Opinion
Court of Appeals No. A-12319 No. 6659
07-25-2018
EMMANUEL CANCEL, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Justin A. Tapp, Denali Law Group, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Melissa Wininger-Howard, Assistant District Attorney, Palmer, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 3PA-11-1628 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Palmer, Eric Smith, Judge. Appearances: Justin A. Tapp, Denali Law Group, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Melissa Wininger-Howard, Assistant District Attorney, Palmer, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Coats, Senior Judge, and Suddock, Superior Court Judge. Judge MANNHEIMER.
Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Emmanuel Cancel appeals his convictions on three counts of first-degree sexual abuse of a minor, as well as the composite sentence that he received for these crimes.
Cancel's convictions were based on his pleas of guilty to the charges. On appeal, Cancel argues that he received inaccurate advice from his attorneys about the sentencing consequences of his pleas — in particular, the range of sentences that Cancel faced if the State proved aggravating factors. Cancel asserts that, because he did not fully understand the consequences of his guilty pleas, the superior court should have allowed him to withdraw his pleas.
But as we explain in this opinion, the superior court concluded that, as a factual matter, Cancel's claim had no merit. After Cancel asked the court to let him withdraw his pleas, the court heard from both Cancel and his two attorneys. Based on their statements, and based on the court's own review of the audio recording from Cancel's change-of-plea hearing, the court found that Cancel had been accurately advised — both by his attorneys and by the judge himself — that he could receive sentences above the prescribed presumptive ranges for his crimes if the State proved aggravating factors, and that these sentences could theoretically go as high as the maximum term of imprisonment provided by statute for his crimes.
The superior court's findings are not clearly erroneous, and we therefore uphold the superior court's denial of Cancel's motion to withdraw his pleas.
At Cancel's ensuing sentencing, the superior court found that the State had proved various aggravating factors, including AS 12.55.155(c)(5) (that Cancel knew or reasonably should have known that his victims were particularly vulnerable because of their young age), and AS 12.55.155(c)(18)(B) (that Cancel had sexually abused the same victim or another victim on other occasions). Cancel argues that the superior court committed error when it found these two aggravators. For the reasons explained in this opinion, we reject these claims.
In addition, Cancel challenges his composite sentence for the three counts of first-degree sexual abuse of a minor: 60 years' imprisonment with 20 years suspended (i.e., 40 years to serve). Because Cancel's convictions were based on criminal conduct that spanned almost ten years and that involved three different victims, we conclude that this composite sentence is not clearly mistaken, and we therefore uphold the sentence.
Underlying facts of the case, and the facts relating to Cancel's motion to withdraw his pleas
In June of 2013, Emmanuel Cancel was indicted on fifty felony charges: forty-two counts of first-degree sexual abuse of a minor, five counts of second-degree sexual abuse of a minor, one count of third-degree sexual abuse of a minor, and two counts of first-degree controlled substance misconduct (distributing controlled substances to a minor). These charges were based on allegations that Cancel sexually abused several children — his stepchildren, his biological daughter, and the daughter of a family friend — over a period of approximately ten years.
AS 11.41.434(a), AS 11.41.436(a), AS 11.41.438(a), and AS 11.71.010(a), respectively.
Cancel was brought to trial in January of 2015. Just after the prosecutor delivered her opening statement (and Cancel's lead defense attorney had reserved the defense opening statement), and with the State prepared to present its first witness, the court took a recess. During this recess, Cancel's lead attorney informed the prosecutor that Cancel was interested in resolving the case with a plea bargain. Later that afternoon, Cancel's attorney told the trial judge that Cancel had decided to accept a plea offer from the State.
The prosecutor then described the plea agreement: Cancel would plead guilty to three counts of first-degree sexual abuse of a minor. These counts represented a consolidation of all the charges against Cancel except the sexual abuse of his biological daughter (a charge that Cancel refused to plead guilty to). With respect to each of Cancel's stepchildren and with respect to the daughter of the family friend, Cancel admitted all of the conduct encompassed by the original charges.
