Opinion
Court of Appeals Nos. A-10301.
December 14, 2011.
Appeal from the Superior Court, Third Judicial District, Kodiak, Joel H. Bolger, Judge, Trial Court Nos. 3KO-01-581 CR 3KO-07-380 CR.
Paul E. Malin, Assistant Public Defender, Sharon Barr, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Stephen B. Wallace, District Attorney, Kodiak, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
MEMORANDUM OPINION AND JUDGMENT
Andrew A.'s current appeal stems from two cases. His first issue on appeal is based on his 2008 conviction of two counts of felony forgery and one count of felony theft. These convictions all stem from the same transaction: Andrew A. altered a $400 paycheck to $1400 by writing a "1" in front and cashing the check. Superior Court Judge Joel Bolger sentenced Andrew A. to fifty-four months of imprisonment. On appeal, Andrew A. argues that Judge Bolger erred in finding the aggravating factor that his prior criminal history included conduct involving aggravated or repeated instances of assaultive behavior. We conclude that Judge Bolger did not err in finding the aggravating factor.
We have used pseudonyms where necessary to protect the identify of the Appellant, who worked for the State as an undercover informant.
AS 12.55.155(c)(8).
Andrew A.'s second issue stems from a 2007 probation revocation. Andrew A. was on probation for a 2001 felony drug conviction. He was also on probation for a 2001 conviction for misdemeanor assault and misconduct involving weapons. Andrew A. entered into an agreement to work as a confidential informant for the State. In exchange, the State agreed to ask the court to dismiss Andrew A.'s probation. After Andrew A. completed his work as an informant, the State petitioned to release Andrew A. from his felony probation. The court granted the State's request.
In 2007, Andrew A. was charged with assault but was acquitted. But, based upon the evidence which it presented in Andrew A.'s assault trial, the State petitioned to revoke Andrew A.'s probation on the 2001 misdemeanor convictions. Andrew A. moved to dismiss the petition to revoke his misdemeanor probation. He argued that he reasonably believed that when he agreed to work as a confidential informant, the State had agreed to move to dismiss not only his felony probation but also his misdemeanor probation. Judge Bolger concluded that only the felony probation had been dismissed and that Andrew A. was still on misdemeanor probation. He found that it was unreasonable for Andrew A. to conclude that he had been released from his misdemeanor probation. Judge Bolger concluded that, in spite of the jury's acquittal of the assault charges, the evidence presented at trial established that Andrew A. had committed the assault and had therefore violated his probation. He therefore revoked Andrew A.'s probation for a period of nine months.
On appeal, Andrew A. argues that he reasonably believed that the State had agreed to dismiss not only his felony probation but also his misdemeanor probation. He therefore argues that the State's petition to revoke his probation should have been dismissed "as a matter of due process and fundamental fairness because [he] performed his part of the bargain and detrimentally relied upon the agreement. . . ." We agree with Andrew A. .
Why we conclude that Judge Bolger did not err in finding the aggravating factor
Andrew A. was convicted of three class C felony offenses: two counts of forgery in the second degree and one count of theft in the second degree. Andrew A. had two prior felonies for purposes of presumptive sentencing. Thus, the applicable presumptive range was three to five years. Judge Bolger found the mitigator that Andrew A. had provided assistance to the State and the aggravators that Andrew A. had a prior more serious offense and a history of assaultive behavior. Judge Bolger sentenced Andrew A. to fifty-four months, a term within the presumptive range.
AS 11.46.505(a)(1); AS 11.46.130(a)(1).
AS 12.55.125(e)(3).
AS 12.55.155(d)(11).
AS 12.55.155(c)(7).
AS 12.55.155(c)(8).
At the time of sentencing, AS 12.55.155(c)(8), provided for an aggravating factor if "the defendant's prior criminal history includes conduct involving aggravated assaultive behavior or repeated instances of assaultive behavior." Andrew A. argues that Judge Bolger erred in finding this aggravating factor. The aggravating factor can be shown by two or more prior acts of assaultive behavior, whether or not they resulted in a conviction. Andrew A. concedes that he was convicted of assault in 2001. However, he disputes Judge Bolger's finding that he committed the assault in 2007 — the assault for which Andrew A. was acquitted by a jury in a trial conducted by Judge Bolger. Andrew A. recognizes that Judge Bolger found that he had actually committed the assault and that Judge Bolger revoked his probation based upon that finding.
Russell v. State, 934 P.2d 1335, 1347 (Alaska App. 1997); Murray v. State, 770 P.2d 1131, 1139-40 (Alaska App. 1989).
But Andrew A. claims that Judge Bolger used the wrong burden of proof to find that Andrew A. had committed the assault. It is true that, to revoke Andrew A.'s probation, Judge Bolger only had to find that Andrew A. committed the assault by a preponderance of the evidence. And, Andrew A. points out that, under AS 12.55.155(f)(1), Judge Bolger had to find the aggravating factor by clear and convincing evidence. However, our review of the record shows that Judge Bolger found the aggravating factor by clear and convincing evidence.
First, in finding the aggravating factor, Judge Bolger stated that he was applying the clear and convincing evidence standard. Second, Judge Bolger's statement when he revoked Andrew A.'s probation based upon his observation of the evidence at the assault trial makes it clear that he concluded that Andrew A. committed the crime of assault in the fourth degree by at least clear and convincing evidence. We therefore conclude that Judge Bolger applied the clear and convincing standard in finding the aggravating factor.
