Opinion
Court of Appeals No. A-11083 Trial Court No. 3AN-07-13441 CR No. 5912
01-30-2013
LOUIS DORIAN SPENCER JR., Appellant, v. STATE OF ALASKA, Appellee.
Appearances: David D. Reineke, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Terisia Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
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.
MEMORANDUM OPINION
AND JUDGMENT
Appeal from the Superior Court, Third Judicial District, Anchorage, Philip R. Volland, Judge.
Appearances: David D. Reineke, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Terisia Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
COATS, Chief Judge.
Louis Dorian Spencer Jr. was indicted for felony driving under the influence. Spencer entered into a plea bargain with the State for a sentence of three years of imprisonment on this charge. At the same time, Spencer was facing state charges for possessing cocaine and federal charges for cocaine distribution. When Spencer entered his plea on the state driving under the influence charge, the parties discussed the fact that Spencer was also facing federal charges. However, they did not discuss how Spencer's state sentence for felony driving under the influence would relate to his federal sentence.
Ultimately, the federal court sentenced Spencer to forty months of imprisonment for distributing cocaine. When it came time for Superior Court Judge Philip R. Volland to impose Spencer's three-year sentence on the felony driving under the influence charges, the parties disagreed about the terms of the plea agreement. The State argued that Spencer had agreed that his three-year sentence for felony driving under the influence would be imposed consecutively to his federal sentence. Spencer maintained that although the State had refused to agree that the state sentence would run concurrently with the federal sentence, there was no agreement that Spencer could not argue for a concurrent sentence.
Judge Volland concluded that Spencer had agreed to consecutive sentences. He therefore imposed the state sentence consecutively to the federal sentence. Spencer appeals.
We conclude that the evidence in front of Judge Volland was insufficient to support Judge Volland's conclusion that, by entering into the plea agreement, Spencer agreed that his state sentence would be imposed consecutively to his federal sentence. We accordingly vacate Spencer's driving under the influence sentence and remand for further proceedings.
Factual and procedural background
Louis Dorian Spencer Jr. was indicted for felony driving under the influence and possession of cocaine. He was also charged with a misdemeanor offense for driving with his license suspended. Spencer's attorney, Cynthia L. Strout, and Assistant District Attorney Robert W. Corbisier discussed resolving Spencer's state charges with a plea agreement. The State agreed that if Spencer pled guilty to felony driving under the influence, it would dismiss the other charges.
Spencer was also facing federal charges for cocaine distribution. Strout asked Corbisier if Spencer could serve his felony driving under the influence sentence concurrently with any sentence he received on his federal charges. According to an affidavit submitted by Corbisier, he and his supervising attorneys decided that Spencer "needed to serve the Felony DUI time consecutively to his federal sentence." He then communicated to Strout "the rejection" of her request. But Corbisier's affidavit does not indicate whether he also told Strout that the State would affirmatively insist on consecutive state and federal sentences. Strout, for her part, maintained she did not interpret the State's rejection of a guaranteed concurrent sentence to mean that Spencer could not at least argue for a concurrent sentence. Strout told Corbisier that she did know whether Spencer would accept the State's offer or go to trial.
Spencer's trial was set to begin on July 28, 2010. Corbisier was unavailable and a different prosecutor, Kelly Cavanaugh, appeared for the State. The parties told the court that they had just come to a plea agreement that morning. Strout told the court that Spencer had agreed to enter a guilty plea to felony driving under the influence and would receive a three-year sentence. The State would dismiss the other charges. Strout asked to delay sentencing in order to obtain documents regarding residential programs Spencer had been in and documents regarding Spencer's federal case. Cavanaugh stated that the parties did not have any written plea agreement. Judge Volland indicated that he wanted to put Spencer's plea on the record immediately, and Strout and Cavanaugh agreed. Strout indicated that she wanted the court to set sentencing for approximately the same time that Spencer would be sentenced in his federal case.
Spencer entered his guilty plea to felony driving under the influence. The parties agreed that it was unnecessary to prepare a presentence report. The parties did not discuss how Spencer's sentence in the state case would relate to his sentence in the federal case.
Prior to Spencer's sentencing, Strout filed a motion in which she asked that Judge Volland impose Spencer's three-year sentence for felony driving under the influence concurrent with Spencer's forty-month federal sentence.
