(concurring):
I concur with the result reached today. However, I write separately to point out that the majority opinion is unclear as to what level of evidence amounts to a showing of the factual basis required for an Alford plea. The opinion states that “there must be evidence from which a *678court could reasonably find that the defendant was guilty — a factual basis for the plea.” The opinion also states that the record in this case must reveal either facts that would support the prosecution of a defendant or suggest the defendant faces a substantial risk of conviction at trial. In the conclusion, the opinion states the record contains “sufficient evidence of actual guilt to provide a factual basis.”
Further, it is potentially problematic to require a “sufficient” or “reasonable” factual basis for Alford pleas in cases involving pleas to lesser or unrelated offenses. Defendants may have any number of reasons to plead guilty. For example, it would make eminently good sense to preserve one’s economic welfare and future employment by avoiding the “felony conviction” label. Also, many defendants plead guilty to avoid mandatory sentencing.
The problem with requiring even a “reasonable” or “sufficient” degree of evidence of a defendant’s guilt is that no possibility exists for a judge to find evidence of guilt in some cases involving Alford pleas to a lesser or unrelated offense. For example, assume a defendant is charged with burglary, and the defendant has the requisite intent to commit theft but does not actually exercise control over any property. Assume also that the defendant, pursuant to a plea agreement, pleads guilty to a misdemeanor theft charge. A judge could not find “sufficient” or “reasonable” evidence of the defendant’s guilt because one of the requisite elements of theft never occurred. Another example occurs when, pursuant to a plea agreement, a defendant pleads guilty to an attempted crime, rather than the actual crime. In this situation, the defendant may not have acted with the requisite intent required for the “attempted” crime. Thus, the above pleas are entered based upon imaginary or fictional sets of facts. In these situations, the requirement of any level of evidence of guilt would result in rejection of the guilty plea and frustration of the defendant’s attempt to secure a more lenient sentence. It would also result in increased costs for the courts and would limit the options for plea bargains. A less rigid standard will allow the court discretion, will discourage future litigation of the plea bargain, and will allow the defendant leeway in determining his or her fate.