Opinion
Court of Appeals No. A-9851.
September 24, 2008.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Douglas L. Blankenship, Judge, Trial Court No. 4FA-05-4117 Cr.
Timothy W. Terrell, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellant. Lawrence F. Reger, Fairbanks, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
Under a plea agreement with the State, Kyle A. Malamute pleaded no contest to third-degree controlled substance misconduct (possession of cocaine with intent to deliver). After considering the pre-sentencing memoranda filed by the parties, and after considering the oral arguments presented by the parties at the sentencing hearing, the superior court decided to give Malamute a suspended imposition of sentence, conditioned on his good behavior during 4 years' probation, and further conditioned on his service of 60 days at a community residential center.
AS 11.71.030(a)(1).
Six months later, the State filed a "Motion to Enforce Plea Agreement and for Resentencing". In this motion, the State asserted that the terms of the plea agreement required Malamute to receive a "sentence of record" — which, according to the State, meant that Malamute could not receive a suspended imposition of sentence. The State contended that "[a] mistake occurred at the sentencing hearing" and that, because of this mistake, the superior court should vacate its initial sentencing action and should impose a normal sentence of imprisonment on Malamute (even if that sentence of imprisonment was suspended in its entirety).
The superior court rejected the State's contention that a mistake had been made. Based on the contents of the State's pre-sentencing memorandum and on the statements made by the prosecutor who attended the sentencing hearing, coupled with the State's repeated failure to object when the defense attorney openly argued for a suspended imposition of sentence (both in the defense pre-sentencing memorandum and at the sentencing hearing itself), the superior court concluded that Malamute's plea agreement with the State did not bar a suspended imposition of sentence. For this reason, the superior court denied the State's motion; in other words, the court declined to modify Malamute's sentence. The State now appeals.
Neither party has briefed the issue of whether the double jeopardy clause would permit a modification of Malamute's sentence, even if all of the State's assertions of fact were true. However, we need not reach that issue. Instead, we conclude that the record supports the superior court's finding regarding the terms of the plea agreement — i.e., the court's finding that the agreement allowed Malamute to receive a suspended imposition of sentence.
A more detailed examination of the underlying facts
In late November 2005, a Fairbanks grand jury indicted Malamute on a charge of third-degree controlled substance misconduct. Malamute's case was assigned to Superior Court Judge Charles R. Pengilly.
On December 21, 2005, attorney Lawrence Reger entered an appearance for Malamute and requested pre-trial disclosure from the State. The following day (December 22, 2005), Assistant District Attorney Elizabeth Crail filed notice in the superior court that she was the prosecutor assigned to Malamute's case.
On January 19, 2006, the parties appeared in court for the omnibus hearing in Malamute's case. Even though Ms. Crail was the assigned prosecutor, the State was represented at this hearing by Assistant District Attorney Danielle Simmons. According to the log notes of that hearing, Ms. Simmons told the court that "[Ms.] Crail indicates [that] she intends to put out an offer [of settlement] next week" — and that, for this reason, the parties did not anticipate that the court would have to resolve any pre-trial motions. Malamute's attorney, Mr. Reger, concurred in this assessment. He told the court that the "likelihood [of trial] [was] low".
On February 1, 2006, the parties appeared in court a second time — with the State again represented by Ms. Simmons. According to the log notes of this hearing, Mr. Reger announced that the parties were engaged in settlement discussions, and that he was "waiting [for] the D.A." — presumedly, Ms. Crail. Judge Pengilly told the parties to return to court two days later, and that he "expect[ed] an answer" at that time.
On February 3rd, Mr. Reger told the court that he wanted to calendar a change of plea hearing for the following week. Judge Pengilly set the change of plea hearing for the afternoon of Monday, February 6th.
Shortly after four o'clock on the afternoon of February 6th, the parties appeared in court for Malamute's change of plea. Again, Ms. Crail did not attend this hearing; instead, the State was represented by Assistant District Attorney Benjamin Seekins.
At this hearing, the parties explained the terms of the plea agreement to Judge Pengilly. According to the log notes of the hearing, Malamute's attorney, Mr. Reger, was the one who described the terms of the agreement, but according to the transcript, it was the prosecutor, Mr. Seekins, who described the terms of the agreement. In any event, the transcript and the log notes contain the same basic description of those terms.
Here is the description contained in the transcript. For present purposes, the most important aspect of this transcribed description is Mr. Seekins's statement that Malamute's sentence was "to be of record":
The Court: What's the agreement?
