United States v. Gaskins, 158 U.S. App. D.C. 267 (D.C. Cir. 1973)

PER CURIAM.

Appellant was convicted of the felony of first degree burglary.1 He assigns as one ground of error the District Court’s refusal to accept appellant’s tendered plea of guilty to the lesser-included offense of unlawful entry,2 a misdemeanor, even though the prosecutor agreed to accept such a disposition, and vigorously urged the acceptance of the bargained plea upon the court. The Government, conceding merit in this claim, has moved to the District Court to accept the lesser plea. We are not bound by this concession, but after examination of the record we conclude that there was indeed error as claimed.

At a hearing held March 13, 1972, appellant admitted entering, without permission, the home of Mr. and Mrs. Willard J. Blackwell, Sr. where he was apprehended by the Blackwells’ son, an officer of the Metropolitan Police Department, who was off duty at the time.3 When asked by the court to describe further what had happened on the evening in question, appellant related that he had entered the house against his will when a “dude pointed a gun at me and told me to go in the house.”4 The court then stated, “I can’t take the plea.” Both defense counsel and prosecutor urged that in the face of the strong proffered evidence,5 the District Court could accept the tendered plea under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), even though appellant maintained his innocence. The court maintained that as long as the appellant equivocated about his guilt, he should go to trial, gaining acquittal if he were believed and taking the chance of a felony conviction.6 Immediately prior to trial, on April 11, 1972, appellant once more attempted to plead guilty to the lesser-included misdemeanor of unlawful entry. Again, the District Court refused to accept the plea, stating: “I am not going to accept the plea unless the defendant admits that he committed the crime.”

The District Court’s only reason for not accepting the plea was appellant’s refusal to state an unequivocal confes

si on of guilt. In North Carolina v. Alford, supra, the Supreme Court held that a plea of guilty to second degree murder was constitutionally valid even though the defendant maintained his innocence, as long as there was strong evidence of guilt before the trial court, and the plea represented “a voluntary and intelligent choice among the alternative courses of action open to the defendant.” 400 U.S. at 31, 91 S.Ct. at 164. The Court recognized that in some cases the Government’s evidence against a defendant might be so strong that he “may voluntarily, knowingly, and understanding^ consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.”

Although Alford squarely accepted the joinder of a guilty plea with refusal to admit guilt, at least as to any constitutional bar to such joinder, the Court also recognized that a defendant “does not have an absolute right under the Constitution to have his guilty plea accepted by the court . . .” Id. at 38 n. 11, 91 S.Ct. at 168.7 The Court noted that Rule 11 of the Federal Rules of Criminal Procedure provides that the trial court “may refuse to accept a plea of guilty,”8 but added that “[w]e need not now delineate the scope of that discretion.” Id. Although Rule 11 invests the District Court with discretion to refuse a guilty plea it is an abuse of discretion to refuse a guilty plea solely because the defendant does not admit the alleged facts of the crime.

In McCoy v. United States, 124 U.S.App.D.C. 177, 178, 363 F.2d 306, 307 (1966) this Court acknowledged that a literal reading of Rule ll’s language “resposes a discretion” in the court to refuse a guilty plea, but added, “the plea should not be refused without good reason.” The Court recognized that “guilt . is at times uncertain and elusive” and emphasized that “the court is not required to insist that the accused concede the inevitability or correctness of a verdict of guilty were the case tried.” 124 U.S.App.D.C. at 179, 363 F.2d at 308.

In Griffin v. United States, 132 U.S.App.D.C. 108, 405 F.2d 1378 (1968), we held that the trial court erred in refusing to accept a bargained plea to manslaughter on a second degree murder indictment where the plea was refused because interrogation of the defendant by the court exposed inconsistences in his prior account which raised the possibility of a self-defense claim. The discretion afforded by Rule 11 was noted, but the Court then added:

Id. at 110, 405 F.2d at 1380.9

The Supreme Court has recently reiterated what is universally acknowledged: “The disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called ‘plea bargaining,’ is an essential component of the administration of justice.” Santobello v. New York, 404 U.S. 257, 260, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971). When the trial judge is presented with a “factual basis for the plea”,10 as there surely was in this case where there was strong factual evidence implicating defendant, an intelligent and voluntary counselled plea should not be refused simply because the defendant who is willing to enter a plea of guilty is unable or unwilling to testify to his guilt in factual terms. The entry of such a plea of guilty in such a situation is not contrary to the interests of justice. Rule 11 was intended for the protection of the defendant, and does not require a denial to the defendant of the opportunity to act in his own best interest, as advised by his trial counsel. When a defendant seeks to plead guilty while protesting his innocence, the trial judge is confronted with a danger signal. It puts him on guard to be extremely careful that his duties under Rule 11 are fully discharged. It highlights the importance of his obligation under Rule 11 to assure that there is indeed a factual basis for the plea and that the defendant is clearly advised not only of the penalties to which he is exposed but of the fact that his plea waives any defenses to the charge. But after fully satisfying himself of the factual basis for the plea, and that the presentation of pertinent facts discloses no plain legal defense, the trial judge errs in insisting on trial merely because the defendant refuses to accompany his plea to lesser charges with an admission of the guilt indicated by the other evidence presented to the court.

Appellant’s conviction is reversed, and appellee’s motion to remand is granted with instructions to accept a plea of guilty to the charge of unlawful entry.

So ordered.