Criminal Procedure

Alford Pleas – “Strong Proof of Guilt”

State v. Nash, 2020 WI 85 (filed 19 Nov. 2020)

HOLDING: The circuit court record established strong proof of the defendant’s guilt that overcame the innocence maintained by the defendant’s Alford plea.

SUMMARY: This criminal case involved what is known as an Alford plea. “An Alford plea is a conditional guilty plea, which allows the defendant to maintain his or her innocence outright, but nonetheless accept a conviction and sentence for the crime. The United States Supreme Court found this type of plea to be constitutionally acceptable. North Carolina v. Alford, 400 U.S. 25, 37 (1970)” (¶ 33). The Wisconsin Supreme Court has also recognized that Wisconsin circuit courts can accept Alford pleas. See State v. Garcia, 192 Wis. 2d 845, 532 N.W.2d 111 (1995).

To accept an Alford plea, the circuit court must determine that the summary of the evidence the state would offer at trial constitutes strong proof of guilt. “Strong proof of guilt” is not the equivalent of proof beyond a reasonable doubt, but it is clearly greater than what is needed to meet the factual basis requirement under a guilty plea (¶ 35). “Because an Alford plea often results from agreed-upon plea negotiations between a defendant and the State, a court need not go to the same length to determine whether the facts would sustain the charge as it would where there is no negotiated plea” (¶ 36).

The circuit court need not use “magic words” when it accepts an Alford plea. To accept an Alford plea, “the circuit court looks at the record as a whole and determines whether the facts in the record show a strong proof of guilt as to each element of the alleged crime. However, 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”
(¶¶ 37-38).

In this case, defendant Nash originally was charged with first-degree sexual assault of a child under the age of 12 [hereinafter victim 1] and with repeated sexual assault of another child [hereinafter victim 2]. The criminal complaint also specifically alleged that the state would seek to introduce other-acts evidence and the victims’ forensic interviews.

Pursuant to a plea negotiation, the defendant entered an Alford plea to a single count of second-degree sexual assault of a child under 16 years of age. Fifteen months after being sentenced, the defendant filed a postconviction motion seeking to withdraw his Alford plea, claiming that the circuit court failed to establish strong proof of guilt as to each element of the crime to which he had entered the Alford plea. The circuit court denied the motion. In an unpublished opinion, the court of appeals affirmed.

The supreme court affirmed the court of appeals in a unanimous opinion, authored by Justice Ziegler, that contains a lengthy transcript of the plea hearing under scrutiny. The supreme court concluded that the record in this case demonstrated strong evidence to support each element of the crime (see ¶ 41).

Said the court: “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 [victim 1]” (¶ 42).

“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 [victim 1, victim 2, and another victim] 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” (id.).

Lastly, the court rejected the defendant’s proposal that it exercise its superintending authority to require that courts employ a specific procedure to establish a sufficient factual basis when accepting an Alford plea (see ¶¶ 46-49). However, in a footnote, the court “recognize[d] the importance of Wis. JI-Criminal SM-32A and recommend[ed] that circuit courts review it when determining whether to accept a defendant’s Alford plea” (¶ 38 n.11).

Justice R.G. Bradley joined the majority opinion in full but also wrote separately in a concurrence “to point out the pitfalls of plea bargaining – particularly when Alford pleas are part of the deal” (¶ 51).

Justice Karofsky, joined by Justice A.W. Bradley and Justice Dallet, also joined the majority opinion in full but wrote separately in a concurrence “to discourage the acceptance of Alford pleas in Wisconsin circuit courts” (¶ 66).

Said Justice Karofsky: “I fully recognize that in certain cases, especially those involving child sexual assault victims, an Alford plea may be the only avenue by which victims are spared from testifying and offenders are still held accountable. This is why I do not believe an absolute ban to the Alford plea practice is warranted. However, the acceptance of Alford pleas is troubling because a system allowing defendants to accept punishment without admitting guilt may rob victims of needed closure and may prevent defendants from being rehabilitated” (id.).

Cite to 94. Wis. Law. 46 (January 2021).