State v. Nash

• Citation: 2020 WI 85,951 N.W.2d 404,394 Wis.2d 238
• Decision Date: 19 November 2020
• Docket Number: No. 2018AP731-CR,2018AP731-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Kevin L. NASH, Defendant-Appellant.
• Court: Wisconsin Supreme Court

394 Wis.2d 238

951 N.W.2d 404

2020 WI 85

STATE of Wisconsin, Plaintiff-Respondent,

v.Kevin L. NASH, Defendant-Appellant.

No. 2018AP731-CR

Supreme Court of Wisconsin.

Oral Argument: September 11, 2020

Opinion Filed: November 19, 2020

For the defendant-appellant, there were briefs filed by Jefren E. Olsen, assistant state public defender. There was an oral argument by Jefren E. Olsen.

For the plaintiff-respondent, there was a brief filed by John W. Kellis, assistant attorney general; with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by John W. Kellis.

ZIEGLER, J., delivered the majority opinion for a unanimous Court. REBECCA GRASSL BRADLEY, J., filed a concurring opinion. KAROFSKY, J., filed a concurring opinion, in which ANN WALSH BRADLEY and DALLET, JJ., joined.

ANNETTE KINGSLAND ZIEGLER, J.

¶1 This is a review of an unpublished decision of the court of appeals, State v. Nash, No. 2018AP731-CR, unpublished slip op., 2019 WL 1940698 (Wis. Ct. App. May 2, 2019), affirming the Waukesha County circuit court's¹ judgment and order denying Kevin L. Nash's postconviction motion to withdraw his Alford ² plea. We affirm.

¶2 An Alford plea is "a guilty plea in which the defendant pleads guilty while either maintaining his innocence or not admitting having committed the crime." State v. Garcia, 192 Wis. 2d 845, 856, 532 N.W.2d 111 (1995). Nash was convicted of second-degree sexual assault of a child after entering an Alford plea. After sentencing, Nash sought to withdraw his Alford plea and argued that manifest injustice would result if he were not allowed to withdraw his plea because the circuit court failed to establish strong proof of guilt as to each element of the offense. He argues that the factual basis, upon which the circuit court relied, is insufficient to overcome his assertion of innocence. He requests that this court exercise its superintending authority and adopt specific procedures to satisfy the heightened standard under Alford.

¶3 Nash has not met his burden to prove by clear and convincing evidence that manifest injustice would result if he were not permitted to withdraw his plea. The record was sufficient for the circuit court to accept Nash's Alford plea. Nash, having had the benefit of reviewing discovery materials and charging documents with counsel, accepted the plea offer of the State. He acknowledged that he understood the elements of the offense and agreed that the State's evidence was sufficient to prove him guilty. Based on the facts alleged in the charging documents, the other acts evidence, the forensic interviews, the inculpatory statement and transcript of the inculpatory statement, statements by counsel for Nash and the State, and statements from Nash at the plea hearing admitting that the State could present evidence sufficient to convict him, the record demonstrates that there was a sufficient factual basis to support strong proof of Nash's guilt for each of the two elements of the offense. The circuit court specifically concluded that the State's offer of proof and the amended complaint provided a sufficient factual basis for Nash's Alford plea. The court of appeals concurred and held that the circuit court did not erroneously exercise its discretion in denying Nash's plea withdrawal motion. We agree.

¶4 We conclude that Nash has failed to establish by clear and convincing evidence that manifest injustice merits plea withdrawal, and that the factual basis in the record demonstrates strong proof of guilt to overcome the innocence maintained in Nash's Alford plea. Further, this court will not exercise its superintending authority to require that courts employ a specific procedure to establish a sufficient factual basis when accepting an Alford plea. Accordingly, we affirm.

I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

¶5 The following facts are in the record we review. On October 6, 2015, police initiated an investigation into allegations that Nash sexually assaulted C.L.W. between November 2011 and November 2012, in Pewaukee, Wisconsin. The police arranged for C.L.W. and her two sisters, A.T.N. and M.K.N., to be forensically interviewed.

¶6 On October 8, 2015, forensic interviews were conducted with the three victims. At the time of the interviews, C.L.W. was eight years old, A.T.N. was 12 years old, and M.K.N. was 15 years old. During the forensic interviews, each victim alleged that Nash engaged in forced sexual intercourse with each of them between November 2011 and November 2012. These alleged assaults occurred at their homes in Milwaukee and Pewaukee, as well as at a relative's house in Georgia. C.L.W. alleged that Nash exposed his penis to her and forced it into her mouth when she was only four or five years old. A.T.N. stated that Nash had forced sexual intercourse with her on an almost daily basis between November 2011 and November 2012, when she was only nine or ten years old. M.K.N. similarly alleged that Nash engaged in forced sexual intercourse with her. The forensic interviewer video-recorded each of the victims’ forensic interviews and provided the recordings to the police.

