TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: September 7, 2012
RE: Rule 11, N.D.R.Crim.P., Pleas
The Supreme Court recently released an opinion in Kooser v. State, a case that involved a defendant's claim that the trial court erred when it declined to allow him to withdraw his Alford plea. When the Court discussed Kooser, the question of whether allowing Alford pleas is consistent with Rule 11 was raised. The Chair has requested that the Committee address this issue.
Rule 11 is based on the federal rule. As the attached notes to Fed.R.Crim.P. 11 point out, an Alford plea is considered a nolo contendere plea in the federal system and the federal rule allows these pleas. The original criminal rules committee proposed that North Dakota allow nolo pleas under Rule 11, but the Court rejected this when it ultimately approved the rule. This Committee discussed adding nolo pleas to Rule 11 when it reviewed the criminal rules in 2004, but it declined to do so. An excerpt from the Committee's September 2004 minutes is attached so the Committee can review the nolo plea discussion.
The original case of North Carolina v. Alford, 400 U.S. 25 (1970), involved a guilty plea, not a nolo plea. Mr. Alford was charged with first degree murder and faced the death penalty. While he maintained that he was innocent, he pled guilty to second degree murder to avoid a possible death sentence. He later tried to withdraw his guilty plea. In analyzing Mr. Alford's claims that his plea was invalid, the court said "[a]n individual accused of crime may voluntarily, knowingly and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime." After finding that Mr. Alford's plea was voluntary and that the state had presented strong evidence of his guilt, the Alford court held that his plea was valid. A copy of the case is attached.
The North Dakota Supreme Court has allowed Alford pleas since State v. McKay, 243 N.W.2d 853 (N.D. 1975), in which it was guided by the language from Alford quoted above. McKay involved a defendant who could not remember whether he committed the crime or not. The McKay court pointed out the two key factors involved in a valid Alford plea (or any guilty plea): "The decision on how to plead must be based on an understanding of the evidence against him and of the consequences of his plea. The trial court must ensure that the facts on which defendant will base his decision are accurate and properly presented." A copy of McKay is attached.
In Kooser, the defendant sought to withdraw his Alford plea based on his claim that, because he denied a key element of the offense, the factual basis to his plea was inadequate. This seems to be a common argument among defendants seeking to withdraw Alford pleas. The Kooser court analyzed the facts supporting the plea as presented by the state and rejected Mr. Kooser's argument. The court's rationale was similar to that of McKay and it quoted the same language from Alford discussed above. A copy of Kooser is attached.
The Court is concerned that defendants in general do not understand that a guilty plea can be valid even if they do not admit guilt. The Court would like the Committee to discuss whether it might be appropriate to have some language in Rule 11 that would make it clear that an admission of guilt is not a required component of a guilty plea. One approach could be to follow the federal rule and adopt the nolo plea. Another possibility would be to add language to Rule 11 that would address the question of whether a guilty plea was being made as admission of guilt or as a convenience.
For the purposes of discussion, proposed amendments to Rule 11 are attached that include language based on the Florida guilty plea rule. A copy of the Florida rule is also attached.