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  • December 01, 2020

    Wisconsin Supreme Court Clarifies Alford Plea Requirements

    Joe Forward

    WI Supreme Court

    Dec. 1, 2020 – An Alford plea allows defendants to maintain their innocence but accept a conviction, so long as a sufficient factual basis exists for each element of the crime. Recently, the Wisconsin Supreme Court clarified the Alford plea requirements.

    In State v. Nash, 2020 WI 85 (Nov. 19, 2020), the court’s first criminal case decision of the term, the justices unanimously affirmed a decision to deny Kevin Nash’s post-conviction motion to withdraw his Alford plea in a child sexual assault case.

    In 2015, three minor girls ages 8, 12, and 15, told a forensic interviewer Nash sexually assaulted them on multiple times between 2011 and 2012 in Waukesha County.

    A criminal complaint charged Nash with first-degree sexual assault of a child under 12, and repeated sexual assault of a child. As evidence, the state sought to introduce the video-recorded forensic statements from the three minor girls and other acts evidence – the victims’ allegations of four prior sexual assaults in Georgia and Milwaukee.

    Under a plea deal, Nash would be charged with one count of second-degree sexual assault of a child under age 16, which carried a maximum penalty of 25 years in prison with 15 years of extended supervision (40 years).

    Ultimately, Nash pled no contest to the amended charge and the circuit court judge accepted the plea (the judge denied it the day before) after conducting a careful plea colloquy to ensure Nash was entering the plea willingly, knowingly, and voluntarily.

    That is, the judge questioned Nash on whether he understood that he can plead no contest without admitting guilt but he must acknowledge and understand that the state had sufficient evidence to pursue a conviction at trial.

    The judge accepted the plea after Nash’s acknowledgement and found “a sufficient factual basis based on the contents of the complaint and the offer of proof.”

    Nash was sentenced to three years in prison and five years extended supervision, but stayed the sentence and put Nash on probation for five years, on condition that he serve one year in jail with 258 days of credit for time served.

    Strong Proof of Guilt

    More than a year later, Nash moved to withdraw his Alford plea, arguing the court accepted the plea without strong evidence of actual guilt in the record. Specifically, he said the record relied solely on the testimony of three children with no other proof.

    Joe Forward Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.

    The state argued that the criminal complaint was sufficient to show strong proof of guilt. The circuit court denied Nash’s postconviction motion concluding there was sufficient proof and Nash did not demonstrate a manifest injustice warranting a plea withdrawal.

    The appeals court affirmed, and supreme court affirmed the appeals court after concluding the record on which the circuit based the plea reflected strong proof of guilt.

    “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 will result in a judgment of conviction, despite the defendant's claims of innocence,” wrote Justice Annette Ziegler.

    The supreme court noted that circuit courts must find strong proof of guilt for each element of the alleged crime, but circuit courts have discretion to make those calls.

    “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,” Ziegler wrote.

    Evidentiary Standard

    Nash asked the court to use its superintending authority “to impose certain evidentiary standards for establishing a sufficient factual basis for an Alford plea,” including live testimony, oral statements of relevant witnesses, or other documentary evidence.

    However, the court declined. “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,” Justice Ziegler wrote.

    “[T]his 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.”


    Justice Rebecca Bradley joined the majority opinion in full but wrote separately “to point out the pitfalls of plea bargaining – particularly when Alford pleas are part of the deal.”

    Alford pleas, she wrote, “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,” Justice R. Bradley noted.

    Justice Jill Karofsky wrote short concurrence, joined by Justice Ann Walsh Bradley and Justice Rebecca Dallet. They also joined the majority opinion in full but wrote separately “to discourage the acceptance of Alford pleas in Wisconsin circuit courts.”

    Justice Karofsky said that Alford plea may be the only way victims are spared from testifying while holding offenders accountable.

    “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,” Karofsky wrote.

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    WisBar Court Review, published by the State Bar of Wisconsin, includes summaries and analysis of decisions from the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit, as well as other court developments. To contribute to this blog, contact Joe Forward.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

    © 2024 State Bar of Wisconsin, P.O. Box 7158, Madison, WI 53707-7158.

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