Mr. Seekins: The agreement is that Mr. Malamute will be pleading no contest to the charge of possession of cocaine with intent to distribute; sentence to be of record; cap at one year to serve. Everything else is going to be open.
The Court: Okay, so [we need a] full pre-sentence report?
Mr. Seekins: That's correct.
The Court: Length of probation, any suspended time, [and] conditions of probation — all open for discussion?
Mr. Seekins: That's correct.
The Court: [to the other attorney] Any dispute about that?
Mr. Reger: No, that's correct.
Judge Pengilly then addressed Malamute personally, to ascertain that he understood and voluntarily assented to the plea. At the end of that colloquy, Judge Pengilly accepted Malamute's no contest plea. The judge then ordered preparation of a pre-sentence report, and he calendared Malamute's sentencing for June 6, 2006.
In April, Malamute's case was re-assigned to Superior Court Judge Douglas L. Blankenship (due to Judge Pengilly's retirement).
On May 3rd, the Department of Corrections filed its pre-sentence report. It appears that no one from the District Attorney's Office informed the pre-sentence investigator of the negotiated sentence cap of 1 year to serve — because, in her report, the pre-sentence investigator recommended that Malamute receive a sentence of 3 years' imprisonment with 1 year suspended — i.e., 2 years to serve.
On May 16, the prosecutor assigned to Malamute's case, Ms. Crail, filed the State's pre-sentencing memorandum. In this memorandum, Ms. Crail recommended a sentence of 3 years' imprisonment with 2 years suspended.
After making this recommendation, Ms. Crail devoted the next two pages of her memorandum — essentially, the remainder of her memorandum — to the contention that it would be inappropriate for the superior court to give Malamute a suspended imposition of sentence.
Ms. Crail began by arguing that Malamute's offense w as atypically serious:
A suspended imposition of sentence w ould not be appropriate . . ., especially given [Malamute's] admissions to having been selling the drugs for several months, the fact that he was willing to sell them in the village [ i.e., Galena], and the enormous profit he was gaining by selling them in the village. Although [Malamute] may have been using the drugs as well, most user-dealers sell in Fairbanks, where they get the drugs, which is sufficient to sustain their habits. [Malamute's] motive in selling in the village, as noted in the pre-sentence report, is largely economic, given the large profit.
. . .
Although [Malamute] has no prior felonies, his actions in this case should raise some concerns . . . about [his] danger to the public, given that this was not the first time he had been selling the drugs, and he had a prior conviction related to drugs.
Ms. Crail then offered an extensive quote from this Court's decision in State v. Huletz, 838 P.2d 1257, 1259 (Alaska App. 1992), in support of her contention that it would be inappropriate to give Malamute a suspended imposition of sentence:
[In] State v. Huletz, [the Court of Appeals wrote]: "[A] suspended imposition of sentence is a unique disposition: by providing for the eventual set-aside of a conviction, a suspended imposition of sentence offers the offender an incentive for reform and an opportunity to start anew with a clean slate. By its very nature, however, a suspended imposition of sentence is primarily meant to be a one-time opportunity for particularly deserving first offenders. It is a disposition ill-suited for repeated use with a persistent offender." Huletz also notes that such a sentence "should be reserved for the most mitigated of cases," which [Malamute's] case certainly is not. [Malamute] is also not a first offender.
Ms. Crail ended her discussion of this point by conceding that the applicable sentencing statute allowed the superior court to give Malamute a suspended imposition of sentence, and that the superior court "[could] take all the facts and circumstances [of Malamute's case] into account when deciding if . . . an SIS [was the] appropriate [sentence]". But Ms. Crail again argued that a suspended imposition of sentence would not be appropriate, given the facts of the case:
Although the [applicable] sentencing statute does not preclude an SIS for a first [felony offender convicted of a] class B felony . . ., it clearly limits this option. . . . The Court may take all the facts and circumstances into account when deciding if a conviction of record or an SIS is more appropriate[;] therefore the Court can consider that [Malamute] is not a one-time offender or caught up in the moment, and that he should receive a conviction of record, and a sentence as reflected by the recommendations of [the pre-sentence investigator] and the State.
On May 18th ( i.e., two days after Ms. Crail filed her pre-sentencing memorandum), Mr. Reger filed a pre-sentencing memorandum on Malamute's behalf. In this memorandum, Mr. Reger explicitly argued that the appropriate disposition of Malamute's case would be a suspended imposition of sentence with 3 years' probation, with the special condition that Malamute serve 60 days of "shock incarceration".
