Opinion
Court of Appeals No. A-9794.
July 30, 2008.
Appeal from the Superior Court, First Judicial District, Sitka, Larry C. Zervos, Judge, Trial Court No. 1SI-05-466 CR.
Dan Lowery, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Timothy W. Terrell, 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 Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Over six months after the State charged Rodney I. Willis with one count of first-degree sexual assault and one count of first-degree burglary, Willis appeared in court and, pursuant to a plea agreement, entered a guilty plea to a single count charging attempted first-degree sexual assault. The superior court accepted Willis's plea, ordered a presentence report, and set the case for sentencing. Pursuant to the plea agreement, the State dismissed the burglary count and several other pending cases.
AS 11.41.410(a)(1) and AS 11.46.300(a)(1), respectively.
AS 11.31.100(c)(3) and AS 11.41.410(a)(1).
Shortly thereafter and before sentencing, Willis moved to withdraw his plea, contending that "he made a mistake and want[s] to go to trial." The superior court held an evidentiary hearing on the motion. The superior court heard testimony from Willis and the trial attorney who represented Willis when he entered his plea.
The superior court denied the motion, finding that Willis had not presented a fair and just reason to withdraw his plea. The superior court found that Willis had only changed his mind. Because we conclude that the superior court's finding is not clearly erroneous, we affirm.
Background facts and proceedings
According to the State's evidence, early in the morning of September 24, 200 5, Willis knocked o n the door of a relative's house in Angoon. When his cousin, K .G ., answered the door, Willis forced his way inside and sexually assaulted her. The grand jury charged Willis with first-degree sexual assault and first-degree burglary.
A few weeks later, the prosecutor sent Willis's attorney, an assistant public defender, a proposed plea agreement that resolved this case and other pending charges. The plea agreement required Willis to plead to attempted first-degree sexual assault and to concede that statutory aggravating factor AS 12.55.155(c)(10) applied (Willis's conduct was among the most serious within the definition of attempted first-degree sexual assault). Under the sentencing law that applied, Willis faced a presumptive range of 5-8 years' imprisonment. However, the plea agreement restricted the superior court to imposing 5 years of unsuspended imprisonment and at least 5 years of probation. In exchange for Willis's plea, the State was required to dismiss the burglary charge and Willis's other pending cases.
AS 12.55.125(c)(1).
On May 2, 2006, Willis appeared in court for a change of plea pursuant to the plea agreement. Superior Court Judge Larry C. Zervos advised Willis of his rights and asked Willis if he understood the rights he would forfeit if the court accepted the plea agreement. Willis declared that he understood his rights and entered a guilty plea. Judge Zervos accepted Willis's plea after finding that Willis knowingly and voluntarily entered the plea.
In less than a month, Willis filed the motion to withdraw his plea. Judge Zervos heard testimony from Willis and the trial attorney who represented Willis at the time he accepted the plea agreement. Willis testified that his attorney pushed him hard to change his plea. He also claimed that he thought it was the attorney's decision whether to go to trial.
At the hearing, Willis argued that he should be allowed to withdraw his plea because he was pressured by his attorney and was reluctant and uncertain about entering a plea. Judge Zervos reviewed the record of the change of plea and the testimony from Willis and his attorney and found that Willis had not been unduly pressured by his attorney to enter the plea. Judge Zervos found that accepting the plea agreement was not "an easy decision" for Willis, but that Willis understood the consequences of the plea agreement. Judge Zervos found that Willis had only shown that he had a "change of heart" and had not shown a fair and just reason to withdraw his plea.
After the hearing, Willis filed a supplementary motion to withdraw, arguing that he did not understand the terms of the plea agreement because he did not understand the difference between a guilty plea and a no contest plea. Although the plea offer from the State did not specify what plea Willis could enter, apparently the prosecutors had a policy to require a guilty plea for a plea bargain. Willis's trial attorney testified that she did not discuss no contest pleas with Willis.
