Opinion
Court of Appeals No. A-9507.
August 8, 2007.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Robert B. Downes, Judge, Trial Court No. 4FA-04-226 CR.
William R. Satterberg Jr., Law Offices of William R. Satterberg Jr., Fairbanks, for the Appellant. W. H. Hawley Jr., Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
On the eve of her trial on charges relating to an incident in which a pedestrian was killed, Danielle J. Hodges reached a plea agreement with the State. Five months later, and three days before sentencing, Hodges moved to withdraw her plea.
The superior court denied the motion, concluding that Hodges had not presented a fair and just reason to withdraw her plea, but had merely changed her mind. We affirm the superior court's decision for the reasons stated below.
Background facts and proceedings
Early on the morning of October 15, 2003, Hodges and George Jensen drove away from a bar in Nenana in a car belonging to Frederick Hancock, Hodges's boyfriend. Hodges was driving, and they were heading south on the Parks Highway toward Anderson.
At the same time, Glenda Lurvey was walking south on the shoulder of the highway with her dogs. Lurvey was intoxicated.
Along the way, Jensen told Hodges that he wanted to return to Nenana, so Hodges turned around and drove back north toward Nenana. Jensen saw a figure appear in front of the car, waving her hands. Hodges slammed on the brakes, and Jensen heard a "thump" come from the front of the car on the passenger's side.
Loren Braat was driving his tractor-trailer on the Parks Highway when he saw the vehicle Hodges was driving slow down and "weave around" on the road. Braat was concentrating on the weaving vehicle and ran over what he thought was trash on the road.
Both vehicles stopped. Braat got out and discovered Lurvey's body, a dead dog, and some of Lurvey's possessions, including a guitar case, on the road. Braat stayed and waited for the police; Hodges and Jensen left the scene and drove to Hancock's parents' house. Hodges and Jensen told Hancock's parents that they had hit someone with their car.
Nenana Police Chief Milton Haken investigated the incident. He found the Hancock vehicle outside the Hancock residence with body fluid, hair, and what appeared to be flesh on the driver's side bumper. The car had a broken headlight lens. Hodges submitted to a breath test and produced a reading of .101 percent breath alcohol.
Chief Haken determined that Lurvey had been struck by the Hancock vehicle about seventy-three feet from where she was run over by Braat's tractor-trailer. He found a broken headlight lens near the point of initial impact.
On January 23, 2004, the grand jury indicted Hodges for manslaughter. The prosecution filed an information adding the charges of driving while under the influence and leaving the scene of a motor vehicle accident. On February 10, 2004, the Office of Public Advocacy (OPA) entered an appearance after the assistant public defender originally assigned to the case withdrew because of a conflict of interest.
AS 11.41.120(a)(1).
AS 28.35.030(a)(2) and AS 28.35.050(a), respectively.
At the April 14, 2004, omnibus hearing, the parties told the court that trial was likely, but that they were waiting for some lab reports. The lab reports were still unavailable at an April 23 calendar call, so trial was set for August 23, 2004. The reports were still unavailable on August 19 and trial was continued until November 1, 2004. On October 28, the trial was again continued until December 6, 2004, because the lab reports were still not available. On November 24, 2004, the parties stipulated that the evidence would be transferred to the Veterinary Genetics Laboratory at the University of California, Davis, and trial was continued until the week of March 7, 2005.
On February 16, 2005, William R. Satterberg entered an appearance as Hodges's attorney, replacing OPA, and moved to continue the trial for sixty days until May 2005, stating that Satterberg did not have pretrial transcripts or the necessary experts. Satterberg's affidavit stated that two experts would not be available for trial the week of March 7.
Superior Court Judge Richard D. Savell denied the motion. According to log notes in the record, he explained in a hearing that there had already been extensive delay in the case, and that Hodges was creating a claim of ineffective assistance by retaining a new attorney three weeks before trial. The log notes indicate that Judge Savell said that if Satterberg believed he could not provide effective representation to Hodges, given the short time before the scheduled trial, the judge would reappoint OPA.
Although we normally do not cite to court log notes, Hodges failed to designate this hearing for transcription.
On March 1, 2005, Judge Savell granted a motion to suppress the results of Hodges's breath alcohol test. On March 8, Hodges entered a no contest plea to a reduced charge of negligent homicide,and the State agreed to dismiss the other charges. The parties agreed to a 2-year cap on Hodges's sentence. According to the log notes, Judge Savell accepted the plea, "subject to review at sentencing," apparently because he had concerns that the sentence might be too lenient. Hodges did not designate this hearing for transcription.
