The Misunderstood Alford Plea a Primer

JurisdictionUnited States,Federal,Georgia
CitationVol. 19 No. 1 Pg. 0008
Pages0008
Publication year2013
The Misunderstood Alford Plea: A Primer
No. Vol. 19 No. 1 Pg. 8
Georgia Bar Journal
August, 2013

A Look at the Law

The Misunderstood Alford Plea: A Primer

By Hon. Todd Markle

I must confess that as a new judge, I did not know exactly what an Alford plea was. It seemed a simple enough concept: an accused could either plead guilty, not guilty or something in between, a kind of purgatory. The plea colloquy is similar, but I grew curious about how many judges and lawyers, much less defendants, really understand the rationale behind the plea and its significance. It is incumbent upon judges to ensure that when accepting any guilty plea, including a plea made pursuant to Alford, the accused understands precisely the rights that he or she is voluntarily relinquishing.[1] By this article, I will address the questions that I had and perhaps provide a refresher for those more seasoned criminal lawyers already well familiar with the Alford concept.

The Alford Decision

To understand the Alford plea, we must of course consider the Alford decision itself. The case arose out of a guilty plea entered by a defendant in a prosecution for first degree murder in a North Carolina state court.[2] The defendant steadfastly maintained his innocence, but the investigation of his court-appointed attorney

did not support the claim.[3] The defendant ultimately entered a plea of guilty to a reduced charge of second degree murder based upon the recommendation of his counsel.[4] Even as he entered his plea, however, the defendant continued to assert that he had not committed the murder and was not, in fact, guilty.[5]

The defendant's post-conviction efforts to invalidate his plea were initially unsuccessful in state court and federal court.[6] Eventually, the defendant persuaded the 4th Circuit Court of Appeals that his guilty plea was involuntary and motivated by a fear of the death penalty rather than a true acknowledgement of guilt.[7] His decision was, in essence, a risk assessment he and his counsel had made to avert the potential of a death sentence.

In taking the case, the U.S. Supreme Court specifically noted that had the issue been limited simply to whether the defendant pled guilty to avoid facing the death penalty, it would have remanded the case for the trial court to consider whether the plea of guilty was the product of free and rational choice.[8] Instead, the impetus for the Supreme Court taking the case was to resolve the conflict between state and lower federal courts regarding whether it was proper to accept a guilty plea when accompanied by a protestation of innocence.[9]

After examining the history of the nolo contendere plea, the Court held that although a plea of guilty is a waiver of trial, the U.S. Constitution does not require an express admission of guilt before a trial court accepts the plea.[10] Rather, the appropriate standard is whether the accused voluntarily, knowingly and intelligently consents to the imposition of a prison sentence even if he is unwilling or unable to admit participation in the acts constituting the crime.[11] Given the strong factual basis to support the plea and despite the defendant's profession of innocence, there was no constitutional error in the trial court accepting it.[12]

The Law in Georgia

Uniform Superior Court Rule 33.1 sets out the alternatives available to a defendant in entering a plea, reciting that a "defendant may plead guilty, not guilty, or in the discretion of the judge, nolo contendere."[13] The rule is silent regarding an Alford plea; it is not mentioned specifically anywhere in the rules. However, Rule 33.9 requires the trial judge to make such an inquiry on the record as necessary to demonstrate a factual basis for a guilty plea.[14] There is no similar requirement for other pleas such as a plea of nolo contendere.[15] The requirements of Rule 33.9 are mandatory to ensure that the conduct actually constitutes a crime.[16] Although some jurisdictions do not accept what has become known as an Alford plea, and it is rarely used in federal courts, Georgia has long recognized such a plea with many appellate cases making reference to it.[17] What is the law in Georgia, then, regarding such pleas?

The Factual Basis Requirement

Importantly, in the Alford decision, the plea was not tendered as is ordinarily done in Georgia; that is, prior to accepting the plea, the trial court actually heard the sworn testimony of three witnesses on behalf of the prosecution. In response, the defendant testified that he had not committed the murder but that he wanted to plead guilty to avoid the death penalty.[18] Thus, after hearing this testimony, the North Carolina trial court was confronted with the task of reconciling the plea of guilty with the defendant's assertions of innocence.[19] The U.S. Supreme Court appears to have been persuaded that there was no constitutional infirmity because of "the strong factual basis for the plea."[20]

It is the duty of the trial court then to assure there is a strong factual basis for the plea.[21] The trial court must resolve the conflict between its duty to protect the innocent and ensuring that the plea is the product of free and intelligent choice.[22]A court should not accept a plea of guilty without determining that the plea is made voluntarily and with an understanding of the nature of the charges and consequences of the plea.[23]

The Court of Appeals of Georgia in Minchey v. State addressed the need for reconciling the conflicts inherent in accepting so-called Alford pleas.[24] In Minchey, the defendant was charged with possession of marijuana and cocaine as well as an alcohol offense.[25] After entering guilty pleas, he appealed contending there was not a sufficient factual basis for them.

In Minchey, the plea colloquy was as follows:

THE COURT: Do you understand all of the questions that you've answered so far?

DEFENDANT: Yes, sir.

THE COURT: Understanding all your rights, do you still want to enter a plea of guilty to these offenses?

DEFENDANT: Yes, sir.

THE COURT: Is your decision to plead guilty made freely and voluntarily?

DEFENDANT: Yes, sir.

THE COURT: Has anyone used any force against you to cause you to plead guilty?

DEFENDANT: No.

THE COURT: Did you in fact commit the offense of possession of marijuana, possession of cocaine and possession of a certain amount of whiskey, the container of which did not bear and have affixed thereto the Revenue Stamps of the state of Georgia?

DEFENDANT: Yes, sir.

THE COURT: Did you do those things?

DEFENDANT: The whiskey and to the marijuana, but not the cocaine.

THE COURT: Did you have possession of cocaine?

DEFENDANT: Yes, sir, it was found in a jacket on my premises. And I understand the law enough to know I am...

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