The sole question presented for decision is whether defendant was coerced into entering a plea of nolo contendere to second degree murder in order to avoid the possibility of capital punishment and thereby was deprived of his constitutional rights to trial by jury, to confront his accusers, and his constitutional privilege against compulsory self-incrimination.
Defendant contends that he has never admitted his guilt because he had no recollection concerning the actual homicide, and further, that his plea of nolo contendere does not expressly admit guilt. He relies heavily on the case of Alford v. State of North Carolina, 405 F. 2d 340. In that case the defendant was indicted for first degree murder and through his counsel tendered a plea of guilty of second degree murder to the State. The solicitor for the State agreed to accept the plea, and the trial court heard damaging evidence against the defendant before accepting the plea. The defendant professed his innocence throughout the proceedings, and contended that his plea was entered because of the threat of the death penalty which he would have faced had he pleaded not guilty. He was sentenced to thirty years in prison. After various petitions and proceedings, the Fourth Circuit Court of Appeals heard an appeal from a denial of petition for writ of habeas corpus by Judge Eugene A. Gordon, District Judge for the Middle District of North Carolina. The Court of Appeals, holding the plea to be involuntary because it was motivated by fear of the death penalty inter alia, stated:
“North Carolina law presently prescribes the death penalty for murder in the first degree, as well as certain other crimes. In each instance the penalty prescribed is death; in each instance also the jury may, in its discretion, obligatorily recommend that punishment be imprisonment for life. North Carolina does not permit an accused who pleads not guilty to waive a jury trial. The accused may avoid a jury trial only if he pleads guilty and, by statute, a plea of guilty may not result in a punishment more severe than life imprisonment. Thus, a person accused of a capital crime in North Carolina is faced with the awesome dilemma of risking the death penalty in order to assert his rights to a jury trial and not to plead guilty, or, alternatively, of pleading guilty to avoid the possibility of capital punishment. It was precisely this sort of inhibitory or chilling *432effect upon the exercise of constitutional rights which the Supreme Court condemned in Jackson (390 U.S. 570, 20 L. Ed. 2d 138, 88 S.Ct. 1209) because a statutory scheme such as that employed by North Carolina ‘needlessly encourages’ guilty pleas and jury waivers.
“In the light of the principles we distill from Jackson, we have no hesitancy in concluding from our examination of the record that petitioner’s plea of guilty was made involuntarily, and that petitioner is entitled to relief by habeas corpus.”
The State of North Carolina appealed from the decision of the Fourth Circuit Court of Appeals, and the United States Supreme Court noted probable jurisdiction, heard argument on 17 November 1969, and reargument on 14 October 1970. On 23 November 1970 the Supreme Court handed down its opinion (39 L.W. 4001, 400 U.S. 25, 27 L. Ed. 2d 162) vacating the judgment of the Circuit Court of Appeals and remanding the cause for further proceedings consistent with its opinion. We quote excerpts from the Court’s opinion:
“We held in Brady v. United States, 397 U.S. 742 (1970) that a plea of guilty which would not have been entered except for the defendant’s desire to avoid a possible death penalty and to limit the maximum penalty to life imprisonment or a term of years was not for that reason compelled within the meaning of the Fifth Amendment. Jackson established no new test for determining the validity of guilty pleas. The standard was and remains %ohether the plea represents a voluntary and intelligent choice among the alternative cowrses of action open to the defendant. (Citations omitted) That he would not have pleaded except for the opportunity to limit the possible penalty does not necessarily demonstrate that the plea of guilty was not the product of a free and rational choice, especially where the defendant was represented by competent counsel whose advice was that the plea would be the defendant’s advantage. The standard fashioned and applied by the Court of Appeals was therefore erroneous. . . . (Emphasis supplied)
*433“State and lower federal courts are divided upon whether a guilty plea can be accepted when it is accompanied by protestations of innocence and hence contains only a waiver of trial but no admission of guilt. Some courts, giving expression to the principle that ‘ [o] ur law only authorizes a conviction where guilt is shown,’ .... require that trial judges reject such pleas. But others have concluded that they should not ‘force any defense on a defendant in a criminal case,’ particularly when advancement of the defense might ‘end in disaster . . . . ’
“The issue in Hudson v. United States, 272 U.S. 451 (1926) was whether a federal court has power to impose a prison sentence after accepting a plea of nolo contendere, a plea by which a defendant does not expressly admit his guilt, but nonetheless waives his right to a trial and authorizes the court for purposes of the case to treat him as if he were guilty. The Court held that a trial court does have such power, and except for the cases which were rejected in Hudson, the federal courts have uniformly followed this rule, even in cases involving moral turpitude. Bruce v. United States (supra) (379 F. 2d 113) at 120 n. 20 (dictum). See, e.g., Lott v. United States, 367 U.S. 421 (fraudulent evasion of income tax); Sullivan v. United States, 348 U.S. 170 (1954) (Ibid); Farnsworth v. Zerbst, 98 F. 2d 541 (CA5 1938) (espionage); Pharr v. United States, 48 F. 2d 767 (CA6 1931) (misapplication of bank funds); United States v. Bagliore, 182 F. 2d 714 (EDNY 1960) (receiving stolen property). Implicit in the nolo con-tendere cases is a recognition that the Constitution does not bar imposition of a prison sentence upon an accused who is unwilling expressly to admit his guilt but who, faced with grim alternatives, is willing to waive his trial and accept the sentence.
“ . . . An individual accused of crime may voluntarily, knowingly, and understandingly 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.
“ . . . When his plea is viewed in light of the evidence against him, which substantially negated his claim of innocence and which further provided a means by which the *434judge could test whether the plea was being intelligently entered, see McCarthy v. United States (supra) (394 U.S. 459), at 466-67 (1969), its validity cannot be seriously questioned. In view of the strong factual basis for the plea demonstrated by the State and Alford’s clearly expressed desire to enter it despite his professed belief in his innocence, we hold that the trial judge did not commit constitutional error in accepting it.”
Here, the record shows defendant to be a person of average intelligence who was faced with damaging and uncontradicted evidence sufficient to sustain a verdict of murder in the first degree. After consulting with his counsel and after being fully apprised of his rights and the effect of entering a plea of nolo contendere to second degree murder, defendant authorized his counsel, whose competency is unchallenged, to enter such plea in his behalf. Before allowing entry of the plea, the trial judge carefully examined defendant concerning the voluntariness of his plea and adjudged that the plea was freely, understandingly and voluntarily made.
Applying the principles set forth by the United States Supreme Court in North Carolina v. Alford, supra, we hold that defendant’s plea of nolo contendere to second degree murder represented a “voluntary and intelligent choice among the alternative courses of action open to the defendant.”
The judgment of the Superior Court is
Affirmed.
Justice Moore did not participate in the consideration or decision of this case.