AS 11.41.130(a).
Five months later, on August 8, 2005, only three days before sentencing, Hodges moved to withdraw her plea. Hodges claimed that the plea was entered "under extreme pressure" from Judge Savell because he wanted to resolve the case before he retired in May 2005. Hodges also noted that Lurvey's family wanted the case to go to trial. Hodges submitted an affidavit in which she claimed she felt she was under pressure to enter the plea because Satterberg did not have sufficient time to prepare for trial. Hodges pointed to a favorable expert report concerning visibility of objects illuminated with headlights at night that had not been available until after she entered the plea (but which was available to Hodges about three months before she moved to withdraw her plea).
Superior Court Judge Robert B. Downes denied the motion. Judge Downes ruled that Hodges's claim that she was pressured into entering the plea because Satterberg did not have time to prepare was "belied by Mr. Satterberg's excellent pre-sentence memorandum, in which he outlines all of the evidence that could have been available to the defense at or about the time of sentencing (or trial)." He concluded that Hodges had simply changed her mind about entering the plea. Judge Downes sentenced Hodges to a 2-year term of imprisonment. Hodges appeals.
Discussion
A defendant moving to withdraw a plea before sentencing must establish a fair and just reason to withdraw the plea. We uphold the superior court's decision on such a motion unless the superior court abused its discretion.
Alaska R. Crim. P. 11(h)(2); Perry v. State, 928 P.2d 1227, 1228 (Alaska App. 1996); Wiley v. State, 822 P.2d 940, 944 (Alaska App. 1991).
Ningealook v. State, 691 P.2d 1053, 1055-56 (Alaska App. 1984).
First, Hodges argues that because Judge Savell never fully accepted her plea, she should have been allowed to withdraw her plea (without demonstrating a fair and just reason) until it was fully accepted by the court. Hodges cites to log notes and the electronic record — not a transcript — to demonstrate that Judge Savell said he accepted Hodges's no-contest plea "subject to review at sentencing."
The State faults Hodges for not complying with Alaska Appellate Rule 210(b)(1)(A), which directs an appellant to designate for transcription "all parts [of the electronic record] which are essential to a determination of the issues on appeal." Indeed, it is the appellant's responsibility to present the court with a record sufficient to allow meaningful review of his or her claims, including the designation of trial transcripts as part of the record.
Estate of Arrowwood v. State, 894 P.2d 642, 649 n. 30 (Alaska 1995); Adrian v. Adrian, 838 P.2d 808, 811 n. 5 (Alaska 1992); Natkong v. State, 925 P.2d 672, 678-79 (Alaska App. 1996).
The State also notes that Hodges raises this argument — that Judge Savell never fully accepted her plea — for the first time on appeal. Therefore she must now show plain error. She can establish plain error by demonstrating that the error was so obvious that it should have been noticed by the trial court sua sponte, and that the failure to correct the error would result in a miscarriage of justice.
See Alaska R. Crim. P. 47(b); Moreau v. State, 588 P.2d 275, 279-80 (Alaska 1978);
Carman v. State, 658 P.2d 131, 137 (Alaska App. 1983).
See Carman, 658 P.2d at 137.
See Moreau, 588 P.2d at 279-80.
Although Hodges did not raise her claim that the court had not accepted her plea in the superior court, Judge Downes was aware that Judge Savell had reserved the right to reject the plea agreement at sentencing: "Judge Savell had said that, and told the victims, I can reject the deal after the presentence report." Judge Savell's reservations about accepting the plea agreement apparently arose from Lurvey's family's strenuous objections to the agreement at the change of plea hearing. The family wanted the case to go to trial so Hodges might be convicted of manslaughter and face a 5-year presumptive term, considerably longer than the 2-year cap in the plea agreement. According to Judge Downes,
See former AS 12.55.125(c).
[Judge Savell] left a strong opening and I think he did that because of the adamant position of the victim's relatives that they did not want this sentencing to go forward, saying that he, at the time of sentencing, after he received the presentence report, could reject this plea as being too lenient and would allow this case to go to trial.
Hodges must now show that it was plain error for Judge Downes to not rule sua sponte that the plea agreement had not been accepted, and on that basis, permit Hodges to withdraw her plea.