Willis also asserted that his attorney did not inform him of a potential inconsistency between K.G.'s grand jury testimony and her interview with the police. A t grand jury, K .G. apparently testified that she did not have any type of relationship with Willis, although she told the police that she had sex with Willis once before. After the State opposed the motion and explained its analysis of what Willis maintained was a potential inconsistency, Willis's attorney moved the court to allow the Public Defender Agency to withdraw. The motion asserted that the Public Defender Agency provided ineffective assistance because Willis had not been apprised of the potential inconsistency between K.G.'s grand jury testimony and her statement to the police.
Judge Zervos denied the attorney's motion to withdraw from the case and denied Willis's supplemental motion to withdraw his plea. Judge Zervos found that K.G.'s grand jury testimony was largely consistent with her statement to the police. Judge Zervos implicitly rejected Willis's claim of ineffective assistance. Discussion
A defendant moving to withdraw a plea before sentencing must establish a fair and just reason to withdraw the plea. However, a defendant who simply changes his mind about entering a plea has not established a fair and just reason for withdrawing the plea.
Perry v. State, 928 P.2d 1227, 1228 (Alaska App. 1996); Wiley v. State, 822 P.2d 940, 944 (Alaska App. 1991).
Shetters v. State, 751 P.2d 31, 35 (Alaska App. 1988); Wahl v. State, 691 P.2d 1048, 1053 (Alaska App. 1984).
Judge Zervos found that Willis understood the plea agreement and the consequences of his plea and simply changed his mind after accepting the plea agreement. We have examined the record and conclude that the record supports the superior court's finding.
Willis also argues that he should be allowed to withdraw his plea because he established manifest injustice. Alaska Criminal Rule 11(h)(3) provides that a defendant is entitled to withdraw a plea if withdrawal is necessary to correct a "manifest injustice" — a term that is defined to include ineffective assistance of counsel.
Willis does not renew his claim that his attorney was ineffective because she did not discuss the potential inconsistency in K.G.'s testimony. Instead, Willis contends that his attorney provided ineffective assistance because she did not explain no contest pleas to Willis. Willis did not raise this ineffectiveness claim in the superior court, so it is not preserved.
Although we need not address the claim, the record shows a possible tactical reason why Willis's counsel may not have chosen to discuss a no contest plea with Willis: The attorney thought that Willis may not have understood the attributes of a no contest plea, and the prosecutors apparently had a policy to require a guilty plea as part of a plea agreement.
See Barry v. State, 675 P.2d 1292, 1295 (Alaska App. 1984) (ineffective assistance claims raised as plain error are rarely considered when the record reflects a potential tactical reason for the trial attorney's conduct).
Furthermore, although a criminal defendant has the absolute right to plead no contest and continue to assert his factual innocence, a defendant who enters a no contest plea cannot contest their factual guilt for sentencing purposes. Even so, Willis argues that there are significant differences in consequences between guilty and no contest pleas. He does not identify these purported differences, but he suggests that we can presume that differences exist because the prosecutor in this case insisted on a guilty plea as part of the plea agreement.
Miller v. State, 617 P.2d 516, 518-19 (Alaska 1980).
Scott v. State, 928 P.2d 1234, 1238 (Alaska App. 1996).
The prosecutor's insistence on a guilty plea may have been, historically, a way to benefit a victim should the victim choose to pursue a civil action against a criminal defendant because there was an argument that a no contest plea could not be used against a defendant in civil litigation arising out of the conduct that also resulted in the criminal charge. But this argument was laid to rest in Lamb v. Anderson, where our supreme court held that a no contest plea is the functional equivalent of a guilty plea for purposes of applying collateral estoppel in a civil case to a defendant who has pled no contest. Willis has thus failed to identify a cognizable legal difference between a no contest plea and a guilty plea for either the effect of the plea at sentencing or its collateral consequences.
See Lowell v. State, 574 P.2d 1281, 1285 (Alaska 1978).
147 P.3d 736 (Alaska 2006).
Id. at 742-43.
Conclusion
The judgment of the superior court is AFFIRMED.