Why we conclude Judge Bolger erred in revoking Andrew A.'s probation
In 2001, Andrew A. was convicted of misconduct involving a controlled substance in the fourth degree, a class C felony, and two misdemeanor offenses, assault and misconduct involving weapons. Besides imposing jail terms, the sentencing judge placed Andrew A. on probation on each of these offenses for seven years. Each offense had similar terms of probation, which included conditions that Andrew A. was not to consum e or possess alcohol or drugs and was not to be in any place where alcohol was the primary item for sale. But Andrew A. was placed on formal probation only on the felony charge. Formal probation means that Andrew A. was required to report to a probation officer on a regular basis and was required to get the written permission of a probation officer before changing his employment or residence, or leaving the area.
Andrew A. was arrested on December 24, 2005, in the Mecca Bar in Kodiak and was charged with being in violation of his felony probation for being in the bar and for consuming alcohol.
On January 4, 2006, Kodiak District Attorney John Gray and Andrew A. appeared before Judge Bolger in a closed proceeding. Gray asked the court to relax the conditions of Andrew A.'s probation so that Andrew A. could act as an undercover informant to enter bars and solicit drug buys. Andrew A. indicated that he wanted to cooperate with the State so that he could "get off probation and leave the State of Alaska." Gray stated that if Andrew A. followed through on his commitment, which would put him at some risk, the State "would support his application for an early release from probation." Gray indicated that he had explained to Andrew A. that the State did not have the authority to make a binding agreement to end Andrew A.'s probation, but that the State would make an application to the court. The court granted the request to relax Andrew A.'s conditions of probation and stayed the petition to revoke Andrew A.'s probation.
Andrew A. subsequently worked undercover for the State. In May 2006, the State filed a motion to dismiss the petition to revoke Andrew A.'s probation and release Andrew A. from probation. The motion only had the case number from Andrew A.'s felony case. But in the motion, the State asked the court to release Andrew A. "from formal and informal probation." Judge Bolger granted the State's motion.
In 2007, Andrew A. was charged with an assault. The State petitioned to revoke Andrew A.'s misdemeanor probation. Andrew A. filed a motion to dismiss, arguing that his misdemeanor probation was supposed to have been dismissed.
Judge Bolger conducted an evidentiary hearing on Andrew A.'s motion to dismiss. At the conclusion of the hearing, Judge Bolger reasoned that he needed to construe the agreement of the parties, which was very similar to an immunity agreement. He stated that immunity agreements were contractual in nature and that he would apply general contract principles in determining the terms of the oral agreement. He further stated that his goal would be "to promote the reasonable expectations of the parties."
Judge Bolger concluded that the agreement in question was an agreement between Gray and Andrew A. and therefore he was primarily concerned with their interpretation of the agreement. He found that Gray understood that the agreement only referred to Andrew A.'s probation in the felony case; the agreement did not encompass the misdemeanor cases. Judge Bolger concluded that Gray's understanding was reasonable because the State had only filed to revoke Andrew A.'s probation in the felony case. He observed that, at the court hearing in which the State and Andrew A. discussed the agreement, Andrew A. had stated that his main reason for wanting to be a confidential informant was because he wanted to be able to travel back and forth to California.
Judge Bolger found that Andrew A.'s belief that the State had agreed to petition to dismiss both the felony and misdemeanor probation was not reasonable. He reasoned that Andrew A. was on notice that the probation revocation proceeding referred only to the felony probation. He concluded that, because Andrew A. had indicated that his primary reason for wanting to have his probation dismissed was to be able to travel, and the misdemeanor probation did not restrict him from traveling, it was unreasonable for Andrew A. to believe that his misdemeanor probation was part of the agreement.
Judge Bolger also concluded that, even if Andrew A.'s interpretation of the contract had been reasonable, then the parties would have had different and reasonable understandings of the agreement. He determined that, under those circumstances, the parties would not have formed a binding agreement. He also concluded that Andrew A. would not be entitled to specific performance of his understanding of the contract because the court did not have any authority to force the State to enter into an agreement, and the court had no basis to decide what the terms of this hypothetical agreement would be.
In Closson v. State, we interpreted an agreement that the defendant had made with the State to work as an informant. The State agreed that if Closson cooperated and performed adequately, the State would dismiss a pending criminal charge and immunize him on a potential felony theft charge. The State later prosecuted Closson on the theft charge, claiming that he had breached the immunity agreement. The superior court agreed with the State and found that Closson had breached the immunity agreement. Closson was tried and convicted of theft.
784 P.2d 661 (Alaska App. 1989).
Id. at 663-64.
Id. at 664.
Id. at 665-66.
Id. at 663.
On appeal, this court upheld Closson's conviction. Closson petitioned the Alaska Supreme Court, which reversed this court and held that the State had materially breached the agreement with Closson and that Closson's theft conviction had to be vacated.
Closson v. State, 812 P.2d 966, 976 (Alaska 1991).
