N.D. Supreme Court hears challenge to Alford plea, dispute over "knowing" vs. "intentional" murder and 85% rule

The North Dakota Supreme Court heard oral argument in Kareem Lee Byrd Jr. v. State (file no. 20240252) on whether Byrd may withdraw an Alford plea to a charge described in the information as "conspiracy to commit intentional or knowing murder," and on related claims that his trial counsel provided ineffective assistance by advising him the plea would avoid an "85%" sentencing requirement.

Appellant counsel Kiera Krauskar asked the court to find the plea noncognizable because the factual basis submitted at the change-of-plea hearing, she said, supported only "knowing" (unintentional) conduct and not the higher culpability of intentional killing. "We have a noncognizable offense," Krauskar told the court, arguing that Byrd did not admit specific intent and that his Alford plea leaves unclear which mental state he accepted.

The case matters because, as appellant counsel framed it, accepting a plea to a partly noncognizable charge can affect the voluntariness and knowing nature of the plea and may remove the district court's lawful basis to accept the plea. "If he had known this was a noncognizable offense, he would not have pleaded guilty to it," Krauskar said during rebuttal.

In response, appellee counsel Joshua Traeser told the court the charging instrument and facts accepted at the Alford plea provided a lawful construction of the charge as "conspiracy intentional murder," pointing to agreed facts that Byrd returned to the scene with a co‑defendant and fired multiple rounds. "The defendant agreed that these facts could be provided to a jury," Traeser said, urging that the trial judge could infer the requisite intent from those agreed facts.

Justices pressed both sides on how Alford pleas differ from conventional guilty pleas and on the proper analytical framework when a defendant later contends the plea was not knowing and voluntary. "Does it matter that there's an Alford plea?" Justice Daniel Crothers asked; Traeser answered it does because an Alford plea records stipulated facts for a judge to evaluate much like evidence at trial.

Counsel and the justices also debated the practical effect of language scrivened into charging instruments. Traeser suggested some erroneous or surplus phrasing — notably inclusion of the word "knowingly" — can stem from standardized drafting tools prosecutors use and may not change whether a cognizable construction exists. Krauskar countered that the record does not show Byrd understood the distinction between the mental‑state alternatives in the charge.

The attorneys also discussed whether counsel's effort to avoid application of an "85%" statute (described in the transcript as the state—s violent‑offender serving requirement) could amount to ineffective assistance if counsel misadvised Byrd about that statute. Traeser said the record shows trial counsel negotiated a plea that produced a concrete sentencing benefit and argued the record is sparse on any prejudice to the State from restoring the dismissed murder count. "There was such a large benefit garnered by Mr. Byrd in entering this plea," Traeser told the court, asking the justices to weigh prejudice and benefit in the ineffective‑assistance analysis.

Both sides cited precedents the court has used in previous noncognizability disputes (cases referenced in argument included Pemberton, Casey, Swanson, Heeb and a Kansas decision, McPherson). Appellant counsel emphasized this court has usually confronted noncognizability claims after jury trials; she argued the plea context raises distinct Rule 11 (change‑of‑plea) concerns and that the court's federal‑style Rule 11 analysis requires a sufficient factual basis at the plea colloquy.

No decision was announced from the bench during the argument. The court took the matter under advisement and adjourned the morning session; argument was later rescheduled for the afternoon calendar, the clerk noted at the hearing—s close.

The record on appeal includes the change‑of‑plea transcript, the charging instrument, and testimony from a postconviction hearing in which trial counsel acknowledged he had sought a plea that would avoid the 85% rule, and the petitioner asserted he would not have pleaded if he had known the charged language was partly noncognizable. The parties disputed whether (and to what extent) those facts are legally dispositive of jurisdiction, voluntariness, or prejudice under the postconviction relief standards adopted in North Dakota.