Opinion
Court of Appeals Nos. A-10178 / A-10179 / A-10181.
October 28, 2009.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Randy M. Olsen, Judge, Trial Court No. 4FA-07-173/4FA-06-3535/4FA-98-564 CR.
Brian T. Duffy, Assistant Public Advocate, and Rachel Levitt, Public Advocate, Anchorage, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Richard A. Svobodny, Acting Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Christopher E. Wall argues that he should be allowed to withdraw his pleas to two felony charges of driving under the influence of alcohol because, according to W all, the prosecutor who negotiated the plea bargain suggested that Wall would be admitted into the Fairbanks Wellness Court program if he entered pleas of no contest. But Superior Court Judge Randy M. Olsen found that no one promised Wall that he would be admitted to the wellness court. Because the record supports Judge Olsen's finding, we affirm the judge's conclusion that Wall failed to present any "fair and just reason" to withdraw his pleas.
Background
In September 2006, W all was arrested for felony driving under the influence and for misconduct involving a controlled substance in the sixth degree. At the time of his arrest, Wall was on probation for his 1998 convictions for theft in the second degree, fraudulent use of a credit card, and obtaining a credit card by fraudulent means.
AS 28.35.030(n).
AS 11.71.060(a)(1).
AS 11.46.130(a).
AS 11.46.285(a).
AS 11.46.290(a).
Then, in January 2007, Wall was arrested for felony driving under the influence, refusal to submit to a chemical test, disorderly conduct, second-degree harassment, violating the conditions of his release, and driving while his license was canceled, suspended, or revoked. After this arrest, Wall's probation officer petitioned for the revocation of Wall's probation.
AS 28.35.032(p).
AS 11.61.110(a)(6).
AS 11.61.120(a)(5).
AS 11.56.757(b)(1).
AS 28.15.291(a)(1).
Around the same time, the Fairbanks Wellness Court was being established. Wall hoped to participate in that court (which offered rehabilitation and the possibility of a reduced sentence) when it commenced. Wall eventually entered into a plea agreement in which he would plead no contest to the DUI offenses and for violating his probation, and the other charges would be dismissed. Wall would be sentenced to two consecutive terms of 3 years' imprisonment for each felony DUI, and face open sentencing on the probation violations.
On June 25, 2007, Judge Olsen conducted a change-of-plea hearing where this agreement was placed on record and W all accordingly changed his pleas to no contest. At the hearing, Wall's attorney noted that Wall was "hopeful [that] he [could] get into therapeutic court," but would still need to raise money for an ankle monitor "should he be accepted into [the program]." The judge inquired whether "anybody promised [Wall] anything or threatened [him] in any way to get [him] to give up [his] right to have a trial." Wall, in turn, responded with, "No, sir." The court accepted his pleas, dismissed the other charges, and sentenced Wall according to the plea agreement.
Wall also asked the court to lower his bail so that he could be released. During the course of that discussion, the judge noted that he doubted whether Wall would be admitted into the wellness court, explaining that "The wellness court, the therapeutic court, I'm not giving that really any weight because, from what I understand, there are only going to be a couple, two, three, four, five or less people admitted in the first place, and that is so uncertain that I can't give it any weight."
In July 2007, the parties stipulated to vacate the superior court's judgments so that Wall's sentencing could be continued to September "for the purposes of allowing Mr. Wall an opportunity to apply for wellness court." In this stipulation, however, the State specifically wrote that it had "not taken a position on Mr. Wall's eligibility for wellness court at th[at] time." The judge vacated Wall's sentences based on the stipulation.
After a series of continuances for the sentencing hearing, Wall changed his legal counsel. On December 28, 2007, Wall filed a motion to withdraw his pleas of no contest. His motion was based on the allegation that he "was encouraged to change his plea, both by his then attorney, and by the then assigned prosecutor, with the notion that he would be eligible for, and enter into, the Fairbanks Therapeutic Court. . . ." In opposition, the State argued that Wall had never been promised admission into the wellness court, and that Wall was not selected because "he ha[d] demonstrated that he w[ould] not follow court orders and . . . [was] a risk to the public."
At the evidentiary hearing on this issue, Wall testified that he believed he "had a really good chance of getting on therapeutic court," in part because of an email from his former attorney to Wall's girlfriend at the time, which stated, "The DA will not agree to release pending therapeutic court. He did say that [Wall's] plea will increase the DA's willingness to agree to Therapeutic Court."
On the other hand, Wall's former attorney testified that he "explained to Mr. Wall on a number of occasions that there are no promises with [respect to the] therapeutic court. The whole point was to put [sentencing] out and wait and see if [Wall could] get in." The attorney testified that "not only [he] but other attorneys in [his] office explained that to [Wall]." The attorney also testified that he "specifically" told Wall that "there was no guarantee of getting into wellness court on many occasions."
After the hearing, the judge found that there was "overwhelming evidence that there was no promise" to Wall that he would be admitted to the wellness court. Although "there was certainly hope" on Wall's part, this "hope was never realized." The judge denied Wall's motion to withdraw his pleas of no contest, and sentenced Wall in accordance with the plea agreement. Wall now appeals. Discussion
Wall's motion was governed by Alaska Criminal Rule 11(h)(2), which provides that "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 deciding whether there is a "fair and just reason" under this rule, the trial 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 that the defendant is attempting to manipulate the system. If the defendant does not present a fair and just reason to withdraw his plea, then "the court may deny a request for withdrawal . . . even if the state would not suffer prejudice if the case went to trial."
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); see McClain, 742 P.2d at 271-72.
When reviewing the denial of a defendant's motion to withdraw his pleas, we view the evidence in the light most favorable to the trial court's findings and uphold those findings unless they are clearlyerroneous. As noted above, the judge found that the wellness court had not commenced until after Wall pleaded no contest and that there was "overwhelming evidence that there was no promise" to him that he would be admitted into the wellness court in exchange for those pleas. There is substantial support in the record for these findings, including the testimony of Wall's attorney and numerous statements made in Wall's presence during recorded court proceedings. Conclusion
See Monroe, 752 P.2d at 1020.
Based on these findings, the judge could reasonably conclude that Wall had failed to present any "fair and just reason" to withdraw his pleas of no contest. We therefore AFFIRM the superior court's order denying Wall's motion to withdraw his pleas.