Opinion
Court of Appeals No. A-11303 No. 6140
01-28-2015
JASON BRADLEY COOMES, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Steven J. Priddle, Law Offices of Steven J. Priddle, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
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. Trial Court No. 3AN-10-13179 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge. Appearances: Steven J. Priddle, Law Offices of Steven J. Priddle, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. Judge ALLARD.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Jason Bradley Coomes pleaded guilty to third-degree assault, failure to render assistance, and refusal to submit to a chemical test after causing a motor vehicle accident. His plea agreement specified a composite sentence of 35 months to serve. After his plea was accepted, but before he was sentenced, Coomes asked the Department of Corrections to allow him to serve his sentence on electronic monitoring. The Department denied the request.
Coomes then filed a motion to withdraw his plea, claiming that he had been "led to believe" by his attorney and the State's attorney that the plea agreement included his being accepted into the electronic monitoring program, and therefore Coomes reasonably believed that he would be allowed to withdraw his plea if he was not accepted into the program. Coomes also argued that his attorney had committed ineffective assistance of counsel because he claimed that she specifically promised him that he would be accepted into the program and he accepted the plea agreement based on this promise.
The superior court denied Coomes's motion to withdraw his plea, finding that the plea agreement was intended to make Coomes eligible to apply to the electronic monitoring program, but that there were no promises or guarantees that the Department of Corrections would actually accept Coomes into the program. The court also ruled that, even assuming Coomes's attorney had promised him that he would be accepted into the program, Coomes would not be allowed to withdraw his plea on that basis because Coomes failed to alert the judge to this alleged promise at the change of plea hearing.
Coomes appeals. We conclude that the court's findings regarding the terms of the plea agreement are well-supported by the record and we therefore affirm that portion of the court's order. But we also conclude that the superior court erred in dismissing Coomes's claim of ineffectiveness based solely on Coomes's statements during the plea hearing. We therefore vacate that portion of the superior court's order and remand this case to the superior court for further proceedings consistent with this decision.
As a separate point on appeal, Coomes argues that the superior court erred in denying him 188 days of Nygren credit for the time he spent at the Salvation Army Adult Rehabilitation Program. For the reasons explained here, we find no merit to this claim.
Although a defendant's eligibility for jail-time credit is governed by AS 12.55.027, this credit is generally referred to as "Nygren credit" based on Nygren v. State, 658 P.2d 141 (Alaska App. 1983), which authorized courts to grant jail-time credit for time spent in a residential treatment program.
Background facts and prior proceedings
On November 13, 2010, Jason Coomes rear-ended another vehicle, injuring several of its passengers. He then left the scene. Based on this conduct, Coomes was indicted on three counts of assault in the third degree, failure to render assistance to an injured person after an accident, driving under the influence, and refusal to submit to a chemical test.
At a status hearing on December 5, 2011, the parties announced that they had reached a plea agreement. Coomes's attorney also mentioned that Coomes was eligible to serve his sentence on electronic monitoring.
At the change of plea hearing the next day, the prosecutor listed the terms of the parties' plea agreement: Coomes would serve 41 months with 12 months suspended (29 months to serve) on a consolidated count of third-degree assault, 180 days with 150 days suspended (30 days to serve) for refusal to submit to a chemical test, and 5 months with no time suspended for failure to render assistance. The State dismissed the DUI count. Under the agreement, all of these sentences were to run consecutively; Coomes thus received a composite sentence of 35 months to serve.
During the change of plea hearing, the prosecutor asked the court to delay sentencing so Coomes could "arrange for the possibility of DOC electronic monitoring." Coomes's defense counsel also stated that it was her "expectation" that Coomes would receive Nygren credit for the time he spent at the Salvation Army Adult Rehabilitation Program during his pretrial release.
When Superior Court Judge Michael L. Wolverton asked Coomes whether he understood the terms of the plea agreement, Coomes expressed concern that the amount of months he had to serve under the agreement made him ineligible for electronic monitoring:
Defendant: In listening to what the District Attorney just read, there are a couple of things that I kind of have questions about as far as the amount of time and everything running consecutively. I think the way we were trying to work it is so that I had less than 24 months to serve on the sentence so I could do it through the DOC electronic monitoring. ... what I spoke to [my attorney] about yesterday that doesn't seem like what we agreed to.
The court called a recess so that Coomes could further discuss matters with his attorney. After the break, Coomes announced that he was ready to proceed with the plea agreement and to enter his guilty plea.
The court then questioned Coomes to ensure that his decision to enter his plea was knowing and voluntary. During this hearing, the court asked Coomes if his decision was motivated by any unstated promises that had been made to him:
Court: And apart from this overall agreement, has anybody made any other threat or promise to cause you to plead guilty?
Defendant: No, Your Honor.
Court: You're doing this then freely and voluntarily?
Defendant: Yes, Your Honor.
As already noted, after Coomes entered his plea, his application to serve his sentence on electronic monitoring was denied by the Department of Corrections. Coomes then retained a new attorney and filed a motion to withdraw his plea. In that motion, Coomes asserted that he entered his plea based on his former attorney's assurances that he would be able to serve his sentence on electronic monitoring. He claimed that when he expressed concerns about the agreement at the change of plea hearing, his former attorney told him that electronic monitoring would be approved and that he should not "worry about it."
The superior court denied Coomes's request to withdraw his plea. The court found that the parties had agreed to make Coomes eligible to apply for the Department's electronic monitoring program but that there was no agreement about Coomes being accepted into the program or any promise that Coomes would be allowed to withdraw his plea if he was not accepted into the program.