Neither Ms. Crail nor anyone else on behalf of the State filed a response to Mr. Reger's memorandum. In particular, no representative of the State objected to Mr. Reger's sentencing recommendation on the ground that the plea agreement precluded Mr. Reger from seeking an SIS for his client.
On the afternoon of June 6th, the parties assembled in court for Malamute's sentencing hearing. Again, Ms. Crail did not attend this hearing. The State was represented by yet a third stand-in: Assistant District Attorney Jason Gazewood.
Mr. Gazewood apparently had no prior connection to Malamute's case, because he began his sentencing remarks by telling the court that he had "just read the sentencing memorandum [prepared] by Ms. Crail." Mr. Gazewood asked Judge Blankenship to adopt Ms. Crail's sentencing proposal of 1 year to serve.
In response, Mr. Reger repeated the recommendation in his pre-sentencing memorandum: that Malamute should receive a suspended imposition of sentence, with "some amount of jail time . . . [no] longer than 60 days."
Mr. Gazewood did not object to this recommendation as being inconsistent with the plea agreement. Nor did Mr. Gazewood object when Judge Blankenship preliminarily indicated his agreement that "an SIS is probably appropriate here".
A few minutes later, Judge Blankenship adopted Mr. Reger's sentencing recommendation — ordering a suspended imposition of sentence with 4 years' probation and (as a special condition of probation) 60 days' residence in a community residential center.
Six months later, on December 13, 2006, Ms. Crail filed the State's "Motion to Enforce Plea Agreement and For Resentencing".
According to this motion, one of the terms of the State's plea agreement with Malamute was that Malamute would receive "a conviction of record". (Actually, as explained above, when the parties discussed the plea agreement at the change of plea hearing, the pertinent term of the agreement was described as " sentence to be of record", rather than "conviction".)
Ms. Crail asserted that the terms of the plea agreement "[were] correctly stated at the change of plea hearing", and that "[t]he mistake occurred at the sentencing hearing" because of "the change in judges and in prosecutors".
Ms. Crail further asserted that Mr. Reger and his client, Malamute, "were present at both [the change of plea and sentencing] hearings", and that they "violated the [plea] agreement by arguing for a suspended imposition of sentence, and by permitting [Judge Blankenship] to impose a sentence in direct violation of the plea agreement."
The wording of Ms. Crail's pleading is ambiguous on the issue of whether she believed that Mr. Reger and his client negligently failed to remember this term of the agreement or whether, instead, she believed that Mr. Reger and his client were guilty of bad faith and connivance. However, Ms. Crail also told Judge Blankenship that this did not make a difference. She declared that Malamute "should not be allowed to violate his plea agreement with impunity, taking advantage of the change in judges and prosecutors between the [two] hearings, whether the violation was intentional or inadvertent."
After waiting for a response from Mr. Reger (and without receiving one), Judge Blankenship issued a written order denying the State's motion. The judge wrote:
Based upon [the] State's pre-sentencing memoranda (see p. 5 especially), [in which the State argued that an] SIS [was] not appropriate, coupled with [the] Defendant's [openly] urging [the] court to impose [an] SIS, it is clear to the court that[,] at [the] time of sentencing, [the] determination of whether to impose [an] SIS was left to [the] court. If [an] SIS was not [an] option under [the plea] agreement, then [the] State should have so noted in its pre-sentencing memorandum[,] which was authored by Ms. Crail.Our analysis of the State's arguments on appeal
The State notes that, according to the transcript of the change of plea hearing, the parties apparently agreed that Malamute would receive a "sentence . . . of record". The State asserts that the phrase "sentence of record" was intended to mean, and was understood by the parties to mean, that Malamute would receive a formal sentence — in other words, that the imposition of Malamute's sentence would not be suspended or otherwise deferred.
Viewing the first few minutes of the change of plea hearing in isolation, the State's argument has considerable force. But by the time this argument was presented to Judge Blankenship, it was rebutted by a number of things that occurred, and that failed to occur, after the change of plea hearing.
As Judge Blankenship noted in his decision, a large portion of the State's pre-sentencing memorandum was devoted to a detailed explanation of the factual and legal reasons why the superior court should not exercise its authority to grant Malamute a suspended imposition of sentence. The State's memorandum never stated, or even suggested, that the plea agreement barred the superior court from giving Malamute an SIS. And as Judge Blankenship further noted, the State's pre-sentencing memorandum was written by Ms. Crail — the same prosecutor who negotiated the plea agreement and who now claimed that the agreement had been violated.
