|
|
NOTICE This opinion is
subject to further editing and modification.
The final version will appear in the bound volume of the official
reports. |
|
|
|
No. 94-2894-CR
STATE OF WISCONSIN
: IN SUPREME COURT
|
|
|
|
State of Wisconsin, Plaintiff-Respondent, v. George Smith, Defendant-Appellant-Petitioner. |
FILED JUN 14, 1996 Marilyn L. Graves Clerk
of Supreme Court Madison,
WI |
REVIEW
of a decision of the Court of Appeals.
Reversed and cause remanded.
DONALD W. STEINMETZ,
J. The issue presented in this case is whether a defendant, as
part of a plea agreement with the State, can enter an Alford[1]
plea to a crime which was legally impossible for the defendant to have
committed. We hold that in order to
accept an Alford plea, even in the context of a plea agreement, a court
must find that there is strong proof of guilt as to each element of the crime
to which the defendant is pleading.
Since it was legally impossible in this case for the defendant to have
committed the crime to which he entered an Alford plea, the trial court
could not have found strong proof of guilt that the crime was committed.
The facts leading to this
review of the court of appeals decision are not in dispute. While on parole, the defendant was charged
with second-degree sexual assault pursuant to Wis. Stat. § 940.225(2)(a).[2] Specifically, it was alleged that on
December 7, 1993, the defendant, through use of or threat of force, had sexual
contact with a 16-year-old female without her consent. The defendant waived his preliminary hearing
and entered an Alford plea on February 22, 1994, to the amended charge
of child enticement, Wis. Stat. § 948.07(1),[3]
in Milwaukee County Circuit Court before the Honorable Jeffrey A. Wagner. The defendant entered this plea as part of a
plea agreement with the State. In
return, the State agreed to recommend that the defendant's prison sentence run
concurrently with the sentence he would receive as a result of his parole
revocation. The court accepted the
State's recommendation and on March 2, 1994, the defendant was sentenced to ten
years in prison.
On July 29, 1994, the
defendant moved to withdraw his Alford plea, alleging that there was no
factual basis to support the charge since child enticement requires the victim
to be less than 16 years of age. The
trial court denied the defendant's motion to withdraw. The court of appeals, in an unpublished
opinion, reluctantly affirmed, deeming itself bound by the decision in State
v. Harrell, 182 Wis. 2d 408, 513 N.W.2d 676 (Ct. App. 1994). Under Harrell, a defendant can enter
a no contest or guilty plea to any crime which is reasonably related to a more
serious crime for which a factual basis exists, even if a "true greater-
and lesser-included offense relationship does not exist" between the two
offenses. Id. at 419. The court of appeals concluded that since
the crime of child enticement was reasonably related to the original offense of
sexual assault, the trial court did not commit error in not allowing the plea
to be withdrawn.
Withdrawal of a plea
following sentencing is not allowed unless it is necessary to correct a
manifest injustice. See State
v. Rock, 92 Wis. 2d 554, 558-59, 285 N.W.2d 739 (1979). 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. See White v. State, 85
Wis. 2d 485, 488, 271 N.W.2d 97 (1978).
When the plea entered is an Alford plea, the factual basis is
deemed sufficient only if there is strong proof of guilt that the defendant
committed the crime to which the defendant pleads. See North Carolina v. Alford, 400 U.S. 25, 37-38 (1970);
State v. Garcia, 192 Wis. 2d 845, 857-58, 532 N.W.2d 111 (1995); State v. Johnson, 105 Wis. 2d
657, 663, 314 N.W.2d 897 (Ct. App. 1981).
However, in the context of a negotiated guilty plea, this court has held
that 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." See Broadie v.
State, 68 Wis. 2d 420, 423-24, 228 N.W.2d 687 (1975). The determination of the existence of a
sufficient factual basis lies within the discretion of the trial court and will
not be overturned unless it is clearly erroneous. See Broadie, 68 Wis. 2d at 423.
Before accepting a guilty
plea or a plea of no contest, the trial court must ascertain "that the
defendant in fact committed the crime charged." Wis. Stat. § 971.08(1)(b).[4] Although Alford pleas are not
mentioned in the statute, this court has specifically made the procedural
safeguards of Wis. Stat. § 971.08 applicable to such pleas. Garcia, 192 Wis. 2d at 856, 860. Subsection (1)(b) requires a court to
establish a sufficient factual basis that the defendant committed the crime to
which he or she is pleading. See
State v. Bangert, 131 Wis. 2d 246, 262, 389 N.W.2d 12 (1986).[5] In an Alford plea, a trial court is
required to find a sufficient factual basis, i.e., strong evidence of
guilt, in order to conclude that the defendant committed the crime to which he
or she is entering the plea. In Johnson,
the court of appeals stated:
The prosecutor's recital of the
evidence in this case indicates that the state could prove all of the
elements of the crimes charged, and is sufficient to negate defendant's
protestation of innocence, which was solely based upon defense counsel's
statement that defendant 'has constantly and always denied any involvement to
me in the [. . . incident].' (emphasis
added.)
Johnson, 105
Wis. 2d at 665. 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.
