Opinion
Court of Appeals No. A-9765.
April 23, 2008.
Appeal from the Superior Court, Third Judicial District, Seward, Harold M. Brown, Judge, Trial Court Nos. 3SW-05-282 Cr and 3KN-05-2055 Cr.
George J. Dozier Jr., Eagle River, for the Appellant. Nancy R. Simel, 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
This case involves a defendant's attempt to withdraw a negotiated plea on the ground that he purportedly failed to understand the procedural rights that he was relinquishing by pleading no contest.
In July 2005, Fedor Kuzmin drove his fishing vessel into the pier at Resurrection Bay Seafood in Seward. A police officer who came to investigate this accident discovered that Kuzmin was intoxicated. An ensuing breath test showed that Kuzmin had a blood alcohol level of .22 percent.
Based on this incident, and based on Kuzmin's three prior convictions for DUI and breath-test refusal within the preceding ten years, Kuzmin was indicted for felony driving under the influence. Because Kuzmin's fifteen-year-old son, Vladimir, was aboard the vessel at the time of this incident, Kuzmin was also charged with first-degree endangering the welfare of a minor. (File No. 3SW-05-282 Cr — the "Seward case".)
AS 28.35.030(n).
AS 11.51.100(b).
Following his indictment, while he was being held in jail in Kenai awaiting trial, Kuzmin wrote a letter to his son. This letter (which was intercepted by the authorities) suggested that the boy should say that he had been piloting the fishing vessel, so that the charges against Kuzmin would be dropped. Based on this letter, Kuzmin was indicted for the additional crime of first-degree witness tampering. (File No. 3KN-05-2055 Cr — the "Kenai case".)
AS 11.56.540(a)(1).
In early February 2006, Kuzmin's attorney negotiated a plea agreement with the State. Under the terms of this agreement, Kuzmin would plead no contest to the DUI and child endangerment charges, and to a reduced charge of second-degree witness tampering. The State agreed that Kuzmin would receive the following sentences: 5 years' imprisonment with 2 years suspended, plus a fine of $10,000 for the felony DUI; a consecutive 6 months' imprisonment for the child endangerment, and a concurrent 6 months' imprisonment for the witness tampering.
Kuzmin is an Old Believer, and his first language is that community's old form of Russian. Toward the beginning of the change-of-plea hearing, Superior Court Judge Harold M. Brown asked Kuzmin if he understood English. Kuzmin answered, "Yes, but not every word, maybe." Hearing this, Judge Brown declared that he would "try to speak slowly and not confuse [Kuzmin]."
Judge Brown then recited the terms of the plea agreement: the charges that Kuzmin was going to plead no contest to, and the bargained-for sentences that Kuzmin would receive. When Judge Brown finished describing the agreement, he asked Kuzmin, "Do you understand that?" Kuzmin answered, "Yes."
Judge Brown then explained to Kuzmin that he would be on probation for seven years, that the State would take his Alaska Permanent Fund dividends until his fine was paid, and he would forfeit his interest in the fishing vessel to the State. At this point, the prosecutor and Judge Brown engaged in a short discussion concerning the identity of the boat in question. The prosecutor identified the boat as the fishing vessel Coral. The following colloquy then ensued between Judge Brown and Kuzmin (personally):
The Court: [The] Coral?
Mr. Kuzmin: Yes.
The Court: C-O-R-A-L. And you forfeit — whatever your interest is in that boat, you forfeit it to the State.
Mr. Kuzmin: It's a bank. The bank owns it.
The Court: Okay.
Mr. Kuzmin: I borrowed from bank, and I haven't paid any of it.
The Court: Oh, you haven't paid any — okay.
Mr. Kuzmin: Any yet.
The Court: Okay. Well, whatever equity you have in the boat, whatever [the boat is] worth, more than what is owed on it — if anything — goes to the State. You understand that?
Mr. Kuzmin: Yeah, but I haven't paid them yet.
The Court: Yeah, I know. Well, let me give you an example: We'll say that you buy a boat for $10,000; it's worth $10,000 at the time that you buy it. By the time it's forfeited, it's worth $11,000. So even if you . . . still owed the $10,000, you'd be giving up the $1,000 more that it's worth.