Because the two counts involving Cancel's stepchildren were based on crimes that were committed before April 2006 (when the legislature amended Alaska's presumptive sentencing laws for sexual felonies), the State agreed that Cancel would be sentenced under the pre-April 2006 sentencing law for these two counts.
This meant that Cancel's sentencing was governed by a presumptive range of 8 to 12 years' imprisonment for each count, rather than the increased sentencing ranges that were enacted in 2006. However, the prosecutor explained that Cancel's sentencing would be "open", and that Cancel's maximum sentence was 99 years' imprisonment, assuming that the State proved aggravating factors. As part of the plea agreement, Cancel waived his right to jury trial with respect to the aggravating factors proposed by the State.
With respect to the count involving the daughter of the family friend, Cancel's sentencing was governed by even older law — Alaska's pre-2005 sentencing law, which provided a specified presumptive term of imprisonment for Cancel's crime (rather than a presumptive range of sentences), and which provided a much lower maximum sentence for this offense (30 years' imprisonment). Thus, for this crime, Cancel faced a presumptive term of imprisonment of 8 years, and his maximum sentence (if the State proved aggravating factors) was 30 years.
After the prosecutor finished her description of the plea agreement, the trial judge asked both Cancel (personally) and Cancel's lead attorney whether the prosecutor's recitation was consistent with their understanding of the plea agreement. Both Cancel and his attorney told the judge that the prosecutor's description of the agreement was accurate.
The judge then addressed Cancel. The judge explained the presumptive sentencing range or presumptive term with respect to each of the three counts. He also explained that Cancel faced a maximum sentence of 99 years on the first two counts, and a maximum sentence of 30 years on the third count. In addition, the judge explained that Cancel had a right to demand a jury trial on the State's proposed aggravating factors, and that Cancel was being asked to waive that right as part of the plea agreement — a waiver that would allow the judge to decide the aggravating factors without a jury. Cancel told the judge that he understood.
Following this colloquy, Cancel entered guilty pleas to the three counts. The judge accepted these pleas, and Cancel's trial ended.
In preparation for Cancel's sentencing, the prosecutor filed a sentencing memorandum that proposed seven aggravating factors under AS 12.55.155(c). The prosecutor argued that Cancel was a worst offender, and the prosecutor asked the court to sentence Cancel to an active term of imprisonment of 50 years, with an additional 10 years suspended.
When the parties came to court in April 2015 for Cancel's sentencing hearing, Cancel's lead attorney informed the judge that Cancel wished to withdraw his pleas. Cancel then addressed the judge personally. He stated that, when he entered his pleas, he had no idea that he was subjecting himself to a potential sentence of 50 years to serve.
Cancel told the judge that he thought he faced a sentence within the presumptive range of 8 to 12 years on the two counts involving his stepchildren, and a sentence of 8 years on the remaining count. According to Cancel, his attorneys advised him that his composite sentence would be "in the 30-year range, and that [he] would be looking at some suspended time."
Cancel acknowledged that his attorneys had told him that his maximum sentence was 99 years on two of the counts and 30 years on the third count. But Cancel asserted that he was told that these maximum sentences were only for repeat felony offenders, and that he would receive a sentence within the presumptive ranges because of his clean record. Cancel also acknowledged that his attorneys had talked to him about the State's ability to pursue aggravating factors, but Cancel asserted that he thought the aggravating factors would only determine what sentence he received within the presumptive range of 8 to 12 years — not that the aggravators would authorize a sentence exceeding the presumptive range.
In response to Cancel's statements, the judge declared that Cancel had effectively waived his attorney-client privilege with respect to the plea agreement discussions, so the judge directed Cancel's lead attorney to respond to his allegations.
The lead defense attorney then contradicted Cancel's description of her advice to him. The attorney declared that she had fully explained the court's sentencing authority to Cancel — in particular, the court's authority to impose any sentence up to the statutory maximums (99 years and 30 years) if the State proved aggravating factors. The attorney acknowledged that she had told Cancel that a sentence of 99 years was "highly unlikely". But she declared that she had clearly advised Cancel that his sentence could exceed the presumptive ranges.