See Carman, 658 P.2d at 137.
Under Alaska Criminal Rule 11(e), a judge may accept or reject a defendant's plea agreement, or conditionally accept the defendant's plea pending the preparation of a presentence report. According to Criminal Rule 11(e)(3), if the judge rejects the plea agreement because it is too lenient, the defendant must be given the opportunity to withdraw the plea. This opportunity to withdraw is necessary to avoid creating a situation in which the defendant would be deprived of the anticipated benefit of the plea bargain.
See also Cook v. State, 36 P.3d 710, 715 (Alaska App. 2001).
This rule does not require a judge to allow the defendant to withdraw the plea after it has been entered but before the judge has reviewed the presentence report; the rule only guarantees the defendant an opportunity to withdraw the plea if the judge rejects the agreed-upon sentence as too lenient. Furthermore, if the judge rejects the agreement because it is too severe, the rule provides only the prosecutor with the opportunity for withdrawal, not the defendant. In other words, once the defendant enters a plea pursuant to a plea agreement, withdrawal of the defendant's plea remains in the discretion of the court unless the court rejects the agreement because it is too lenient. Only if the court rejects the plea agreement because it is too lenient does the defendant have the right to withdraw the plea.
Judge Downes therefore did not commit error when he required Hodges to affirmatively demonstrate a fair and just reason to withdraw her plea.
As previously noted, Criminal Rule 11(h)(2) allows for the withdrawal of a plea when it is necessary to correct manifest injustice, or for any fair and just reason unless the prosecution has been substantially prejudiced by reliance on the defendant's plea.
Hodges claims both that she established manifest injustice and that she showed a fair and just reason for withdrawing her plea.
Hodges asserts that she established manifest injustice because she received ineffective assistance of counsel. Hodges does not point out how any of her attorneys — including present counsel who was her final attorney in the superior court — provided ineffective assistance. To the contrary, Hodges argues that Satterberg "was very effective." However, Hodges claims that she "was denied the effective assistance of counsel, not due to any inadequacy on the part of [Satterberg], but, rather, when Judge Savell unreasonably denied a continuance of 60 days, [her] attorney was involuntarily hindered from defending [her] case vigorously."
See Alaska R. Crim. P. 11(h)(4)(A) (providing that withdrawal of a plea is necessary to correct a manifest injustice if defendant was denied effective assistance of counsel).
We reject this claim for several reasons. First, Hodges did not designate for transcription the hearing in which Judge Savell denied her motion to continue the trial. She cites only to log notes. As noted above, it is the appellant's responsibility under Appellate Rule 210(b)(1)(A) to present the court with a record sufficient to allow meaningful review of her claims, including the designation of trial transcripts. Failure to designate a proper record constitutes waiver of the point.
Miscovich v. Tryck, 875 P.2d 1293, 1304 (Alaska 1994) ("It is well established that a party's failure to designate portions of the record that are necessary to allow the determination of a point on appeal will amount to a waiver or abandonment of that point."); Ketchikan Retail Liquor Dealers Ass'n v. State, Alcoholic Beverage Control Bd., 602 P.2d 434, 438-39 (Alaska 1979), modified, 615 P.2d 1391 (Alaska 1980) (a party's failure to designate a record to support the party's claims justifies a reviewing court in deciding those claims against the party); Natkong, 925 P.2d at 678-79.
Second, Hodges is attempting to attack the superior court's decision to deny her motion to continue by wrapping it in an ineffective assistance claim (even though she asserts her attorney "wasvery effective"). A no contest plea waives all non-jurisdictional defects in a case. A motion to continue is not a jurisdictional issue, so Hodges has not preserved her claim that Judge Savell wrongly denied her motion to continue.
Cooksey v. State, 524 P.2d 1251, 1255 (Alaska 1974), disapproved of on other grounds by Miller v. State, 617 P.2d 516 (Alaska 1980).
Third, Hodges has not provided any evidence or even pleaded any fact that explains how any of her attorneys were ineffective. A defendant raising a claim that her attorney provided ineffective assistance of counsel when advising her to enter a plea under Rule 11 bears the burden of proving ineffective assistance. Hodges does not engage in any analysis of ineffective assistance as defined in Risher v. State, in which the supreme court adopted a two-part standard for ineffective assistance of counsel. Instead, Hodges insists that her trial counsel "was very effective" but assigns the blame for ineffective assistance on Judge Savell's denial of her motion to continue. This argument does not satisfy the Risher test. Therefore Hodges has not established or even pleaded a claim of ineffective assistance of counsel.
