Opinion
Court of Appeals No. A-8880.
December 27, 2006.
Appeal from the Superior Court, Third Judicial District, Anchorage, John Suddock, Judge.
Daniel L. Lowery, Assistant Public Defender, Linda K. Wilson, Deputy Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for the Appellant.
Maurice M. McClure, 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.
In her post-conviction relief application Adassa Amin sought to withdraw her no contest pleas to several charges relating to welfare fraud. Amin claimed that she did not understand the potential sentence she faced when she entered her plea. She argues that her counsel was ineffective because he did not advise her that she could move to withdraw her plea based upon this misunderstanding. Superior Court Judge John Suddock held an evidentiary hearing on the post-conviction relief application and Amin and her trial attorney testified. Following the hearing, Judge Suddock denied Amin's application on the ground that Amin never testified that she did not understand the sentencing agreement or that she would have moved to withdraw her plea if her counsel had told her that she could do this. We conclude that Judge Suddock's decision is supported by the record. We affirm his order denying Amin's application for post-conviction relief on this ground.
Factual and procedural background
In April 1995, Amin stood trial on eleven criminal charges. She was charged with defrauding the Aid to Families with Dependent Children and Food Stamps programs by failing to disclose various assets, and with forging Master Andrew Brown's signature to access a savings account containing funds from her daughter's personal injury settlements. The indictment included felony charges for seven counts of forgery in the second degree, and one count each of theft in the first degree, scheme to defraud, and misapplication of property. In addition, the State charged one misdemeanor count of unsworn falsification. Dennis Cummings was appointed to represent Amin.
Midway through trial, Cummings requested a brief recess after Amin inquired if she could enter a plea based on the State's original pretrial offer. During this recess, Cummings and the prosecutor negotiated a plea agreement. Cummings described the plea agreement to the trial court as follows:
Cummings: [Amin] is to plead to one class B felony, scheme to defraud, consolidated counts of forgery, a class C felony, and one class A misdemeanor, unsworn falsification, with a cap of three years unsuspended period of time.
Court: Okay, now what's the cap again?
Cummings: Three years.
Court: A cap of three years to serve?
Cummings: Yes.
After this exchange, the trial court decided to proceed with the change of plea — describing the elements of the various offenses the State would have to prove to find Amin guilty and explaining the rights Amin would be waiving by entering a plea of no contest. The trial court then reviewed the plea agreement once again with Amin — asking Amin to verify the agreement and to assure that no other promises had been made with regards to her entering the plea:
Court: Okay. Now your deal is that the total time on all of these together is that you will not have to spend more than three years in jail?
Amin: Yes, ma'am.
Court: You understand that?
Amin: Yes.
Court: And the court accepting this deal between you and the State agrees that whatever sentence you get you will have a cap, a maximum of three years in jail. Now you may not have that but that's the max that you can get for all of these combined. Do you understand that?
Amin: Yes, ma'am. . . .
Court: Okay. Other than the deal that you've made with the State, which is the State's promise to reduce eleven charges to just three, the State's agreement that you — that the sentence you will be given is a cap of three years to serve.
Nobody has made any other promises and you don't think the State's making any other promises other than what I just talked to you about?
Amin: Right.
Court: Okay. Are you satisfied with your attorney and with the opportunities you've had to talk with him about your case?
Amin: Yes.
After this exchange, the trial court accepted Amin's plea of no contest to one count of scheme to defraud, AS 11.46.600(a)(2), one consolidated count of forgery in the second degree, AS 11.46.505(a)(1), and one count of unsworn falsification, AS 11.56.210(a). The trial court then set the matter over for sentencing.
At sentencing, on October 12, 1995, when the trial court was reviewing the pre-sentence report and the plea agreement, Amin stated that the State's proposed sentence did not correspond with her understanding of the agreement:
Amin: It was my understanding that the time that I was to get that you would be dealing, I would be look — talking about three years and time suspended from that. In this report it says 7 years with 4 years suspended.
Court: Okay. Ms. Amin, on what basis do you believe that you were promised that the maximum sentence you would get would be 3 years from which time would be suspended?
Amin: Because that is what was offered to me at that time, ma'am.
Court: So it is your position that there was a deal in which — and that you accepted — in which the maximum sentence you would get would be 3 years and from that time would be suspended. Is that correct?
Amin: Yeah. And I believe the word used was 3 years was the cap.
The sentencing court then reviewed the audio tape of the change of plea hearing. The sentencing court concluded from the review that Cummings had described the agreement at the outset of the change of plea proceeding as "a 3-year unsuspended cap," and that the plea agreement was silent as to whether the court could impose additional suspended time. Recognizing Amin's confusion, the sentencing court asked:
So what is it that you — what — do you have a request to the court based upon that lack of understanding, what you purport today as a lack of understanding in the deal that you made? . . .