The judge then had the in-court clerk play the audio recording of what the judge told Cancel at his change-of-plea hearing.
After this audio was played, Cancel told the judge that what the judge had said on the record at the change-of-plea hearing was different from what Cancel's attorneys had told him in preparation for the hearing — and that "it didn't make sense [to him] until after the fact" (i.e., after the hearing).
However, when Cancel was pressed, he appeared to concede that his attorneys might have correctly advised him about these sentencing matters during the whispered consultations that they held during the change-of-plea hearing. But Cancel told the judge that he was under so much stress at the time that he had absolutely no recollection of what his attorneys said to him.
The judge then briefly delayed the hearing so that Cancel's other defense attorney could be contacted. When this attorney was contacted, she told the judge that she and her lead counsel "made it very clear to [Cancel] that there was a wide range of years that he could be sentenced to", and that his sentence could be greater than the presumptive range, although "we could not give him a [precise] number".
In response to this second attorney's statements, Cancel reiterated that what his attorneys had told him about his potential sentence was different from what the judge said about the sentence in open court at the change-of-plea hearing. Cancel told the judge that he recognized this discrepancy at the change-of-plea hearing, and that he was "extremely confused" by it at the time.
When the judge asked Cancel why he didn't say something to alert the court to his confusion, or why he didn't talk to his attorneys about this purported discrepancy, Cancel replied, "Your Honor, as I said before, I was extremely terrified [and] I can barely remember parts of those conversations."
The superior court's ruling on Cancel's motion to withdraw his pleas
Based on the record we have just described, the judge found that Cancel's attorneys had, in fact, accurately told him that he could receive a sentence above the presumptive range if the State proved aggravating factors. The judge then noted that he himself had given Cancel the same explanation of these matters at Cancel's change-of-plea hearing. The judge rejected Cancel's assertion that there was a discrepancy between what his lawyers told him and what the judge said at the hearing. Rather, the judge concluded that his own explanation of these matters "would have confirmed the information that Mr. Cancel was given".
The judge acknowledged that the sentencing consequences of Cancel's guilty pleas might not have "become completely concrete" in Cancel's mind until Cancel saw the State's sentencing recommendation of 50 years to serve. But the judge found that Cancel was accurately informed of the applicable sentencing rules, and what the scope of the judge's sentencing authority would be if Cancel pleaded guilty and if the State proved aggravating factors.
The judge further found that, even if Cancel subjectively failed to foresee that he might receive a sentence like the one the prosecutor was recommending (i.e., 50 years to serve), this did not constitute a fair and just reason to allow Cancel to withdraw his pleas. The judge concluded that Cancel's case presented a situation where a defendant, after having more time to think about the real-world consequences of a plea agreement, decides that they made a bad decision.
Cancel's claim that the trial court should have allowed him to withdraw his pleas
On appeal, Cancel argues that there was a fair and just reason to allow him to withdraw his guilty pleas, and that the judge therefore committed error when he denied Cancel's motion to withdraw his pleas. In support of Cancel's assertion that there was a fair and just reason to allow him to withdraw his pleas, he points to the judge's statement that Cancel may not have fully foreseen the potential sentencing consequences of the plea agreement.
See Alaska Criminal Rule 11(h)(2).
But the judge's remark must be read in context. Reading the judge's findings as a whole, the judge found that the sentencing provisions of the plea agreement were accurately (and adequately) communicated to Cancel — and that, to the extent Cancel failed to foresee that the court might impose a sentence of as much as 50 years to serve, this was not the result of Cancel's failure to understand the material provisions of the plea agreement, but rather the result of Cancel's failure to think ahead to the ultimate potential consequences of those provisions. These findings are not clearly erroneous.