In analyzing the immunity agreement, the supreme court agreed with this court that immunity agreements are contractual in nature, although it rejected our interpretation of the agreement. The approach approved by the supreme court is the following:
[I]mmunity agreements are contractual in nature and general principles of contract law apply to the resolution of disputes concerning their enforcement and breach. . . . [Although the analogy between immunity agreements and ordinary contracts is useful, immunity agreements are subject to constitutional restraints, foremost of which is the due process clause's overriding guarantee of fundamental fairness to the accused.
Id. at 970 (internal citations and quotations marks omitted).
It therefore appears to us that the approach which the supreme court set out directs us to not just apply general contract principles, but to interpret the agreement in a way that will provide "fundamental fairness to the accused." Examining the record from that point of view shows that there are factors that could easily have led Andrew A. to conclude that, if he performed his agreement with the State, he would be released from both his felony and misdemeanor probation.
In particular, the judgments in Andrew A.'s misdemeanor convictions, as in his felony conviction, included conditions of probation specifying that Andrew A. was not to consume or possess alcohol or drugs and was not to be in any place where alcohol was the primary item for sale. When the State asked the court to release Andrew A. from these conditions of probation, it would not make any sense to release Andrew A. from these conditions on his felony probation and to not release him from these conditions on his misdemeanor convictions. Otherwise, to comply with his agreement with the State, Andrew A. would have to violate his conditions of probation on his misdemeanor convictions. That clearly cannot be what the State, the court, and Andrew A. intended. And it presents a powerful argument why Andrew A. would reasonably assume that his agreement with the State included both his felony and misdemeanor probation.
Furthermore, in his negotiations with the State, Andrew A. was not represented by an attorney. And the State did not take any steps to make clear exactly what the agreement was. There was no written agreement between Andrew A. and the State. When the State enters into an agreement with a defendant to have him work undercover for the State in return for certain considerations from the State, it seems to us that the State is in the best position to make clear exactly what the agreement is and to memorialize the agreement so that there will not be any question after the performance is completed about the terms of the agreement. This is particularly true where the State makes an agreement with an unrepresented defendant.
It is uncontested that Andrew A. satisfactorily completed his part of the agreement. And, based on the information contained in the record, it appears to us that it was reasonable for Andrew A. to assume that his agreement with the State included an agreement to petition the court to terminate not only his felony probation, but also his misdemeanor probation. We conclude that it was also reasonable for him to assume that, when the State moved to end Andrew A.'s probation, and the court entered an order ending his probation, that the order terminated not only his felony probation but his misdemeanor probation. Under these circumstances, we conclude that it would be fundamentally unfair to not carry out Andrew A.'s understanding of the agreement.
Conclusion
In Case No. A-10301, the judgment of the superior court is AFFIRMED. In Case No. A-10307, the judgment of the superior court revoking Andrew A.'s probation is REVERSED and the case is REMANDED to the superior court with directions to terminate Andrew A.'s probation on his 2001 convictions for misdemeanor assault and misconduct involving weapons.
I agree with my colleagues that (1) Andrew A. (which is not his real name) reasonably believed that, under his agreement with the State, he would be released from all probation — including his misdemeanor probation — if he successfully completed his work as an undercover informant; that (2) Andrew A. was entitled to specific performance of this aspect of the agreement; and that therefore (3) it was error for the superior court to revoke Andrew A.'s misdemeanor probation and to order him to serve a previously suspended term of imprisonment.
I write separately because I believe that this Court's lead opinion does not sufficiently address the details of the superior court's decision, nor does it sufficiently explain why we are reversing that decision.
The superior court's reasons for denying relief to Andrew A.
There are three distinct aspects to the superior court's ruling. First, the superior court found that the prosecutor's understanding of the agreement ( i.e., that the agreement applied only to Andrew A.'s felony probation) was reasonable, and that Andrew A.'s contrary understanding of the agreement was not reasonable. In other words, the superior court found that, given the wording of the agreement, and viewing the surrounding circumstances objectively, the only reasonable interpretation of the agreement was the interpretation proposed by the prosecutor: that if Andrew A. successfully completed his work as an undercover informant, he would be released from his felony probation, but not from his misdemeanor probation.
Second (and alternatively), the superior court ruled that even if Andrew A.'s contrary understanding of the agreement was reasonable, so that the two parties each had a reasonable and mutually contradictory understanding of the agreement, then there was no "meeting of the minds" — and thus, as a matter of law, there never was a valid agreement between the parties. Specifically, the superior court stated, "When a phrase of a contract is understood differently by the parties and is sufficiently ambiguous to support both meanings, no contract has been formed."
The superior court further ruled that, even though Andrew A. had fully performed his obligations under the supposed agreement, the court had no authority to order the State to give Andrew A. the benefit that Andrew A. thought he had bargained for — the termination of his misdemeanor probation — because this would amount to forcing the State to accept a negotiated resolution of Andrew A.'s case that the State had never agreed to. In support of this conclusion, the superior court explicitly relied on State v. Carlson, 555 P.2d 269, 271-72 (Alaska 1976), where the supreme court held that a court has no authority to force the State to accept a proposed negotiated settlement of a criminal case.
