BLAKELY, APPRENDI, AND ALFORD PLEAS

ALFORD PLEAS: PLEADING GUILTY WHILE CLAIMING INNOCENCE

BLAKELY, APPRENDI AND ALFORD PLEAS

http://www.vanderbiltlawreview.org/content/articles/2010/11/Gooch-Admitting-Guilt-by-Professing-Innocence-63-Vand.-L.-Rev.-1755-2010.pdf

Alford pleas allow equivocating defendants to take a deal without having to admit guilt. They also allow defendants for whom a guilty plea is simply the best deal to take it, with no further questions asked. When it comes to sentencing, however, Alford pleas can create constitutional tension. In Apprendi v. New Jersey and Blakely v. Washington, the Supreme Court held that the Sixth Amendment requires that any fact that increases a defendant’s maximum sentence, other than a prior conviction, must be proven to a jury beyond a reasonable doubt.13 As Justice Scalia wrote in Blakely, the Sixth Amendment’s jury trial right “is no mere procedural formality, but a fundamental reservation of power in our constitutional structure.”14 Although the jury typically has the duty of making the “beyond a reasonable doubt” determination, defendants can also establish this level of proof by admitting the crime. Alford defendants, however, expressly refuse to admit their crimes even while pleading guilty.

Defendants entering Alford pleas (or any type of plea resulting in a conviction) can face enhanced sentences in three settings. First, a defendant may face sentencing enhancements based on aggravating facts or underlying conduct in a single case.15 Second, if a defendant lands in court for a later, unrelated case, he may face a sentence enhancement based on the fact of his prior conviction resulting from
the earlier Alford plea. Third, a defendant in a later case may receive an enhancement based on the underlying conduct supporting his earlier conviction. This Note only addresses the first and third types of enhancements, meaning those based on the underlying conduct either in a single case or a later case. It does not address enhancements based simply on the fact of a prior conviction.16

This Note argues that any fact that any fact that enhances an Alford defendant’s sentence should be either specifically admitted by the defendant or proven to a jury beyond a reasonable doubt.

11. Id. at 476.
12. See North Carolina v. Alford, 400 U.S. 25, 37 (1970) (allowing a defendant to “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”); see also id. at 33–34 (collecting authority on the availability of
such pleas throughout the states).
13. Blakely v. Washington, 542 U.S. 296, 301–02 (2004); Apprendi, 530 U.S. at 490.
14. 542 U.S. at 305–06.
15. This is the type of enhancement that Apprendi received. Apprendi, 530 U.S. at 470–71.
1758 VANDERBILT LAW REVIEW [Vol. 63:6:1755

Alford Plea

A. Alford Who?
In an Alford plea, a defendant chooses to waive his Sixth Amendment right to trial and plead guilty, but at the same time protests his innocence.18 In other words, the defendant does not admit guilt, but acknowledges that the government has evidence against him upon which a jury could find him guilty. Before the Supreme Court’s decision in North Carolina v. Alford19 in 1970, it was unclear what courts were supposed to do with defendants who professed their innocence during plea colloquies. Prior to Alford, the Supreme Court held in Hudson v. United States that federal courts have the power to imprison defendants who plead nolo contedere, even though by making such a plea a defendant does not admit guilt.20 Alford changed things by allowing courts to imprison not
only defendants who refuse to admit guilt, but also those who openly protest that they are innocent—provided that the plea meets the constitutional requirements of being knowing and voluntary.21

The Court held that a defendant’s guilty plea may be accepted as long as it is entered knowingly, voluntarily, and understandingly and is based on a “strong factual basis,”29 even if the defendant protests that he is innocent or refuses to admit guilt.30

The implications of the Apprendi line of cases are dire for enhancements based on Alford pleas. A regular guilty plea conclusively establishes all underlying facts of a crime, but an Alford plea only establishes the bare minimum set of facts needed to support a conviction. Because Alford defendants do not admit the underlying facts of their crimes, any fact that supports an enhancement must be one that was essential to the defendant’s Alford conviction.