In its brief to this Court, the State argues that Ms. Crail's pre-sentencing memorandum does allude to the fact that the plea agreement barred Malamute from receiving a suspended imposition of sentence. The State points to the third page of that memorandum, where Ms. Crail declared, "the State recommends a total sentence a little less than the recommendation of the probation department (in order to comply with the Rule 11 agreement): . . . 3 years with 2 suspended." The State's appellate attorney contends that this statement shows that Ms. Crail believed that "a sentence of actual incarceration [was] necessary to comply with the Rule 11 agreement" (emphasis in the State's brief). But the State has misinterpreted what Ms. Crail wrote.
The plea agreement contained a sentence cap of 1 year to serve. Thus, when Ms. Crail declared that she was "recommend[ing] a total sentence [that was] less than the recommendation of the probation department (in order to comply with the Rule 11 agreement)", she was referring to the fact that her recommendation of 1 year to serve was in accordance with the agreed-upon 1-year sentence cap, while the Department of Corrections' recommendation of 2 years to serve violated that sentence cap.
In addition, as Judge Blankenship also noted, Malamute's attorney openly argued for a suspended imposition of sentence in his pre-sentencing memorandum and then again, three weeks later, at the sentencing hearing. The State failed to make any objection to these arguments until six months later.
The State argues that this failure to object can be attributed to the fact that another assistant district attorney, Jason Gazewood, represented the State at Malamute's sentencing hearing. Conceivably, this could explain the State's failure to offer an objection at the sentencing hearing. However, this potential explanation would require Judge Blankenship to assume that Ms. Crail never briefed Mr. Gazewood on the terms of the plea agreement. The record of the sentencing hearing suggests just the opposite — for when Judge Blankenship asked, "Now, the Rule 11 agreement is a [sentence] cap at one year?", Mr. Gazewood immediately replied, "Correct."
Moreover, the sentencing hearing was the second time that the State failed to object to Mr. Reger's recommendation of a suspended imposition of sentence. The first time was when the State took no action in response to Mr. Reger's pre-sentencing memorandum. This memorandum was filed on May 18, 2006 ( i.e., almost three weeks before the sentencing hearing) and, in it, Mr. Reger expressly argued that a suspended imposition of sentence was the appropriate disposition of Malamute's case.
The State has never offered an explanation for its failure to respond to the defense pre-sentencing memorandum. If Ms. Crail read that memorandum, and if she believed that the plea agreement precluded a suspended imposition of sentence, she surely would have filed an objection to Mr. Reger's sentencing recommendation — or, at least, she would have taken pains to explain this problem to Mr. Gazewood and to make sure that he objected to the SIS recommendation at the sentencing hearing.
Seemingly, then, the two most plausible explanations for the State's failure to respond to Mr. Reger's pre-sentencing memorandum are these: either Ms. Crail, the assistant district attorney assigned to Malamute's case, failed to read the defense memorandum, or she read it and found nothing objectionable.
(In her motion to set aside Malamute's sentence, Ms. Crail did not address this issue.)
When Judge Blankenship denied the State's motion to vacate Malamute's sentence and enforce the State's version of the plea agreement, he ruled against the State on the primary underlying issue of fact: the issue of whether the plea agreement actually contained a provision that barred the superior court from giving Malamute a suspended imposition of sentence.
As can be seen from the text of Judge Blankenship's order (quoted above), the judge concluded — based both on the State's actions and on the State's failures to respond to Mr. Reger's sentencing arguments — that, whatever may have been the initial terms of the plea agreement, by the time the parties were filing their pre-sentencing memoranda and preparing for the sentencing hearing, they had established that the superior court would have the discretion to give Malamute a suspended imposition of sentence.
If the State is to prevail in this appeal, the State must (at a minimum) show that Judge Blankenship's ruling regarding the terms of the plea agreement is clearly erroneous.
The State's main argument on this point is the fact that, at the change of plea hearing in February 2006, the plea agreement was described as requiring Malamute to receive a "sentence . . . of record". But as this Court explained in Dutton v. State, when the terms of a plea agreement are disputed,
[t]he law allows a trier of fact to infer the existence and terms of [the agreement] based on the reasonable meaning of a party's words and acts. When a conflict arises regarding the terms of a contract, the trier of fact examines the parties' manifestations of purpose and assent. Because a contract is assessed under an objective standard, if a party objectively manifested an intention to be bound by the terms of a contract, that assent can not be defeated by evidence of the party's unexpressed reservations or subjective contrary intentions.