The issues presented on appeal
This Court can justifiably reverse the superior court's decision only if three conditions are met: first, that the superior court was wrong when it characterized Andrew A.'s interpretation of the agreement as unreasonable; second, that the superior court was wrong when it ruled that, even if the prosecutor and Andrew A. each had differing, reasonable interpretations of the agreement, there was no "meeting of the minds" ( i.e., no binding mutual assent to the agreement); and third, that the superior court was wrong when it ruled that the courts had no authority to force the State to honor Andrew A.'s expectations under the contract, so long as the prosecutor reasonably interpreted the contract to mean something different.
Given the record in this case, Andrew A.'s interpretation of the agreement was the sole reasonable interpretation of the agreement
I turn first to the superior court's conclusion that Andrew A.'s interpretation of the agreement was unreasonable. If the record supports the conclusion that Andrew A.'s interpretation of the agreement was unreasonable, then this Court must affirm the superior court's decision to deny relief to Andrew A. . However, we are not required to defer to the superior court's conclusion on this issue.
As the Alaska Supreme Court explained in Norton v. Herron, 677 P.2d 877 (Alaska 1984), when a court construes a contract, the goal is "to give legal effect to the parties' reasonable expectations". Id. at 880. To determine the parties' reasonable expectations, a court looks to the wording of the agreement itself and to the extrinsic evidence regarding the parties' intentions at the time the contract was made. Ibid.
When that extrinsic evidence is not in dispute, an appellate court is not limited by the "clearly erroneous" standard of review that applies to a trial court's resolution of disputed issues of historical fact. Rather, in such instances, "interpretation of a contract is treated . . . as a question of law." Ibid.
In other words, once the underlying facts of a contract case are determined, an appellate court is authorized to reach its own independent conclusion about whether a party's contractual expectations were "reasonable".
Here, the extrinsic evidence clearly revealed a dispute between the parties about the meaning of their agreement; that is, the evidence showed that Andrew A. and District Attorney Gray had differing subjective understandings of the terms of their agreement. But, with a few minor exceptions, this extrinsic evidence itself was not in dispute. Even though several people testified about the negotiation of the agreement and the parties' understanding of its terms, there was little (if any) material dispute about what was done or said (or not said) by the parties during the negotiation and ultimate ratification of the agreement, and during the life of the agreement ( i.e., while Andrew A. was performing his work as an undercover informant).
For instance, there was no material dispute about the wording of the agreement.
The agreement itself was oral. It was never reduced to writing, and District Attorney Gray conceded that the District Attorney's file in Andrew A.'s case contained no contemporaneous notes describing the negotiations with Andrew A., nor any writing describing the terms of the ultimate agreement with Andrew A. . Nevertheless, there was remarkably little dispute about what the parties said to each other during the negotiation and ratification of the agreement, and how District Attorney Gray described the agreement to the superior court.
The content and wording of all the pertinent court pleadings is known, as is the content of the presentation that the parties made to the superior court in January 2006, when the prosecutor asked the court to relax Andrew A.'s conditions of probation to allow him to work as a confidential informant. Everyone agreed that Andrew A. was promised an early termination of his "probation". Obviously, the question is whether Andrew A. could reasonably understand that promise to encompass his misdemeanor probation as well as his felony probation.
The court records relating to the agreement are, themselves, ambiguous on this point. When District Attorney Gray, Kodiak Police Detective Olson, and Andrew A. went to court together in January 2006 to ask the superior court to relax the terms of Andrew A.'s probation (so that Andrew A. could work as an undercover informant), the court proceeding was labeled only with the file number of Andrew A.'s felony case. But as Judge Coats points out in his lead opinion, both the terms of Andrew A.'s felony probation and the terms of Andrew A.'s misdemeanor probation forbade Andrew A. from entering bars and possessing controlled substances — conditions that had to be modified if Andrew A. was going to work as an undercover drug informant. Thus, it was reasonable for Andrew A. to assume — indeed, it was also reasonable for the superior court to assume — that District Attorney Gray was asking the court to relax Andrew A.'s conditions of probation in both the felony case and the misdemeanor case.
Similarly, after Andrew A. successfully completed his work as an undercover informant and the State petitioned the superior court to terminate Andrew A.'s probation, the State's petition bore only the file number of Andrew A.'s felony case. However, the State's petition also declared that the District Attorney's Office was asking the superior court to release Andrew A. from both "formal and informal probation". As explained in Judge Coats's lead opinion, Andrew A.'s felony probation was "formal" ( i.e., it was actively supervised by Department of Corrections officials), while Andrew A.'s misdemeanor probation was "informal" ( i.e., it was not supervised). Again, the reasonable inference was that Andrew A. would be released from both his felony probation and his misdemeanor probation.
The remaining question is whether the extrinsic evidence surrounding the agreement, viewed objectively, supports either or both of the two competing interpretations of the agreement.
Turning to the testimony given at the evidentiary hearing, the two main government witnesses (Detective Daniel Olson and District Attorney Gray) testified that they intended the agreement to cover only Andrew A.'s felony probation. However, these government witnesses conceded — Detective Olson explicitly, and District Attorney Gray implicitly — that no one ever directly told Andrew A. that the agreement covered only his felony probation, and that he would remain on misdemeanor probation even if he successfully completed his work as an undercover informant.
Detective Olson (the police officer who effectively negotiated the details of the agreement with Andrew A., and then submitted the proposed agreement to Gray) testified that he personally believed that the agreement covered only Andrew A.'s felony probation. However, Olson explained that this was because he was unaware that Andrew A. was also on misdemeanor probation.
