State v. Kevin L. Nash

2020 WI 85SUPREME COURT OF WISCONSIN
CASE NO.: 2018AP731-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Kevin L. Nash,
Defendant-Appellant.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 388 Wis. 2d 144,930 N.W.2d 282(2019 – unpublished)
OPINION FILED: November 19, 2020
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 11, 2020
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Waukesha
JUDGE: Ralph M. Ramirez
JUSTICES:
ZIEGLER, J., delivered the opinion for a unanimous Court.
REBECCA GRASSL BRADLEY, J., filed a concurring opinion.
KAROFSKY, J., filed a concurring opinion, in which ANN WALSH
BRADLEY and DALLET, JJ., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant, there were briefs filed by
Jefren E. Olsen, assistant state public defender. There was an
oral argument by Jefren E. Olsen.
For the plaintiff-respondent, there was a brief filed by John
W. Kellis, assistant attorney general; with whom on the brief was
Joshua L. Kaul, attorney general. There was an oral argument by
John W. Kellis.
2020 WI 85NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2018AP731-CR
(L.C. No. 2016CF148)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent, FILED
v. NOV 19, 2020
Kevin L. Nash, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Appellant.
ZIEGLER, J., delivered the opinion for a unanimous Court. REBECCA
GRASSL BRADLEY, J., filed a concurring opinion. KAROFSKY, J., filed
a concurring opinion, in which ANN WALSH BRADLEY and DALLET, JJ.,
joined.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 ANNETTE KINGSLAND ZIEGLER, J. This is a review of an
unpublished decision of the court of appeals, State v. Nash, No.
2018AP731-CR, unpublished slip op. (Wis. Ct. App. May 2, 2019),
affirming the Waukesha County circuit court's1 judgment and order
1 The Honorable Ralph M. Ramirez presided.
No. 2018AP731-CR
denying Kevin L. Nash's postconviction motion to withdraw his
Alford2 plea. We affirm.
¶2 An Alford plea is "a guilty plea in which the defendant
pleads guilty while either maintaining his innocence or not
admitting having committed the crime." State v. Garcia, 192
Wis. 2d 845, 856, 532 N.W.2d 111 (1995). Nash was convicted of
second-degree sexual assault of a child after entering an Alford
plea. After sentencing, Nash sought to withdraw his Alford plea
and argued that manifest injustice would result if he were not
allowed to withdraw his plea because the circuit court failed to
establish strong proof of guilt as to each element of the offense.
He argues that the factual basis, upon which the circuit court
relied, is insufficient to overcome his assertion of innocence.
He requests that this court exercise its superintending authority
and adopt specific procedures to satisfy the heightened standard
under Alford.
¶3 Nash has not met his burden to prove by clear and
convincing evidence that manifest injustice would result if he
were not permitted to withdraw his plea. The record was sufficient
for the circuit court to accept Nash's Alford plea. Nash, having
had the benefit of reviewing discovery materials and charging
documents with counsel, accepted the plea offer of the State. He
acknowledged that he understood the elements of the offense and
agreed that the State's evidence was sufficient to prove him
guilty. Based on the facts alleged in the charging documents, the
2 North Carolina v. Alford, 400 U.S. 25 (1970).
2
No. 2018AP731-CR
other acts evidence, the forensic interviews, the inculpatory
statement and transcript of the inculpatory statement, statements
by counsel for Nash and the State, and statements from Nash at the
plea hearing admitting that the State could present evidence
sufficient to convict him, the record demonstrates that there was
a sufficient factual basis to support strong proof of Nash's guilt
for each of the two elements of the offense. The circuit court
specifically concluded that the State's offer of proof and the
amended complaint provided a sufficient factual basis for Nash's
Alford plea. The court of appeals concurred and held that the
circuit court did not erroneously exercise its discretion in
denying Nash's plea withdrawal motion. We agree.
¶4 We conclude that Nash has failed to establish by clear
and convincing evidence that manifest injustice merits plea
withdrawal, and that the factual basis in the record demonstrates
strong proof of guilt to overcome the innocence maintained in
Nash's Alford plea. Further, this court will not exercise its
superintending authority to require that courts employ a specific
procedure to establish a sufficient factual basis when accepting
an Alford plea. Accordingly, we affirm.
I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
¶5 The following facts are in the record we review. On
October 6, 2015, police initiated an investigation into
allegations that Nash sexually assaulted C.L.W. between November
2011 and November 2012, in Pewaukee, Wisconsin. The police
3
No. 2018AP731-CR
arranged for C.L.W. and her two sisters, A.T.N. and M.K.N., to be
forensically interviewed.
¶6 On October 8, 2015, forensic interviews were conducted
with the three victims. At the time of the interviews, C.L.W. was
eight years old, A.T.N. was 12 years old, and M.K.N. was 15 years
old. During the forensic interviews, each victim alleged that
Nash engaged in forced sexual intercourse with each of them between
November 2011 and November 2012. These alleged assaults occurred
at their homes in Milwaukee and Pewaukee, as well as at a
relative's house in Georgia. C.L.W. alleged that Nash exposed his
penis to her and forced it into her mouth when she was only four
or five years old. A.T.N. stated that Nash had forced sexual
intercourse with her on an almost daily basis between November
2011 and November 2012, when she was only nine or ten years old.
M.K.N. similarly alleged that Nash engaged in forced sexual
intercourse with her. The forensic interviewer video-recorded
each of the victims' forensic interviews and provided the
recordings to the police.
¶7 On February 2, 2016, the State filed a criminal complaint
charging Nash with two counts: Count 1, first-degree sexual
assault of a child under age 12, alleged that "[Nash] between
November 1, 2011 and November 1, 2012, [in Pewaukee], did have
sexual intercourse with a child under the age of [12],
[C.L.W.] . . . "; and Count 2, repeated sexual assault of a child,
alleged that "[Nash], between November 1, 2011 and November 1,
2012, [in Pewaukee, Wisconsin], did commit repeated sexual
assaults involving the same child, [A.T.N.], [] where at least
4
No. 2018AP731-CR
three of the assaults were violations of [Wis. Stat.
§] 948.02(1)(am), (b) or (c) . . . ." The court found probable
cause for the allegations based upon the narrative in the complaint
and signed an arrest warrant for Nash. The complaint also
specifically alleged that the State would seek to introduce other
acts evidence and the victims' forensic interviews. The complaint,
containing a factual narrative supporting the allegations, was
attached to the arrest warrant.
¶8 On February 9, 2016, Nash was arrested in Georgia and
subsequently extradited to Wisconsin. On February 23, 2016, Nash
made his initial appearance in the Waukesha County circuit court.3
¶9 On March 28, 2016, Nash waived his right to a preliminary
hearing, and the State filed an Information alleging the same two
criminal counts and penalties stated in the amended complaint.
Nash then entered a plea of not guilty to the charges contained in
the Information.
¶10 On April 26, 2016, the State filed a notice of expert
testimony, naming the forensic interviewer, and a notice of intent
to use the three victims' video-recorded forensic statements. The
State also filed a motion to admit other acts evidence and sought
to introduce the victims' allegations of four prior sexual assaults
Nash committed in order to show his motive and intent for the
charged offenses. Describing what the victims alleged in their
3At the initial appearance, Nash noted an error in the
penalty section of the criminal complaint; the State agreed to
file an amended criminal complaint that corrected the penalty
section. The State filed this amended complaint on March 3, 2016.
5
No. 2018AP731-CR
forensic interviews as a basis for admitting the other acts
evidence, the State asserted the following:
[C.L.W.] recalled an incident that occurred . . . in
Milwaukee. She said that this incident occurred [in]
the basement of that address. She remembers that [Nash]
put his "privates" into her "privates." She said that
[Nash] was on top of her while they were on the couch in
the basement.
[C.L.W.] remembers that [Nash's] "private" moved in and
out of her. When this was over, [Nash] told her not to
tell anyone about it.