970 P.2d 925, 928 (Alaska App. 1999) (footnotes omitted and internal quotations omitted).
In Malamute's case, after the one brief reference to a "sentence of record" at the change of plea hearing, the State consistently and repeatedly (by acts and omissions) objectively manifested the view that the plea agreement allowed Malamute to argue for, and allowed the superior court to grant, a suspended imposition of sentence. For this reason, the record amply supports Judge Blankenship's conclusion that Malamute's sentence was consistent with the plea agreement — in the sense that the sentence was consistent with the objectively manifested agreement of the parties, even if the sentence was inconsistent with Ms. Crail's "unexpressed reservations or subjective contrary intentions".
As an alternative argument on appeal, the State suggests that "to the degree that the record may permit conflicting inferences as to whether the plea agreement [allowed] an SIS", Judge Blankenship committed error when he resolved this issue without holding an evidentiary hearing. Given the record in this case, and given the limited nature of the "offer of proof" contained in Ms. Crail's "Motion to Enforce Plea Agreement", we conclude that Judge Blankenship was not obliged to hold an evidentiary hearing.
In her motion, Ms. Crail asserted that, at the change of plea hearing, the plea agreement was described as requiring a "[sentence] of record". Ms. Crail then asserted that Malamute and his attorney were present at the change of plea hearing, but that they nevertheless later asked the superior court to give Malamute a suspended imposition of sentence, and that the superior court ultimately adopted this sentencing recommendation.
These factual assertions were not in dispute — and, as we have just explained, Judge Blankenship's ruling is sustainable even though they are true. Accordingly, there was no need for Judge Blankenship to hold an evidentiary hearing on these assertions.
In her motion, Ms. Crail also asserted that Malamute and his attorney violated the plea agreement when they asked the superior court to give a suspended imposition of sentence, and that Judge Blankenship violated the plea agreement when he agreed to do so. But these assertions that the plea agreement was violated are not true "assertions of fact" for purposes of deciding whether an evidentiary hearing was required. Rather, these statements are either "assertions concerning the legal effect or categorization of the underlying occurrences" or "conclusory assertions concerning the ultimate facts to be decided."
See LaBrake v. State, 152 P.3d 474, 480-81 (Alaska App. 2007).
Finally, in her motion, Ms. Crail asserted that a "mistake" was made at the sentencing hearing when the prosecutor failed to object to the defense request for a suspended imposition of sentence, and when the prosecutor then failed to object to the superior court's decision to give an SIS. But, again, Ms. Crail's claim of "mistake" is merely a characterization of what occurred. Ms. Crail offered no supporting assertions of historical fact to support her characterization of these occurrences as a "mistake", other than her assertion about the manner in which the plea agreement was described at the change of plea hearing — and, perhaps, her implicit assertion that she personally believed that the plea agreement precluded a suspended imposition of sentence.
But as explained above ( i.e., as explained in Dutton), Ms. Crail's subjective understanding of the plea agreement was irrelevant unless it was objectively manifested in some manner. The only objective indication cited by Ms. Crail was the way in which the plea agreement was first described at the change of plea hearing. Notwithstanding that initial description, Judge Blankenship concluded — based on the later statements and actions of the parties — that the plea agreement allowed Malamute to ask for, and allowed the superior court to grant, a suspended imposition of sentence.
Judge Blankenship's conclusion was based on an objective assessment of all the events that occurred after the change of plea hearing. These events included Ms. Crail's own submission of a lengthy sentencing argument as to why the superior court should not give Malamute a suspended imposition of sentence. These events also included the State's repeated failures to object to Malamute's requests for an SIS, and the State's failure to make a contemporaneous objection to Judge Blankenship's decision to grant a suspended imposition of sentence.
Nothing in Ms. Crail's "Motion to Enforce Plea Agreement" called these events into question or alleged any new historical facts pertinent to the issue to be decided — aside from her conclusory assertions that a mistake had been made and that the plea agreement had been violated. Accordingly, w e co nclude that Judge Blankenship was not obliged to hold an evidentiary hearing on these matters.
Conclusion
Given the record in this case, and employing the objective test for evaluating the terms of a contract (the test described in D utton), Judge Blankenship could properly find that the plea agreement in this case allowed Malamute to seek, and allowed the superior court to grant, a suspended imposition of sentence. This being so, the judgement of the superior court is AFFIRMED.