Opinion
Court of Appeals No. A-8964.
October 11, 2006.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Charles R. Pengilly, Judge. Trial Court No. 4FA-03-978 Cr.
Robert S. Noreen, Fairbanks, for the Appellant.
Diane L. Wendlandt, 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
In August 2003, James B. Haynes pleaded no contest to third-degree controlled substance misconduct (possession of cocaine with intent to sell it). His sentencing hearing was scheduled for November 19, 2003, but Haynes failed to appear for that hearing. A warrant was issued for his arrest, and he was ultimately apprehended in March 2004. At this point, Haynes faced two new felony charges: failure to appear, and fourth-degree controlled substance misconduct (possession of cocaine), based on a new incident.
AS 11.71.030(a)(1).
While Haynes was awaiting sentencing in his original case, he obtained a new lawyer and filed a motion to withdraw his plea. In this motion, Haynes asserted that his prior attorney had failed to pursue an allegedly meritorious motion to dismiss the indictment. Haynes further asserted that his prior attorney had failed to provide him with a complete copy of the police report and a transcript or tape of the grand jury proceedings.
Superior Court Judge Charles R. Pengilly held an evidentiary hearing on Haynes's motion. Both Haynes and his prior attorney, Lori M. Bodwell, testified at this hearing. Based on the testimony presented, Judge Pengilly concluded that Haynes had failed to demonstrate a fair and just reason to withdraw his plea.
(See Alaska Criminal Rule 11(h)(2), which provides that, before sentencing, the court may permit a defendant to withdraw a previously entered plea of guilty or no contest "for any fair and just reason unless the prosecution has been substantially prejudiced by reliance upon the defendant's plea".)
Haynes now appeals Judge Pengilly's decision.
Haynes's argument that his prior attorney should have filed a motion seeking dismissal of the indictment
One of Haynes's asserted reasons for wishing to withdraw his plea was that his prior attorney incompetently failed to seek dismissal of the indictment. According to Haynes, there was good reason to dismiss the indictment, but his attorney failed to pursue this matter.
When Haynes filed his motion to withdraw his plea, he attached to it a motion to dismiss his indictment. As Judge Pengilly recognized, this motion was "hypothetical" or conditional in the sense that it could not be filed unless and until Haynes was allowed to withdraw his plea — because Haynes waived all potential attacks on his indictment when he entered his no contest plea. See Alaska Criminal Rule 12(b) and (e). Judge Pengilly therefore treated this motion as an offer of proof. That is, he treated it as a description of the motion that Haynes now claimed his prior attorney should have pursued.
In this motion, Haynes argued that his prior attorney should have sought dismissal of the indictment on the ground that the evidence presented to the grand jury failed to support the allegation that Haynes possessed cocaine with intent to sell it. But the evidence presented to the grand jury showed that Haynes was found in possession of three "eight balls" ( i.e., eighth-ounce portions) of cocaine, that these portions of cocaine were separately packaged in plastic baggies, that an "eight ball" is the amount of cocaine that is commonly sold in street transactions, and that Haynes's hotel room contained a large number of similar baggies, along with other tools commonly used in separating and packaging cocaine.
Judge Pengilly concluded that Haynes's proposed motion to dismiss the indictment for insufficiency of the evidence would not have succeeded — and that, therefore, the attorney's failure to file this motion was not a fair and just reason for allowing Haynes to withdraw his plea. Having independently reviewed the grand jury record, we agree with Judge Pengilly's conclusion.
Haynes also suggested one other potential attack on the indictment. When the prosecutor asked the investigating trooper whether there was any indication that Haynes possessed the cocaine with intent to sell it, the trooper not only mentioned the factors described in the preceding paragraph but he also referred, in passing, to Haynes's "prior record". At least one of the grand jurors caught this reference — because, a few minutes later, one of the grand jurors asked the prosecutor if Haynes's prior record was material to the case. The prosecutor replied that whether Haynes had a prior criminal record was irrelevant to the grand jury's decision.
At the evidentiary hearing, Haynes's prior attorney, Lori Bodwell, testified that she considered filing a motion to dismiss the indictment because of this reference to Haynes's prior record, but she ultimately concluded that this motion would not succeed, given the other evidence presented to the grand jury. See Stern v. State, 827 P.2d 442, 445-46 (Alaska App. 1992) (describing the test that the superior court should apply when the grand jury hears inadmissible and potentially prejudicial evidence).
Judge Pengilly agreed with Bodwell that the motion would not have been granted — and that, therefore, Bodwell's failure to file this motion was not a fair and just reason for allowing Haynes to withdraw his plea. Having independently reviewed the grand jury record, we again agree with Judge Pengilly's conclusion.
Haynes's argument that his prior attorney failed to adequately consult with Haynes and inform Haynes about the State's case
Haynes also argued that he should be allowed to withdraw his plea because Bodwell did not provide Haynes with information about the case (in particular, the grand jury record and the details of the State's evidence), and because Bodwell failed to consult with him about the case.
At the evidentiary hearing, Bodwell responded to these allegations. In her testimony, Bodwell detailed her repeated efforts to communicate with Haynes and meet with him about the case. She explained that she attempted to mail a copy of the grand jury tape to Haynes at the jail, but Haynes secured his release from jail before the tape arrived, and the forwarding address that he provided to jail officials turned out to be wrong. Bodwell testified that she made repeated efforts to communicate with Haynes by mail and by telephone, but the mailing address and telephone numbers that Haynes had given to her were either incorrect or not current.
Bodwell also testified that Haynes would schedule appointments to meet with her about the case, and then he would call to cancel these appointments or he would fail to show up. Bodwell added that Haynes made no effort to reschedule these missed appointments, even though she encouraged him to do so. In addition, Bodwell testified, Haynes never requested any case materials or evidence related to his case.
Bodwell also testified about her conversations with Haynes leading up to his decision to enter a no contest plea. She said that she spoke with Haynes several times before he changed his plea, and she further testified that Haynes "was familiar with the [criminal justice] system" and "understood what his options were".
After hearing this testimony, Judge Pengilly concluded that Bodwell had represented Haynes effectively, and that Haynes bore the responsibility for any problems in communication between him and Bodwell. Judge Pengilly then added that he did not believe that these alleged problems were the real reason that Haynes was trying to withdraw his plea:
The Court: What troubles me the most is the fact that [Haynes now faces] two new offenses, both of which arose after [Haynes's] plea was entered. The suggestion, [which is] loud and clear to me, is that [Haynes's] real [motive] for seeking to withdraw [his] plea is to improve his bargaining position with regard to those two new charges. There was no reason that existed prior to the time the plea was entered that would have given him any basis for wanting to reconsider [the plea]. . . .
My read [of this case] is that his real basis for seeking to [withdraw his plea] is simply to improve [his] bargaining position on the new felonies, [and that his motion is] not a result of any confusion on the old [charge]. I don't think [that this constitutes a] "fair and just reason", low though [that] standard might be.
Bodwell's testimony at the evidentiary hearing fully supports Judge Pengilly's conclusion that Bodwell was diligent in her efforts to communicate with Haynes, consult with him, and keep him informed about the case. And, with regard to Judge Pengilly's conclusion that Haynes's motion to withdraw his plea was really an attempt to manipulate the system rather than an attempt to cure a perceived injustice, Haynes has not shown that this finding is clearly erroneous.
Conclusion
The judgement of the superior court is AFFIRMED.