[A.T.N.] described an incident that occurred in
Georgia . . . . She said that during that visit, she
was in the garage with [Nash]. She said that she didn't
want to be in the garage with him, as he [was] making
her do things that she did not want to do. Specifically,
[Nash] made her lie down and he "touched her private
part with his private parts." He also put his hand over
her mouth. While this was happening, [A.T.N.] remembers
that [someone] walked in on this, and from that point
on, [they] kept her and [Nash] separated.
[I]n Milwaukee, [Nash] tried to put his "private parts"
inside of [A.T.N.]. This happened in the [] basement.
She remembers the isolation of that basement, and how
completely that basement stifled all sound.
Finally, [M.K.N.], during her forensic interview, spoke
with very obvious trauma about incidents that she
remembers [that occurred] in Milwaukee County. She
remembers a first incident when [Nash] made her and
[A.T.N.] take their clothes off. When this happened,
she said that [Nash] would do "sexual things."
¶11 On June 29, 2016, the circuit court held a hearing on
the State's motion to admit the prior sexual assaults in Georgia
and Milwaukee as other acts evidence. During the hearing, the
State recounted in detail the assaults that occurred in Georgia
and in Milwaukee. Nash argued against the admission of the other
acts evidence, but the circuit court agreed with the State. The
6
No. 2018AP731-CR
circuit court permitted the State, if a trial occurred, to bring
in the prior alleged sexual assaults as evidence.
¶12 By letter dated August 2, 2016, the State notified the
circuit court and Nash that it obtained a copy of a video-recorded
statement Nash made on February 9, 2016, while in police custody
in Georgia, in which he admitted to engaging in sexual contact
with A.T.N. in Pewaukee. The State gave notice that it intended
to call the police officer who took the statement as a witness and
to introduce Nash's statement if a trial occurred.
¶13 On August 17, 2016, the State filed its witness list.
The witness list included all three victims, the forensic
interviewer, and the police officer from Georgia.
¶14 On August 25, 2016, the day the parties were scheduled
to meet for a pre-trial status conference, the parties notified
the court that they had reached a plea agreement. The State filed
an amended information, amending the original charges of first-
degree sexual assault of a child under age 12 and repeated sexual
assault of a child to a single, lesser charge of second-degree
sexual assault of a child under 16 years of age. Specifically,
the amended information stated that Nash "did have sexual
intercourse with a child under the age of [16],
[C.L.W.], . . . contrary to [Wis. Stat. §§] 948.02(2),
939.50(3)(c), 968.075(1)(a)." In addition, the State agreed to
"leave sentencing up to the court" with Nash "free to argue" for
whatever sentence he thought was appropriate. This amended charge
carried with it a maximum penalty of 40 years in prison (25 years
7
No. 2018AP731-CR
confinement and 15 years extended supervision) and/or a $100,000
fine.
¶15 Nash filed his Plea Questionnaire/Waiver of Rights form
indicating that he would plead no contest to the charge.4 Nash's
counsel explained that "[m]y client is not saying that he committed
the offense outright and in a way it could be construed as an
Alford plea, but that is the basis of the no-contest plea and we
would like to resolve the case in that matter and that the State
has no objection."5
¶16 The circuit court engaged in a plea colloquy with Nash
to ascertain whether he was knowingly, intelligently, and
voluntarily entering his plea. After the colloquy, the following
exchange occurred:
THE COURT: All right. Let's take a look at this
offense. According to the amended information, it says
between November 1st, 2011, and November 1st, 2012, [in
Pewaukee], you did have sexual intercourse with a child
under the age of sixteen, [C.L.W.], . . . contrary to
4 Attached to the Plea Questionnaire/Waiver of Rights form is
a page, which Nash separately initialed, stating the elements of
second-degree sexual assault of a child under 16 years of age, as
follows:
1. The defendant had (sexual contact) or (sexual
intercourse) with a person.
2. The person was under the age of 16 years at the
time of the (sexual contact) or (sexual intercourse).
5 When quoting the record, we will refer to Nash's plea as
the circuit court did——a no contest plea. Despite how the circuit
court record referred to the plea, Nash entered an Alford plea to
the amended charge, and this plea is what we review here today.
Accordingly, we will refer to his plea as an Alford plea unless we
are quoting from the record.
8
No. 2018AP731-CR
section 948.02(2) of the Wisconsin Statutes, a class C
felony. Upon conviction, you could be fined up to
$100,000.00 or imprisoned for not more than forty years
or both . . . .
Is that going to remain intact, [State]?
[THE STATE]: Yes, sir.
THE COURT: All right. What is your plea to that
charge, sir? Mr. Nash, what is your plea to that charge?
[NASH]: No-contest.
THE COURT: All right. [State], give me a factual
basis, an offer of proof please . . . ?
[THE STATE]: Yes, Judge. Last fall I believe the
[victims], who are here in court, made outcries to the
Village of Pewaukee Police Department, that between the
dates roughly of November 1st, 2011, and November 1st,
2012, when the four of them and their mother and
stepfather lived [in Pewaukee], that the defendant had
engaged in sexual intercourse with two of the three
[victims].
All three [victims] were under the age of sixteen
at the time. In fact, even though we have just alleged
one act of sexual assault, sexual intercourse of a child
under the age of sixteen, and that is [C.L.W.], there
were multiple acts of sexual intercourse, penis to
vagina, at that address all in Waukesha County, State of
Wisconsin, sir.
THE COURT: Do you understand that's what the State
would intend to prove if this matter went to trial, Mr.
Nash?
[NASH]: Yeah, I do.
¶17 The court then questioned Nash about his plea, which led
to some confusion as to the specific type of plea Nash was
entering:
THE COURT: All right. Understanding that that's
what the State says that they could prove, is it your
9
No. 2018AP731-CR
intent to continue your plea of no-contest to this
charge?
[NASH]: Yep. But I mean – yeah, I understand. I
understand.
[DEFENSE COUNSEL]: Say yes if you do.
THE COURT: All right. Do you acknowledge that the
State has enough evidence to prove this charge?
[NASH]: No.
THE COURT: Do you believe that you are not guilty
of these charges?
[NASH]: Yes, I do.
[DEFENSE COUNSEL]: That was in essence the no-
contest Alford part.
To alleviate this confusion, the court asked defense counsel to
explain how he "talked about the plea [], the factual basis, and
the State's obligation to meet its burden of proof with [Nash]."
Defense counsel responded as follows:
In the last week we have had three meetings at the jail.
We went over that if the case proceeded to trial, the
State would produce largely the three [victims] as
witnesses. Perhaps the individuals from the care center
that did the interviews. Officers. And that we –-
I relayed to him that the [victims], if they
testified as to what was in the discovery materials,
were going to say that he had sexual contact with them
and/or sexual intercourse. And I went over with him
what a no-contest plea meant as far as the standard no-
contest plea. Where you say you are not challenging it.
You are saying that the State could produce this evidence
and that it is believed a jury would convict him.
He denied to me that he actually committed the
offense but he wanted to accept the plea bargain because
the original charges were carrying 120 years of exposure
and the State was willing to reduce this to one charge
and that they also reduced their sentence recommendation
10
No. 2018AP731-CR
to basically leaving it up to the Court. We went over
this on three separate occasions and he indicated to me
that he understood what that meant. And that at the
time of sentencing, I would make a recommendation and
see what happened and he understood that.
Nash confirmed that this is what his counsel relayed to him. The
court then engaged in the following exchange with Nash:
THE COURT: Okay. So, to me that means that you
wish to take advantage of the State's plea offer. The
amended charge to reduce the possible time you could be
incarcerated, locked up, and that you are not
acknowledging that it happened but that there is enough
evidence that the State could prove that.
Is that true?
[NASH]: No, sir. Really not. Everything in this
case . . . . It's basically a hearsay case, sir. And,
I mean, but at the same time I don't want to keep hearing
the he said she said stuff . . . . I'm offering to keep
staying in Waukesha for something I didn't do, that's
why I plead no-contest because I'm not, you know, I'm
not saying I did it at all. I'm not going to say I did
something that I didn't do, sir, at all.
