An Alford plea is a plea of “no contest” or “nolo contendere” to a criminal charge. In such situations the defendant does not plead guilty to the elements of the offense, but rather enters a plea that he will not contest, or fight, the allegations. Such a plea typically has the same legal effect as that of a plea of guilty, most significantly, that the individual is found guilty and convicted.
A basic condition of federal supervised release is that the defendant shall “commit no new offense.”
It is significant to notice that the standard language of most federal conditions of supervised release specifically recite that the defendant shall not “commit” a new offense; as opposed to language prohibiting “convicted” of a new offense. The question, then, is whether an Alford plea of no contest, which led to a criminal conviction, is sufficient to constitute commission of a new crime and, standing alone, is sufficient to support a violation of federal supervised release?
In 2006, the appeals court, in United States v. Nguyen, held that a “conviction resulting from a nolo contendere plea under these circumstances is not by itself sufficient evidence to prove a defendant committed the underlying crime.”
That finding gave the court guidance in the Kenneth Maynard Williams case. In 2009, Williams pled guilty to the Federal crime of receiving a stolen motorcycle in violation of 18 U.S.C. § 2313. He was given a 15-month prison term followed by three years of supervised release. Following his release from the Federal prison system, Williams was charged under Washington law with second degree assault with a firearm and unlawful possession of a firearm. This alleged offense occurred while he was still on Federal supervised release.
Williams vehemently denied the allegation, but eventually reached a plea agreement with state prosecutors to enter a no contest plea to a single charge of third degree assault. Based on the no contest plea, Williams was found guilty.
The Ninth Circuit called the charge a “legal fiction” because one of the elements of third degree assault under Washington law is “causing bodily harm”—something the alleged victims did not accuse Williams of doing. The Ninth Circuit was nonetheless compelled to recognize the charge because under Washington law a defendant can plead guilty to a “factually unsupported lesser charge if a factual basis exists to support the original charge.”
The no contest plea and subsequent conviction prompted Federal authorities to charge Williams with violating the mandatory condition of his Federal supervised release prohibiting a defendant from committing another “federal, state or local crime.” A revocation hearing was conducted in October 2019. At this hearing Williams mounted a strenuous argument that the Alford plea conviction “was not probative evidence of the commission of a crime and instead proved only his conviction, which is not itself a violation of any condition of his supervised release.” He argued that the Government had to prove he committed a state crime.
The district court rejected Williams’ argument, finding instead that he had violated the condition of his Federal supervised release by committing a state crime because he “pled guilty to committing a crime in state court.” The court recognized that Williams had maintained his innocence to the charge but found he “acknowledged that the state could prove he committed a crime beyond a reasonable doubt.” The court then sentenced him to 18 months’ imprisonment.
The question that reached the Ninth Circuit was “whether an Alford plea entered in Washington is legally sufficient by itself to warrant a finding that a person on supervised release violated the prohibition against committing a new state crime …” Besides the influence of Nguyen, the appeals court was also guided by a 2004 Third Circuit Court of Appeals decision in United States v. Poellnitz which held that it was error to rely on a “nolo [contendere] plea as evidence of commission of a crime.” Just last year a U.S. District Court in the Eastern District of North Carolina in United States v. Bass joined this legal debate with the conclusion: “In the context of an Alford plea, where the Defendant does not admit guilt, ambiguous language indicating [he] agreed there were facts to support the plea is not sufficient to demonstrate that [he] committed a state crime.”
The Ninth Circuit explained why it chose to follow the lead of these decisions into these newly charted legal waters:
“The plain language of the condition of supervised release that Williams was alleged to have violated bears repeating:’”The defendant shall not commit another federal, state or local crime’ (emphasis added) — a mandatory condition under 18 U.S.C. § 3583(d). The same statute would permit a district court to impose as a discretionary condition of supervised release a requirement that the defendant not be convicted of another federal, state, or local crime, but no such condition was imposed on Williams here. See 18 U.S.C. § 3583(d) (‘The court may order, as a further condition of supervised release . . . any other condition it considers to be appropriate . . . .’). Such a discretionary condition would give a federal defendant on supervised release charged with a state crime notice that a state Alford or nolo contendere plea would have federal consequences.
“Both Nguyen and Poellnitz rely on this distinction between commission of a crime and conviction of a crime … This distinction often disfavors individuals on supervised release who, although not convicted of another crime beyond a reasonable doubt, may nevertheless be subject to revocation of supervised release by evidence establishing by a preponderance of the evidence that they committed another crime. But this distinction may also cut the other way: One can be convicted of a crime without having actually committed it, as may be the case with Alford and nolo contendere pleas, not to mention an Alford plea to an unsupported charge …”
The bottom line in the Ninth Circuit case was this: State law will determine how Alford and nolo contendere pleas apply in these situations. The appeals court put it this way: “State law providing that an Alford or nolo contendere plea is to be treated the same as a guilty plea … will overcome the general proposition that it is not sufficient evidence of the underlying crime charged.”
And that’s why Kenneth William’s argument carried the day in the Ninth Circuit: the state of Washington does not treat Alford pleas as “probative of the commission of a crime.”
Therefore, it is the state law governing the legal effect of a no contest plea that will govern whether such a plea, standing alone, constitutes commission of a new offense. In Texas, Article 27.02 of the Code of Criminal Procedure specifically states that a plea of no contest has the same legal effect as that of a plea of guilty. So while the same argument should be made, that the no contest plea does not support finding of “commission” of a new offense, the result could be quite different from that in Williams.