Lott v. State, 836 P.2d 371, 375-77 (Alaska App. 1992).
523 P.2d 421 (Alaska 1974).
Id. at 424-25.
Finally, Hodges argues that she established a fair and just reason to withdraw her plea under Criminal Rule 11(h)(2).
Hodges asserted that her primary reason for moving to withdraw her plea was that she was "under pressure" to enter the plea agreement because Satterberg did not have time to adequately prepare for trial. Specifically, Hodges noted that the expert report that opined that it would have been difficult to see Lurvey on the highway at night with headlights was only available nearly two months after she submitted her plea.
Judge Downes found that, even in the absence of the expert report about sight distances under headlights, the defense had developed useful evidence before Hodges reached a plea agreement. Judge Downes summarized that evidence as follows:
1. [Lurvey] had a blood and urine alcohol content of approximately .338 at or about the time of this incident.
2. Blood and hair on the front of [Hodges's] vehicle was not from [Lurvey], but were most likely from her dog.
3. [Lurvey] was apparently carrying a guitar case and, therefore, couldn't have been "waving both hands" as was reported.
4. A semi-tractor hauling tandem trailers drove over [Lurvey], causing a tremendous amount of physical damage to her.
5. Ms. Hodges went to a house to call for emergency services, but Ms. Hodges was "attacked" and took "a severe beating."
6. The Datamaster [breath test] (the results of which are now suppressed) was not preceded by proper procedures.
7. A significant witness [Jensen] had a breath alcohol content of .225.
8. [Hodges] never admitted to the police that she hit [Lurvey].
9. [Hodges] urged [Jensen] to tell the truth about what he saw.
10. There was a mistaken factual assertion that, because [of] a "well circulated Nenana rumor[,]" . . . there were eye witnesses to [Hodges] striking [Lurvey] with her car.
11. Also allegedly false was a statement that [Hodges] went to a party right after the accident.
12. [Hodges] had an expert, Dr. Lawrence Bennett, who would rebut crucial facts about the accident.
13. The State had no experts to rebut [Hodges's] expert.
Judge Downes found that Hodges's claim that she was not prepared for trial was belied by the evidence listed above. Judge Downes found that Hodges had simply changed her mind about entering a plea.
We have examined the record and conclude that the record supports Judge Downes's finding. A defendant who changes her mind about entering a plea has not established a fair and just reason for withdrawing her plea. Judge Downes did not abuse his discretion in refusing to allow Hodges to withdraw her plea.
Shetters v. State, 751 P.2d 31, 35 (Alaska App. 1988); Wahl v. State, 691 P.2d 1048, 1053 (Alaska App. 1984).
Conclusion
The judgment of the superior court is AFFIRMED.
I write separately to address two issues.
The first issue is Hodges's claim that she was entitled to withdraw her plea at will, at any time before sentencing, since Judge Savell had not yet committed himself to accept the parties' agreed sentence cap of 2 years to serve.
As described in the majority opinion, Hodges's plea agreement with the State called for a reduction of the charge against Hodges from manslaughter to negligent homicide, and the agreement also specified that Hodges's maximum sentence would be 2 years' imprisonment. The victim's family strenuously opposed this bargain, and Judge Savell declared that he would wait until he had seen the pre-sentence report before he made his final decision on whether to accept the bargain.
Alaska Criminal Rule 11(e)(1) expressly allows a judge to defer a final decision on a proposed plea bargain "until receipt of a presentence report" — that is, until the judge has received independent input from the Department of Corrections regarding the facts of the case and the defendant's background.
But the judge's authority to defer final approval of the plea bargain does not negate the fact that the defendant has offered a valid (albeit conditional) plea. Having tendered this plea, the defendant is no longer at liberty to withdraw the plea at will before sentencing. Instead, the defendant must offer a fair and just reason (or prove manifest injustice) under Criminal Rule 11(h)(2).
Obviously, the judge's ultimate rejection of the plea agreement as too lenient ( i.e., too favorable to the defendant) is a proper and adequate reason for the defendant to withdraw the plea. That is why Criminal Rule 11(e)(3) declares that, in such circumstances, "the court shall . . . afford the defendant the opportunity to withdraw the plea".
