), cert. denied, 434 U.S. 893, 98 S.Ct. 271, 54 L.Ed.2d 180 (1977); State v. Edwards, 279 N.W.2d 9 (Iowa 1979); see State v. Brockman, 277 Md. 687, 357 A.2d 376 (1976); Wynn v. State, 22 Md.App. 165, 322 A.2d 564 (1974); People v. Heiler, 79 Mich.App. 714, 262 N.W.2d 890 (1977); State ex rel. Gray v. McClure, supra. The rationale behind these decisions is that plea bargain arrangements
are not binding upon the prosecutor, in the absence of prejudice to a defendant resulting from reliance thereon, until they receive judicial sanction, anymore than they are binding upon defendants (who are always free to withdraw from plea agreements prior to entry of their guilty plea regardless of any prejudice to the prosecution that may result from a breach).
People v. Heiler, supra at 721-22, 262 N.W.2d at 895.
When viewed in light of the analogous law of contracts, it is clear that plea agreements normally arise in the form of unilateral contracts. The consideration given for the prosecutor's promise is not defendant's corresponding promise to plead guilty, but rather is defendant's actual performance by so pleading. Thus, the prosecutor agrees to perform if and when defendant performs but has no right to compel defendant's performance. Similarly, the prosecutor may rescind his offer of a proposed plea arrangement before defendant consummates the contract by pleading guilty or takes other action constituting detrimental reliance upon the agreement. Westen & Westin, A Constitutional Law of Remedies for Broken Plea Bargains, 66 Calif.L.Rev. 471 (1978); see Shields v. State, supra; State v. Edwards, supra.
In the instant case, defendant had neither entered a guilty plea nor in any way relied on the plea agreement to his detriment. After the rescission of the agreement, the State's motion for a continuance was granted and defendant was thereafter afforded a fair trial. Defendant has not been prejudiced by the disavowal of his plea arrangement, and we find no violation of his constitutional rights.
We further note that G.S. 15A-1023(b) provides that a plea agreement proposed by the prosecutor which involves a recommended sentence must first be approved by the trial judge before it can become effective. Such lack of judicial approval when required by statute renders the proposed plea bargain agreement null and void. People v. Reagan, 395 Mich. 306, 235 N.W.2d 581 (1975). Although not necessary to our decision, we note that the decision in Cooper is distinguishable from the case sub judice because of this statutory provision in G.S. 15A-1023(b).
We do not approve of the prosecutorial conduct in the case before us, since the prosecutor's office has the responsibility of "letting the left hand know what the right hand is doing." Santobello v. New York, supra, 404 U.S. at 262, 92 S.Ct. at 499, 30 L.Ed.2d at 433. However, this does not alter the fact that the prosecutor had no authority to bind the State to the dispensation *177 of a particular sentence in defendant's case until the trial judge had approved of the proposed sentence.
For the reasons stated, the decision of the Court of Appeals is
AFFIRMED.
