Opinion
Court of Appeals No. A-9153.
August 1, 2007.
Appeal from the Superior Court, Third Judicial District, Palmer, Eric Smith, Judge, Trial Court No. 3PA-03-2472 CR.
Dan Lowery, Assistant Public Defender, and Q uinlan Steiner, Public D efender, Anchorage, for the Appellant. Timothy W. Terrell, 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 Stewart, Judges.
MEMORANDUM OPINION
Eric J. Holden pleaded no contest to one count of refusal to submit to a chemical test. Before sentencing, Holden filed a motion to withdraw his plea. Superior Court Judge Eric Smith found that Holden had not advanced a fair and just reason to withdraw his plea. Holden appeals this decision. We affirm. Factual and procedural background
Eric J. Holden was arrested for driving while under the influence by W asilla police on November 21, 2003. Wasilla Police Officer Scott Vukich stopped Holden's car after observing white light emitting from a taillight of the car Holden was driving (a violation of the Alaska Administrative Code). Officer Vukich also watched Holden's car weave within its lane and exceed the speed limit. When Officer Vukich activated his overhead emergency lights to pull Holden over, Holden stopped his car in the middle of an intersection on the Seward Meridian Parkway.
Holden got out of his car and met Officer Vukich in the roadway. Officer Vukich noted that Holden staggered and had slurred speech, bloodshot, watery eyes, and an odor of alcohol about him. After Holden performed poorly on several field sobriety tests, Officer Vukich asked Holden to provide a breath sample for a portable breath-test device. Holden's breath-alcohol level was measured at .10 percent, above the legal limit for operating a motor vehicle in Alaska. Holden struggled when Vukich attempted to place him under arrest. After additional officers arrived on the scene, Holden was arrested and transported to the police station.
AS 28.35.030(a)(2).
At the police station, Holden was asked to provide a breath sample. Holden said he wanted to contact an attorney first. Holden made several phone calls but was unable to contact an attorney. Holden refused to provide a breath sample.
The State indicted Holden for one count each of felony driving while under the influence and felony refusal to submit to a breath test. (The offenses were felonies because Holden had at least two prior convictions in Alaska for these offenses.) The State also charged Holden by information with resisting arrest and driving with a revoked license.
AS 28.35.030(n) and AS 28.35.032(p), respectively.
AS 11.56.700(a)(1) and AS 28.15.291(a)(1), respectively.
Eugene B. Cyrus, under contract with the Office of Public Advocacy, represented Holden throughout the pretrial proceedings. Holden's trial was originally scheduled for February 23, 2004. But Holden's trial was delayed for various reasons over the next several months. During this time, Cyrus filed numerous motions on Holden's behalf. On the afternoon of October 19, Judge Smith denied all of Holden's pending motions. Cyrus then sought a continuance. But Judge Smith denied the continuance, stating that he felt that Cyrus and Holden were seeking to continually delay the trial and manipulate the system. With the trial about to begin, Cyrus sought one more continuance, arguing that a plea bargain was close to being arranged. Judge Smith agreed to give the parties until the following morning to arrange a plea bargain.
The parties reconvened the next morning. Cyrus quickly sought another continuance to conduct more discovery. Judge Smith denied the request, noting that Holden had had almost one year up to that point to prepare for trial. Judge Smith allowed the parties ten minutes to finalize a plea agreement.
When the court reconvened, Cyrus announced that a plea agreement had been reached whereby Holden would plead no contest to the refusal charge and all other charges would be dismissed. After the parties outlined the terms of the agreement, Judge Smith addressed Holden to ensure he understood the agreement.