Perhaps more importantly, Olson repeatedly conceded that, during the entirety of the contract discussions (both the private discussions between the parties, and the later presentation of the agreement to the superior court), no one ever spoke of the distinction between Andrew A.'s felony probation and his misdemeanor probation. According to Olson, the phrase "felony probation" never came up during his own discussions with Andrew A.: "It was always [simply] `probation'."
Olson agreed that Andrew A. was repeatedly told that he would get "off probation" if he complied with his portion of the agreement. The references were always to Andrew A.'s "probation"; Officer Olson never specified "felony probation". According to Olson, "The word `felony' never came up."
Just as importantly, Olson stated that he was never present during any conversation — which assumedly included conversations with District Attorney Gray — where anyone specified or explained that Andrew A. would only obtain a termination of his "felony probation" or his "supervised probation". Olson declared, "I don't recall it ever being specified as to `felony probation' or . . . `misdemeanor probation'"
Olson also testified that he attended the court hearing in January 2006, when the proposed agreement was presented to the superior court. When Olson was asked whether "anything . . . happened on [the] record at that hearing that was different than your understanding of what the deal was with Mr. Andrew A., [whether anything different] was represented to the [superior] court?" Olson answered, "No."
Gina G.(again, this is not her real name), who was Andrew A.'s girlfriend when the agreement was negotiated, described a conversation that she had with Detective Olson as they were walking to the grand jury hearing (where Gina was scheduled to testify in support of a proposed indictment). As they were walking, Gina apparently expressed some hesitancy to continue her cooperation with the authorities, since she and Andrew A. were no longer a couple. According to Gina, Olson told her "that [she] still had to go in there and complete the whole process, and [then Andrew A.] would get off all probation". Also according to Gina, District Attorney Gray was walking with them; in other words, he was present for this conversation.
Felicity F. (again, this is not her real name), the woman who became Andrew A.'s girlfriend after he and Gina split up), testified that she was present during a conversation between Andrew A. and District Attorney Gray that occurred in the spring of 2006. As described by Felicity, Andrew A. asked Gray what was happening with his case, and (in response) Gray told Andrew A., "Congratulations. You're off probation. You're done." Gray then shook Andrew A.'s hand, wished him good luck, and told him to "have a good life".
Andrew A. took the stand himself and corroborated Felicity's description of this conversation with District Attorney Gray. Andrew A. testified that, in April 2006, he was walking with Felicity in Kodiak when they ran into District Attorney Gray. According to Andrew A., "[he] asked [Gray] how much longer it would be until [he] was off all probation, and [Gray] said [that] it was finalized, and to worry about nothing. And [then he] congratulated [Andrew A.], shook [his] hand, and basically told [him], "Stay out of trouble. Good luck."
When District Attorney Gray took the stand, he testified that he intended the agreement to cover only Andrew A.'s felony probation, and that he intended for Andrew A. to remain on misdemeanor probation even after he completed his work as an undercover informant. But as I have already mentioned, Gray conceded that his file in Andrew A.'s case contained no contemporaneous notes describing the negotiations with Andrew A., nor did it contain any writing describing the terms of the ultimate agreement with Andrew A. .
More importantly, even though Gray stated that he subjectively intended the agreement to be limited to Andrew A.'s felony probation, Gray did not contradict any of the testimony I have just summarized — the testimony given by Olson, Gina, Felicity, and Andrew A. describing the objective facts (the words and actions of the parties) surrounding the negotiation and implementation of the agreement.
Indeed, during Gray's testimony at the evidentiary hearing, he inadvertently provided support for Andrew A.'s understanding of the agreement. During questioning, Gray conceded that when he petitioned the superior court to release Andrew A. from probation, he asked the court to release Andrew A. from "formal and informal probation". When Gray was asked why he used this language, he replied that he used this wording because Andrew A. was "not just . . . going off supervised probation; he was going off all probation."
In other words, even when Gray testified at the evidentiary hearing, knowing that the terms of the agreement were being litigated, he still used language that supported Andrew A.'s interpretation of the agreement — declaring that Andrew A. "was going off all probation".
It is true that, soon after giving this response, Gray added that he subjectively intended this language to be limited to Andrew A.'s felony case, and that it was not his intention to ask the superior court to release Andrew A. from his misdemeanor probation. But if Gray failed to express this intention to Andrew A., then Gray's intention is irrelevant — because contracts are interpreted in light of the objective manifestations of the parties' intent.
As this Court explained in D utton v. State, 970 P.2d 925, 928 (A laska A pp. 1999):
When a conflict arises regarding the terms of a contract, the trier of fact examines the parties' manifestations of purpose and assent. Because a contract is assessed under an objective standard, if a party objectively manifested an intention to be bound by the terms of a contract, that assent can not be defeated by evidence of the party's unexpressed reservations or subjective contrary intentions. [Citing Howarth v. First National Bank of Anchorage, 596 P.2d 1164, 1167 n. 8 (Alaska 1979).]
Thus, the meaning of the agreement between the State and Andrew A. is to be determined, not by the subjective understandings or intentions of either Andrew A. or District Attorney Gray, but rather by assessing how a reasonable person would interpret (1) the words exchanged by the parties, (2) the interactions between the parties pertaining to the agreement, and (3) the other circumstances surrounding the agreement.