Mr. Kuzmin: [But] today the boats is going down, not up, so —
The Court: [Right.] That's been my experience throughout my life, on all boats that I've owned.
Mr. Kuzmin: Right now, yes.
A few minutes later, Judge Brown spoke to Kuzmin about his right to trial by jury:
The Court: You'd be entitled to a trial in front of twelve jurors in [the Seward case]. And those jurors would live within [a] 30-mile radius of the Seward courthouse. At that trial, the State would have the burden of proving each and every element of the felony DUI and the child endangerment by — beyond a reasonable doubt. And that decision would have to be unanimous. You understand that?
Mr. Kuzmin: Unh-unh. No.
The Court: No? Okay.
Mr. Kuzmin: What's . . .
The Court: If you went to trial, if you exercised your right to have a trial, the State would have to prove that you were guilty beyond a reasonable doubt, to the unanimous satisfaction of all twelve jurors that sat on the jury. And that means that they'd all have to agree that you were guilty. Okay, do you understand what . . .
Mr. Kuzmin: Yes.
The Court: Okay. And on the tampering with the witness [ i.e., the Kenai case], that's a misdemeanor. That would be tried here in Kenai. The trial would occur here in Kenai, [and] because it's a misdemeanor, there would be fewer jurors. But the State would still have to prove the charge against you beyond a reasonable doubt, and all six jurors would have to agree that you're guilty. So you understand that?
Mr. Kuzmin: Yes.
Judge Brown then explained that if Kuzmin went to trial, he would have the right to confront and cross-examine the witnesses against him, to call witnesses on his own behalf, to either testify or refuse to testify personally, and to appeal to a higher court if he was found guilty. The judge also explained that Kuzmin would be giving up all of these rights if he accepted the plea bargain and pleaded no contest to the three charges. At this point, Kuzmin told the judge, "I have one question before I plead. . . . If jury decide I'm guilty, is there any other courts I can go higher?" Judge Brown then explained Kuzmin's right to appeal in more detail:
The Court: If the jury decides that you're guilty, then you can appeal the verdict to an appellate court. And they will examine the record. They'll look at what happened down here to determine whether or not the court made the right rulings, [and] that the correct law was explained to the jury, [and] that there was sufficient evidence to convict. There's any number of issues that you could raise [in] the higher court. But when you enter a "no contest" plea, then . . . you don't have the right to appeal any more. In effect, what it means is you agree [that you are] guilty.
[Whispered conversation between Kuzmin and his attorney]
Defense Attorney: Tell the court, if you want to plead, what your plea will be.
The Court: Go ahead, Mr. Kuzmin. What do you want to do?
Mr. Kuzmin: No contest.
Kuzmin then proceeded to formally enter no contest pleas to the three charges.
Three month later, in early May, Kuzmin notified the superior court that he intended to file a motion to withdraw his pleas. In mid-July, Kuzmin (now represented by a new attorney) filed this motion. The motion to withdraw the pleas was based on two assertions.
First, Kuzmin's attorney argued that Kuzmin should be allowed to withdraw his pleas because Judge Brown failed to explain the maximum and mandatory minimum terms of imprisonment for Kuzmin's three offenses. This claim has been dropped on appeal.
Second, Kuzmin's attorney asserted that the record of the change-of-plea hearing "made it abundantly clear . . . that [Kuzmin] did not understand many aspects of his change of plea." The support for this assertion was contained in a single paragraph of the attorney's pleading:
While it is true that [Kuzmin] told Judge Brown that he understood English well enough to go forward[,] he also stated that he did not understand all of the English words. In addition, [Kuzmin] asked questions about his right to appeal, and [questions about the elements of] both the child endangerment and witness tampering charges. Based upon this evidence, it is clear that Mr. Kuzmin did not understand the issues before the court.
Kuzmin did not submit an affidavit in support of this assertion that he failed to adequately understand the change-of-plea proceedings. Rather, he relied solely on the portions of the record that are referred to in the above-quoted paragraph.
In early August, the State filed on opposition to Kuzmin's motion. Kuzmin asked for, and received, an extension of his deadline for filing a reply to the State's opposition until August 18, 2006. However, on August 17, 2006 — that is, the day before Kuzmin's reply was due — Judge Brown issued a one-page order denying Kuzmin's motion.
