Opinion
No. A-9079.
January 24, 2007.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Charles R. Pengilly, Judge, Court of Appeals No. A-9079, Trial Court No. 4FA-03-0368 CR.
Margi Mock, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. MÁrquez, Attorney General, Juneau, for the Appellee.
Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
MEMORANDUM OPINION AND JUDGMENT
Michael C. DeNeut entered into a plea agreement in which he agreed to plead no contest to one count of first-degree murder and one count of second-degree murder. Prior to sentencing, DeNeut sought to withdraw his plea. In an affidavit, DeNeut made allegations that his attorney had not adequately represented him and had not informed him of the elements of murder in the first and second degree. DeNeut alleged that only after he entered his plea was he able to listen to the grand jury proceedings. Testimony offered at the grand jury proceedings helped him conclude that there was evidence to support a claim that he had not committed murder in the first degree because he had not acted with an intent to kill the victims. He also alleged that he was not aware of the maximum sentence that he faced because his counsel had not informed him that the sentencing judge had the authority to restrict parole.
AS 11.41.100(a)(1)(A).
AS 11.41.110(a)(1).
At the hearing on DeNeut's motion to withdraw his plea, the State argued that, even if the court accepted all of DeNeut's allegations as true, DeNeut had not established a fair and just reason to withdraw his plea. Superior Court Judge Charles R. Pengilly agreed and denied the motion. DeNeut appeals this decision. We conclude that, if all of DeNeut's allegations are accepted as true, then DeNeut would be entitled to withdraw his plea. We accordingly conclude that DeNeut is entitled to a hearing on these allegations, and we remand DeNeut's case to the superior court for further proceedings.
Factual and procedural background
Michael C. DeNeut and Ronald Long were formerly partners in Long's hunting guide business. In late September 2003, DeNeut, Long, and Long's wife Elaine had a heated disagreement at their moose hunting camp. During the argument, DeNeut, armed with a rifle, held the Longs captive for several hours.
A few weeks later, Elaine Long reported to the police that DeNeut was following her and calling her repeatedly. The Longs obtained a restraining order against DeNeut on October 13, 2003. Because DeNeut owned a piece of property neighboring the Longs' cabin in Cantwell, DeNeut agreed, through his attorney, to call the police before heading to his Cantwell property.
The next day, Elaine Long reported to police that DeNeut continued to follow her. DeNeut was arrested on October 17 and the State charged him with stalking in the second degree. He posted bond and was released on the same day into the custody of his friend Kenneth Dunshie. That evening, DeNeut visited Mark Chambers in an effort to persuade Chambers to assist him in installing a furnace on his Cantwell property. Chambers would not agree to help. DeNeut returned to Dunshie's home and told Dunshie that he would find Chambers the next morning to ask him again to help.
The following day, October 18, 2003, Ronald Long and Chambers were found shot to death in the Longs' home. Neighbors reported to the police that a truck, which looked similar to DeNeut's, had driven up to the front of the Longs' home that afternoon. DeNeut turned himself in to the police two days later, and admitted that he shot Long and Chambers after a confrontation. DeNeut was taken to the hospital to receive treatment for a minor gunshot wound he received during the altercation with Long and Chambers.
A grand jury indicted DeNeut on two counts of first-degree murder, and one count each of tampering with physical evidence, burglary in the first degree, and stalking in the first degree. The Office of Public Advocacy appointed Dan Allen to represent DeNeut.
AS 11.41.100(a)(1)(A).
AS 11.56.610(a)(1).
AS 11.46.300(a)(1) (a)(2)(A)(B)(C).
AS 11.41.260(a)(1)(2) (4).