In Apprendi, as described in Part I, the defendant pleaded guilty to possession of a firearm with an unlawful purpose.74 Because the sentencing judge found by a preponderance of the evidence that Apprendi’s actions were racially motivated, he gave Apprendi a sentence enhancement pursuant to a New Jersey hate crime statute.75 The Supreme Court, however, held that this enhancement was based on improper judicial
factfinding because the facts justifying it had not been submitted to a jury for proof beyond a reasonable doubt, as required by the Sixth and Fourteenth Amendments.76 The Apprendi majority based its opinion on “two longstanding tenets of common-law criminal jurisprudence.”77 The first of these principles is that “the ‘truth of every accusation’ against a defendant ‘should afterwards be confirmed by the unanimous suffrage of twelve
of his equals and neighbours,’ ”78 meaning that no accusation should stand as true unless unanimously found to be true by a jury. The second is that “ ‘an accusation which lacks any particular fact which the law makes essential to the punishment is . . . no accusation in reason.’ ”79 These complementary ideals of criminal jurisprudence
reflect the goals that defendants receive a fair verdict and, if found guilty, are only punished in response to the crime of which they are found guilty. In simpler terms, the punishment should fit the crime. If punishment is based in part on facts that were not found by the jury, then a defendant has not been accused of all facts “which the law
makes essential to the punishment,” and the truth of the accusation has not been “confirmed by the unanimous suffrage of twelve of his equals and neighbours.”80

http://www.publications.ojd.state.or.us/A120603.htm
"No court has addressed whether an Alford plea constitutes an admission (of guilt) for purposes of Apprendi and Blakely. Given the unique character of such a plea--in which the defendant nominally pleads guilty but claims actual innocence, see ___ Or App at ___ n 1 (slip op at 1 n 1)--reasonable minds could differ as to whether such a plea represents an admission of facts for Blakely purposes."

"The Court in Blakely held unconstitutional a sentencing guidelines scheme that allowed "exceptional" sentences to be imposed based on judicial factfinding. In State v. Dilts, 337 Or 645, ___ P3d ___ (2004), the Oregon Supreme court held that Oregon's "upward departure" sentences, which are based on judicial factfinding, suffered from the same constitutional flaw as those struck down by the Court in Blakely."

"An Alford plea is a guilty plea in which the defendant does not admit commission of the criminal act or asserts that he is innocent. In such a situation, the trial court must determine that there is a factual basis for the plea. North Carolina v. Alford, 400 US 25, 91 S Ct 160, 27 L Ed 2d 162 (1970)."

An admission of guilt or jury trial is required to determine the truth of disputed facts
Apprendi v. New Jersey, 530 U. S. 466, 490 (2000): “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” This rule reflects two longstanding tenets of common-law criminal jurisprudence: that the “truth of every accusation” against a defendant “should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbours,”

No timely and specific objection to pre-sentence report by attorney: "In this appeal, Acron contends the sentencing court improperly imposed the sentences above the standard range. Because Acron failed to make a timely and specific objection to the pre-sentence report, the court was not required to hold a 'real facts' hearing under RCW 9.94A.370(2)

http://www.sgc.wa.gov/PUBS/Blakely-Minority%20Report.pdf
Minority Report: Restoring Judicial Discretion to Impose Exceptional Sentences for Violent Crimes
In SB 5477, the legislature restored the discretion of prosecutors to seek an exceptional sentence lost as a result of the Blakely decision by establishing a jury trial procedure. The legislature deferred the issue of restoring judicial discretion to impose an exceptional sentence upward and instead required the Sentencing Guidelines Commission to consider how to restore the judicial discretion which has been limited as a result of the Blakely decision and to review all provisions providing for exceptional sentences both above and below the standard sentencing ranges. It further required the Sentencing Guidelines Commission to consider the use of advisory sentencing guidelines for all or any group of crimes.1

Prior to the United States Supreme Court decision in Blakely v. Washington, judges had the ability to impose an exceptional sentence upward following a trial or a plea, if the judge made findings that an aggravating factor or factors existed from the non-exclusive statutory list or additional factors identified in case law.

The majority of such sentences were imposed in cases in which the prosecutor sought an exceptional sentence upward. However, in a limited number of cases where the prosecutor did not seek an exceptional sentence upward, such as Blakely, the judge had the ability under Washington law to impose an aggravated sentence.

Under the current state of the law, judges do not have their historical, independent authority to impose sentence. Rather, judges sentencing discretion is limited to the imposing standard range sentences within the generally narrow cells of the sentencing grid. Judges currently have no authority to impose an exceptional sentence upward unless the prosecutor seeks such a sentence and either the defendant agrees or the prosecutor proves the alleged aggravating factors to a jury.