This same principle applies to Gray's explanation of why he thought that the agreement only encompassed Andrew A.'s felony probation.
Gray testified that he was aware that Andrew A.'s felony probation was obstructing Andrew A.'s career as a fisherman. Andrew A.'s felony probation was a supervised probation, and thus (under the Interstate Corrections Compact) Andrew A. needed permission from corrections officials in other states before he could travel up and down the West Coast to participate in the various seasonal fisheries. Gray knew of one instance where Andrew A. lost the opportunity to fish in California because, at the last minute, there was a problem getting the required approval from California corrections officials. From this, Gray concluded that Andrew A.'s problem was his felony probation — and that Andrew A.'s sole interest was to obtain an early release from that felony probation, rather than from his misdemeanor probation.
The problem with Gray's explanation is that, even though Gray may have had good reason to believe that Andrew A.'s sole goal was to be released from his felony probation ( i.e., his supervised probation), and that Andrew A. did not care about his misdemeanor probation ( i.e., his unsupervised probation), Gray never testified that he ever discussed his understanding of this issue with Andrew A., or that Andrew A. ever affirmatively indicated to Gray that Gray's understanding of this issue was correct.
More particularly, Gray never contradicted the testimony of the various witnesses that all of the discussions concerning the agreement were phrased in terms of "probation" rather than "felony probation" — and that, in these discussions, no one ever explicitly distinguished Andrew A.'s felony probation from his misdemeanor probation. Indeed, as I have already mentioned, when Gray drew up the petition asking the superior court to release Andrew A. from probation (after Andrew A. successfully completed his work as an undercover informant), Gray worded that petition as a request for the court to release Andrew A. from both supervised probation and unsupervised probation — wording that was objectively at odds with Gray's assertion that Andrew A.'s supervised probation was the only problem and the only concern.
To summarize the foregoing discussion: Both Detective Olson and District A ttorney Gray testified that, in their subjective understanding, the State's agreement with Andrew A. covered only his felony probation, and not his misdemeanor probation. But the State presented no evidence that this subjective understanding was ever communicated to Andrew A. . Instead, these officials repeatedly characterized the agreement — both in their conversations with Andrew A., and in their presentations to the superior court — as calling for Andrew A.'s release from "probation", both supervised and unsupervised. There is no evidence that either of these officials ever gave Andrew A. any objective indication that they intended to draw a distinction between his felony probation and his misdemeanor probation, or that they did not intend for the agreement to cover his misdemeanor probation.
As I mentioned earlier, the terms of a contract are ascertained or interpreted in light of the objective manifestations of the parties' intent, not the parties' subjective understandings of the agreement or their unexpressed reservations, conditions, or limitations. As our supreme court explained last year in Kingik v. Alaska Division of Retirement and Benefits:
Mutual assent is an elementary requirement of an enforceable contract. [But a party's] agreement to a contract may be imputed based on the reasonable meaning of [the] party's words and acts. Because a contract is assessed under an objective standard, if a party objectively manifested an intention to be bound by the terms of a contract, that assent cannot be defeated by evidence of the party's subjective contrary intentions. [In this case,] Kingik signed and notarized a waiver that contained a plainly worded clause stating that her benefits would cease unless a survivor option was selected. Her signature was an objective manifestation of intent sufficient to create an enforceable contract with the Division. Only Kingik's objective manifestations of intent may be considered. Her unexpressed subjective intentions are irrelevant to the mutual assent analysis as a matter of law.
239 P.3d 1243, 1251 (Alaska 2010).
In the present case, all of the objective manifestations of the parties' intent support Andrew A.'s interpretation of the agreement; these objective manifestations do not support District Attorney Gray's interpretation. Thus, instead of finding Andrew A.'s interpretation of the agreement to be unreasonable, I would find that Gray's interpretation is unreasonable.
I do not mean that Gray lacked any good-faith basis for his subjective understanding of the agreement. Rather, I mean that even though Gray may have viewed the agreement as encompassing only Andrew A.'s felony probation, he and Detective Olson failed to say or do anything to objectively communicate this view of the matter to Andrew A. . Instead, Gray's and Olson's words and actions — viewed objectively — repeatedly confirmed Andrew A.'s broader understanding of the agreement.
Because Andrew A.'s interpretation of the agreement is the only interpretation supported by the objective manifestations of the parties' intent, the agreement must be interpreted in favor of Andrew A. .
Alternatively, even if District Attorney Gray's interpretation of the agreement and Andrew A.'s interpretation of the agreement were both reasonable, the agreement must be interpreted in favor of Andrew A.
Even if Andrew A. and Gray each had reasonable but differing interpretations of the agreement, the agreement must still be interpreted in favor of Andrew A. .
As explained above, the superior court ruled that if the agreement between Andrew A. and the District Attorney's Office was objectively ambiguous — that is, if Andrew A. and Gray each had differing understandings of the agreement, and if both of their interpretations were reasonable (based on the objective manifestations of their intent) — then there was no "meeting of the minds", and no binding contract was ever formed.
But when there is an objective ambiguity in a contract, courts follow a special rule of contractual interpretation in cases where the contract was drawn up by a party whose bargaining power was substantially greater than the other party's. Under this rule of interpretation, ambiguities in the contract are construed against the party who drew it up. DeCristofaro v. Security Nat'l Bank, 664 P.2d 167, 169 (Alaska 1983).
