Opinion
Court of Appeals No. A-13349 Court of Appeals No. A-13350 Court of Appeals No. A-13369 No. 6946
05-26-2021
RICHARD ARLEN ERDMANN, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Michael Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Madison M. Mitchell, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, 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, although it may be cited for whatever persuasive value it may have. See McCoy v . State , 80 P.3d 757, 764 (Alaska App. 2002). Trial Court Nos. 3AN-09-04158 CR, 3AN-14-02101 CR, & 3AN-15-01256 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael D. Corey, Judge. Appearances: Michael Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Madison M. Mitchell, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee. Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges. Judge ALLARD.
Alaska Criminal Rule 11(h) governs motions to withdraw guilty pleas. Under Criminal Rule 11(h)(2), the court may grant a pre-sentencing motion to withdraw a guilty plea for "any fair and just reason," provided that the prosecution has not been substantially prejudiced. The court is also required to grant a motion to withdraw a guilty plea if the defendant establishes manifest injustice. The manifest injustice standard applies to both pre-sentencing and post-sentencing motions to withdraw guilty pleas, but the "fair and just reason" standard applies only to pre-sentencing motions to withdraw guilty pleas.
Alaska R. Crim. P. 11(h)(2)-(3); see also Nelson v. State, 440 P.3d 240, 247 (Alaska 2019).
Alaska R. Crim. P. 11(h)(2)-(3); AS 12.72.010(8); see also Monroe v. State, 752 P.2d 1017, 1019 (Alaska App. 1988) (explaining that pre-sentencing motions to withdraw plea should be "liberally granted" if the prosecution would not be prejudiced by the withdrawal of the plea).
In the current case, the superior court denied a pre-sentencing motion to withdraw a guilty plea because the court found that the defendant, Richard Arlen Erdmann, had not established manifest injustice. Erdmann moved for reconsideration, pointing out that the standard was any "fair and just reason" under the rule. (The State had not alleged any prejudice.) In response, the superior court issued a new order finding that Erdmann had not established a "fair and just reason" to withdraw his plea. But in a footnote, the superior court explained that it had found no "fair and just reason" because Erdmann had failed to establish manifest injustice.
Erdmann now appeals the denial of his motion to withdraw his guilty plea, arguing that the superior court applied an incorrect legal test when it conflated the pre-sentencing "fair and just reason" standard with the post-sentencing "manifest injustice" standard. The State concedes that the superior court conflated these two standards and agrees that a remand is appropriate so that the court can determine whether Erdmann established a "fair and just reason" to withdraw his plea. We have reviewed the record and we find the State's concession of error well-founded.
See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (requiring the appellate court to independently assess whether the State's concession of error in a criminal case is well-founded).
We also make one additional observation regarding the difference between the "fair and just reason" standard and the "manifest injustice" standard that may be relevant to this case.
In his pre-sentencing motion to withdraw his plea, Erdmann asserted that he should be allowed to withdraw his plea because he received ineffective assistance of counsel. Specifically, he asserted that, prior to entering his plea, his attorney told him that he could withdraw his plea "as a matter of course" before sentencing. At the evidentiary hearing, the attorney testified that she had not told Erdmann he could automatically withdraw his plea prior to sentencing, but she acknowledged that, based on their discussions, Erdmann may have nonetheless been confused about this fact when he entered his guilty plea.
Criminal Rule 11(h)(4)(A) provides that "[w]ithdrawal [of a plea] is necessary to correct a manifest injustice whenever it is demonstrated that . . . [t]he defendant was denied the effective assistance of counsel guaranteed by constitution, statute, or rule." Relying on this rule, the superior court concluded that Erdmann had not shown manifest injustice because he had not shown that he actually received incompetent advice.
But, as we have previously held, a defendant's "mistaken but good faith belief . . . can constitute a fair and just reason for withdrawal of a guilty plea prior to sentencing, even if the mistaken belief is unilateral." Thus, when a defendant claims, prior to sentencing, that they pleaded guilty based on erroneous legal advice from their attorney, the defendant need not necessarily show that the attorney did, in fact, provide erroneous advice. Rather, it may be sufficient for the defendant to establish that they misunderstood their attorney's advice and were therefore operating under a "mistaken but good faith belief" when they entered their plea.
Wahl v. State, 691 P.2d 1048, 1052 (Alaska App. 1984).
Accordingly, we VACATE the superior court's order and REMAND this case to the superior court for a determination of whether Erdmann established a "fair and just reason" to withdraw his guilty plea prior to sentencing.