Six days later, Kuzmin's attorney filed a lengthy motion for reconsideration of Judge Brown's premature decision. Most of this motion was devoted to a rebuttal of the case law cited by the State in its opposition; that is, the motion for reconsideration appeared to contain the same discussion of legal authorities that Kuzmin would have included in his reply if Judge Brown had not issued his decision before the reply was due.
On the next-to-last page of the motion for reconsideration, Kuzmin's attorney turned to the specific facts of Kuzmin's case. The attorney repeated his assertion that the record of the change-of-plea hearing showed that "the State has not established that Mr. Kuzmin fully understood the rights he was [giving] up." In support of this assertion, the attorney again referred to the fact that, at the change-of-plea hearing, Kuzmin asked questions about his right to appeal and about the elements of the witness tampering charge.
(We note that, as a legal matter, this argument is misguided. It was not the State's burden to prove "that Mr. Kuzmin fully understood [his] rights". Rather, it was Kuzmin's burden to prove his asserted basis for the requested plea withdrawal — i.e., the assertion that he did not adequately understand his rights.)
See, e.g., Wahl v. State, 691 P.2d 1048, 1051 (Alaska App. 1984).
But then the attorney raised a new claim: that Kuzmin had not understood the requirement of jury unanimity. Kuzmin's attorney did not assert that the record of the change-of-plea hearing supported this assertion. Rather, the attorney told Judge Brown that "Mr. Kuzmin would like to have the opportunity, through an evidentiary hearing, to show that he misunderstood [this] basic tenet of the jury system."
Kuzmin still refrained from submitting a personal affidavit to support this assertion of misunderstanding. Rather, he relied on the following second-hand account provided by his attorney:
Mr. Kuzmin [has] explained to me that he understood that there would be 12 jurors, [but] he believed that if the State managed to convince one juror [of Kuzmin's guilt], he could be convicted. Only after [entering] the plea[s] did [Kuzmin] come to [understand] that the disbelief of one juror could set him free.
( Sic: The disbelief of one juror would not "set [Kusmin] free"; rather, it would lead to a mistrial. To have legal effect, a jury's verdict in a criminal case — whether for conviction or acquittal — must be unanimous.)
Judge Brown denied this motion for reconsideration without comment. On appeal, Kuzmin challenges Judge Brown's ruling on two bases.
First, Kuzmin renews his assertion that "[it is] readily apparent from the transcript [of the change-of-plea hearing that] Kuzmin is not fluent in English." He relies in particular on the colloquy between Judge Brown and himself concerning the forfeiture of his equity in the fishing vessel. According to Kuzmin, his responses during this colloquy, as well as his responses at various other points in the change-of-plea hearing, clearly demonstrate his lack of understanding of English.
We conclude that Judge Brown could reasonably find that the change-of-plea hearing demonstrates just the opposite. With particular regard to the colloquy about the forfeiture of Kuzmin's equity in the fishing vessel, we note that when Judge Brown explained the fairly sophisticated notion that Kuzmin would forfeit whatever portion of ownership in the boat he had, over and above the amount of money that was owed to the bank, Kuzmin's answers showed that he understood the concept of forfeiture, the concept of a borrower's equity in a vessel purchased with the aid of a bank loan, and the concept that, because of a falling market for fishing vessels, he was unlikely to have much (if any) equity in the boat.
We reach the same conclusion from the other portions of the change-of-plea transcript. It is true that Kuzmin asked Judge Brown to clarify his right to appeal, as well as several questions about the elements of the crimes. But when Judge Brown answered Kuzmin's questions, Kuzmin appeared to understand these answers, and he repeatedly expressed his wish to proceed with the change-of-plea hearing.
As we explained above, Kuzmin never submitted a personal affidavit to support the assertion that he misunderstood crucial aspects of his rights. Instead, he relied solely on the transcript of the change-of-plea hearing — arguing that this transcript spoke for itself, by clearly demonstrating Kuzmin's lack of comprehension.
Based on our review of this transcript, we conclude that Judge Brown could reasonably find that the transcript failed to support Kuzmin's assertions of misunderstanding and lack of comprehension — and that, therefore, Kuzmin had failed to prove a fair and just reason for withdrawing his pleas.