See Weiner v. Burr, Pease Kurtz, P.C., 221 P.3d 1, 9 n. 24 (Alaska 2009) (holding that ambiguities in an attorney-client contract are construed against the attorney); Nelson v. Progressive Casualty Ins. Co., 162 P.3d 1228, 1235 (Alaska 2007) (stating that, "because an insurance policy is a contract of adhesion, we construe it to give effect to the insured's reasonable expectations."); Uncle Joe's Inc. v. L.M. Berry and Co., 156 P.3d 1113, 1118 (Alaska 2007) (holding that ambiguities in the tariffs drafted by public utilities "should be construed . . . favorably to the customer and against the drafter.").
The great majority of American jurisdictions, both federal and state, apply this rule of interpretation when they construe agreements between the government and a criminal defendant.
Every federal circuit court has held that objective ambiguities in plea agreements must be construed against the government and in accordance with the defendant's reasonable understanding of the agreement. See United States v. Giorgi, 840 F.2d 1022, 1026 (1st Cir. 1988); United States v. Ready, 82 F.3d 551, 558-59 (2nd Cir. 1996); United States v. Baird, 218 F.3d 221, 229 (3rd Cir. 2000); United States v. Harvey, 791 F.2d 294, 300 (4th Cir. 1986); United States v. Sibley, 448 F.3d 754, 759 (5th Cir. 2006); United States v. Harris, 473 F.3d 222, 225-26 (6th Cir. 2006); Carnine v. United States, 974 F.2d 924, 928-29 (7th Cir. 1992); United States v. Andis, 333 F.3d 886, 890 (8th Cir. 2003); United States v. De la Fuente, 8 F.3d 1333, 1337-38 n. 7 n. 8 (9th Cir. 1993); United States v. Cachucha, 484 F.3d 1266, 1270 (10th Cir. 2007); United States v. Jefferies, 908 F.2d 1520, 1523 (11th Cir. 1990).
The overwhelming majority of state courts also follow this rule. See, e.g., Humphrey v. State, 686 So.2d 560, 562 (Ala. Crim. App. 1996); Keller v. People, 29 P.3d 290, 297 (Colo. 2000); State v. Adams, 982 A.2d 187, 191 (Conn. App. 2009) (any ambiguity in a plea agreement should be construed against the state); Stedman v. District of Columbia, 12 A.3d 1156, 1158 (D.C. App. 2011) ("The court will construe any ambiguity [in a plea agreement] against the government."); State v. Cole, 16 P.3d 945, 948 (Idaho App. 2000); Valenzuela v. State, 898 N.E.2d 480, 482-83 (Ind. App. 2008) (courts construe contractual ambiguities against the party who drafted the contract — which, in the case of plea agreements, is the State); State v. Wills, 765 P.2d 1114, 1120 (Kan. 1988) (a plea agreement that is reasonably susceptible to different interpretations is objectively ambiguous, and it must be strictly construed in favor of the defendant); Elmore v. Commonwealth, 236 S.W.3d 623, 627-28 (Ky. App. 2007) ("[W]hen a contract is [reasonably] susceptible of two meanings, it will be construed . . . against the party who drafted and prepared it", and "this rule should . . . be [applied] to plea agreements."); State v. M ares, 888 P.2d 930, 933 (N.M. 1994); State v. Smith, ___ N.E.2d ___ (Ohio App. 2009), and State v. Bethel, 854 N.E.2d 150, 167 (Ohio 2006) (any ambiguous terms in a plea agreement are construed against the State); Commonwealth v. Kroh, 654 A.2d 1168, 1172 (Pa. App. 1995); State ex rel. Forbes v. Kaufman, 404 S.E.2d 763, 768 (W. Va. 1991) ("[T]he state bears the primary responsibility for insuring precision and unambiguity in a plea agreement[, and if] a plea agreement is imprecise or ambiguous, [that] imprecision or ambiguity will be construed in favor of the defendant.").
But see State v. Jorgensen, 404 N.W.2d 66 (Wis. App. 1987), rejecting the rule that ambiguities in a plea agreement must be construed against the government.
It is important to emphasize that these court decisions do not deal with situations where the defendant's view of the agreement was shown to be reasonable and the government's contrary view of the agreement was shown to be unreasonable. Rather, these decisions deal with situations where both the government and the defendant held reasonable (but conflicting) interpretations of the agreement. And in these situations, the courts did not hold the agreements void on the theory that the parties failed to reach a meeting of the minds. Rather, the courts enforced the agreements — by resolving the ambiguity against the government.
This policy has special force in Andrew A.'s case for three reasons.
First, Andrew A. was not represented by counsel. This means that Andrew A. would not necessarily be attuned to the legal nuances of what District Attorney Gray was doing. For instance, when Andrew A. completed his work as an informant, and Gray filed the petition asking the superior court to terminate Andrew A.'s probation, Gray put only Andrew A.'s felony case number on the petition, and not Andrew A.'s misdemeanor case number. At the evidentiary hearing, Andrew A. testified (without contradiction) that he never saw the paperwork that District Attorney Gray filed with the court. Andrew A. added that, even if Gray had given him a copy of this paperwork, Andrew A. would have had no idea that the file number listed on the petition was independently significant — that the State would later rely on this file number as proof that the agreement applied only to Andrew A.'s felony probation, and not to his misdemeanor probation.
