Opinion
Court of Appeals No. A-9646.
July 16, 2008.
Appeal from the Superior Court, Third Judicial District, Palmer, Eric Smith, Judge, Trial Court No. 3PA-04-1247 CR.
David E. George, Anchorage, for Appellant. Terisia K. Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Jeffrey T. Kolody entered a no contest plea to misconduct involving a controlled substance in the second degree, a class A felony. Kolody entered his plea as part of a plea agreement with the State in which Kolody agreed to the presumptive 5-year sentence. The State agreed to dismiss four other felony drug charges in return for the plea. Superior Court Judge Eric Smith accepted the plea and the plea agreement.
AS 11.71.020(a)(2)(A).
AS 12.55.125.
Three months later, just prior to his scheduled sentencing proceeding, Kolody moved to withdraw his plea. In his motion, Kolody claimed an attorney representing him told him that if he went to trial, he was probably facing a sentence of 12 years of imprisonment. He claimed that based on this advice he was pressured into agreeing to the 5-year presumptive term.
Judge Smith conducted an evidentiary hearing on Kolody's motion to withdraw his plea. At the evidentiary hearing, Kolody testified that one of his attorneys misled him by telling him that if he went to trial he would receive 12 years of imprisonment. Kolody testified he was misled because the attorney never told him he could receive concurrent sentences totaling much less than 12 years. He testified the only reason he entered into the plea agreement was because of the threat that he would receive a 12-year sentence if he did not.
The attorney from whom Kolody claimed he received the advice had little recollection of his limited representation of Kolody. But the attorney who was actually in charge of Kolody's case and represented him at the hearing where he changed his plea had a much stronger recollection. She testified the evidence against Kolody was very strong because Kolody's codefendant planned to testify against him and argue that Kolody coerced her into participating in the drug offenses. This attorney testified she discussed with Kolody the strength of the State's case. She testified she discussed the case with Kolody numerous times and thoroughly discussed with him his decision to enter a plea. She told Kolody that if he did not take the plea bargain, it was likely he would get a longer sentence than the 5-year presumptive term. She said Kolody never related that the other attorney told him he would receive 12 years or threatened him. She testified that, in her opinion, Kolody entered into the plea agreement knowingly, intelligently, and based on her advice.
At the conclusion of the hearing, Judge Smith denied Kolody's motion to withdraw his plea. He found the attorneys' testimony credible; they had not told Kolody he would receive 12 years and there was nothing they could do about it. He found that Kolody was dissatisfied with the deal he made, that Kolody concluded he made a mistake, and that this affected his memory of what he had been told. Judge Smith concluded that the attorneys had not been ineffective, that Kolody received adequate advice, and that he had not established a fair and just reason to withdraw his plea.
We conclude that Judge Smith's decision is supported by the record. We are to accept Judge Smith's factual findings unless we find they are clearly erroneous. Kolody's motion rested on his claim that one of his attorneys told him that if he went to trial he would be convicted and receive a 12-year sentence. And Kolody testified to this at the evidentiary hearing. But the testimony of Kolody's attorneys contradicted his testimony. And Judge Smith found their testimony credible. It is true that Judge Smith did not find that Kolody lied at the evidentiary hearing. He found that Kolody's recollection of the advice he received from the attorneys was influenced by his desire to abandon the plea agreement. He essentially found that Kolody had changed his mind about the plea agreement and Kolody's desire to get out of the plea agreement completely distorted his recollection of the events leading up to it. We have consistently held that the fact that a defendant changes his mind about whether to enter a plea does not establish a fair and just reason to withdraw a plea.
Shetters v. State, 751 P.2d 31, 35 (Alaska App. 1988).
Kolody attempts to appeal Judge Smith's denial of his suppression motion and his sentence. But Kolody pled no contest and did not preserve any issues for appeal. Kolody's plea of no contest operates as a waiver of all non-jurisdictional defects not expressly preserved for appeal as a condition of the plea. We note that at Kolody's change of plea hearing, Judge Smith advised Kolody that he was giving up the right to appeal when he changed his plea to no contest. Furthermore, because Kolody agreed to his sentence as part of a plea bargain, he cannot challenge his sentence on appeal.
Tyler v. State, 24 P.3d 1260, 1262 (Alaska App. 2001).
AS 12.55.120(a).
The judgment of the superior court is AFFIRMED.