. . . That's why I was going to take it to trial
and now I'm not, I'm not going to take it to trial
because I see I will lose . . . . So, that's why I was
not trying to fight it at all. That's why I signed the
plea deal.
THE COURT: All right. So, just so we are clear on
everything here, if you say to me, Judge, I'm not saying
I did this but I want to enter this plea of no-contest
acknowledging that the jury could convict me, you want
to take advantage of the State's offer, I can accept
this plea. But if you say, you know what, Judge, I
didn't do this. Somebody is forcing me to do this. I
don't want to do this, then I have concerns.
What do you want me to do, sir?
[NASH]: . . . I got several concerns, sir, about
this case . . . . I mean, some of that, this is really
messed up and I want to take it to trial but I really
11
No. 2018AP731-CR
don't because . . . [i]t's all this hearsay. I feel
like everybody is looking at me the wrong way. Oh, he
did it. I believe he did it. Yeah, he did this. He
did that. Sir, I'm telling you right now I never did
none of this and I don't want to keep going through it.
THE COURT: All right. Okay. The case is set for
trial next week. And I feel like I'm pulling teeth here
and it's not my intent to do that. If Mr. Nash wishes
to enter a plea of no-contest of an Alford type taking
advantage of the State's offer but indicating that he is
not guilty of the offense, I don't have a clear
indication from Mr. Nash that that's exactly what he
wants to do and there is a great deal of difficulty here.
So, I guess what I'm going to do at this point is,
I will leave the matter on the trial calendar and I will
return the documents to the parties. The plea
questionnaire and waiver of rights form and the amended
information. And if there is a change or problem or
concern, you gentlemen know where to find me and if I
need to recall the case, I will.
Accordingly, the circuit court did not accept nor enter Nash's
Alford plea at this hearing.
¶18 The next day, on August 26, after Nash's counsel met
with him to discuss entering into a plea agreement with the State,
the court held another plea hearing. At this second plea hearing,
Nash filed the same Plea Questionnaire/Waiver of Rights form he
filed the day before, in which he indicated that he was pleading
no contest, waived his constitutional rights, and acknowledged
that the court could impose a maximum penalty of 40 years in prison
(25 years confinement and 15 years extended supervision) and/or a
$100,000 fine. The State refiled the Amended Information, amending
the original charges of first-degree sexual assault of a child
under age 12 and repeated sexual assault of a child to a single,
lesser charge of second-degree sexual assault of a child under 16
12
No. 2018AP731-CR
years of age, contrary to Wis. Stat. §§ 948.02(2), 939.50(3)(c),
and 968.075(1)(a). The Plea Questionnaire/Waiver of Rights form
contained the same no contest plea to the single charge in the
Amended Information, second-degree sexual assault of a child under
16 years of age. After a discussion about the timing of
sentencing, the court began a colloquy with Nash as to the amended
charge:
THE COURT: . . . My understanding from [defense
counsel] is that your position is you are not admitting
that you did these things. That you believe you wish to
take advantage of the State's plea offer and
recommendation and the amended charge. That you
believe, based on your review of the evidence, that the
State has evidence that could result in your conviction.
Is that correct, sir?
[NASH]: Yes, sir.
. . .
THE COURT: All right. Now, do you understand the
charge to which you are pleading? In other words, did
[defense counsel] review with you the elements of the
offense that the State would have to prove before you
could be found guilty?
[NASH]: Yes, sir.
After the court reviewed with Nash the specific constitutional
rights he was waiving, the following exchange occurred:
THE COURT: The charge against you in the amended
information indicates as follows: Between November 1st,
2011, and November [1st], 2012, [in Pewaukee], you did
have sexual intercourse with a child under the age of
sixteen, [C.L.W.], . . . and this was contrary to section
948.02(2) of the Wisconsin Statutes . . . . This is a
class C felony punishable by up to $100,000.00 fine or
up to forty years of imprisonment or both.
13
No. 2018AP731-CR
What is your plea to this charge?
[NASH]: Um, no-contest.
. . .
THE COURT: Okay. Now, yesterday [the State] made
an offer of proof; correct []?
[STATE]: Yes, sir.
THE COURT: And you heard what [the State] said
yesterday. Do you remember that?
[NASH]: Yes, sir.
THE COURT: Okay. Have you reviewed the complaint
with your attorney and all the police reports?
[NASH]: Yes, sir.
THE COURT: And [the State] stand[s] by that offer
of proof, []?
[STATE]: Yes, sir.
THE COURT: And you offer the complaint and the
amended complaint originally filed in this action as a
factual basis?
[STATE]: I do.
THE COURT: Do you have any objection to that,
[defense counsel]?
[DEFENSE COUNSEL]: No, Judge, not at all. I have
reviewed that with my client fully.
THE COURT: All right. So you've entered a plea of
no-contest which means you are not challenging the
charge against you in the amended information and you
understand that I will find you guilty if I accept your
plea?
[NASH]: Yes, sir.
THE COURT: All right. What I have been told and
I want to reiterate this, it is your position you didn't
do these things, however, you believe that the State has
14
No. 2018AP731-CR
a sufficient amount of proof or information such that we
could have a jury trial and they could meet their burden
of proof. You could be found guilty at a jury trial of
the two charges on the original document, the
information, but you wish to take advantage of this
amended information and enter your no-contest. Is that
true?
[NASH]: Yes, sir.
THE COURT: [Defense counsel], again please tell
me, did you review the issues related to a so-called
Alford plea with your client?
[DEFENSE COUNSEL]: In depth.
THE COURT: All right. Is that true, Mr. Nash?
[NASH]: Yes, sir.
THE COURT: Do you understand what it is when we
say an Alford plea? It's a person's name but it's a
plea that means I'm going to plead guilty or no-contest,
I'm going to accept responsibility for the charge, I'm
not necessarily admitting that those facts occurred but
I understand that the State has got enough evidence where
I could be found guilty at trial? Is that what is going
on here?
[NASH]: Yes, sir.
¶19 After a colloquy with Nash about the implications of
entering a plea to a serious sexual offense,6 the court made the
following findings:
I will find, taking into consideration the proceedings
yesterday and the proceedings and the information that
has been set out on the record, the statements made by
counsel, the documents I have received, the plea
questionnaire and waiver of rights form, the factual
6 These consequences include the inability to vote in any
election until his civil rights are restored, the inability to own
or possess a firearm, the inability to engage or participate in a
position that requires interacting primarily and directly with
children under the age of 16, and registering as a sex offender.
15
No. 2018AP731-CR
basis of the offer of proof that was set out on the
record yesterday as well, that I'm convinced at this
time, given Mr. Nash's responses to the questions that
I have posed, that he has freely, voluntarily,
knowingly, and intelligently waived his rights and
entered his plea.
I will find a sufficient factual basis based on the
contents of the complaint and the offer of proof. I
will find Mr. Nash, based on his no-contest, guilty of
the charge set out in the amended information filed as
of today's date.
After finding Nash guilty, the court ordered a presentence
investigation.
¶20 On October 24, 2016, the court sentenced Nash to eight
years of imprisonment, consisting of three years of initial
confinement and five years of extended supervision. The court
then stayed that sentence and placed Nash on probation for a period
of five years. As a condition of probation, the court ordered
Nash to spend one year in jail, with 258 days of credit for time
served.
¶21 On January 26, 2018, 15 months after being sentenced,
Nash filed a postconviction motion seeking to withdraw his Alford
plea.7 Nash argued that the circuit court neglected to find that
the record contained "strong evidence of actual guilt."
7 Nash also moved to remove a domestic abuse modifier that
was erroneously included in the judgment of conviction. Agreeing
it was erroneously included, the circuit court removed the
modifier. Although Nash argued that including this domestic abuse
modifier constituted a manifest injustice, the circuit court
disagreed. Nash did not appeal the circuit court's determination
that including the domestic abuse modifier did not constitute a
manifest injustice.
