The Pitfalls of the Alford Plea

In an opinion filed this week in the South Carolina Supreme Court (Opinion No. 27250), we see the benefits and the pitfalls of a defendant pleading guilty in an “Alford” plea. For those who are not familiar with what that is, basically it is a plea bargain where the defendant’s position is that he wants to take the plea bargain, but still maintain his innocence.
In this case, State v. John Herndon, Appellate Case No., 2011-184909, the defendant was arrested for criminal sexual conduct with a minor in the first degree. While he maintained his innocence, he took the plea bargain under Alford. He was convicted of assault and battery of a high and aggravated nature, and sentenced to ten years, suspended to five years probation, which included a provision that he successfully complete sex abuse counseling. If he failed to comply with probation, he would have to register as a sex offender for life if he did not successfully complete the counseling.
Mr. Herndon began the sex abuse counseling. This counseling required that he admit the abuse he committed on the victim and submit to three polygraph examinations about the abuse. Herndon actually did do two of the polygraph examinations, but refused to do the third one, saying he did not want to admit guilt because he had not been convicted of a sex offense.
Herndon was given a probation citation and terminated from the sex abuse counseling. He was brought back to court where the court continued his probation and ordered Herndon to complete the counseling. He failed to comply with that order by continuing to refuse to admit his guilt in counseling, which was a requirement of the counseling. He was again brought back to court, where he argued that he was not given adequate notice that he would have to admit guilt as part of his counseling. The court ordered that he register as a sex offender for life and he appealed. The crux of the issue here is that Herndon felt that with an Alford plea, he was able to maintain innocence. As the court stated, “The primary thrust of the Alford decision is that a defendant may voluntarily and knowingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit he participated in the acts constituting the crime.” United States v. Morrow, 914 F.2d 608, 611 (4th Cir. 1990). In this case, the court reasoned, “the Alford plea does not create a special category of defendant exempt from the punishment applicable to her conviction. Thus, circuit courts are under no duty to provide notice to Alford defendants any differently than the notice provided to defendants entering a standard guilty plea, or those defendants adjudicated guilty.”
The defendant gets to “save face” by using an Alford plea, but it is legally the same as a guilty plea. The criminal record shows a conviction just as if he had pled guilty. The punishment is the same, so refusing to comply with probation will bring the same punishment regardless of why. This is something every defendant should keep in mind if they hope to use an Alford plea.

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