The remaining claim is the one that Kuzmin presented for the first time in his motion for reconsideration: the assertion that he misunderstood the concept of jury unanimity. As explained above, Kuzmin did not assert that the transcript of the change-of-plea hearing supported this contention. Rather, Kuzmin asked Judge Brown to order an evidentiary hearing so that Kuzmin could offer testimony in support of this contention.
Kuzmin failed to submit an affidavit in support of this contention. Moreover, as demonstrated by the transcript of the change-of-plea hearing, Judge Brown explained the concept of jury unanimity twice during that hearing — and, both times Kuzmin stated that he understood what the judge was telling him:
The Court: [I]f you . . . exercised your right to have a trial [in the Seward case], the State would have to prove that you were guilty beyond a reasonable doubt, to the unanimous satisfaction of all twelve jurors that sat on the jury. And that means that they'd all have to agree that you were guilty. Okay, do you understand what . . .
Mr. Kuzmin: Yes.
The Court: Okay. And on the tampering with the witness [ i.e., the Kenai case], that's a misdemeanor. . . . [B]ecause it's a misdemeanor, there would be fewer jurors. But the State would still have to prove the charge against you beyond a reasonable doubt, and all six jurors would have to agree that you're guilty. So you understand that?
Mr. Kuzmin: Yes.
Given this record, we believe it is a close issue whether Kuzmin was entitled to an evidentiary hearing.
Kuzmin's assertion that he seriously misunderstood the concept of jury unanimity ( i.e., that he believed that he would be convicted unless all of the jurors agreed that he was innocent) is the kind of mistake that could conceivably constitute a fair and just reason for withdrawing one's plea. And normally, a court should grant a request for an evidentiary hearing on a motion whenever there is a genuine dispute concerning the "material" facts — i.e., the facts that will determine whether the moving party is entitled to relief. See Alaska Criminal Rule 42(e)(3); Boggess v. State, 783 P.2d 1173, 1180 (Alaska App. 1989); Selig v. State, 750 P.2d 834, 838 (Alaska App. 1988).
However, the Alaska Supreme Court has held that a court can deny a motion without holding an evidentiary hearing if the factual allegations made in support of the motion are general or conclusory, and if those allegations are convincingly refuted by the existing record or by other competent evidence.
See Maxwell v. Maxwell, 37 P.3d 424, 426 (Alaska 2001); Harrington v. Jordan, 984 P.2d 1, 3 (Alaska 1999).
Here, Kuzmin did not offer an affidavit in support of his assertion that he misunderstood the concept of jury unanimity. However, Judge Brown did not expressly rely on the legal inadequacy of Kuzmin's pleading when he denied Kuzmin's motion.
Leaving aside the lack of a supporting affidavit, one might also reasonably conclude that Kuzmin's assertion of misunderstanding is convincingly rebutted by the existing record (the excerpt of the hearing quoted above). But again, Judge Brown did not expressly rely on this as a basis for denying Kuzmin's motion.
It is true that, in many instances, a judge can properly deny a motion for reconsideration with a perfunctory order ( i.e., one that does not offer a detailed explanation of the judge's reasons for denying reconsideration). But in the present case, Kuzmin was forced to resort to a motion for reconsideration because Judge Brow n issued his initial ruling prematurely — before the deadline for Kuzmin's reply.
Given this combination of circumstances, we believe that the most prudent course is to remand Kuzmin's case to the superior court for an evidentiary hearing — so that Kuzmin will have the opportunity to take the stand and testify under oath in support of his assertion that he honestly misunderstood the requirement of jury unanimity.
Accordingly, with respect to all of Kuzmin's claims except the claim that he misunderstood the requirement of jury unanimity, the decision of the superior court is AFFIRMED. With regard to the claim that Kuzmin misunderstood the requirement of jury unanimity, the decision of the superior court is VACATED, and this case is REMANDED to the superior court for the purpose of allowing Kuzmin to have an evidentiary hearing on this claim.
Within 90 days of the date of this decision, the superior court shall hold the evidentiary hearing, make findings on this final claim, and transmit those findings to this Court. The parties shall then have 30 days to file supplemental memoranda in response to the superior court's findings.
After we have received the superior court's findings and the supplemental memoranda of the parties, we shall renew our consideration of this final claim.