16
No. 2018AP731-CR
¶22 On April 6, 2018, the circuit court held a hearing on
Nash's postconviction motion.8 The parties agreed that it was
Nash's burden to present a prima facie case that there was manifest
injustice. Nash asserted that the circuit court failed to
establish a sufficient factual basis to support his Alford plea,
constituting a manifest injustice. He contended that a mere
summarization of the facts in the complaint is insufficient to
support an Alford plea. Moreover, he asserted, this is a case in
which strong proof of guilt will be difficult to show because it
rests solely on testimonial evidence from three children.
¶23 In response to Nash's allegations, the State argued that
the circuit court was "extremely careful" when it accepted Nash's
plea. The State recounted the August 25 and 26 plea hearings. It
restated the offer of proof:
Last fall I believe the [victims], who are here in court,
made outcries to the Village of Pewaukee Police
Department between the dates . . . roughly of November
1st, 2011, and November 1st, 2012, [in Pewaukee], that
the defendant had engaged in sexual intercourse with two
of the three [victims]. All three [victims] were under
the age of sixteen at the time.
In fact, . . . even though we have just alleged one
act of sexual assault, sexual intercourse of a child
under the age of sixteen, and that is [C.L.W.], there
were multiple acts of sexual intercourse, penis to
vagina, at that address all in Waukesha County, State of
Wisconsin, sir.
The State also reiterated the specific wording the court used when
finding a factual basis:
8 The State did not file a written response to Nash's
postconviction motion.
17
No. 2018AP731-CR
I will find, taking into consideration the proceedings
yesterday and proceedings [and] the information that has
been set out on the record, the statements made by
counsel, the documents I have received, the plea
questionnaire and waiver of rights form, the factual
basis of the offer of proof that was set out on the
record yesterday as well, that I'm convinced at this
time, given Mr. Nash's responses to the questions that
I have posed, that he has freely, voluntarily,
knowingly, and intelligently waived his rights and
entered his plea. I will find a sufficient factual basis
based on the contents of the complaint and the offer of
proof.
The State argued that the criminal complaint was sufficient to
show strong proof of Nash's guilt. The State contended that the
criminal complaint "talks about sexual intercourse with [C.L.W.].
Describes that. Describes where it occurred in the basement.
Describes about how it occurred. It describes the address. It
describes multiple victims." The State asserted that it had
"absolutely and positively satisfied this Alford requirement of
strong [proof] of guilt . . . ." Accordingly, the State asked the
court to deny Nash's claim of manifest injustice.
¶24 The court asked defense counsel about what it must say
when accepting an Alford plea: "[D]o I have to say the magic words?
Do I have to say those words, strong proof?" Defense counsel agreed
that the court need not use any magic words when accepting an
Alford plea, but, instead, asserted that it must be clear on the
record that the parties were all operating on the heightened
standard. Nash argued that without physical evidence or witnesses
other than the victims, the record will likely not reflect a strong
proof of guilt.
18
No. 2018AP731-CR
¶25 At the conclusion of the postconviction hearing, the
circuit court concluded that Nash had not demonstrated manifest
injustice meriting withdrawal of his plea. Concluding that there
was a strong proof of guilt on the record, the court stated:
Again, we are looking at the nature of this offense
and it was made clear on the record before I accepted
the plea of what the allegations were, who was involved,
and what was done.
We didn't just say, there was some sort of facts.
There was something sexual going on or some sort of
touching. We are not able to be definite about it. It
was stated on the record that there was sexual
intercourse and the nature, the specific nature of the
sexual intercourse. The people involved. The ages.
The location. Using as well the information set out in
the complaint.
In addition to that, I think that this record
demonstrates that there was strong proof of actual
guilt. That this Court did consider all the things that
were brought to its attention at the time of the plea
colloquy. . . .
So, I'm going to find that the defense has not met
that prima facie showing. For the reasons set out on
the record, I will deny the motion . . . .
On April 16, 2018, Nash filed a Notice of Appeal. On May 2, 2019,
the court of appeals affirmed the circuit court. Nash, No.
2018AP731-CR, ¶28.
¶26 On December 10, 2019, Nash petitioned this court for
review. We granted the petition.
II. STANDARD OF REVIEW
¶27 Nash asks this court to review the circuit court's denial
of his postconviction motion to withdraw his Alford plea. The
decision to permit a plea withdrawal is a matter of the circuit
19
No. 2018AP731-CR
court's discretion, which we review under an erroneous exercise of
discretion standard. State v. Cain, 2012 WI 68, ¶20, 342
Wis. 2d 1, 816 N.W.2d 177 (citing State v. Thomas, 2000 WI 13,
¶13, 232 Wis. 2d 714, 605 N.W.2d 836). "We do not disturb a
circuit court's findings of fact, except in situations where those
findings are contrary to the great weight and clear preponderance
of the evidence." Id. Moreover, "we must ensure that the circuit
court's determination was made upon the facts of record and in
reliance on the appropriate and applicable law." State ex rel.
Warren v. Schwarz, 219 Wis. 2d 615, 635, 579 N.W.2d 698 (1998).
¶28 In reviewing the circuit court's decision to accept a
plea in a post-sentencing withdrawal appeal, we are not limited to
what the circuit court stated it relied upon in determining its
factual basis——we may rely upon the entire record in our review.
Cain, 342 Wis. 2d 1, ¶29. A defendant can withdraw a plea after
sentencing only if "the withdrawal is necessary to correct a
manifest injustice." Id., ¶24. "[W]hen applying the manifest
injustice test, it is our role not to determine whether the circuit
court should have accepted the plea in the first instance, but
rather to determine whether the defendant should be permitted to
withdraw the plea." Id., ¶30 (footnote omitted). Therefore, when
reviewing a circuit court's denial of a post-sentencing plea
withdrawal, we will not overturn the circuit court's determination
of a sufficient factual basis unless it is clearly erroneous.
Warren, 219 Wis. 2d at 645.
¶29 As for Nash's proposal that we exercise our
superintending authority, we alone are tasked with that
20
No. 2018AP731-CR
responsibility. Wis. Const. art. VII, § 3; see, e.g., Koschkee v.
Evers, 2018 WI 82, 382 Wis. 2d 666, 913 N.W.2d 878.
III. ANALYSIS
¶30 Because Nash seeks to withdraw his plea, we begin with
a general discussion of plea withdrawal. More specifically,
because Nash seeks to withdraw an Alford plea, we next provide
background information on Alford pleas. Subsequently, we
determine whether the record supports the circuit court's finding
of Nash's strong proof of guilt. Finally, we address Nash's
request that we exercise our superintending authority to create
certain evidentiary requirements for a court to accept an Alford
plea.
A. Plea Withdrawal Generally
¶31 Depending on when a defendant seeks to withdraw his plea,
two different standards apply. If a defendant seeks to withdraw
his plea prior to sentencing, "a circuit court should 'freely allow
a defendant to withdraw his plea prior to sentencing for any fair
and just reason, unless the prosecution [would] be substantially
prejudiced.'" Cain, 342 Wis. 2d 1, ¶24 (quoting State v. Jenkins,
2007 WI 96, ¶2, 303 Wis. 2d 157, 736 N.W.2d 24) (alteration in
original). "The defendant must prove that a fair and just reason
exists by a preponderance of the evidence." Thomas, 232
Wis. 2d 714, ¶15.
