State v. Daniels

MCDONALD, J.,

concurring. The majority today declines to decide whether an Alford1 plea would bar the defendant from asserting his innocence in any subsequent proceeding. See footnote 11 of the majority opinion. In fairness to criminal defendants who, everyday, and in very large numbers, enter Alford pleas to accept plea bargains while not admitting guilt, and for the sake of the criminal justice system, we should address this issue and not leave it in doubt. In this era *83of too much violent crime and the allocation of too few judicial resources to the criminal justice system, Alford pleas are essential.

The state contends that the defendant’s appeal is moot because the court cannot grant him any practical relief. Essentially, the state argues that the defendant’s Alford plea would estop him from establishing his innocence at a new hearing. According to the state, therefore, this court can provide no relief to the defendant because a reversal of the trial court’s finding of a violation of probation ultimately could not change the defendant’s status as a probation violator.

Although a conviction is a “more than sufficient basis for revocation of probation”; State v. Pecoraro, 196 Conn. 305, 307, 493 A.2d 180 (1985); I believe that the defendant’s Alford plea does not estop him from protesting his innocence at a subsequent hearing and thus his appeal is not moot.

In State v. Palmer, 196 Conn. 157, 169 n.3, 491 A.2d 1075 (1985), this court observed that a guilty plea under Alford is a “judicial oxymoron” because a guilty plea is a confession of guilt. We stated that with “a guilty plea under the Alford doctrine . . . the defendant does not admit guilt but acknowledges that the state’s evidence against him is so strong that he is prepared to accept the entry of a guilty plea nevertheless.” Id. We also observed in Palmer that, “[i]n North Carolina, v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), the United States Supreme Court treated [an Alford plea] as the functional equivalent of a plea of nolo contendere.” State v. Palmer, supra, 169 n.3.

In Alford, the United States Supreme Court observed that a guilty plea under which the defendant maintains his innocence is the practical equivalent of a plea of nolo contendere: “The fact that his plea was denominated a *84plea of guilty rather than a plea of nolo contendere is of no constitutional significance with respect to the issue now before us . . . .Nor can we perceive any material difference between a plea that refuses to admit commission of the criminal act [i.e., a nolo contendere plea] and a plea containing a protestation of innocence [i.e., an Alford plea] . . . .” North Carolina v. Alford, supra, 400 U.S. 37; see also State v. Martin, 197 Conn. 17, 20 n.7, 495 A.2d 1028 (1985).

It is well established that a plea of nolo contendere does not establish conclusively a defendant’s guilt in subsequent civil or criminal proceedings. See, e.g., annot., 89 A.L.R.2d 540, 600 (1963) (“[t]he fundamental rule, as unanimously accepted by all the courts as a rule expressing the effect of the plea in the case, is that while the plea of nolo contendere may be followed by a sentence, it does not establish the fact of guilt for any other purpose than that of the case to which it applies”).

The United States Circuit Courts of Appeals have held that pleas of nolo contendere may not be used to establish guilt conclusively in subsequent civil and criminal proceedings. See, e.g., Doherty v. American Motors Corp., 728 F.2d 334, 337 (6th Cir. 1984) (“aplea of nolo contendere is a confession only for the purpose of the criminal prosecution and does not bind the defendant in a civil action for the same wrong”); Lipsky v. Commonwealth United Corp., 551 F.2d 887, 893-94 (2d Cir. 1976) (consent decrees, like nolo contendere pleas, may not be used in subsequent proceeding for collateral estoppel purposes, since issues sought to be precluded were not actually litigated). The majority of state courts also have so held. See, e.g., State v. Ruby, 650 P.2d 412, 414 (Alaska App. 1982) (“[A] conviction, even though based upon a plea of nolo contendere, is admissible in a subsequent probation revocation proceeding to prove a violation of law. . . . Consistent with general law governing pleas of nolo contendere, such evidence is, *85however, not conclusive against [the defendant]. It does not collaterally estop him from protesting his innocence and, consequently, he should be given an opportunity, if he requests it, to put on evidence which would support his contention that he is not guilty . . . .”); Maselli v. State, 446 So. 2d 1079, 1080-81 (Fla. 1984) (at probation revocation proceeding, “[t]he judge may rely on [a] conviction even if it was imposed pursuant to a plea of nolo contendere,” but “the probationer must be provided an opportunity to be heard on . . . whether he is guilty of the charge to which he pleaded no contest”). Connecticut decisions are in accord with this majority view. State v. Bridgett, 3 Conn. Cir. Ct. 206, 208-209, 210 A.2d 182 (1965) (“[t]he defendant is not estopped from denying the facts to which he pleaded nolo contendere in a subsequent judicial civil proceeding”). With respect to an Alford plea, the Appellate Court stated in Johnson v. Commissioner of Correction, 36 Conn. App. 695, 706, 652 A.2d 1050, cert. denied, 233 Conn. 912, 659 A.2d 183 (1995), that “an Alford plea . . . would have enabled [the defendant] to continue to maintain his innocence.”