On March 11, 2004, DeNeut and the State notified Superior Court Judge Charles R. Pengilly that they had entered a plea agreement. DeNeut agreed to plead no contest to one count of murder in the first degree and one count of murder in the second degree. The State agreed to dismiss the three other pending felony charges and a separate misdemeanor stalking charge. Judge Pengilly conducted a colloquy to ensure that DeNeut understood the minimum and maximum sentences he could receive. Judge Pengilly confirmed that DeNeut understood he was giving up his trial and appellate rights. Judge Pengilly asked if DeNeut was pressured or coerced; DeNeut confirmed that his plea was knowing and voluntary. Judge Pengilly did not inquire into DeNeut's understanding of the elements of the charges of murder in the first and second degree, as required. Judge Pengilly accepted the plea and sentencing was set for June 14, 2004.
Two weeks before sentencing, DeNeut filed a pro se motion requesting to withdraw his plea. Judge Pengilly delayed sentencing and appointed a new attorney, James Hackett, to handle DeNeut's motion. New counsel was necessary because a key component of DeNeut's claim was that Dan Allen had not effectively represented him.
Through his new attorney, DeNeut filed a formal motion to withdraw his plea. The motion was supported by DeNeut's affidavit. In the affidavit, DeNeut claimed that he was placed in segregation in jail from mid-October of 2003 until mid-March of 2004, a date after which he had entered his plea. DeNeut claimed that Allen told him that he was going to have a psychiatrist examine him but never did so. DeNeut claimed that Allen never contacted witnesses he wanted Allen to contact. He stated that he concluded that Allen was not making any effort to investigate his case. He claimed that he lost confidence in Allen. He also claimed that Allen never explained to him the elements of the crimes he was charged with. He stated that he was not able to receive complete discovery about the evidence against him until after his plea. According to DeNeut, after he entered his plea, he found out from Allen and from the record of the grand jury proceeding that Ken Dunshie would testify that DeNeut had not acted with the intent to kill his victims, which would negate an element of murder in the first degree. DeNeut also stated that he had not understood that the sentencing court had the authority to restrict his parole. DeNeut claimed that he therefore was not adequately informed of the consequences of entering his plea. He stated that, now armed with this additional information, he wanted to withdraw his plea and go to trial.
See AS 11.41.100(a)(1).
At the hearing of DeNeut's motion to withdraw his plea, the State took the position that even if all of the factual assertions in DeNeut's affidavit were true, DeNeut would not be entitled to withdraw his plea. The parties agreed to proceed on this ground.
Judge Pengilly denied the motion in a written order. He found that, although the State would incur some prejudice if DeNeut were allowed to withdraw his plea, the State would not suffer substantial prejudice. But he found that DeNeut had failed to present a " fair and just reason for withdrawing his plea."
At a subsequent sentencing hearing, Judge Pengilly sentenced DeNeut to a composite sentence of 129 years of imprisonment: 99 years for the murder of Long and a consecutive 30 years for the murder of Chambers. DeNeut now appeals, arguing that Judge Pengilly erred in denying his motion to withdraw his plea.
Why we conclude that this case must be remanded for an evidentiary hearing
The standards for allowing a defendant to withdraw his plea are set out in Alaska Criminal Rule 11(h). Because DeNeut moved to withdraw his plea before sentencing, he was entitled to withdraw his plea if he showed any fair and just reason, unless the State had been substantially prejudiced by reliance upon his plea. In the superior court, the State's position was that, even if all of the allegations which DeNeut made in his affidavit were true, DeNeut would not be entitled to relief. Therefore, Judge Pengilly was obliged to accept DeNeut's allegations as true for purposes of ruling on his motion.
If indeed all of DeNeut's allegations in his affidavit are true, he would be entitled to withdraw his plea. We note, in particular, that DeNeut alleges that, when he entered his plea, he did not understand the elements of murder in the first degree. He claims that, after he entered his plea, he discovered that, in order to commit murder in the first degree, he had to have an intent to kill. And, after he entered his plea, he discovered that there was evidence to support a defense that he had not acted with intent to kill. We believe that these allegations, if proved, would establish a " fair and just reason" for him to withdraw his plea. We accordingly vacate the decision of the superior court denying DeNeut's motion to withdraw his plea. We remand to allow DeNeut to establish his claim at an evidentiary hearing.
REVERSED and REMANDED.