¶32 On the other hand, as is the case here, when a defendant
seeks to withdraw a plea after sentencing, the defendant must show
that allowing the withdrawal of the plea "is necessary to correct
21
No. 2018AP731-CR
a manifest injustice." State v. Smith, 202 Wis. 2d 21, 25, 549
N.W.2d 232 (1996). The defendant "carries the heavy burden of
establishing, by clear and convincing evidence" that refusing to
allow plea withdrawal would result in manifest justice. Thomas,
232 Wis. 2d 714, ¶16. "The higher standard of proof is used after
sentencing, because once the guilty plea is finalized, the
presumption of innocence no longer exists." Id. "Historically,
one type of manifest injustice is the failure of the trial court
to establish a sufficient factual basis that the defendant
committed the offense to which he or she pleads." Smith, 202
Wis. 2d at 25. Therefore, a circuit court must determine that a
sufficient factual basis exists for each element of the crime based
on the entire record. If it does not, a manifest justice occurs.
B. Alford Pleas Generally
1. Alford pleas
¶33 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). In 1995, this court recognized for the first time
"that the circuit courts of Wisconsin may, in their discretion,
accept Alford pleas." Garcia, 192 Wis. 2d at 856.9 In that case,
we described an Alford plea as "a guilty plea in which the
9The court of appeals had previously recognized Alford pleas
over a decade before this court. See State v. Johnson, 105
Wis. 2d 657, 314 N.W.2d 897 (Ct. App. 1981).
22
No. 2018AP731-CR
defendant pleads guilty while either maintaining his innocence or
not admitting having committed the crime." Id.¶34 An Alford plea shares characteristics of both a guilty
plea and a no contest plea, but it is nonetheless different.
Unlike a no contest plea or a guilty plea, a defendant who enters
an Alford plea maintains his or her innocence but nonetheless
chooses to enter an Alford plea knowing the court will enter a
judgment of conviction. Like a guilty plea, an Alford plea "places
the defendant in the same position as though he had been found
guilty by a verdict of a jury." Warren, 219 Wis. 2d at 631.
Unlike a guilty plea, an Alford plea does not constitute an express
admission that the defendant committed the act charged. Wis. JI—
Criminal SM-32A at 2 (2019). An Alford plea is similar to a no
contest plea in that "both lack an express admission of guilt" and
neither constitutes an admission for collateral purposes in civil
cases. Id. at 2, 7-8. Despite this commonality, "[t]he key
distinction between [Alford and no contest pleas] is that '[a]n
Alford plea goes beyond a no contest plea in the sense that the
former involves an outright claim of innocence while the latter
involves something less than an express admission of guilt.'"
Warren, 219 Wis. 2d at 631 n.9 (quoting Wis. JI—Criminal SM-32A at
1 (1995)).
2. Accepting an Alford plea.
¶35 Before accepting a guilty, no contest, or Alford plea,
a circuit court must be satisfied that certain requirements are
23
No. 2018AP731-CR
met. Wis. Stat. § 971.08(1) (2017-18).10 To accept an Alford
plea, "the circuit court must determine that the summary of the
evidence the [S]tate would offer at trial constitutes 'strong proof
of guilt.'" Warren, 219 Wis. 2d at 645 (citing Garcia, 192 Wis. 2d
at 859-60). "'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.'" Warren, 219 Wis. 2d at 645 (quoting Smith, 202 Wis. 2d at
27). For a traditional guilty plea, the record must reflect "that
the conduct which the defendant admits constitutes the offense
charged in the indictment or information or an offense included
therein to which the defendant has pleaded guilty." Ernst v.
State, 43 Wis. 2d 661, 673, 170 N.W.2d 713 (1969), overruled in
part on other grounds, State v. Bangert, 131 Wis. 2d 246, 389
N.W.2d 12 (1986). However, because a defendant who wishes to enter
an Alford plea outright claims innocence, the record must reflect
a "strong proof of guilt" to overcome the defendant's protestations
of innocence. See Garcia, 192 Wis. 2d at 859-60 (citing State v.
Johnson, 105 Wis. 2d 657, 663, 314 N.W.2d 897 (Ct. App. 1981)).
We require that the record reflect a strong proof of guilt not to
convince the defendant of his or her guilt; rather, it is
constitutionally required to ensure that the defendant is
knowingly, intelligently, and voluntarily entering a plea that
All subsequent references to the Wisconsin Statutes are to
10
the 2017-18 version.
24
No. 2018AP731-CR
will result in a judgment of conviction, despite the defendant's
claims of innocence. See id. at 857.
¶36 In determining whether it can accept an Alford plea,
the circuit court must examine the record to determine whether a
"sufficient factual basis was established at the plea proceeding
to substantially negate [the] defendant's claim of innocence."
Warren, 219 Wis. 2d at 645 (quoting Johnson, 105 Wis. 2d at 664)
(alteration in original). 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." Warren, 219 Wis. 2d at 645-46 (quoting Smith,
202 Wis. 2d at 25). Because of this, the circuit court does not
need to use any "magic words" when it accepts an Alford plea.
Instead, the court must be satisfied that the facts in the record,
as a whole, are sufficient to provide strong proof of guilt and
overcome a defendant's protestations of innocence. See Thomas,
232 Wis. 2d 714, ¶20 ("All that is required is for the factual
basis to be developed on the record——several sources can supply
the facts."); Garcia, 192 Wis. 2d at 859-60 (concluding "an
adequate record of the 'strong proof of guilt'" is sufficient);
Johnson, 105 Wis. 2d at 664 (stating "[t]he record in this case"
was sufficient); Alford, 400 U.S. at 37 ("[T]he record before the
judge contains strong evidence of actual guilt.").
¶37 When determining whether the record contains facts
sufficient to accept a defendant's Alford plea, the circuit court
must find strong proof of guilt for each element of the alleged
25
No. 2018AP731-CR
crime. See Smith, 202 Wis. 2d at 26 ("If there is no evidence as
to one of the elements of the crime, the defendant's Alford plea
cannot be accepted and the factual basis requirement cannot be
met."). Accordingly, 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.
¶38 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. For example, in Warren, this court held that the
victim's testimony and a police officer's testimony from a
preliminary hearing constituted strong proof of guilt. 219 Wis. 2d
at 646-47 (specifically, the victim testified in detail to the
events of a particular sexual assault and the interviewing officer
testified that the victim told her in detail about the sexual
assault). In Johnson, the State's recital of evidence was deemed
a sufficient factual basis for the circuit court to conclude the
record contained strong proof of guilt. 105 Wis. 2d at 665 ("The
prosecutor's recital of the evidence in this case indicates that
the [S]tate could prove all of the elements of the crimes
charged . . . ."). In State v. Annina, the court of appeals held
that a criminal complaint combined with a prosecutor reading a
portion of the police report was a sufficient factual basis. 2006
WI App 202, ¶¶16-17, 296 Wis. 2d 599, 723 N.W.2d 708. "A factual
basis may also be established through witnesses' testimony, or a
26
No. 2018AP731-CR
prosecutor reading police reports or statements of evidence."
Thomas, 232 Wis. 2d 714, ¶21.11
¶39 As we stated previously, "a judge must establish the
factual basis on the record, but [we do] not dictate how a judge
must do this." Id. We reaffirm that principle.12
C. The Factual Basis Supports a Showing
of Strong Proof of Guilt.
¶40 Nash has not established manifest injustice because his
Alford plea was supported by a strong factual basis. In reviewing
the entire record, it is clear that the circuit court properly
determined that a sufficient factual basis existed for both
elements of Nash's crime, second-degree sexual assault of a child
under 16 years of age.
¶41 Nash is specifically charged with sexually assaulting
C.L.W., and the record clearly establishes a sufficient factual
basis to overcome his protestations of innocence. This offense
has two elements: (1) that Nash had sexual intercourse or contact
with a person, and (2) that person was under the age of 16 years
at the time of that intercourse or contact. See Wis. Stat.
11We recognize the importance of Wis. JI—Criminal SM-32A and
recommend that circuit courts review it when determining whether
to accept a defendant's Alford plea.
12Other jurisdictions follow this rule. See, e.g., State v.
Scroggins, 2018-1943 (La. 6/26/19); 276 So. 3d 131 (per curiam);
State v. Stilling, 856 P.2d 666 (Utah Ct. App. 1993); Johnston v.