The Sentencing Guidelines Commission received correspondence from Judge Michael Trickey, President of the Superior Court Judges Association, advising the Commission of the Associations strong support of advisory guidelines. Given the short timeline for the Commission's report to the legislature, Judge Trickey also advised the Commission of the Association's interest in restoring, on an emergency basis, judicial discretion to impose an exceptional sentence upward for violent offenses, a subset or group of crimes as authorized by the legislature. The Sentencing Guidelines Commission also received correspondence from Governor Christine Gregoire. Governor Gregoire noted that the law she signed, SB 5477, required the Commission to consider how to restore the judicial discretion which was lost as a result of Blakely. She stated that SB 5477 reduces the role of victims in the sentencing process [and] fails to make the fullest use of the experience, understanding, and wisdom that judges bring to sentencing, especially in the most difficult cases. Noting that she shared the judges concerns, Governor Gregoire stated that she expected the Commission to take those concerns and problems seriously, and work diligently with trial court judges and others to draft a legislative proposal that recognizes the value of that discretion and allows for its greater use in felony sentencing.

An emergency proposal to restore judicial discretion under the SRA to impose an exceptional sentence upward for violent offenses is contained in SB 5476 filed in the 2005 legislative session. In order to ensure that the fiscal impact of this proposed legislation is very low on both state and local government, the proposal has been further narrowed and contains the following provisions:

1. For offenders convicted of a violent offense, the upper limit of the standard sentencing range is advisory up to two times the top of the standard range where the standard range is a prison sentence (a sentence where the lower limit of the standard range is more than 12 months).

2. If the offender's standard range is a jail sentence (the top of the standard range is 12 months or less), the judge may impose twice the upper limit of the standard range or 12 months, whichever is less.

3. The prosecutor must assert a statutory aggravating factor in cases in which the state, through the prosecuting attorney, seeks an aggravated sentence.

This narrow emergency proposal restores the role of victims, particularly in cases in which the prosecutor has not sought an exceptional sentence upward, it restores the check and balance of the judicial branch on the decisions of the executive branch through the prosecutors' plea bargaining decisions and it is also consistent with the stated purpose of the Sentencing Reform Act to
structure, but not eliminate sentencing discretion.

The fiscal note developed for this proposal indicates that under the two most reasonable scenarios, there would be 1) a slight decrease in prison population until 2015 when the bed demand will increase by two beds, rising to 31 additional beds by 2025 or 2) a slight decrease until 2016 when the bed demand will increase by three beds, rising to 37 additional beds by 2025. This proposal
accomplishes, with little or no cost, the legislative goal of restoring some of the judicial discretion to impose an exceptional sentence upward in the category of violent offenses lost as a result of the Blakely decision.

Some Sentencing Guideline Commission members wish to see an increase in the judges authority to impose exceptional sentences both above and below the standard sentencing ranges, part of the larger task given to the Commission to review the SRA as it relates to the sentencing grid, all provisions providing for exceptional sentences both above and below the standard sentencing ranges, and judicial discretion in sentencing. Because the judges ability to impose an exceptional sentence below the standard range was not affected by the Blakely decision, the Superior Court Judges Association seeks to restore on an emergency basis the judicial discretion to impose an exceptional sentence upward for violent offenses as outlined in the amended version of SB 5476,
similar to the action taken by the legislature in 2005 to restore the states ability to seek an aggravated sentence. The Association also supports increasing judicial discretion to impose an exceptional sentence below the standard range.2

SB 5476, as modified, meets the Legislature's statement in SB 5477 of the need to restore the judicial discretion that has been limited as a result of the Blakely decision." The most realistic analysis reveals that the fiscal impact of this proposal would be minimal. A minority of the membership of the Sentencing Guidelines Commission supports the restoration of judge's discretion to impose an exceptional sentence as outlined in the version of SB 5476 contained in Appendix A and finds that this proposal complies with the legislative directive to the Sentencing Guidelines Commission contained in SB 5477.

1. Legislative intent and tasks assigned to the Sentencing Guidelines Commission in SB 5477 include the following:

While the legislature intends to bring the sentencing reform act into compliance as previously indicated, the legislature recognizes the need to restore the judicial discretion that has been limited as a result of the Blakely decision.

Sec. 5 (1) The sentencing guidelines commission shall review the sentencing reform act as it relates to the sentencing grid, all provisions providing for exceptional sentences both above and below the standard sentencing ranges, and judicial discretion in sentencing. As part of its review, the commission shall:

(a) Study the relevant provisions of the sentencing reform act, including the provisions in this act;

(b) Consider how to restore the judicial discretion which has been limited as a result of the Blakely decision;

(c) Consider the use of advisory sentencing guidelines for all or any group of crimes;

(d) Draft proposed legislation that seeks to address the limitations placed on judicial discretion in sentencing as a result of the Blakely decision; and

(e) Determine the fiscal impact of any proposed legislation.

(2) The commission shall submit its findings and proposed legislation to the legislature no later than December 1, 2005.

Dianne Jacobs Thompson Est. 2007
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