This Court has previously noted that "the pressures of trial are normal" — and that when a defendant opts to change their plea on the day of trial, courts should not routinely allow the defendant to later withdraw their plea under the rationale that their decision was unduly influenced by the pressures of trial, or under the theory that the pressures of trial prevented them from carefully considering the consequences of their actions. See McClain v. State, 742 P.2d 269, 271 (Alaska App. 1987).
Given this record, and given the judge's findings of fact, we conclude that the judge did not abuse his discretion when he concluded that Cancel had failed to establish a fair and just reason to withdraw his guilty pleas.
Cancel's arguments that the superior court erred in finding aggravators (c)(18)(B) and (c)(5)
In advance of Cancel's sentencing, the State filed a sentencing memorandum in which the State proposed that the court should find several of the aggravating factors codified in AS 12.55.155(c). Two of these aggravators were (c)(18)(B) — i.e., that Cancel had engaged in other sexual abuse of the same victim or another victim; and (c)(5) — i.e., that Cancel knew or reasonably should have known that his victims were particularly vulnerable due to their youth.
At Cancel's sentencing hearing, the judge found five of the State's aggravators, including (c)(18)(B) and (c)(5).
On appeal, Cancel argues that the superior court erred in finding aggravators (c)(18)(B) and (c)(5).
With respect to aggravator (c)(18)(B), Cancel concedes that this aggravator would apply if he had pleaded guilty to a single act of sexual abuse, and the evidence showed that he had engaged in additional sexual abuse of the same victim or another victim. But Cancel argues that this aggravator should not apply when, as in Cancel's case, a defendant pleads guilty to consolidated counts that are intended to encompass all of the defendant's acts of sexually abusing the named victims.
Whatever might be the merit of Cancel's argument, it does not apply to the facts of his case. The record shows that, when the superior court found aggravator (c)(18)(B), the court did not base its finding on Cancel's sexual abuse of the children named in the three consolidated counts to which Cancel pleaded guilty (i.e., his two stepchildren and the daughter of the family friend). Rather, the court based its finding on evidence that Cancel had sexually abused a fourth child: his biological daughter H.C. We therefore uphold the superior court's finding of aggravator (c)(18)(B).
With respect to the superior court's finding of aggravator (c)(5), we find any error to be harmless. We have just upheld the sentencing judge's finding of aggravator (c)(18)(B), and Cancel does not dispute the other three aggravating factors that the judge found. We have reviewed the sentencing record as a whole, and there is no suggestion in that record that the judge would have imposed any different sentence if the judge had not found aggravator (c)(5).
Cancel's argument that his composite sentence is excessive
For three counts of first-degree sexual abuse of a minor, Cancel received a composite sentence of 60 years' imprisonment with 20 years suspended (i.e., 40 years to serve).
Cancel argues that this sentence is excessive because it is "well above" the 8- to 12-year presumptive sentencing range that applied in this case.
Cancel's three convictions were based on criminal conduct that spanned almost ten years and that involved three different victims. Based on the victim-impact presentations at the sentencing hearing, the sentencing judge concluded that Cancel had "destroyed a family" and had "severely, severely damaged the lives of three ... innocent youngpeople". The judge found that Cancel's conduct was "[the] worst in its category", and the judge also concluded that Cancel "really doesn't accept any responsibility for any of this."
The judge found that isolation and re-affirmation of societal norms were significant sentencing goals in Cancel's case. The judge declared that if he failed to impose a composite sentence that was substantially above the pre-2006 presumptive sentencing range and the pre-2005 presumptive term that applied to Cancel's crimes, Cancel's sentence "[would] not adequately affirm society's utter condemnation of [Cancel's] behavior towards members of [his] own family".
We have independently examined the record in this case. We conclude that it supports the judge's findings, and that the judge's sentencing decision is not clearly mistaken. We therefore uphold Cancel's composite sentence.
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (an appellate court is to affirm a sentencing decision unless the decision is clearly mistaken). --------
Conclusion
The judgement of the superior court is AFFIRMED.