State, 829 P.2d 1179, 1182 (Wyo. 1992); Amerson v. State, 812 P.2d
301, 303 (Idaho Ct. App. 1991); Tiger v. State, 654 P.2d 1031,
1033 (Nev. 1982); and Scarborough v. State, 363 S.W.3d 401 (Mo.
Ct. App. 2012).
27
No. 2018AP731-CR
§ 948.02(2). The record demonstrates strong evidence to support
each element of the crime.
¶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.
¶43 More specifically, the record supports the circuit
court's finding that Nash committed both elements of the offense:
(1) sexual contact or intercourse (2) with a person under 16 years
of age. As to the first element, the record reflects that Nash
28
No. 2018AP731-CR
engaged in sexual contact or intercourse with C.L.W. The police
began an investigation into Nash because C.L.W. told a school
counselor that Nash "touched [her] in a way [she] did not want.
He touched [her] private parts and put his private part in [hers]."
During her forensic interview, C.L.W. stated that Nash exposed his
penis to her and forced it into her mouth. The amended complaint
reiterated what C.L.W. disclosed during her forensic interview.
The State, as an offer of proof, stated that Nash engaged in
"multiple acts of sexual intercourse, penis to vagina" with C.L.W.
Such statements in the record establish that the circuit court did
not err when it determined that Nash engaged in sexual contact or
intercourse with C.L.W.
¶44 As to the second element of Nash's crime——the age of the
victim——it is clear that C.L.W. was under the age of 16 at the
time of the sexual assaults. In fact, C.L.W. was only four or
five years old at the time of the assaults. This fact is clearly
established in the amended complaint which provides C.L.W.'s date
of birth. Accordingly, the record clearly supports the element
that C.L.W. be under the age of 16.
¶45 Therefore, our review of the record demonstrates that it
contains strong proof of guilt as to each element of the crime to
support Nash's Alford plea. Accordingly, we conclude that Nash
failed to demonstrate manifest injustice, and the circuit court
did not erroneously exercise its discretion when it denied Nash's
motion to withdraw his Alford plea.
D. Superintending Authority
29
No. 2018AP731-CR
¶46 Article VII, Section 3(1), of the Wisconsin Constitution
states, "[t]he supreme court shall have superintending and
administrative authority over all courts." That section "endows
this court with a power that is indefinite in character, unsupplied
with means and instrumentalities, and limited only by the
necessities of justice." Arneson v. Jezwinski, 206 Wis. 2d 217,
225, 556 N.W.2d 721 (1996). "'The superintending authority is as
broad and as flexible as necessary to insure the due administration
of justice in the courts of this state.'" Id. at 226 (quoting In
re Kading, 70 Wis. 2d 508, 520, 235 N.W.2d 409 (1975)). Although
this court has the power to act, it must be mindful when it
exercises that power. See id. ("[W]e do not use [our
superintending authority] lightly.").
¶47 Nash proposes that this court exercise its
superintending authority, under Article VII, Section 3(1) of the
Wisconsin Constitution, to impose certain evidentiary standards
for establishing a sufficient factual basis for an Alford plea.
He argues that we should require live testimony, oral statements
of relevant witnesses, or other documentary evidence. We decline
to exercise our superintending authority to adopt such a
requirement.
¶48 The procedural safeguards and "strong proof of guilt"
requirement in Alford pleas adequately address the need for a
sufficient factual basis. Circuit courts are required to establish
a sufficient factual basis to support a plea whether the plea is
guilty, no contest, or Alford. See Wis. Stat. § 971.08(1).
30
No. 2018AP731-CR
Requiring a specific evidentiary presentation is unnecessary to
afford the protection due.
¶49 "'This court will not exercise its superintending power
where there is another adequate remedy, by appeal or otherwise,
for the conduct of the trial court . . . .'" Arneson, 206
Wis. 2d at 226 (quoting McEwen v. Pierce Cnty., 90 Wis. 2d 256,
269-70, 279 N.W.2d 469 (1979)). Nash had several other "adequate
remedies." He could have raised his specific concerns with the
factual basis before or at sentencing. See State v. Spears, 147
Wis. 2d 429, 436, 433 N.W.2d 595 (raising concerns to one specific
element of the crime to which defendant pled). He could have
tested the State's proof and proceeded to trial. Cf. U.S. Const.
amend VI (right to a jury trial); Wis. Const. art. 1, § 5 (same).
If Nash believed that the circuit court should have heard more
evidence to establish a strong proof of guilt, he had several
options to remedy his concerns. Instead, from the record, not
only is strong evidence demonstrated but Nash himself acknowledged
as much at the plea hearings. Therefore, we will not exercise our
superintending authority to create a specific evidentiary
requirement as Nash requests.
IV. CONCLUSION
¶50 We conclude that Nash has failed to establish by clear
and convincing evidence that manifest injustice merits plea
withdrawal, and that the factual basis in the record demonstrates
strong proof of guilt to overcome the innocence maintained in
Nash's Alford plea. Further, this court will not exercise its
31
No. 2018AP731-CR
superintending authority to require that courts employ a specific
procedure to establish a sufficient factual basis when accepting
an Alford plea. Accordingly, we affirm.
By the Court.—The decision of the court of appeals is
affirmed.
32
No. 2018AP731-CR.rgb
¶51 REBECCA GRASSL BRADLEY, J. (concurring). I join the
majority opinion in full. I write separately to point out the
pitfalls of plea bargaining——particularly when Alford pleas are
part of the deal. The justice system tolerates such pleas only in
tension with constitutional commands governing criminal
prosecutions. Given the incongruity of accepting a guilty plea
from a defendant who maintains his innocence, judges must approach
Alford pleas with caution and deliberation.
¶52 The right to a trial by jury in criminal cases is a
fundamental bedrock of the Constitution. As Thomas Jefferson
explained, a trial by jury is the "only anchor, ever yet imagined
by man, by which government can be held to the principles of its
constitution." Letter from Thomas Jefferson to Thomas Paine (July
11, 1789), in 15 The Papers of Thomas Jefferson 269 (Julian P.
Boyd ed., 1958). Indeed, this precept is integral to preventing
prosecutorial overreach and protecting the liberty of innocent
defendants. "A criminal trial is in part a search for truth. But
it is also a system designed to protect 'freedom' by insuring that
no one is criminally punished unless the State has first succeeded
in the admittedly difficult task of convincing a jury that the
defendant is guilty." Williams v. Florida, 399 U.S. 78, 113-14
(1970) (Black, J., concurring in part and dissenting in part).
Mindful of this purpose, our founders understood the right to a
jury trial as the "heart and lungs" of liberty. See Letter from
John Adams to William Pym (Jan. 27, 1766), in 1 Papers of John
Adams 169 (Robert J. Taylor et al. eds., 1977).
1
No. 2018AP731-CR.rgb
¶53 In a dangerous departure from an original understanding
of the constitutional design for criminal prosecutions, trial by
jury has become the exception rather than the rule. Without a
doubt, "criminal justice today is for the most part a system of
pleas, not a system of trials." Lafler v. Cooper, 566 U.S. 156,
170 (2012). In recent years, approximately 97 percent of federal
convictions and 94 percent of state convictions have been resolved
through a guilty plea. Missouri v. Frye, 566 U.S. 134, 143 (2012)
(citing statistics from the United States Department of Justice).
Many courts are often eager to accept them. Indeed, plea
agreements serve a practical role in the judicial system. For
both attorneys and judges alike, plea agreements facilitate the
prompt resolution of cases and prevent the criminal justice system
from becoming overwhelmed. See Lucian E. Dervan, Bargained
Justice: Plea-Bargaining's Innocence Problem and the Brady Safety-
Valve, 2012 Utah L. Rev. 51, 59-60 (2012).
