Opinion
Court of Appeals No. A-13098 No. 6882
07-01-2020
DAVID ALAN LINDEN, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.
Appearances: Ember S. Tilton, Law Office of Ember S. Tilton, Anchorage, for the Appellant. Sarah E. Stanley, Assistant Municipal Prosecutor, and Rebecca A. Windt Pearson, Municipal Attorney, Anchorage, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law, although it may be cited for whatever persuasive value it may have. See McCoy v . State , 80 P.3d 757, 764 (Alaska App. 2002). Trial Court No. 3AN-17-04105 CR MEMORANDUM OPINION Appeal from the District Court, Third Judicial District, Anchorage, Patrick Hanley and Michael Franciosi, Judges. Appearances: Ember S. Tilton, Law Office of Ember S. Tilton, Anchorage, for the Appellant. Sarah E. Stanley, Assistant Municipal Prosecutor, and Rebecca A. Windt Pearson, Municipal Attorney, Anchorage, for the Appellee. Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges. Judge WOLLENBERG.
David Alan Linden was arrested, pursuant to an arrest warrant, for a domestic violence assault against M.O. At the time of his arrest, the arresting officer informed him that he was prohibited from contacting M.O. "whatsoever."
After his arrest, Linden called M.O. from the jail eleven times. As a result, the Municipality of Anchorage charged Linden with eleven counts of unlawful contact under Anchorage Municipal Code 08.30.115(A).
Linden filed a motion to dismiss the charges for lack of probable cause, contending that he had no notice of the no-contact order. Following a hearing, the trial court denied Linden's motion, and he ultimately pleaded guilty. According to Linden's brief on appeal, however, he entered into a conditional plea agreement whereby he reserved his right to appeal, under the procedure approved in Cooksey v. State, the adequacy of the notice he had received.
See Moran v. State, 380 P.3d 92, 97 (Alaska App. 2016) (holding that a person may not be constitutionally convicted of violating Alaska's unlawful contact statute "without proof that [the person was] expressly informed of the statute's prohibition on communications with the alleged victim").
Cooksey v. State, 524 P.2d 1251 (Alaska 1974).
We have reviewed the record in this case, and we conclude that Linden failed to perfect his Cooksey plea. A proposed Cooksey plea must be presented to the trial court in writing, specifying precisely the issue reserved for appeal and how the issue is dispositive of the case. The plea agreement must be signed by both the prosecutor and the defense attorney to ensure that the parties have reached a true agreement, and this written agreement must be submitted to the trial court for review prior to its acceptance of the defendant's plea. Linden's purported Cooksey plea was never memorialized in writing. Nor has Linden designated his change of plea hearing for transcription, to enable us to directly determine the scope and propriety of his Cooksey plea.
Dow v. State, 155 P.3d 352, 355 (Alaska App. 2007).
Id.
See Alaska R. App. P. 210 (b)(1)(A) (requiring the appellant to designate for transcription all parts of the electronic record that are "essential to a determination of the issues on appeal").
We have nonetheless listened to the change of plea hearing, and we have discovered that neither the parties nor the judge (who was not the judge who ruled on Linden's motion to dismiss) articulated the specific issue that Linden sought to preserve for appeal. We note that Linden raises several issues in his appellate brief, and the issues are somewhat different than the issues he raised in the trial court. Moreover, while Linden contends that there is no factual dispute in this case, his arguments rest on a version of the facts that is not shared by the Municipality.
See Dow, 155 P.3d at 353 (concluding that the contours of the Cooksey plea were unclear where the issue reserved for appeal was only vaguely described).
In the trial court, Linden argued that only personal service of the no-contact order or notice by a judge in open court are valid means of providing notice of a court order precluding contact. But on appeal, he argues that when personal service of a no-contact order is reasonably possible, no other form of service may substitute and that verbal notice is only sufficient when expressed so concisely as to be able to reasonably assume that the defendant had actual knowledge of the court order.
For instance, Linden asserts that he did not have "actual notice" of the no-contact order and that he was not listening when the arresting officer informed him not to contact M.O. The Municipality, on the other hand, asserts that the arresting officer believed that Linden could hear and understand what she was saying when she directed him not to contact M.O. Linden also interprets the arresting officer's statement that she did not recall exactly what she said to him to mean that she did not tell him he was subject to a court order. The Municipality criticizes Linden's interpretation of that statement.
These deficiencies highlight the importance of the procedural requirements we discussed in Dow v. State and Miles v. State. We require written Cooksey pleas that describe the reserved issue by specifically referring to the facts of the defendant's case and the legal theories that the parties are relying on to encourage "attorneys and judges to give focused attention to the terms of all proposed Cooksey pleas." Here, the record does not clearly establish the facts or the reserved legal issue and how that issue is dispositive of Linden's case.
Dow, 155 P.3d at 355; Miles v. State, 825 P.2d 904, 906-07 (Alaska App. 1992).
Dow, 155 P.3d at 355; Miles, 825 P.2d at 906-07.
See, e.g., Dow, 155 P.3d at 354-55; Miles, 825 P.2d at 906-07.
We note that the Municipality does not concede on appeal that it has no better evidence than the evidence it presented at the hearing — a position that could potentially allow us to accept the Cooksey plea and decide this case. We have previously held that challenges to an indictment are generally not dispositive because the "State's failure to present sufficient evidence at grand jury does not mean that the State will be unable to pursue the prosecution and later survive a motion for judgment of acquittal." Linden's probable cause challenge suffers from the same problem: we have no way of knowing what evidence the Municipality would have presented had this case gone to trial. This therefore appears to us to be another "Cooksey plea in a seemingly non-Cooksey situation."
See Ritter v. State, 16 P.3d 191, 195 (Alaska App. 2001) (discussing Brown v. State, 739 P.2d 182 (Alaska App. 1987)).
Id. at 196.
Id. at 195.
Under these circumstances, we conclude that the Cooksey plea is invalid, and that Linden must be afforded the opportunity to withdraw his plea. On remand, Linden may negotiate another plea agreement with the Municipality, or he may withdraw his plea and go to trial. Alternatively, the parties may elect to have a trial on stipulated facts, which would result in an appealable judgment if Linden is convicted.
Dow, 155 P.3d at 354 ("When a defendant is denied the opportunity to litigate an issue that was purportedly reserved for appeal as part of a Cooksey plea, the remedy is to allow the defendant to withdraw the plea.").
See Miles, 825 P.2d at 907 (describing options available to the parties when an important, but not dispositive, issue arises).
This appeal is therefore DISMISSED, and Linden's case is REMANDED to the district court for further proceedings, including the opportunity for Linden to withdraw his plea.