The court further found that "[e]ven if [defense counsel] did promise that [Coomes] would be accepted into DOC/EM if he took the plea deal, Mr. Coomes should still not be allowed to withdraw his plea." The court explained that:
[t]he court asked Mr. Coomes point blank at his Rule 11 hearing if "apart from this overall agreement, has anybody made any other threat or promise to cause you to plead guilty?" Mr. Coomes responded "No, your honor." Now, Coomes claims that in fact he was promised something else. He claims that his own attorney promised him admission into the DOC/EM program. The court asks the question about "other promises" for a reason. That was the moment to bring the "other promise" to the court's attention and Mr. Coomes did not.
Why we conclude that the superior court's findings regarding the terms of the plea agreement are well-supported by the record
On appeal, Coomes again argues that he was "led to believe" by both the State and his attorney that the terms of the plea agreement included an agreement that he would serve his sentence on electronic monitoring, and that he would therefore be allowed to withdraw his plea if he was not accepted into the Department of Corrections' electronic monitoring program. But the superior court's findings regarding the terms of the plea agreement are well-supported and not clearly erroneous. As the superior court found, the agreement in this case was carefully crafted to make Coomes eligible to apply for the Department of Corrections' electronic monitoring program, but it made no promises or guarantees about whether Coomes would be accepted into the program.
Why we conclude that it was error for the court to dismiss Coomes's claim of ineffectiveness based solely on his statements at the change of plea hearing
In Wahl v. State, we declared that a defendant who seeks to withdraw his or her plea under Criminal Rule 11(h) should not "be estopped merely because the reason [the defendant relies] on is inconsistent with statements made by the defendant during the change of plea hearing." As we noted, "a defendant's responses to judicial questioning during a change of plea hearing are notoriously unreliable." Thus, while a defendant's statements (or omissions) during a plea hearing may be "highly relevant" to the credibility of his later reasons for seeking to withdraw from the plea, they cannot be used as the sole justification for denying a defendant relief to which he might otherwise be entitled.
691 P.2d 1048 (Alaska App. 1984).
Id. at 1052.
Id. (citing United States v Roberts, 570 F.2d 999, 1007 n.23 (D.C. App. 1977)).
Id.
Here, Coomes claimed that his attorney promised him that he would be accepted into the Department of Corrections electronic monitoring program (even though she had no authority to do so). Coomes also claimed that he would not have entered into his plea except for this promise. Although Coomes's failure to mention this promise to the court at the plea hearing may cast some doubt on the credibility of these claims, we conclude that it was error to dismiss his ineffective assistance of counsel claim solely on that basis.
Id.
On appeal, the State argues that the superior court's order should be upheld on an alternative basis — namely, the various deficiencies in Coomes's trial court pleadings. We agree that Coomes's pleadings below are deficient. Among other problems, the pleadings do not appear to include an affidavit from Coomes supporting his factual assertions under oath. Nor do they appear to include an affidavit from his attorney responding to his allegations.
In a motion to this Court, Coomes asserted that he submitted an affidavit in support of his claims to the trial court even though none appears in the record on appeal.
See Lott v. State, 836 P.2d 371, 377 (Alaska App. 1992); see also State v. Jones, 759 P.2d 558, 570 (Alaska App. 1988).
But the superior court did not reject Coomes's ineffective assistance of counsel claim because of various deficiencies in his pleadings or because Coomes failed to adequately support his factual assertions. Instead, the court based its ruling on its legal conclusion that, even if Coomes's lawyer had falsely promised Coomes that he would be accepted into the electronic monitoring program, Coomes could not withdraw his plea on that basis because he failed to alert the court to that promise at the plea hearing. Thus, because the court rejected Coomes's ineffective assistance of counsel claim based on a mistaken legal theory, we conclude that a remand for further proceedings on this claim is required.
Why we conclude the superior court did not err in denying Coomes Nygren credit
As a separate point on appeal, Coomes argues that the superior court erred in denying him 188 days of Nygren credit for the time he spent at the Salvation Army's Adult Rehabilitation Program. But it was Coomes's burden to establish that the residential treatment program he attended qualified for credit under AS 12.55.027(c), and the record shows that he failed to meet that burden.
Coomes filed his request for Nygren credit after the superior court denied his motion to withdraw his plea. The superior court denied the request on the ground that Coomes had failed to show that the program was sufficiently restrictive of his liberty to qualify for credit under AS 12.55.027. But the court also specifically told Coomes that if he had additional information that would show he was entitled to credit, he should submit it to the court. There is no indication that Coomes ever submitted any additional information. We therefore affirm the superior court's denial of Coomes's motion for Nygren credit.
We do not address Coomes's argument (raised for the first time on appeal) that the superior court should have granted him Nygren credit because, at the time of the change of plea hearing, the parties assumed that Coomes would receive this credit. This argument was not presented to the superior court, and consequently has not been preserved for appeal.
Hollstein v. State, 175 P.3d 1288, 1290 (Alaska App. 2008).
We also do not address Coomes's other claims on appeal regarding the validity of his plea because those claims likewise were not properly raised or ruled on in the trial court proceedings below.
Id.
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Conclusion
We VACATE the portion of the superior court's order addressing Coomes's claim of ineffective assistance of counsel and REMAND this case for further proceedings consistent with this decision. In all other respects, the superior court's judgment is AFFIRMED.