¶54 As the United States Supreme Court has recognized, plea
agreements also allow criminal defendants who know they are guilty
to admit to their crimes in exchange for more favorable terms at
sentencing. See Frye, 566 U.S. at 144. In this sense, plea
agreements can benefit "both parties." Id. With respect to a
defendant who actually committed the crime for which he was
charged, pleading guilty serves the State's interest in expediency
and the people's interest in swift justice, in addition to
2
No. 2018AP731-CR.rgb
sometimes sparing victims from the trauma of reliving the crimes
against them during trials.1
¶55 Recognizing the benefits of plea bargaining in
appropriate cases, however, does not negate the harm caused by its
exploitative use, when the "bargain" coerces a defendant into
admitting guilt in response to a prosecutor's threat to add charges
carrying lengthy sentences.2 The Constitution does not countenance
this coercive type of plea bargaining, which not only allows the
guilty to escape justice but also permits the extortion of the
innocent. See Ralph Adam Fine, Escape of the Guilty & Extortion
of the Innocent (2d ed. 2013). "Plea bargaining rests on the
constitutional fiction that our government does not retaliate
against individuals who wish to exercise their right to trial by
jury." Timothy Lynch, The Case Against Plea Bargaining,
Regulation, Fall 2003, at 24, 26. Extortive plea bargaining
encourages the guilty to hold out for reduced charges and a lighter
sentence while coercing the innocent to plead guilty in fear of
1 When the defendant's guilt is certain, plea bargaining may
be favored in "situations where the facts of a particular case may
justify a lenient sentence, a dismissal, or reduction," and
"consideration to a defendant may be warranted, in appropriate
cases, to get his or her help in catching or convicting a 'bigger
fish' or to avoid the trauma of a trial for a . . . victim." Ralph
Adam Fine, Plea Bargaining: An Unnecessary Evil, 70 Marq. Law Rev.
615, 616 (1987). These scenarios promote "justice for society and
for the victim." Id.2 Nothing in the record in this case suggests any coercion on
the part of the prosecutor. Indeed, this case was particularly
appropriate for a plea agreement, in light of the strong proof of
Nash's guilt, and for purposes of sparing three young children the
trauma of a trial during which they would have had to testify
regarding the sexual assaults they suffered.
3
No. 2018AP731-CR.rgb
increased charges and a harsher sentence. For the sake of
expediency, this tool of the justice system appallingly results in
the incarceration of the innocent. For the sake of conserving the
limited resources of the justice system, plea bargaining allows
the guilty to be released earlier than the law contemplates, at
society's expense should the guilty re-offend. See, e.g., Lafler,
566 U.S. at 186-87 (Scalia, J., dissenting) (citing Albert W.
Alschuler, Plea Bargaining and Its History, 79 Colum. L. Rev. 1,
38 (1979)) (Without plea bargaining, "our system of criminal
justice would grind to a halt.").
¶56 The United States Supreme Court, as well as this court,3
have concluded that plea bargaining is permitted as a "necessary
evil." Lafler, 566 U.S. at 187 (Scalia, J., dissenting).
"[W]hatever might be the situation in an ideal world, the fact is
that the guilty plea and the often concomitant plea bargain are
important components of this country's criminal justice
system. Properly administered, they can benefit all concerned."
Bordenkircher v. Hayes, 434 U.S. 357, 361–62 (1978) (emphasis
added) (quoting Blackledge v. Allison, 431 U.S. 63, 71 (1977)).
¶57 In the decades following Bordenkircher, proper
administration of plea bargains has faded as judges sometimes
reflexively accept pleas without ferreting out the extortion by
which the State sometimes elicits them. "A finely tuned criminal
justice system will punish the guilty and leave the innocent
unmolested." Ralph Adam Fine, Plea Bargaining: An Unnecessary
3 State ex rel. White v. Gray, 57 Wis. 2d 17, 21-22, 203
N.W.2d 638 (1973); Armstrong v. State, 55 Wis. 2d 282, 286-88, 198
N.W.2d 357 (1972).
4
No. 2018AP731-CR.rgb
Evil, 70 Marq. Law Rev. 615, 626 (1987). Every decision by an
innocent defendant to forego his constitutional right to a jury
trial in response to the State's coercive tactics imperils liberty.
Every plea bargain enabling the guilty to evade legally prescribed
punishment erodes the integrity of the criminal justice system.
¶58 Perhaps most fundamentally, "plea bargaining is . . . at
war with our most precious tradition: the presumption of
innocence." Ralph Adam Fine, Echoes of a Muted Trumpet, 4 Engage
39, 40 (2003).4 Although in this case the circuit court conducted
an exhaustive colloquy with the defendant and initially declined
to accept Nash's Alford plea based upon Nash's protestations of
innocence, sometimes absent from the process is any real inquiry
into whether or not the defendant actually committed the crime.
In this case, the record belies Nash's declarations of innocence.
As the majority opinion details, "the factual basis in the record
demonstrates strong proof of guilt to overcome the innocence
maintained in Nash's Alford plea." Majority op., ¶¶4, 50.
Troublingly, in other cases "innocent defendants do plead guilty
more often than most people think and certainly more often than
anyone cares to admit." John H. Blume & Rebecca K. Helm, The
Unexonerated: Factually Innocent Defendants Who Plead Guilty, 100
4Echoes of a Muted Trumpet can be accessed at https://fedsoc-
cms-public.s3.amazonaws.com/update/pdf/PcJMmPtH2g
0Seh2zqsDpiSa8zy5D3CIBLiPB1f2Q.pdf.
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Cornell L. Rev. 157, 158 (2014).5 Plea bargaining "presents grave
risks of prosecutorial overcharging that effectively compels an
innocent defendant to avoid massive risk by pleading guilty to a
lesser offense; and for guilty defendants it often——perhaps
usually——results in a sentence well below what the law prescribes
for the actual crime." Lafler, 566 U.S. at 185 (Scalia, J.,
dissenting).
¶59 While defendants ostensibly retain the ultimate "choice"
of proceeding to trial, that option becomes illusory when
individual liberties are held hostage by expediency. Plea
bargaining empowers prosecutors to effectively penalize
defendants, via heightening charges or recommending enhanced
sentencing, for not accepting plea bargains. See Bordenkircher,
434 U.S. at 372. If the right to a jury trial is the "anchor" and
"heart and lungs" of American liberty, a justice system that
incentivizes defendants to waive this fundamental right cannot be
reconciled with the Constitution's conception for the adjudication
of guilt or innocence. "[F]or what greater security can any
person have in his life, liberty or estate, than to be sure of
not being divested of, or injured in any of these, without the
5See also Ralph Adam Fine, Echoes of a Muted Trumpet, 4
Engage 39, 41 (2003) ("During my nine years as a trial judge, I
had several defendants who wanted to plead guilty even though when
I then asked them to tell me what they did, responded with stories
of innocence. When I asked them why they were trying to plead
guilty, they all told me that they had been threatened with harsher
penalties if they insisted on going to trial. In rejecting their
pleas, I told them that we had enough guilty persons to convict,
and that we did not need to dip into the pool of the innocent. In
each of the instances, we went to trial and the defendants were
acquitted.").
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sense and verdict of twelve honest and impartial men of his
neighborhood?" Norval v. Rice, 2 Wis. 22, 27 (1853).
¶60 Alford pleas exemplify the gravest dangers of plea
bargaining. An Alford plea allows a defendant to both plead guilty
and profess innocence. See North Carolina v. Alford, 400 U.S. 25(1970). This impossibility is as perplexing as the paradox of
Schrödinger's cat.6 "One would think that if a defendant says he
did not commit the crime, the criminal justice system would insist
on a trial to resolve the question." Blume & Helm, supra, at 172.
Instead, our criminal justice system uses Alford pleas to "grease
the system's wheels with the oil of expediency." Ralph Adam Fine,
Echoes of a Muted Trumpet, 4 Engage 39, 40 (2003). Accepting them
"exacerbate[s] the risk of truly innocent defendants pleading
guilty." Blume & Helm, supra, at 172. Consequently, "the trial
courts in this state" should "act with great reticence when
confronted with an Alford plea." See State ex rel. Warren v.