The parties appeared before Judge Volland on the day set for sentencing. Strout told Judge Volland that nothing in the plea agreement prohibited her from arguing that Spencer should serve the three-year state sentence concurrently with the federal sentence. The State, now represented by Jason Gist, argued that the plea agreement required Spencer to serve the two sentences consecutively. Gist stated that there was no plea agreement if Spencer insisted on arguing for concurrent sentences. In that case, the State would go forward with the original charges. Judge Volland directed the State to submit a written opposition to Stout's motion for concurrent sentences.
In opposition, the State argued that it had specifically rejected Strout's request for concurrent sentences. The State supported its position with an affidavit from Robert Corbisier. In the affidavit, Corbisier discussed the history of the plea negotiations. He indicated that Strout had called him to discuss the possibility of Spencer serving his state sentence concurrently with his federal sentence. Corbisier discussed this issue with his supervisors. They rejected Strout's proposal. Corbisier relayed the rejection to Strout. But his affidavit did not address whether he told Strout expressly that the State would insist on consecutive sentences.
Based on this record Judge Volland concluded that "Spencer knowingly and intelligently waived his rights when he entered his guilty plea, and that included his agreement that his sentence would run consecutively to any federal time."
Strout filed a motion for reconsideration. She indicated that she did not disagree that, during plea negotiations, the defense had asked the State if it would stipulate to Spencer receiving concurrent sentences, and that the State had refused to do so. But she argued that this did not mean that Spencer had agreed that he would not ask the court to impose the sentences concurrently. Judge Volland denied the motion for reconsideration.
Judge Volland concluded that the plea agreement included an agreement that Spencer would serve his two sentences consecutively and that the agreement therefore precluded Spencer from arguing for concurrent sentences. Accordingly, Judge Volland imposed Spencer's three-year sentence for felony driving under the influence consecutively to his federal sentence.
Why we conclude that the evidence does not support Judge Volland's finding that Spencer agreed to consecutive sentences
This case requires us to interpret the plea agreement between the State and Spencer and to decide whether the agreement contained a provision that Spencer would serve his state and federal sentences consecutively. Judge Volland decided this issue based upon an affidavit filed by Assistant District Attorney Robert Corbisier. As previously discussed, Corbisier's affidavit sets out the history of the negotiations. Corbisier states that during the plea negotiations Strout asked him whether the State would agree to allow Spencer to serve his state and federal sentences concurrently, and Corbisier told Strout that the State would not agree to this. But it is not clear that Corbisier further told her that the plea agreement was contingent on consecutive sentences. Strout argued that although the State had not agreed to concurrent sentences, she was free to ask the court for concurrent sentences.
The record in this case contains no evidence other than the parties' competing representations. Judge Volland never took any testimony. The only evidence, other than the parties' pleadings, was Corbisier's affidavit and Strout's in-court representation. Under these circumstances, we do not defer to the trial court. The question is whether the parties' representations established, as a matter of law, the terms of the plea agreement. As Strout pointed out, Corbisier's affidavit merely established that the State had not agreed to concurrent sentences. It did not establish that the State and Spencer had agreed that Spencer's sentence would be consecutive to his federal sentence, or that Corbisier told Strout that there would be no agreement if the sentences were not consecutive.
Furthermore, the record suggests that Strout did not negotiate or enter the final plea agreement with Corbisier. According to the transcript, the parties reached final agreement on the morning of trial, and the State was represented by Kelly Cavanaugh on that day. The State did not present an affidavit from Cavanaugh addressing his understanding of the sentencing issue, and when Spencer actually entered his plea there was no discussion on the record of how the state sentence would relate to any federal sentence.
We accordingly conclude that Judge Volland erred in finding that Spencer agreed that his state sentence would be consecutive to his sentence in the federal case, and that he waived his right to argue for a concurrent sentence.
We VACATE the superior court's judgment, and we direct Judge Volland to redetermine whether the plea agreement required Spencer to receive consecutive sentences. We REMAND this case for proceedings consistent with this opinion.
See Boggess v. State, 783 P.2d 1173, 1180 n.2 (Alaska App. 1989) (remanding an inconclusive affidavit to the trial court for factual determination).