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SCOW: No special procedure required to establish factual basis for Alford plea

State v. Kevin L. Nash, 2020 WI 85, 11/19/20, affirming a per curiam court of appeals decision; case activity (including briefs)

Before accepting a plea entered under North Carolina v. Alford, 400 U.S. 25 (1970), a circuit court must determine whether there is “strong proof of guilt” sufficient to “substantially negate” the defendant’s claims of innocence. State v. Garcia, 192 Wis. 2d 845, 859-60, 532 N.W.2d 111 (1995); State ex rel. Warren v. Schwartz, 219 Wis. 2d 615, 645, 579 N.W.2d 698 (1998).  The supreme court declines to exercise its superintending authority to require circuit courts to employ a specific procedure to establish a sufficient factual basis for an Alford plea.

As the court acknowledges, “strong proof of guilt” is required to anchor a plea entered along with a claim of innocence “not to convince the defendant of his or her guilt” but because “it is constitutionally required to ensure that the defendant is knowingly, intelligently, and voluntarily entering a plea that will result in a judgment of conviction, despite the defendant’s claims of innocence.” (¶35). Given that rationale, Nash argued the court should exercise its superintending authority to impose certain evidentiary standards for establishing a sufficient factual basis for an Alford plea—in particular, live testimony, oral statements of relevant witnesses, or other documentary evidence. (¶47).

The court isn’t persuaded, concluding that the general requirement that the circuit court must establish a factual basis is good enough. (¶48). Furthermore, the court doesn’t exercise its superintending authority when there are alternate remedies available, and there are other adequate means for assuring the proper ascertainment of the factual basis—e.g., the defendant could raise specific concerns about the adequacy of the factual basis, or could proceed to trial. (¶49).

It should hardly need mentioning that going to trial isn’t an alternative way to establish a factual basis for an Alford plea; it’s an alternative to entering an Alford plea at all. That aside, the bottom line is that “what constitutes an adequate record in a particular case is specific to the facts and circumstances of that case, and such determinations are left to the discretion of the circuit court.” (¶38). In some prior cases there was testimony (from, for example, the preliminary hearing or the plea hearing) that supported the finding of strong proof of guilt. Warren, 219 Wis. 2d at 646-47; State v. Spears, 147 Wis. 2d 429, 438-40, 433 N.W.2d 595 (Ct. App. 1988). In others, the prosecutor’s recital of evidence was deemed a sufficient factual basis for the circuit court to conclude the record contained strong proof of guilt. Garcia, 192 Wis. 2d at 855; State v. Johnson, 105 Wis. 2d 657, 664, 314 N.W.2d 897 (Ct. App. 1981) (where there was also testimony from the trial that ended in a hung jury); State v. Annina, 2006 WI App 202, ¶¶16-17, 296 Wis. 2d 599, 723 N.W.2d 708. Whatever the method used, expect lots of deference from the reviewing court.

The court also holds the record in Nash’s case provides sufficient evidence to show strong proof of guilt:

¶42     During the plea hearings, Nash admitted verbally and in writing that he understood the nature and elements of the offense. The criminal complaint and amended criminal complaint outlined the detailed victim accounts of the forced sexual intercourse and contact. The record also contains significant other acts evidence that the court deemed admissible at a prior hearing. The court heard the prosecutor describe the victim’s forensic interviews, the facts of the charges at issue, and the details regarding other uncharged sexual assaults in other jurisdictions. The court heard of the witnesses who would testify about the assaults, and the court also had, as other acts evidence, a statement Nash made to law enforcement admitting to sexually assaulting A.T.N. In addition, the prosecutor provided a summary explaining how Nash engaged in multiple acts of sexual intercourse with the victims, all of whom were under age 16. The record reflects that the State would call the three victims and also the forensic examiner to testify against Nash. Nash’s counsel acknowledged the State’s witnesses. In sum, the record contains ample evidence to support “strong proof of guilt,” and Nash has failed to meet his burden to prove by clear and convincing evidence that his plea resulted in manifest injustice.

There are two concurring opinions, both of which join the majority opinion in full but write to express other concerns. One (by Justice R.G. Bradley) discusses the “pitfalls” of plea bargaining, particularly when Alford pleas are involved, and notes that “[g]iven the incongruity of accepting a guilty plea from a defendant who maintains his innocence, judges must approach Alford pleas with caution and deliberation.” (¶51). It also notes the potential that guilty pleas may be extracted from innocent defendants out of fear of the imposition of a trial penalty, among other possible sources of coercion, and expresses the oft-mentioned concern that plea bargaining frustrates the criminal justice system’s search for truth. (¶¶51-65).  The second (by Justice Karofsky, joined by Justices A.W. Bradley and Dallett) discourages the acceptance of Alford pleas, especially in child sexual assault cases. While acknowledging an Alford plea may sometimes be the only way to spare a complaining witness from having to testify, this concurrence also says such a plea is “troubling” because it “allow[s] defendants to accept punishment without admitting guilt may rob victims of needed closure and may prevent defendants from being rehabilitated.” (¶66).

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