Schwarz, 219 Wis. 2d 15, ¶21 n.8, 579 N.W.2d 698 (1998) (quoted
source omitted). Not surprisingly, some jurists have been quite
"troubled that a defendant may plead guilty to a charge while
continuing to protest his innocence thereto." State v. Garcia,
192 Wis. 2d 845, 868, 532 N.W.2d 111 (1995) (Wilcox, J.,
concurring). If "[t]he dual aim of our criminal justice system is
'that guilt shall not escape or innocence suffer[,]'" id. (quoting
6https://whatis.techtarget.com/definition/Schrodingers-cat
(explaining Nobel Prize-winning Austrian physicist Erwin
Schrödinger's thought experiment presenting the paradox of a cat
being both dead and alive at the same time, as a critique of a
particular interpretation of quantum mechanics).
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United States v. Nobles, 422 U.S. 225, 230 (1975)), "[a]n Alford
plea, in my mind, contradicts this very simple proposition[.]"
Id.¶61 Because the right to a jury trial ensures that the
government is "held to the principles of its constitution," courts
must proceed with caution when allowing defendants to waive this
right entirely. "The Framers of the Constitution were aware of
less time-consuming trial procedures when they wrote the Bill of
Rights, but chose not to adopt them. The Framers believed the
Bill of Rights, and the freedom it secured, was well worth any
costs that resulted. If that vision is to endure, the Supreme
Court must come to its defense." Lynch, supra, at 27 (advocating
for the abolition of plea bargaining). Judicial acceptance of
plea bargaining distorts the constitutional design for criminal
prosecutions. "The Framers decided that the benefits to be derived
from the kind of trial required by the Bill of Rights were well
worth any loss in 'efficiency' that resulted. Their decision
constitutes the final word on the subject, absent some
constitutional amendment." Williams, 399 U.S. at 113-14 (Black,
J., concurring in part; dissenting in part).
¶62 So long as plea bargains remain an entrenched and
accepted mechanism for resolving criminal cases, judges should be
wary of accepting them. A plea entered solely in response to
threats of added charges or harsher sentences should be rejected.
Prosecutors should not be allowed to "up the ante" in order to
discourage a defendant's exercise of his constitutional right to
a jury trial. Nor should guilty defendants be permitted to benefit
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from a "bargain" that allows them to escape responsibility and
punishment for crimes actually committed——unless the benefits to
society outweigh the costs.7 "If we want defendants to respect
the law, we must enforce it with justice and honesty." Ralph Adam
Fine, Plea Bargaining: An Unnecessary Evil, 70 Marq. Law Rev.
615, 621 (1987). Plea bargaining for the sake of expediency
"vitiates public confidence in the criminal justice system." Id.It also disregards victims' rights, "sending the message to them
and to society that some crimes simply do not count." See id. at
616-18 n.7.8
¶63 Nearly 150 years ago, this court condemned some plea
bargaining as a "direct sale of justice." Wight v. Rindskopf, 43
Wis. 344, 354 (1877). Our predecessors recognized that the
prosecutor's job is to "distinguish between the guilty and the
innocent, between the certainly and the doubtfully guilty" and to
"never voluntarily [] acquiesce in an acquittal upon certain
presumption of guilt, or in conviction upon doubtful presumption
of guilt." Id. (emphasis added). Prevailing plea bargaining
practices, including the Alford plea, extend legally incognizable
leniency to the guilty while criminalizing the innocent. "The
bottom line is that any system of justice must ensure fairness.
Sadly, for too many people, our criminal-justice system is not
7 See Ralph Adam Fine, Plea Bargaining: An Unnecessary Evil,
70 Marq. Law Rev. 615, 616 (1987).
8 Quoting Ralph Adam Fine in State v. Smith, No. 94-2894-CR,
unpublished slip op., *2 n.4 (Wis. Ct. App. 1995), rev'd on other
grounds, 202 Wis. 2d 21, 549 N.W.2d 232 (1996).
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fair." See Ralph Adam Fine, Escape of the Guilty & Extortion of
the Innocent (2d ed. 2013).
¶64 In many cases, plea bargaining effectively replaces the
constitutional construct for adjudicating criminal guilt or
innocence and supplants legislatively-prescribed punishment, all
without the people's consent. Alford pleas present the greatest
risk of convicting innocent defendants while allowing guilty
defendants to repudiate responsibility for their crimes. This
constitutionally-suspect contrivance puts justice "on sale" while
unacceptably depriving the innocent of any justice whatsoever.
¶65 In this case, I endorse the court's conclusion that "the
record demonstrates strong proof of guilt to overcome the innocence
maintained in Nash's Alford plea." Majority op., ¶¶4, 50. I
therefore join the majority opinion, which reflects the current
state of the law. I write separately to reiterate the fundamental
flaws of plea bargaining in general, which is inherently inimical
to the search for truth that should be paramount in any system of
justice. I respectfully concur.
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No. 2018AP731-CR.jjk
¶66 JILL J. KAROFSKY, J. (concurring). I join the
majority opinion in full. I write separately to discourage the
acceptance of Alford pleas in Wisconsin circuit courts. 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.
¶67 When the courts permit a defendant who is actually guilty
to avoid taking responsibility, a victim may not fully obtain
closure. See, e.g., Claire L. Molesworth, Knowledge Versus
Acknowledgement: Rethinking the Alford Plea in Sexual Assault
Cases, 6 Seattle J. for Soc. Just. 907, 908 (2008). Our criminal
justice system demands that "the victim of a crime places his or
her trust in the criminal justice system. How then does a victim
react when he or she hears the defendant plead guilty while all
the while maintaining his innocence to the crime? The sense of
finality is clearly missing." State v. Garcia, 192 Wis. 2d 845,
868-69, 532 N.W.2d 111 (1995) (Wilcox, J., concurring). Victims
in cases resolved by Alford pleas may suffer from a lack of
finality, and as this court has stressed, "justice requires that
all who are engaged in the prosecution of crimes make every effort
to minimize further suffering by crime victims." Schilling v.
Crime Victims Rights Bd., 2005 WI 17, ¶26, 278 Wis. 2d 216, 692
N.W.2d 623.
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No. 2018AP731-CR.jjk
¶68 Alford pleas likewise can have a negative impact on
defendants, particularly defendants convicted of sexual offenses.
Failing to take responsibility can severely hamper a defendant's
rehabilitation and render him ineligible for otherwise-available
treatment options. As this court has previously reasoned, "[a]n
inherent conflict arises when a charged sex offender enters an
Alford plea: the offender cannot maintain innocence under the
Alford plea and successfully complete the sex offender treatment
program, which requires the offender to admit guilt."1 State ex
rel. Warren v. Schwarz, 219 Wis. 2d 615, 652, 579 N.W.2d 698(1998). For these reasons, I encourage circuit court judges to
proceed with caution when asked to accept an Alford plea and to
accept such pleas sparingly.
¶69 Lastly, it is important to state unequivocally that
crime victims who come forward and report their victimization are
brave. We rely on "the civic and moral duty of victims and
witnesses of crime to fully and voluntarily cooperate with law
enforcement and prosecutorial agencies." Wis. Stat. § 950.01(2017-18). Such citizen cooperation is important to "state and
local law enforcement efforts and the general effectiveness and
well-being of the criminal justice system of this state." Id. In
this case, the young victims fulfilled their duty, holding their
abuser accountable and in doing so demonstrated more strength,
resiliency, and courage than most of us could ever imagine.
¶70 For the foregoing reasons, I respectfully concur.
1 See Wis JI—Criminal SM-32A for more information about the
detrimental effect of Alford pleas, including their impact on
defendants.
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¶71 I am authorized to state that Justices ANN WALSH BRADLEY
and REBECCA FRANK DALLET join this concurrence.
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1