¶7 On February 2, 2016, the State filed a criminal complaint charging Nash with two counts: Count 1, first-degree sexual assault of a child under age 12, alleged that "[Nash] between November 1, 2011 and November 1, 2012, [in Pewaukee], did have sexual intercourse with a child under the age of [12], [C.L.W.] ..."; and Count 2, repeated sexual assault of a child, alleged that "[Nash], between November 1, 2011 and November 1, 2012, [in Pewaukee, Wisconsin], did commit repeated sexual assaults involving the same child, [A.T.N.], [ ] where at least three of the assaults were violations of [ Wis. Stat. §] 948.02(1)(am), (b) or (c) ...." The court found probable cause for the allegations based upon the narrative in the complaint and signed an arrest warrant for Nash. The complaint also specifically alleged that the State would seek to introduce other acts evidence and the victims’ forensic interviews. The complaint, containing a factual narrative supporting the allegations, was attached to the arrest warrant.

¶8 On February 9, 2016, Nash was arrested in Georgia and subsequently extradited to Wisconsin. On February 23, 2016, Nash made his initial appearance in the Waukesha County circuit court.³

¶9 On March 28, 2016, Nash waived his right to a preliminary hearing, and the State filed an Information alleging the same two criminal counts and penalties stated in the amended complaint. Nash then entered a plea of not guilty to the charges contained in the Information.

¶10 On April 26, 2016, the State filed a notice of expert testimony, naming the forensic interviewer, and a notice of intent to use the three victims’ video-recorded forensic statements. The State also filed a motion to admit other acts evidence and sought to introduce the victims’ allegations of four prior sexual assaults Nash committed in order to show his motive and intent for the charged offenses. Describing what the victims alleged in their forensic interviews as a basis for admitting the other acts evidence, the State asserted the following:

[C.L.W.] recalled an incident that occurred ... in Milwaukee. She said that this incident occurred [in] the basement of that address. She remembers that [Nash] put his "privates" into her "privates." She said that [Nash] was on top of her while they were on the couch in the basement.

[C.L.W.] remembers that [Nash's] "private" moved in and out of her. When this was over, [Nash] told her not to tell anyone about it.

[A.T.N.] described an incident that occurred in Georgia .... She said that during that visit, she was in the garage with [Nash]. She said that she didn't want to be in the garage with him, as he [was] making her do things that she did not want to do. Specifically, [Nash] made her lie down and he "touched her private part with his private parts." He also put his hand over her mouth. While this was happening, [A.T.N.] remembers that [someone] walked in on this, and from that point on, [they] kept her and [Nash] separated.

[I]n Milwaukee, [Nash] tried to put his "private parts" inside of [A.T.N.]. This happened in the [ ] basement. She remembers the isolation of that basement, and how completely that basement stifled all sound.

Finally, [M.K.N.], during her forensic interview, spoke with very obvious trauma about incidents that she remembers [that occurred] in Milwaukee County. She remembers a first incident when [Nash] made her and [A.T.N.] take their clothes off. When this happened, she said that [Nash] would do "sexual things."

¶11 On June 29, 2016, the circuit court held a hearing on the State's motion to admit the prior sexual assaults in Georgia and Milwaukee as other acts evidence. During the hearing, the State recounted in detail the assaults that occurred in Georgia and in Milwaukee. Nash argued against the admission of the other acts evidence, but the circuit court agreed with the State. The circuit court permitted the State, if a trial occurred, to bring in the prior alleged sexual assaults as evidence.

¶12 By letter dated August 2, 2016, the State notified the circuit court and Nash that it obtained a copy of a video-recorded statement Nash made on February 9, 2016, while in police custody in Georgia, in which he admitted to engaging in sexual contact with A.T.N. in Pewaukee. The State gave notice that it intended to call the police officer who took the statement as a witness and to introduce Nash's statement if a trial occurred.

¶13 On August 17, 2016, the State filed its witness list. The witness list included all three victims, the forensic interviewer, and the police officer from Georgia.

¶14 On August 25, 2016, the day the parties were scheduled to meet for a pre-trial status conference, the parties notified the court that they had reached a plea agreement. The State filed an Amended information, amending the original charges of first-degree sexual...