TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: January 16, 2013
RE: Rule 11, N.D.R.Crim.P., Pleas
At the September meeting, the committee discussed whether language should be added to Rule 11 that would require an acknowledgment from a defendant making a so-called Alford plea. This discussion was prompted by the Supreme Court's concerns that defendants in general do not understand that a guilty plea can be valid even if they do not admit guilt. The committee made multiple amendments to the original acknowledgment proposal, which was based on language from a Florida rule. The committee decided that the rule should be tabled so that it could evaluate its amendments to the provision before making further amendments. The proposal on the table, as amended by the committee, is attached and labeled Alt. A.
Prior to deciding to table the proposal, the committee was discussing whether the court needed to query a defendant making an Alford plea on whether the plea was knowing, intelligent and voluntary. The committee did not make any amendments along this line. Most of the amendments the committee made at the September meeting were drawn from the language of North Carolina v. Alford, 400 U.S. 25 (1970) and State v. McKay, 243 N.W.2d 853 (N.D. 1975). Copies of these cases are attached.
One of the topics that came up during the discussion was whether the state should adopt the nolo contendere plea. Staff was requested to research the nolo plea and its collateral consequences compared to a guilty plea. Fortunately, there is an ALR annotation that covers this topic at 89 ALR 540. This annotation indicates that at least 27 jurisdictions, led by the Federal courts, accept the plea. The collateral consequences of the plea, however, vary considerably.
Even though North Dakota does not accept the nolo plea, its statutes impose certain collateral consequences for those who make the plea that are essentially indistinguishable from the consequences of a guilty plea. For example: under N.D.C.C. §§ 10-19.1-91(3), 10-32-99(3), 10-33-84(3), a nolo plea may be a factor in determining whether a person is eligible for indemnification by a business organization; under § 12.1-32-15, a nolo plea to sex crime means sex offender registration is required; and peace officers (§ 12-63-12), mortgage purveyors (§ 13-10-05), teachers (§ 15.1-13-25); outdoor outfitters (§ 20.1-03-25), architects (§ 43-03-20) and chiropractors (§ 43-06-15) among many other categories of licensed professionals can be denied licenses based on nolo pleas to offenses.
The ALR annotation lists some categories where a nolo plea may be treated differently than a guilty plea. In particular, there is a general rule that a nolo plea does not establish guilt in any matter other than the particular case in which it was made. So, a nolo plea generally cannot be used to establish a defendant's "guilt" in a civil suit or in another criminal case. On the other hand, the federal courts and many states (including North Dakota as shown above) allow a conviction obtained by nolo plea to be treated the same as a conviction obtained by trial or guilty plea.
If the committee wishes to consider amending Rule 11 to allow a nolo plea in North
Dakota, staff has prepared an alternative proposal, labeled Alt. B, that incorporates the
federal rules language related to the nolo plea. This alternative proposal is attached.