I conclude that the defendant’s Alford plea may not be used at a subsequent probation revocation hearing as conclusive proof that he violated the conditions of his probation. The state may present evidence of his conviction at the hearing, but the Alford plea is not dispositive of his guilt of the alleged crime for which he previously entered the Alford plea. At any new probation revocation hearing, I believe that the defendant retains the right to contest his guilt, despite the fact that he had pleaded guilty under the Alford doctrine and was thereby convicted.

It is this court’s responsibility to guide the parlies and the trial courts. Literally thousands of Alford pleas have been made and may be made with the understanding that the defendant is not admitting guilt. If the effect *86of such a plea will be to bar a later contest of guilt in another proceeding, I fail to see why any defendant would enter an Alford plea. As the highest court in this state, we should either give effect to the “protestation of innocence”; North Carolina v. Alford, supra, 400 U.S. 37; in an Alford plea or repudiate our past decisions approving its use.2 A civilized criminal justice system demands nothing less.

I do agree that the trial court carefully and thoughtfully considered the ample evidence demonstrating that the defendant did violate the conditions of his probation. Accordingly, I concur in the result.

In North Carolina v. Alford, 400 U.S. 25, 37-38, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), the United States Supreme Court upheld the defendant’s guilty plea even though he continued to proclaim his innocence. The court analogized this guilty plea to a plea of nolo contendere, defined as “a plea by which a defendant does not expressly admit his guilt, but nonetheless waives his right to a trial and authorizes the court for purposes of the case to treat him as if he were guilty.” Id., 35.

See, e.g., State v. Amarillo, 198 Conn. 285, 314 n.17, 503 A.2d 146 (1986) (“[u]nder [Alford], a criminal defendant is not required expressly to admit his guilt, but effectively to consent to being punished as if he were guilty”); see also State v. Coleman, 242 Conn. 523, 527, 700 A.2d 14 (1997); State v. Garvin, 242 Conn. 296, 299, 699 A.2d 921 (1997); State v. Domian, 235 Conn. 679, 683, 668 A.2d 1333 (1996); State v. Blue, 230 Conn. 109, 110, 644 A.2d 859 (1994); Commissioner of Corrections. Gordon, 228 Conn. 384, 385, 636 A.2d 799 (1994); State v. Campbell, 224 Conn. 168, 171, 617 A.2d 889 (1992), cert. denied, 508 U.S. 919, 113 S. Ct 2365, 124 L. Ed. 2d 271 (1993); State v. Esposito, 223 Conn. 299, 302 n.2, 613 A.2d 242 (1992); State v. Pinnock, 220 Conn. 765, 777 n.4, 601 A.2d 521 (1992); State v. Anderson, 220 Conn. 400, 403, 599 A.2d 738 (1991); State v. Niblack, 220 Conn. 270, 275, 596 A.2d 407 (1991); State v. Badgett, 220 Conn. 6, 8, 595 A.2d 851 (1991); Mainiero v. Liburdi, 214 Conn. 717, 720, 573 A.2d 1207 (1990); State v. Simms, 211 Conn. 1, 3, 557 A.2d 914, cert. denied, 493 U.S. 843, 110 S. Ct. 133, 107 L. Ed. 2d 93 (1989); State v. Crenshaw, 210 Conn. 304, 306, 554 A.2d 1074 (1989); State v. Wright, 207 Conn. 276, 279, 542 A.2d 299 (1988); Sutton v. Lopes, 202 Conn. 343, 344, 521 A.2d 147 (1987); Oppel v. Lopes, 200 Conn. 553, 555, 512 A.2d 888 (1986); State v. Watson, 198 Conn. 598, 601, 504 A.2d 497 (1986); State v. Sutton, 197 Conn. 485, 487, 498 A.2d 65 (1985), cert. denied, 474 U.S. 1073, 106 S. Ct. 833, 88 L. Ed. 2d 804 (1986); State v. James, 197 Conn. 358, 359, 497 A.2d 402 (1985); State v. Stanley, 197 Conn. 309, 311, 497 A.2d 46 (1985); State v. Palmer, supra, 196 Conn. 169; State v. Suggs, 194 Conn. 223, 224-25, 478 A.2d 1008 (1984); State v. Shockley, 188 Conn. 697, 699, 453 A.2d 441 (1982); Blue v. Robinson, 173 Conn. 360, 378, 377 A.2d 1108 (1977).