Opinion
Court of Appeals No. A-10511.
February 23, 2011.
Appeal from the Superior Court, Fourth Judicial District, Trial Court No. 4BE-07-1568 CR, Bethel, Leonard Devaney, Judge.
Ryan Jerman, Power and Brown, LLC, Bethel, for the Appellant. Terisia Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Orrin Aloralrea accepted a plea bargain prior to trial and entered a guilty plea to a charge of third-degree sexual abuse of a minor. Before the sentencing hearing, Aloralrea filed a motion to withdraw his plea. On appeal, Aloralrea argues that Superior Court Judge Leonard Devaney abused his discretion in denying the motion. But we conclude that Aloralrea's decision that he would prefer to go to trial was not a fair and just reason to allow him to withdraw his plea.
Background
On October 25, 2007, Aloralrea was indicted on charges of second-degree sexual assault, third-degree sexual assault, and third-degree sexual abuse of a minor. The trial was continued several times, from the original date in February 2008 to October 2008. Aloralrea requested change of plea hearings in April and May 2008, but each time Aloralrea requested more time to consider the State's proposals. Aloralrea eventually requested another change of plea hearing that was scheduled for October 22.
At the hearing, Aloralrea entered a guilty plea on the charge of sexual abuse of a minor in the third degree. Judge Devaney questioned Aloralrea to ensure that he understood the rights he was giving up. Aloralrea confirmed that he made a voluntary decision to enter his plea.
At one point, Aloralrea had a question about his charges, and his attorney asked for some time to speak with him privately. After a short recess, Aloralrea stated that he had no further questions, and his attorney affirmed that Aloralrea understood the rights he was waiving with his plea. The judge then accepted the guilty plea and scheduled a sentencing hearing.
Three months later, Aloralrea filed a motion to withdraw his guilty plea. Judge Devaney denied Aloralrea's motion, concluding that Aloralrea had simply changed his mind about going to trial. Aloralrea now appeals. Discussion
Prior to sentencing, a trial court "may in its discretion allow the defendant to withdraw a plea for any fair and just reason unless the prosecution has been substantially prejudiced by reliance upon the defendant's plea." A trial court should consider presentence requests for plea withdrawal liberally, but this liberal perspective does not require a court to set aside a guilty plea "for no reason at all." A defendant's mere change of mind does not constitute a fair and just reason for plea withdrawal.
Shetters v. State, 751 P.2d 31, 35 (Alaska App. 1988).
Id.
The record supports Judge Devaney's decision that Aloralrea did not establish a fair and just reason to withdraw his plea. Aloralrea asserted that he "voluntarily entered a plea of no contest," but he later decided to "exercise his constitutional right of confronting the witnesses who [would] testify against him at trial." Aloralrea's affidavit in support of his motion indicated that he wanted to withdraw his plea only because he wanted to go to trial. Judge Devaney could reasonably conclude that Aloralrea had simply changed his mind.
On appeal, Aloralrea argues that his "skepticism and unease" about pleading guilty in the first place established a fair and just reason to withdraw his plea. But Aloralrea did not present this argument in the lower court, so Judge Devaney had no opportunity to rule on it. Conclusion
See generally Edwards v. State, 158 P.3d 847, 854 (Alaska App. 2007) (holding that contentions not raised in the trial court are waived).
We AFFIRM the superior court's judgment.