Alford pleas are
treated differently from guilty pleas in regard to the factual basis
requirement because Alford pleas allow a defendant to be convicted of a
crime even though the defendant continues to assert his innocence. In Johnson, 105 Wis. 2d at 663, the
court of appeals recognized the difficulty posed by an Alford plea in
relation to the factual basis requirement and held that when an Alford
plea was entered, the factual basis requirement could only be fulfilled if
there was a showing of "strong proof of guilt" by the state that the
defendant committed the crime to which he or she pled. In Garcia, we specifically approved
the reasoning in Johnson and cited the following language:
'We conclude that in Wisconsin a trial court can
accept an Alford plea of guilty without violating the factual basis rule
of Ernst v. State where, despite the defendant's protestations of
innocence, the trial court determines that the prosecutor's summary of the
evidence the state would offer at trial is strong proof of guilt.'
Garcia, 192 Wis. 2d at
857-58. The requirement of a higher
level of proof in Alford pleas is necessitated by the fact that the
evidence has to be strong enough to overcome a defendant's
"protestations" of innocence.
Although strong proof of guilt is less than proof beyond a reasonable
doubt, State v. Spears, 147 Wis. 2d 429, 435, 433 N.W.2d 595 (Ct.
App. 1988), it is clearly greater than what is needed to meet the factual basis
requirement under a guilty plea.
Thus the court of appeals'
conclusions that a defendant may enter a plea to a reasonably related crime if
there is proof of the more serious charge (Harrell), and that the
circuit court need not go to the same lengths in reviewing the facts to sustain
a negotiated plea as a nonnegotiated plea (Broadie and Harrell),
are not applicable to this Alford plea case. Harrell involved a no contest plea and Broadie
involved a guilty plea. This case,
instead, involves an Alford plea, and therefore is controlled by
Garcia's requirement of strong proof of guilt. In an Alford plea, the
court must be satisfied that there is strong evidence of guilt despite
the defendant's protestations of innocence.
The application of the
factual basis requirement and Garcia to the case before us is a simple
matter. The factual basis requirement
demands that a sufficient factual basis exists as to each element of the crime
to support the conclusion that the defendant committed the crime to which he or
she entered the Alford plea.
Since the defendant in this case entered an Alford plea, the
factual basis requirement is only satisfied if there is strong proof of guilt
as to each element of the crime. The
trial court, however, could not have found such proof in this case. The defendant entered an Alford plea
to the charge of child enticement. In
order to accept this plea, the trial court would have had to find that there
was strong proof that the victim was under the age of 16. It is undisputed, however, that the victim
was in fact 16 years old.
Since the factual basis
requirement was not met, and in fact could not have been met in this case, the
trial court should have allowed the defendant to withdraw his plea in order to
prevent a manifest injustice. Its
decision not to do so was clearly erroneous.
By the Court.—The decision of the court of appeals is reversed
and the cause is remanded.
SUPREME
COURT OF WISCONSIN
Case No.: 94-2894-CR
Complete Title
of Case: State of Wisconsin,
Plaintiff-Respondent,
v.
George Smith,
Defendant-Appellant-Petitioner.
_______________________________________
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at: 196 Wis.2d
646, 539 N.W.2d 336
(Ct. App. 1995)
UNPUBLISHED
Opinion Filed: June 14, 1996
Submitted on Briefs:
Oral Argument: April
30, 1996
Source of APPEAL
COURT: Circuit
COUNTY: Milwaukee
JUDGE: JEFFREY A. WAGNER
JUSTICES:
Concurred:
Dissented:
Not Participating:
ATTORNEYS: For the defendant-appellant-petitioner
there was a brief and oral argument by Donna L. Hintze, assistant state
public defender.
For the
plaintiff-respondent the cause was argued by Thomas J. Balistreri,
assistant attorney general, with whom on the brief was James E. Doyle,
attorney general.
[1] Alford pleas are named after the
defendant in the United States Supreme Court case which first upheld their
constitutionality. See North
Carolina v. Alford, 400 U.S. 25 (1970).
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).
[2] Wis.
Stat. § 940.225(2)(a) provides as follows:
(2) Second
degree sexual assault. Whoever does any of the following is guilty of a Class C
felony:
(a) Has sexual contact or sexual intercourse with another person without consent of that person by use or threat of force or violence.
[3] Wis.
Stat. § 948.07(1) provides as follows:
948.07
Child enticement. Whoever, with intent to commit any of the
following acts, causes or attempts to cause any child who has not attained the
age of 18 years to go into any vehicle, building, room or secluded place is
guilty of a Class C felony:
(1)
Having sexual contact or sexual intercourse with the child in violation of s.
948.02.
Wis. Stat. § 948.02(2) provides: "Whoever has sexual contact or sexual intercourse with a person who has not attained the age of 16 years is guilty of a Class C felony."
[4] Wis.
Stat. § 971.08(1)(b) provides as follows:
971.08
Pleas of guilty and no contest; withdrawal thereof. (1) Before the court accepts a plea of guilty or no
contest, it shall do all of the following:
(a) Address the defendant personally and
determine that the plea is made voluntarily with understanding of the nature of
the charge and the potential punishment if convicted.
(b) Make such inquiry as satisfies it that the defendant in fact committed the crime charged.