Second, the agreement between Andrew A. and the State was completely oral. Neither Detective Olson nor District Attorney Gray ever reduced the agreement to writing, and Gray did not even keep notes describing the negotiations with Andrew A. or describing the contemplated terms of the agreement. This lack of a written record gave Gray considerable scope to portray the agreement, and to portray his understanding of the agreement, in the light most favorable to the State's interests.
I do not mean to say that I believe Gray consciously misrepresented the agreement. Rather, the fact that the agreement was completely oral meant there was no written record to prevent Gray from falling prey to that common human frailty of misremembering past events in the light most favorable to oneself.
Third, the State had already received full performance from Andrew A., so the dispute about the meaning of the agreement could only adversely affect Andrew A.'s interests.
For these reasons, if the agreement between Andrew A. and Gray is objectively ambiguous — if Andrew A.'s and Gray's differing interpretations of that agreement are both objectively reasonable, given the wording of the agreement and the extrinsic evidence surrounding the agreement — then the agreement should be held valid, and it should be interpreted in favor of Andrew A. . The remedy of specific performance
This brings me to the last issue: the superior court's ruling that even if the agreement was valid, and even if it should be construed in favor of Andrew A., the judicial branch had no authority to order the State to live up to Andrew A.'s reasonable expectation that he would be released from misdemeanor probation.
As I explained earlier, the superior court concluded that if the court released Andrew A. from misdemeanor probation nunc pro tunc ( i.e., retroactively to the spring of 2006, when Andrew A. completed his work as an undercover informant), this would violate the rule announced in State v. Carlson, 555 P.2d 269 (Alaska 1976) — because, in effect, the court would be forcing the State to accept a negotiated resolution of Andrew A.'s case that the State never agreed to.
The Carlson decision holds that a court has no authority to force the State to accept a proposed plea agreement in a criminal case when the State is unwilling to accept the proposed agreement. Id. at 271-72. But Andrew A.'s case is materially different. Here, it is undisputed that the State did enter into an agreement with Andrew A., and did so willingly. The question is: What did this agreement call for?
As I have explained in this concurrence, the objective manifestations of the parties' intent support Andrew A.'s interpretation of the agreement and do not support Gray's interpretation of the agreement. In other words, only Andrew A.'s interpretation is objectively reasonable.
But even assuming that the terms of the agreement are objectively ambiguous on the issue in dispute (the issue of whether Andrew A. would be released from his misdemeanor probation as well as his felony probation if he successfully completed his work as an undercover informant), the law requires us resolve that ambiguity against the State, and in favor of Andrew A. .
In either case, the agreement should be interpreted in Andrew A.'s favor. And, after the agreement has been construed in this fashion, Carlson does not prohibit the court from enforcing the agreement.
Here is where our supreme court's decision in Closson v. State, 812 P.2d 966 (Alaska 1991), becomes relevant. Closson holds that a court can order specific performance when the court concludes that the government has failed to honor the terms of its agreement with a criminal defendant. Here is the pertinent discussion from footnote 14 of Closson, 812 P.2d at 974:
In the plea bargaining arena, the United States Supreme Court has held that states should be held to strict compliance with their promises. In Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), the prosecutor promised that, in return for a guilty plea, he would not make a sentence recommendation. However, at sentencing, a different prosecutor represented the state and he recommended the maximum sentence. . . . The Supreme Court found such a breach to be a violation of fundamental fairness. . . . "[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." Id.[, 404 U.S. at 262, 92 S.Ct. at 498.]
As the supreme court noted in Closson, "[when] an accused relies on a promise of immunity to perform an action that benefits the state, this individual . . . will not be able to `rescind' his or her actions" — and, therefore, "the remedy of specific performance is . . . applicable to [this] situation . . . as a remedy for a breach [of the agreement]." Id. at 974. The supreme court added that "the interests of fairness and the integrity of the criminal justice system require the application of those principles[.]" Ibid.
See also State v. Kuchenreuther, 218 N.W.2d 621, 623-24 (Iowa 1974), a case in which the defendant received a grant of immunity in exchange for promises to cooperate, to make restitution, and to plead guilty to a charge of disturbing the peace. Kuchenreuther kept his part of the bargain, but the state filed no charge of disturbing the peace; instead, the state charged Kuchenreuther with larceny. Id. at 623. The Iowa court reversed the larceny conviction, holding that "the bargain made was breached by the State[, and Kuchenreuther's conviction of larceny] is nothing less than an intolerable violation of our time-honored [norms of] fair play. . . ." Id. at 624.
For these reasons, the superior court had — and has — the authority to grant relief to Andrew A. in the form of retroactively ending his misdemeanor probation.
Conclusion
Under any reasonable construction of this record, the superior court was required to interpret the agreement against the State and in favor of Andrew A. . And, given the fact that the agreement must be interpreted in this fashion, the superior court should have ordered specific performance of the agreement. That is, the court should have ordered Andrew A. released from misdemeanor probation nunc pro tunc — and, as a consequence, the court should have dismissed the State's petition to revoke this supposed probation.