In re Cross [Wash. Sup. Ct. No. 79761-7]

The Washington Supreme Court unanimously held in this opinion that a capital sentence can be predicated on an Alford plea.  The court explained that the “advantage” of entering an Alford plea in a capital case is to preserve the ability to argue in the penalty phase that the defendant’s actions were not premeditated.  But if entering an Alford plea does not allow a criminal defendant to avoid the death penalty, this so-called “advantage” hardly seems worthwhile.  Assuming defense attorneys agree with this assessment, Alford pleas may be both inadvisable and obsolete in capital cases.

Dayva Cross pleaded guilty to killing his wife and two of her daughters in 2001.  When Cross pled guilty, he did so by way of an Alford plea.  In such a plea, the accused technically does not acknowledge guilt but concedes that there is sufficient evidence to support a conviction.  A trial court judge can accept an Alford plea only if it is made voluntarily, competently, and with an understanding of the charge and the consequences of the plea and if the judge is satisfied that there is a factual basis for the plea.

Critical to the Supreme Court’s analysis here, the trial court judge and the prosecutor painstakingly walked Cross through the elements of the crimes of which he was charged, his potential defenses, the rights he was relinquishing, and the punishment he faced.  The trial transcript showed that there was substantial evidence from which a jury could find premeditation and a common scheme and design.  The decision to plead guilty was tactical:  it preserved Cross’s ability to challenge these elements in the penalty phase.

In Cross’s case, the Alford plea approach did not work:  he was ultimately sentenced to death notwithstanding the plea.  Cross thereafter asserted in a personal restraint petition that a capital sentence cannot be predicated on an Alford plea.  The Supreme Court rejected the argument and denied that portion of his petition:

  • At common law, a defendant could not plead no-contest to a capital charge.  Courts accepted various types of no-contest pleas in misdemeanor cases, but if charged with a felony the defendant could only choose to confess or deny the charges – what we now call “guilty” and “not-guilty” pleas.
  • But an Alford plea, the Supreme Court reasoned, is not the same as the common law no-contest plea.  Unlike a modern Alford plea, a common law no-contest plea could be entered without any factual support or independent determination of sufficient evidence to support of finding of guilt.
  • In Washington, a trial court can accept an Alford plea only if the court finds that the plea is knowingly, voluntarily, and intelligently made and that there is a satisfactory factual basis to accept the plea.  CrR 4.2(d).  Further, such evidence must come from a reliable source and must be sufficient to conclude that the defendant is guilty.
  • Based on this legal backdrop, the Supreme Court concluded that “the Washington statutes and rules that provide for accepting an Alford plea are much different than those of ancient no contest pleas and, if followed, do provide an adequate basis to support capital punishment.”
  • The Court likewise rejected Cross’ argument that the Washington legislature “disapproves of Alford pleas.”  The Washington code does not expressly show such disapproval.  Nor has the legislature taken any steps to change the law since the Supreme Court explicitly approved of Alford pleas in State v. Newton, 87 Wn.2d 363 (1976).

The Supreme Court, having so ruled, denied Cross’ petition for review on this issue.