Opinion
Court of Appeals No. A-10096.
October 7, 2009.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Douglas Blankenship, Judge, Trial Court No. 4FA-03-3868 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 Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Michael C. DeNeut pleaded no contest to one count of first-degree murder and one count of second-degree murder, but before he was sentenced, DeNeut asked to withdraw his pleas. DeNeut alleged that he had not been effectively represented by counsel and was not fully informed of the elements of first-and second-degree murder. We previously remanded this case to the superior court for an evidentiary hearing on DeNeut's allegations. Now we affirm the superior court's conclusion on remand: that DeNeut has not presented any "fair and just" basis for withdrawing his pleas.
AS 11.41.100(a)(1)(A).
AS 11.41.110(a)(1).
DeNeut v. State, Memorandum Opinion and Judgment No. 5161 (Alaska App., Jan. 24, 2007), 2007 WL 188575.
Background
In October 2003, Michael C. DeNeut was indicted by a grand jury for two counts of first-degree murder, and one count each of burglary in the first degree, stalking in the first degree, and tampering with physical evidence. About three months later, Assistant Public Advocate David Allen conveyed a settlement offer to DeNeut, an offer where he would agree to plead no contest to one count of first-degree murder and another count of second-degree murder in exchange for the State's dismissal of the other felony charges. DeNeut accepted the State's offer, and changed his plea to no contest on March 11, 2004.
AS 11.46.300(a)(1) (a)(2)(A) — (C).
AS 11.41.260(a)(1), (2) (4).
AS 11.56.610(a)(1).
On June 2, 2004 — about two weeks before his sentencing date — DeNeut filed a motion requesting to withdraw his plea of no contest. DeNeut also filed an affidavit asserting that he was not counseled by Allen about the specific elements of first- and second-degree murder. But the superior court denied DeNeut's motion to withdraw his plea, despite finding that the State's case would not be prejudiced.
DeNeut, 2007 WL 188575 at *2.
See Alaska R. Crim. P. 11(h)(2) (explaining that "[b]efore 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.").
DeNeut appealed, and we reversed the superior court's decision, concluding that if DeNeut's assertions were true, he should be able to withdraw his plea. We remanded the case to the superior court to allow DeNeut to establish his claim at an evidentiary hearing.
DeNeut, 2007 WL 188575 at *3.
Id.
On remand, the superior court conducted an evidentiary hearing to take the testimony of Allen and DeNeut. According to Allen, he discussed with DeNeut the elements of each crime "at length" and explained how first-degree murder required the State to prove that DeNeut had an intent to kill. Allen testified that his standard practice was to speak with his clients about the evidence the State would use to prove each element of the charged offense, and that he was therefore certain that he detailed to DeNeut the elements of first-degree murder. Allen also testified that he discussed possible defenses with DeNeut — including the heat-of-passion defense — but he admitted that he did not discuss all of the mental states that would apply to lesser-included offenses.
DeNeut testified that he did recall discussing the significance of powder burns on the victims' bodies as evidence that he had fired at them at close range — indicating an intent to kill. But DeNeut testified that no one instructed him about the specific intent required for first-degree murder until after the plea hearing, when he listened to a tape of the district attorney instructing the grand jury. DeNeut also claimed that he first learned from the tape that a witness suggested he lacked this specific intent to kill.
Following the evidentiary hearing, the superior court issued an order denying DeNeut's motion to withdraw his plea. The judge relied on Allen's testimony that he had spoken with DeNeut about the State's evidence and had specifically tied that evidence to the mental elements required for first-degree murder. The court's order stated that "Mr. De[N]eut's recollection of his interaction with Mr. Allen was somewhat clouded." The judge accordingly found that DeNeut's testimony was not credible when he testified that he did not understand that the intent to kill was an element of first-degree murder when he changed his plea to no contest.
Based on these findings of fact, the judge concluded that "there was substantial compliance with Criminal Rule 11 when Mr. DeNeut changed his plea to no contest before Judge Pengilly," and that DeNeut had not established a "fair and just reason" for withdrawing his plea. DeNeut now appeals.
Discussion
We have consistently noted that a trial "court ha[s] broad discretion to find a `fair and just reason' to allow withdrawal of [a defendant's] plea" and that a court "must consider the totality of the circumstances surrounding the defendant's request." But if a defendant fails to present a "fair and just reason," a trial "court may deny a request for withdrawal . . . even if the state would not suffer prejudice if the case went to trial."
Harrison v. State, 860 P.2d 1280, 1285 (Alaska App. 1993).
McClain v. State, 742 P.2d 269, 271 (Alaska App. 1987) (citing Wahl v. State, 691 P.2d 1048, 1051 (Alaska App. 1984)).
Monroe v. State, 752 P.2d 1017, 1019 (Alaska App. 1988).
The heart of DeNeut's argument is his allegation that Allen did not provide DeNeut with an explanation of the elements of the offense necessary for an informed plea, and that DeNeut did not receive actual notice of the critical elements of the offense. But after hearing testimony on this issue, the superior court ruled that "DeNeut's attorney had informed him of the elements of first-degree murder and that at the time of his change of plea, Mr. DeNeut understood that the intent to kill was an element of first-degree murder."
Alaska courts follow the rule established in Edwards v. United States to determine whether a defendant understood the nature of a charged offense. In Edwards, then-Judge Burger explained that a defendant's understanding of his plea does not need to rise to the level of technical expertise: "`[U]nderstandingly' refers merely to the meaning of the charge, and what acts amount to being guilty of the charge, and the consequences of pleading guilty thereto. . . ." We followed this approach in Bratcher v. State, where we concluded that there could not be "substantial compliance" with Rule 11 where a defendant (1) maintained his innocence, (2) made statements to the court show ing that he misunderstood the charge's statutory definitions, and (3) was never fully advised by his counsel of the necessary elements of the offense.
256 F.2d 707, 710 (D.C. Cir. 1958).
Larson v. State, 614 P.2d 776, 780 (Alaska 1980); Bratcher v. State, 681 P.2d 358, 361 (Alaska App. 1984).
Edwards, 256 F.2d at 710.
Bratcher, 681 P.2d at 362-63.
DeNeut has neither claimed his innocence nor established that he misunderstood the actual elements of his charges. On the contrary, the trial court found that DeNeut's attorney had informed him of the elements of first-degree murder and that at the time of his change of plea, DeNeut understood that the intent to kill was an element of first-degree murder. The judge also found that Allen discussed the element of specific intent with DeNeut in relation to the State's evidence, thereby showing DeNeut how the State's evidence could actually prove that element. This finding establishes that DeNeut was given "real notice of the true nature of the charge against him." The superior court could therefore properly conclude that DeNeut had failed to present any "fair and just reason" as to why he should be able to withdraw his pleas.
Smith v. O'Grady, 312 U.S. 329, 334, 61 S. Ct. 572, 574, 85 L. Ed. 859 (1941).
Conclusion
It was not clearly erroneous for the superior court to find that DeNeut understood the elements of first-and second-degree murder based on Allen's testimony. We therefore AFFIRM the superior court's judgment.