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I made an alford plea. Can the court say I was convicted of the original charges later in a custody visitation case?

Olympia, WA |

I made an Alford Plea to DV in WA State. When court was deciding on visitation it was stated I was convicted of the original charge of rape which did not occur and was dropped due to the plea agreement. It is printed in the final visitation order I will not have visitation due to this so-called "conviction". That is not accurate and I am not sure what to do to get it changed. Can you please advise how to get this changed so it properly and correctly conforms to what actually took place during my sentencing? I did NOT plead "guilty" to this and as I stated it was dropped and I made an Alford Plea to the lesser charges. I am about to be released and need to reunite with my child.

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Attorney answers 5

Posted

The Alford plea is still a guilty plea, it just doesn't necessarily admit any wrongdoing, but rather it's an understanding that there is enough evidence that if you went to trial, the jury would likely find you guilty, and you don't want to risk it.

If the charges were dropped from rape to some lower DV related charge in exchange for your Alford plea, then you're guilty only of whatever you actually plead to. If the court ordering visitation is misinformed, you need to contact the court and ask for another hearing to set the record straight. At the hearing, bring this misinformation to the judge's attention and bring whatever supporting documents you have.

Asker

Posted

Thank you for your answer. I agree with what you have stated and will definitely begin with my attempt to have it changed by going to court and by using my original sentencing documents and whatever else my attorney has in his possession to show the courts ruling regarding sentencing and my plea. Although, once I have accomplished this I may apparently have a bigger battle on my hands after reading the RCW information stated below your comment in a comment by Thuong-Tri Nguyen. Is there a specific document I should prepare prior to the hearing as I can no longer afford an attorneys' assistance?

Frank Mascagni III

Frank Mascagni III

Posted

U.S. Supreme Court North Carolina v. Alford, 400 U.S. 25 (1970) North Carolina v. Alford No. 14 Argued November 17, 1969 Reargued October 14, 1970 Decided November 23, 1970 400 U.S. 25 Syllabus Appellee was indicted for the capital crime of first-degree murder. At that time, North Carolina law provided for the penalty of life imprisonment when a plea of guilty was accepted to a first-degree murder charge; for the death penalty following a jury verdict of guilty, unless the jury recommended life imprisonment; and for a penalty of from two to 30 years' imprisonment for second-degree murder. Appellee's attorney, in the face of strong evidence of guilt, recommended a guilty plea, but left the decision to appellee. The prosecutor agreed to accept a plea of guilty to second-degree murder. The trial court heard damaging evidence from certain witnesses before accepting a plea. Appellee pleaded guilty, although disclaiming guilt, because of the threat of the death penalty, and was sentenced to 30 years' imprisonment. The Court of Appeals, on an appeal from a denial of a writ of habeas corpus, found that appellee's guilty plea was involuntary because it was motivated principally by fear of the death penalty. Held: The trial judge did not commit constitutional error in accepting appellee's guilty plea. Pp. 400 U. S. 31-39. (a) A guilty plea that represents a voluntary and intelligent choice among the alternatives available to a defendant, especially one represented by competent counsel, is not compelled within the meaning of the Fifth Amendment because it was entered to avoid the possibility of the death penalty. Brady v. United States, 397 U. S. 742. P. 400 U. S. 31. (b) Hudson v. United States, 272 U. S. 451, which held that a federal court may impose a prison sentence after accepting a plea of nolo contendere, implicitly recognized that there is no constitutional bar to imposing a prison sentence upon an accused who is unwilling to admit guilt but who is willing to waive trial and accept the sentence. Pp. 400 U. S. 35-36. (c) An accused may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even though he is unwilling to admit participation in the crime, or even if his Page 400 U. S. 26 guilty plea contains a protestation of innocence, when, as here, he intelligently conclude that his interests require a guilty plea and the record strongly evidences guilt. Pp. 400 U. S. 37-38. (d) The Fourteenth Amendment and the Bill of Rights do not prohibit the States from accepting pleas to lesser included offenses. P. 400 U. S. 39. 405 F.2d 340, vacated and remanded. WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and HARLAN, STEWART, and BLACKMUN, JJ., joined. BLACK, J., filed a statement concurring in the judgment, post, p. 400 U. S. 39. BRENNAN, J., filed a dissenting opinion, in which DOUGLAS and MARSHALL, JJ., joined, post, p. 400 U. S. 39.

