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“Alford” Plea – Challenge to Trial Court’s Refusal to Accept

State v. William F. Williams, 2000 WI App 123, 237 Wis.2d 591, 614 N.W.2d 11
For Williams: Steven P. Weiss, SPD, Madison Appellate

Issue: Whether the trial court’s express policy of never accepting an “Alford” plea worked an erroneous refusal to accept such a plea.

Holding:

¶8  Even if we were to determine that the trial court erred in rejecting the tendered Alford plea, the error would not justify setting aside the results of Williams’s jury trial. This is because any error stemming from a trial court’s refusal to accept an Alford plea, like error in binding over a defendant following a preliminary hearing, is cured when a defendant receives a fair and error-free trial. See State v. Webb, 160 Wis. 2d 622, 467 N.W.2d 108 (1991)….

¶12  (A) defendant’s opportunity to obtain the benefit of a plea bargain can be adequately protected by requiring a defendant who believes his tendered plea has been improperly rejected to seek leave for an interlocutory appeal.

Isn’t this result at least arguably inconsistent with State v. Ludwig, 124 Wis.2d 600, 369 N.W.2d 722, 725-728 (1985) and State v. Fritz, 212 Wis.2d 284, 569 N.W.2d 48 (Ct. App. 1997)? — i.e., counsel’s deficiency in failing to convey to or properly advise a defendant with respect to a plea offer isn’t rendered non-prejudicial by a resultant fair trial. Also see U.S. v. Rea-Beltran, 457 F.3d 695 (7th Cir 2006):

The Government’s other harmless error argument is equally meritless. By contending that Mr. Rea-Beltran suffered no prejudice because he received a fair trial, the Government ignores the fact that Mr. Rea-Beltran is not complaining that his trial was unfair. Rather, his complaint is that he should not have received a trial at all and instead been permitted to plead guilty. Having incurred an additional conviction because his plea attempts were frustrated, the verdict resulting from the jury trial cannot stand, regardless of how fairly the proceedings were conducted.

Trial court authority to reject a guilty plea appears to be a non-controversial proposition, e.g., U.S. v. Skerret-Ortega, 1st Cir No. 06-1126, 6/13/08. “Nevertheless, a court cannot arbitrarily reject a plea, and must articulate on the record a “sound reason” for the rejection,” U.S. v. Hernandez-Rivas, 7th Cir No. 06-2647, 1/23/08.On the related problem of whether a judge can a reject a plea bargain because of disagreement with the prosecutorial decision to dismiss charge(s), see In re United States of America (“Shabazz”), 345 F. 3d 450 (7th Cir. 2003) (“The government wants to dismiss the civil rights count with prejudice, and that is what Bitsky wants as well. The district judge simply disagrees with the Justice Department’s exercise of prosecutorial discretion. … The judge thus is playing U.S. Attorney. It is no doubt a position that he could fill with distinction, but it is occupied by another person.”); see also discussion by Professor Frank Turkheimer, 77 Wis. Lawyer No. 2, Feb. 2004. Contrary Wisconsin authority, State v. Kenyon, 85 Wis.2d 36, 45, 270 N.W.2d 160 (1978), might be worth revisiting in light of Shabazz. Some support for this separation-of-powers argument may be found in Ellis v. U.S. District Court, 356 F. 3d 1198 (9th Cir. 2004), though it isn’t on point (trial court “intruded into the charging decision” when it sua sponte vacated plea to lesser offense and reinstated charge on greater offense — “The decision to dismiss an indictment implicates concerns that the Executive is uniquely suited to evaluate, and a district court should be reluctant to deny its request. … By requiring the reinstatement of the first degree murder charge, the district court overstepped its judicial bounds”). And though the following quote is from an otherwise inapposite case, the court’s comments do strike a chord, In the Matter of United States of America, 398 F. 3d 615 (7th Cir 2005):

Judges often are tempted to seek a larger role in the conduct of litigants that appear frequently before them. See also, e.g., In re United States, 345 F.3d 450 (7th Cir. 2003). Temptation may be especially strong for a judge who spent many years as a prosecutor before donning the robe. (Judge Holderman served for six years as an Assistant United States Attorney in the Northern District of Illinois.) But temptation must be resisted in order to maintain separation between executive and judicial roles, and between the formulation and evaluation of positions in litigation. In the rare situations when a prima facie case of criminal contempt has been made out, and the contempt is not committed in the judge’s presence (and thus amenable to summary disposition), the judge must turn the matter over to a prosecutor rather than assume an inquisitorial role inappropriate to the Judicial Branch.

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