Opinion
A-13857
03-13-2024
KEILAN CLARENCE EBLI, Appellant, v. STATE OF ALASKA, Appellee.
Renee McFarland, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Madeline M. Magnuson, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Third Judicial District, Anchorage, Trial Court No. 3AN-07-00022 CR Andrew Peterson, Judge.
Appearances:
Renee McFarland, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Madeline M. Magnuson, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
Keilan Clarence Ebli appeals, arguing that the superior court erred by denying his motion to withdraw his plea.
In 2011, Ebli pleaded guilty, pursuant to a plea agreement, to second-degree murder. As part of the agreement, the State dismissed charges of first-degree murder and second-degree sexual assault. The superior court sentenced Ebli to 60 years with 10 years suspended (50 years to serve). He appealed this sentence, and we affirmed.
AS 11.41.110(a)(1).
AS 11.41.100(a)(1)(A) and former AS 11.41.420(a)(3) (2006), respectively.
Ebli v. State, 2013 WL 1287386, at *1-2 (Alaska App. Mar. 27, 2013) (unpublished).
In 2014, Ebli filed a timely application for post-conviction relief, seeking to withdraw his plea. Ebli alleged that his attorney provided him ineffective assistance of counsel in negotiating the plea agreement, advising him regarding the plea agreement, presenting information at sentencing, and preparing him for allocution at sentencing. The superior court granted the application with respect to the claim that Ebli's attorney was ineffective in preparing him for allocution, but denied the application with respect to the other three claims. The court therefore denied Ebli's request to withdraw his plea, but vacated his sentence and ordered a new sentencing hearing.
In 2018, prior to resentencing, Ebli again moved to withdraw his plea. He argued that because he was making this motion "[b]efore sentencing," Alaska Criminal Rule 11(h)(2) - which allows a court to "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" - applied. The State, however, argued that the motion was made "[a]fter imposition of sentence." Therefore, the State argued that a different rule - Criminal Rule 11(h)(3) - applied, and that Ebli could only withdraw his plea through post-conviction relief proceedings. The State also argued that the motion was precluded by the ruling on his initial request to withdraw his plea.
"After imposition of sentence, the withdrawal of a plea may be sought only under AS 12.72." Alaska R. Crim. P. 11(h)(3).
The superior court held an evidentiary hearing where Ebli, his trial attorney, and the attorney's investigator testified. During Ebli's testimony, he acknowledged that his trial attorney had explained that the plea agreement called for open sentencing, what open sentencing meant, and that he could receive a sentence of up to 99 years. But according to Ebli, his attorney told him that a sentence above the Page benchmark (i.e., 20 to 30 years) would not be imposed, and that he would appeal if it was imposed. During the investigator's testimony, he recalled that Ebli's attorney told him that he thought Ebli would receive a sentence at the low end of the Page benchmark, and that he relayed this information to Ebli at the attorney's request. During the trial attorney's testimony, he did not recall whether he asked the investigator to speak with Ebli, but stated that if he had, he would have conveyed that "the choice [was] up to the client." The attorney also testified that he would "never tell a client absolutes," that he was "sure [they] discussed a range of sentences," and that he had provided Ebli a copy of the Page decision (in which this Court announced the benchmark but ultimately affirmed a 99-year sentence).
See Page v. State, 657 P.2d 850, 855 (Alaska App. 1983).
See id.
The State opposed Ebli's motion, noting that eight years had passed since the change of plea. The State represented that (1) it would likely have substantial costs to locate witnesses and arrange their travel; (2) multiple witnesses were now out of state, missing, or deceased; and (3) the original case file had been lost.
The superior court agreed with the State that Criminal Rule 11(h)(3) applied and that Ebli was precluded from relitigating the issue. Alternatively, it ruled that it would decline to allow Ebli to withdraw his plea even if Criminal Rule 11(h)(2) applied. The court found that Ebli's attorney's testimony was credible. And it found that the State would face substantial prejudice if Ebli were allowed to withdraw his plea.
Ebli moved for reconsideration of this order, arguing, among other things, that the court had ignored or overlooked the investigator's testimony. In denying reconsideration, the superior court rejected this contention, stating that it considered the investigator's testimony, weighed the credibility of the trial attorney and the investigator, and "determined that [the trial attorney]'s testimony was more credible." Ebli does not challenge this finding on appeal.
The superior court then held a resentencing hearing and sentenced Ebli to 45 years with 15 years suspended (30 years to serve).
We decline to resolve the larger legal issues surrounding Ebli's motion to withdraw his plea and instead affirm the court's alternative ruling. First, we conclude that the superior court did not err in concluding that Ebli did not present a fair and just reason to withdraw his plea. The record supports a finding that Ebli's trial attorney sufficiently informed Ebli that the plea agreement provided for open sentencing and that he could be sentenced up to 99 years. Second, the superior court did not abuse its discretion in concluding that the State would be substantially prejudiced if Ebli were permitted to withdraw his plea. Significant time has passed since Ebli pleaded guilty, and the State identified significant difficulties in relitigating the case. Therefore, we conclude that the superior court did not abuse its discretion in declining to allow Ebli to withdraw his plea.
Although we decline to address all of the legal issues arising from Ebli's plea withdrawal motion, we agree with the State that Ebli's core claim here is also barred by the doctrine of collateral estoppel in that the superior court expressly found, when denying Ebli's first plea withdrawal motion, that Ebli's trial attorney had properly advised him regarding his potential sentencing exposure. See McElroy v. Kennedy, 74 P.3d 903, 90607 (Alaska 2003) (explaining that "issue preclusion, or collateral estoppel, renders an issue of fact or law which has already been decided by a court of competent jurisdiction conclusive in a subsequent action between the same parties").
See Ningealook v. State, 691 P.2d 1053, 1055-56 (Alaska App. 1984) (finding no abuse of discretion when the defendant had sufficient time to discuss his plea with his attorney and understood the nature of his plea and there was a strong possibility that the State would have problems obtaining witnesses for trial); Travelstead v. State, 689 P.2d 494, 497-98 (Alaska App. 1984) (finding no abuse of discretion when the defendant did not move to withdraw the plea until seven months after entering his plea, and he had received a lengthy sentence in a different case).
Accordingly, the judgment of the superior court is AFFIRMED.