But Hodges filed her motion to withdraw her plea before the superior court made its final decision on whether to accept the plea bargain. Because the court had not rejected the plea bargain, Hodges's motion was governed by Criminal Rule 11(h)(2). This means that Hodges was obliged to come forward with a fair and just reason for withdrawing her plea — i.e., a reason other than a mere change of mind or re-evaluation of her chances at trial. See Monroe v. State, 752 P.2d 1017, 1020 (Alaska App. 1988).
This brings me to the second issue. Hodges claims that she had a fair and just reason to withdraw her plea because her attorney (Mr. Satterberg, the same attorney who is representing her in this appeal) had insufficient time to adequately prepare for trial — thus compelling Hodges to conclude a plea agreement with the State rather than risk going to trial for manslaughter represented by an unprepared lawyer.
As pointed out in the majority opinion, this is not the first time that the issue of Mr. Satterberg's opportunity to prepare was raised in this case. Shortly after Mr. Satterberg entered his appearance for Hodges, he filed a motion seeking a continuance of the trial (which was then three weeks away). Mr. Satterberg argued that three weeks would not give him sufficient time to prepare.
Because Hodges's trial had already been continued several times, Judge Savell refused to continue the trial any further. When Judge Savell issued this ruling, he expressly told Mr. Satterberg to let him know if this trial date would not allow Satterberg sufficient time to prepare — in which case, Judge Savell would re-appoint the Office of Public Advocacy (the agency that had been representing Hodges until Satterberg entered the case).
Mr. Satterberg did not withdraw from the case. Instead, he negotiated Hodges's plea agreement with the State.
Five months later, Mr. Satterberg drafted and filed Hodges's motion to withdraw her plea.
Hodges's affidavit supporting this motion (which was submitted on Satterberg's office stationery) is very carefully worded. In paragraph 1 of this affidavit, Hodges asserted, "I felt that I was under pressure by the court [to accept the plea bargain] because I was unable to obtain a continuance of [my] case in order to allow [Mr. Satterberg] to adequately prepare [for trial]." But in paragraph 3 of the same affidavit, Hodges explicitly stated that she was "not making this [request to withdraw her plea] on the basis of ineffective assistance of counsel" — but only "on the basis that [she] felt heavily pressed into making a last[-]minute decision".
In other words, Mr. Satterberg and his client wanted it both ways. They did not allege that Satterberg was actually unprepared to represent Hodges competently when he negotiated the plea agreement. Instead, Satterberg and his client asserted merely that Hodges feared that Satterberg was unprepared, and thus she made a hasty decision.
(In his written order denying Hodges's motion, Judge Downes rejected the assertion that Hodges believed that Satterberg was ill-prepared for trial. Judge Downes pointed out that Satterberg submitted an "excellent pre-sentence memorandum" in which he "outline[d] all of the evidence that could have been available to the defense at . . . trial". Judge Downes further noted that, "presumably, [the existence of this pro-defense evidence] led the parties to arrive at a plea agreement in this case.")
But now, in the appellate brief written by Mr. Satterberg, he expressly asserts that he was not prepared to competently represent Hodges when he negotiated the plea bargain and counseled her to accept it. On page 13 of his opening brief, Mr. Satterberg writes: "Unfortunately, Danielle [Hodges] was denied the effective assistance of counsel".
Mr. Satterberg does not concede that he was at fault in any way. Rather, he contends that he was "involuntarily hindered from defending [Hodges] vigorously" because "Judge Savell unreasonably denied a continuance of [the trial]".
This contention is not the same one that was presented to Judge Downes in Hodges's motion to withdraw her plea. It is therefore not preserved for appeal.
Moreover, as pointed out above, Judge Savell expressly invited Mr. Satterberg to tell him if it proved impossible to adequately prepare Hodges's defense within the few weeks remaining before trial. But in the weeks that followed, Satterberg said nothing more to the court about this matter. Instead, he negotiated the plea agreement.
If Mr. Satterberg truly believes that he committed malpractice — by (1) counseling Hodges to accept a plea agreement even though he knew that he was not sufficiently informed about her case to give her competent representation, and by (2) failing to make any effort to alert the superior court that he (purportedly) could not represent Hodges competently — then there are other avenues available for Hodges to press that claim.