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concluding that even though the defendant established that he did not understand his right to testify or the concept of jury unanimity, the defendant failed to "show that he relied on either of these misunderstandings when he pleaded no contest" and therefore "even if [he] met his burden of showing his attorney was ineffective, he failed to prove that this incompetence affected his decision to accept the plea agreement"
Summary of this case from Chamberlain v. StateOpinion
Court of Appeals No. A-10064, No. 5533.
October 21, 2009.
Appeal from the Superior Court, Second Judicial District, Kotzebue, Richard H. Erlich, Judge, Trial Court No. 2KB-05-143 CR.
Robert D. Lewis, Lewis Thomas, P.C., for the Appellant. W. H. Hawley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Freddie Pete Jr. pleaded no contest to first-degree sexual assault and first-degree assault. On appeal, he claims the trial court erred in denying his motion to withdraw his plea. For the reasons explained here, we conclude the trial court properly denied Pete's motion and we affirm the judgment of the superior court.
AS 11.41.410(a)(1).
AS 11.41.200(a)(1).
Facts and Procedural History
The State charged Pete with fifteen felonies and one misdemeanor for acts he committed against his girlfriend in February and March 2005. On February 16, 2006, Pete entered into a negotiated plea agreement with the State. Pursuant to this agreement, Pete pleaded no contest to first-degree sexual assault and first-degree assault, and the State dismissed the remaining fourteen charges. Under the agreement, Pete conceded several aggravating factors, and the agreement capped his possible sentence for the assault and sexual assault at 25 years of unsuspended time. Pete also agreed that all suspended time (about 15 months) would be imposed in a petition to revoke probation in a separate case.
At his sentencing hearing six months later, Pete moved to withdraw his plea. At an evidentiary hearing on that motion, Pete asserted that at the time he entered his plea he did not understand his right to testify or the concept of jury unanimity. He argued that his attorney was ineffective for failing to adequately apprise him of these rights. The State conceded it would not be "substantially prejudiced" if the court allowed Pete to withdraw his plea.
Superior Court Judge Richard H. Erlich denied Pete's motion. Judge Erlich found Pete did not understand his right to testify or the concept of jury unanimity. However, he concluded Pete had not demonstrated that either of these misunderstandings affected his decision to plead no contest.
Discussion
On appeal, Pete claims the trial court erred in denying his motion to withdraw his plea. He argues he entered his plea without understanding two important constitutional rights, and that the trial court should have granted his motion on the basis that his attorney was ineffective. And he argues that even if he did not prove ineffective assistance of counsel, his misunderstanding of those rights constituted a fair and just reason for withdrawing his plea.
Alaska Criminal Rule 11(h)(2) governed Pete's motion to withdraw his plea:
Before sentencing, . . . the trial court may in its discretion allow the defendant to withdraw a plea for any fair and just reason unless the prosecution has been substantially prejudiced by reliance upon the defendant's plea.
When the trial court decides whether a "fair and just" reason exists under this rule, the court must evaluate the defendant's reason for seeking withdrawal, the delay preceding the request, the extent of prejudice to the prosecution, and the likelihood the defendant is attempting to manipulate the system. The defendant has the burden of proving that a fair and just reason supports the motion to withdraw. If the defendant does not present a fair and just reason to withdraw the plea, then the "court may deny a request for withdrawal . . . even if the state would not suffer prejudice if the case went to trial." Ineffective assistance of counsel
McClain v. State, 742 P.2d 269, 271 (Alaska App. 1987).
Wahl v. State, 691 P.2d 1048, 1051 (Alaska App. 1984).
Monroe v. State, 752 P.2d 1017, 1019 (Alaska App. 1988).
To succeed on his motion to withdraw his plea based on ineffective assistance of counsel, Pete had to prove that his attorney's performance fell below the minimal level of competence expected of criminal law practitioners and that his attorney's incompetence contributed to the outcome — i.e., that Pete relied on his attorney's incompetence in deciding to enter his plea. On appeal, we accept Judge Erlich's factual findings unless they are clearly erroneous.