Judge Smith then informed Holden of rights which he would be giving up by entering a plea. Among these rights, Judge Smith told Holden that he would be giving up his right to appeal his conviction. Nine days later, Cyrus filed a motion seeking to have the plea treated as a Cooksey plea. In the motion, Holden sought to re-enter his plea in order to preserve the following issues for appeal: first, that Holden was not given a reasonable opportunity to decide whether to have an independent test and the opportunity to contact an attorney regarding that decision; second, that Holden was not given an opportunity to contact an attorney before deciding whether to provide a breath sample; third, that the stop was illegal; and fourth, that Holden's prior conviction should not be used for sentencing. The motion noted: "Holden, at the time that he first entered his plea, was not informed by his counsel of the possibility of preserving said issues for appeal by entering a Cooksey plea." Cyrus also filed an affidavit stating that he had not informed Holden of the possibility of a Cooksey plea. The State opposed the motion, and refused to certify the potential issues raised in Holden's motion as dispositive. Accordingly, on January 20, 2005, Judge Smith denied Holden's motion.
Cooksey v. State, 524 P.2d 1251 (Alaska 1974).
Two weeks later, Holden filed a motion to withdraw his plea. The motion argued that Holden presented a "fair and just reason" for plea withdrawal — namely, that his plea was not knowingly entered because he had not been informed, by either Judge Smith or his attorney, that he could not appeal Judge Smith's denial of his pretrial motions. Holden also submitted an undated pro se request, explaining that he sought to withdraw the plea because he was "denied due process, presentation of evidence, equal protection, Criminal Rule 5 violation(s), grand jury's second third indictment(s), violation's, and, `extreme duress' due to court's continual (noted) bias!" Holden also submitted an affidavit in which he complained that he entered the plea under "duress" which led to "serious due process/equal protection violations." The motion also included an affidavit from Cyrus in which he stated that he could not recall whether he explained to Holden that a no contest plea would eliminate any potential appeal. Cyrus stated that he had not discussed the possibility of a Cooksey plea with Holden.
On March 4, 2005, Judge Smith held an evidentiary hearing on Holden's motion to withdraw his plea. Holden was the only witness examined. Holden testified that he felt he should have been able to testify at the grand jury, in order to present what he believed was exculpatory evidence. Holden complained that he entered the plea under duress. Holden stated that he felt Judge Smith was aggravated with the delays and rushed him to make a decision.
Judge Smith denied Holden's request to withdraw his plea. He concluded that Holden was trying to manipulate the system in order to avoid being sentenced. He found that Holden's testimony that he did not understand "what he was getting into" was not credible. Judge Smith recognized that Holden was under pressure when he entered his plea, but concluded that this pressure was similar to the pressure that many people feel when circumstances required them to make a decision.
Judge Smith sentenced Holden to 30 months of imprisonment. Holden appeals Judge Smith's decision refusing to allow Holden to withdraw his plea.
Why we conclude that Judge Smith did not err in refusing to allow Holden to withdraw his plea
Holden alleges that his attorney, Eugene Cyrus, provided ineffective assistance by failing to advise him that his plea agreement would waive all non-jurisdictional appellate rights. Holden asserts that he received "ineffective assistance when [Cyrus] failed to ensure that . . . Holden knowingly and intelligently waived his right to appeal the trial court's decisions on the dispositive motions to suppress and to dismiss."
But, as the State points out, Holden never squarely presented this issue in the trial court. In his affidavits and in his testimony at the hearing, Holden simply argued that he was under duress when he entered his plea. Judge Smith rejected Holden's testimony. Holden did not present or testify in support of the theory that he had not been advised of his appellate rights, was unaware of those rights, and would not have entered into the plea agreement if he had understood them. Therefore, Judge Smith never ruled on this issue. Accordingly, Holden never preserved this issue for appeal.
The issue which Holden did present to Judge Smith was his contention that he was under duress when he entered his plea and that he did not fully understand what he was giving up by entering a plea. Judge Smith found that Holden's testimony was not credible. Judge Smith concluded that Holden's motion to withdraw his plea was motivated by his desire to manipulate the system so that he would not be sentenced. Judge Smith's finding is not clearly erroneous. We accordingly affirm Judge Smith's ruling denying Holden's motion to withdraw his plea.
See Bobby v. State, 950 P.2d 135, 138 (Alaska App. 1997).
The judgment of the superior court is AFFIRMED.