What is it that — if anything — that you want the court to do today about what you're telling me?
Amin responded, "Give . . . me understanding if it's obvious that — that I lack."
The sentencing court then broke down the plea agreement step-by-step for Amin, specifically explaining what a cap of unsuspended time meant. The court found that Amin had accepted the deal, as explained by Cummings in the original change of plea proceedings, and advised Amin that the court would go forward with the sentencing "on the deal the way I understand it to have been agreed upon and that I understand you [pleaded] to according to the record." Amin responded, "I have no problem with that." Neither the court nor Cummings advised Amin on what her options were regarding withdrawing her plea.
The sentencing court imposed a composite sentence on the three counts of 6 years with 3 years suspended and probation for 5 years. Amin was also ordered to pay $87,177.01 in restitution.
Amin filed a timely petition for post-conviction relief collaterally attacking her conviction. In her petition, Amin claimed that Cummings had provided ineffective assistance of counsel on several key issues in her case. In addition, Amin made several vague assertions that she had not been fully or accurately informed about the consequences of her change of plea, and that the advice Cummings had provided her about the plea was factually and legally incorrect. In her affidavit supporting her petition, Amin claimed, "I changed my plea . . . based on the explanation that I received from my attorney, and based on my complete lack of confidence in him. His advice on the change of plea was legally and factually inadequate."
Superior Court Judge John Suddock conducted an evidentiary hearing on the application for post-conviction relief. At the hearing, Cummings was called as a witness. Amin's counsel asked Cummings what he had discussed with Amin during the fifteen minutes they spent considering whether to accept the plea bargain offered by the State. Cummings did not definitively indicate whether he had explained to Amin that she could receive suspended time in addition to the 3 years to serve. In addition to giving Amin general advice about how he felt the trial was going and what her rights were, Cummings testified that, "[I] [d]iscussed what the cap meant, the maximum time she'd serve in jail is 3 years, with good time 2 years with a third off." The only other testimony Cummings gave regarding Amin's misunderstanding of the meaning of the 3-year cap was in response to cross-examination by the prosecutor:
State: Did Ms. Amin allege at the sentencing that she was confused by the cap?
Cummings: Yes.
State: And did the court consider that argument?
Cummings: Yes.
State: And what did the court do?
Cummings: The court — to my understanding, the court made a decision that she understood it and that it had been explained to her and that we were within the explanation of — at the change of plea.
Amin did not inquire any further of Cummings regarding the advice he gave her on the meaning on the 3-year cap. Cummings was also never asked if he gave Amin any advice about withdrawing her plea.
The State called Amin as a witness and asked her about a prior welfare fraud conviction. Amin was never questioned by her attorney or the prosecutor about her claims against Cummings.
Following the evidentiary hearing, Judge Suddock issued a written decision denying the portion of Amin's application for post-conviction relief alleging that her plea had been involuntary due to the ineffective assistance of her counsel. Judge Suddock acknowledged that Amin had claimed during her sentencing proceeding that she had not understood that she could receive suspended time in addition to a possible 3 years of incarceration. But he noted that she was not under oath when she made this claim. He observed that Amin's post-conviction relief counsel never asked Amin under oath whether she had misunderstood the potential sentence she might receive. He also noted that A min never testified that she would not have persisted in her plea had Cummings provided different advice.
We conclude that Judge Suddock's decision is supported by the record. The record suggests the possibility that Amin initially might not have understood the sentencing agreement. But when Amin, at her sentencing hearing, stated that she did not understand the sentence, the sentencing judge explained the agreement. After explaining the agreement, the judge stated that she intended to go forward with sentencing. Amin responded "I have no problem with that." The court then found that Amin understood the meaning of her plea and that she had entered it freely and voluntarily.
The superior court could have made it more clear after it explained the plea agreement that Amin still wished to go forward with the agreement. But Amin never claimed in her application for post-conviction relief that she would not have gone forward with the plea agreement if she had been offered the opportunity to withdraw her plea. Furthermore, as Judge Suddock found, Amin never testified that she did not understand the sentencing agreement at the time she entered her plea. In addition, Cummings was never asked at the evidentiary hearing about his advice to Amin regarding the sentencing agreement, or whether he discussed with Amin the possibility of her withdrawing her plea. We accordingly conclude that Judge Suddock did not err in finding that Amin failed to show that her decision to enter her plea was not knowing and voluntary and not entered with full knowledge of the potential sentence she faced. He also did not err in concluding that Amin did not present any evidence that she was prejudiced by any lack of effective assistance from her counsel. We accordingly affirm Judge Suddock's denial of Amin's application for post-conviction relief.