Alaska R. Crim. P. 11(h)(2) (4)(A); Risher v. State, 523 P.2d 421, 424-25 (Alaska 1974); Knox v. State, 130 P.3d 971, 973 (Alaska App. 2006); State v. Steffensen, 902 P.2d 340, 342 (Alaska App. 1995); Lott v. State, 836 P.2d 371, 377 (Alaska App. 1992). Ineffective assistance of counsel is per se "manifest injustice" meriting withdrawal of a plea. Alaska R. Crim. P. 11(h)(4)(A). Pete was only required to show a "fair and just reason" to withdraw his plea, not the more stringent standard of "manifest injustice" that applies when withdrawal of plea is sought after imposition of sentence. See Wahl, 691 P.2d at 1053.
See Rodriquez v. State, 741 P.2d 1200, 1209 (Alaska App. 1987).
Pete's original attorney testified that he could not recall explaining to Pete the concept of jury unanimity and the right to testify. However, the attorney testified that it is his practice to discuss these two rights with his clients. Judge Erlich found it was likely the attorney advised Pete regarding his right to testify, but he did not make a finding on whether the attorney advised Pete about jury unanimity.
As already noted, Judge Erlich found that Pete did not understand his right to testify or the concept of jury unanimity but that Pete did not show that he relied on either of these misunderstandings when he pleaded no contest. Pete does not challenge these findings on appeal. Thus, even if Pete met his burden of showing his attorney was ineffective, he failed to prove that this incompetence affected his decision to accept the plea agreement.
Because Pete did not meet his burden of proving that ineffective assistance of counsel affected the outcome of his case, we conclude Judge Erlich did not err in denying Pete's motion to withdraw his plea based on ineffective assistance of counsel. Due process
Pete argues that even if his attorney was not ineffective, his lack of understanding of his right to testify and the concept of jury unanimity implicated his right to due process and was in itself a "fair and just reason" to withdraw his plea. But due process does not require the incantation of all of a defendant's specific rights for an effective change of plea. "What matters is that the record, taken as a whole, must show an understanding of the nature of the offense charged and a voluntary plea." Thus, a court's failure to explain a particular right, or a defendant's failure to understand a particular right, is not a due process violation per se, but such a failure may, under the totality of the circumstances, amount to a due process violation if the defendant proves that the plea was not voluntarily and intelligently made.
Barrett v. State, 544 P.2d 830, 832 (Alaska 1975), aff'd on reh'g, 546 P.2d 161 (Alaska 1976); see Peterson v. State, 988 P.2d 109, 115 (Alaska App. 1999); see also Morgan v. State, 582 P.2d 1017, 1023 (Alaska 1978); Travelstead v. State, 689 P.2d 494, 498-99 (Alaska App. 1984).
Morgan, 582 P.2d at 1023; Barrett, 544 P.2d at 832; Peterson, 988 P.2d at 115; Travelstead, 689 P.2d at 498-99.
In Barrett v. State, the Alaska Supreme Court refused to require a recitation of all the trial rights the defendant was waiving through a change of plea. "A complete catalog would be very cumbersome; to some extent it would always be incomplete. Furthermore, it is doubtful that for many defendants it would be completely comprehensible." The court concluded: "[T]o impose such a requirement would merely lead to confusion, not clarity in determining the ultimate question: whether on the record as a whole the plea appears to be voluntarily an d intelligently made." Rejecting Barrett's claim that her right to due process was violated when the court failed to advise her of her right against self-incrimination and her right to confront witnesses, the court found that "there can be no question that the defendant knew what she was doing when she pleaded guilty."
Barrett, 544 P.2d at 832.
Id.
Id.
Taken as a whole, the record supports the conclusion Pete entered his no contest plea voluntarily and intelligently. Therefore, we hold he was afforded due process in connection with the entry of his plea. Moreover, as discussed above, Judge Erlich found that Pete did not show that this lack of understanding of his rights affected his decision to accept the plea agreement. Because Judge Erlich found Pete would have accepted the plea agreement even if he understood the concept of jury unanimity and his right to testify, Pete did not establish that he suffered any injustice.
We note that Judge Erlich found that Pete's motion to withdraw his plea the morning of sentencing, six months after he entered the plea, stemmed from his increased anxiety about the sentence he faced. As Judge Erlich observed, this "is not a `fair and just' reason to allow for the withdrawal of a plea."
Conclusion
Under the facts of this case, we hold Judge Erlich did not err in finding that Pete did not meet his burden of establishing a fair and just reason to withdraw his plea. We therefore AFFIRM the superior court's order denying Pete's motion to withdraw his plea.