Frank Mascagni III

Frank Mascagni III

Posted

A so-called Alford Plea is a plea of guilty to the offense. The court enters a judgment of conviction "per Alford v. NC".

Posted

You were convicted of what you were convicted of. If the rape charge was dismissed or reduced you were not convicted of it. Was it "read in?"

An Alford plea means that you did not agree that you committed the crime for which you were convicted, but did agree to be convicted of that crime, usually to take advantage of a plea agreement.

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Asker

Posted

I'm not sure what "read in" refers to...

Charles K. Kenyon Jr.

Charles K. Kenyon Jr.

Posted

If you are charged with multiple offenses and plead guilty to one, others can be "read in." That means they are counted as if you did them but the total sentence exposure is not increased. You can never be charged with those offenses again.

Asker

Posted

The charge was dismissed and was not "read in", thank goodness. Also, the attorney stated the original charge would never come of issue with the court in the future, with no chance of their recharging me with the original offense I mean, due to the plea provisions. You have all been very helpful on this website and it is a great service to those in need of it. Thank you again.

Asker

Posted

Last but not least, I certainly hope I received good information and they CANNOT come back on me later with the original charge which was dropped. That would be awful. Please correct me if I am wrong. Thank you.

Posted

A person does not have to be convicted of any crime in order for the court to restrict that person's time with a child. RCW 26.09.191 (Restrictions in temporary or permanent parenting plans) provides most of the basis a court can find to restrict a person's parenting time.

The statutes are at http://apps.leg.wa.gov/rcw/default.aspx?cite=26.09 .

Apparently, you are in jail/prison for a charge involving DV. The original charge involved allegations of sex crimes.

The facts likely are sufficient under "(3) A parent's involvement or conduct may have an adverse effect on the child's best interests, and the court may preclude or limit any provisions of the parenting plan, if any of the following factors exist: ... (g) Such other factors or conduct as the court expressly finds adverse to the best interests of the child."

You should review the specific facts with your attorney to find out your legal options.

Asker

Posted

Thank you for your comment. I plan to read the RCW you provided. I need to prepare for a hearing to correct the error and once this has been accomplished, I plan to move forward seeking visitation, and obviously with no representation. My child was protected by myself AND family during the lengthy process of being charged thru my incarceration. I have always had custody of my child who resided with me until I departed. During my incarceration, I have maintained a close relationship with my child thru letters, cards, gifts and daily phone calls. Aside from physically seeing her for a short time, I am entirely involved in her life. She is a very well adjusted child and doing quite well. I am hopeful for a positive outcome in my endeavor seeking visitation once I resolve the documentation issue. I remain hopeful.

Posted

Yes. An Alford plea requires you to acknowledge that, though while you do not feel you are guilty, you are pleading guilty to avoid the hazards of trial and to take advantage of plea bargain offer.. Thus, there is very little practical difference between a guilty plea and an Alford plea.

Scott W Lawrence
Law Office of Scott Lawrence, PLLC
(425) 488-8481

Asker

Posted

Thank you for your comment. I do understand, however; the charges were reduced for a DV plea bargain, thus I truly believe the "conviction" mentioned in the visitation plan should be removed from the docs (or at least amended to reflect accuracy), since it in no way reflects what actually took place. The sentencing docs are accurate, the only docs which reflect inaccuracy are those which pertain to the visitation/custody. I have a job ahead of me. Thank you for your clarification which reinforces my original belief.

Posted

An "Alford" plea even to a lessor charge is a "best interst" plea but still a guilty plea. contact a criminal defense lawyer in your area.

Any response given is not to be taken as legal advice or to create an attorney client relationship.

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