Opinion
Court of Appeals No. A-9321.
November 15, 2006.
Appeal from the Superior Court, Third Judicial District, Dillingham, Fred Torrisi, Judge, Trial Court No. 3D1-02-500 Cr.
Dan S. Bair, Assistant Public Advocate, and Joshua P. Fink, Public Advocate, Anchorage, for the Appellant.
Kenneth M. Rosenstein, 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 December 2002, Jesse Patrick Lockuk was indicted for first-degree murder. Eleven months later, in November 2003, Lockuk accepted a plea bargain offered by the State; under the terms of this agreement, Lockuk pleaded no contest to second-degree murder.
About six weeks later, Lockuk began efforts to withdraw his plea. (These efforts are described in more detail below.) Following an evidentiary hearing on Lockuk's claims, Superior Court Judge Fred Torrisi ruled that Lockuk had simply changed his mind about the relative advantages of accepting the State's plea bargain, and that Lockuk was not entitled to withdraw his plea.
Lockuk now appeals that decision. As we explain here, we conclude that the record supports Judge Torrisi's ruling, and we therefore affirm the judge's decision.
In addition, Lockuk raises a claim regarding his sentencing: he asserts that Judge Torrisi made comments during the sentencing proceeding which showed that the judge was relying on information outside the record. But Lockuk did not object to Judge Torrisi's comments at the time, so Lockuk must now show plain error. We conclude that there is no plain error — because, even assuming that Judge Torrisi was referring to matters outside the record, the judge's comments show that he viewed these matters as lending support to Lockuk's plea for leniency.
Lockuk's motion to withdraw his plea
As described at the beginning of this opinion, Lockuk was originally indicted for first-degree murder, but he pleaded no contest to second-degree murder in November 2003.
Beginning in late December 2003 and continuing into January 2004, while Lockuk was awaiting sentencing, he filed a series of motions and supporting affidavits asking the court to appoint new legal counsel for him. Lockuk asserted that his current lawyers, Steven Wells and Paul Canarsky of the Public Defender Agency, had given him incompetent representation.
At the end of January 2004, Lockuk filed a formal request to withdraw his plea. Lockuk asserted that his attorneys manipulated and coerced him into entering the plea, and that his attorneys emphasized the strength of the State's case to such an extent that it "br[oke] [Lockuk's] will to resist" and led him to "agree to a plea [that was] without merit".
In April 2004, the Office of Public Advocacy procured a contract attorney, Sean Brown of the Angstman Law Office, to represent Lockuk in his attempt to withdraw his plea. Brown filed a new motion asking the superior court to allow Lockuk to withdraw his plea. In this motion, Lockuk asserted that he should be allowed to withdraw his plea because there had been a "breakdown of the attorney-client relationship" between Lockuk and the two assistant public defenders who previously represented him, and that Lockuk had never really wanted to plead no contest to second-degree murder.
Judge Torrisi held an evidentiary hearing to investigate these matters. The sole witness at this hearing was Lockuk himself.
On direct examination by his attorney, Lockuk testified that his first public defender, Steven Wells, did not seem to listen to him when he explained his concerns about the case. Lockuk asserted that Wells simply presented the State's version of the facts. After Lockuk complained to the Public Defender Agency about Wells, Paul Canarsky was assigned to be a second attorney in Lockuk's defense team.
Lockuk met with Canarsky and Wells in October 2003. According to Lockuk, he told the two public defenders that he did not commit murder, and that he wanted to take the case to trial. Lockuk claimed that Canarsky responded just like Wells; that is, he rejected Lockuk's version of events and instead advocated the State's version.
Lockuk testified that he entered his no contest plea only because it was obvious to him that the superior court would not remove the Public Defender Agency from his case.
But on cross-examination by the prosecutor, Lockuk conceded that he had two meetings with Canarsky. The first meeting, which was also attended by Wells, took place on October 13, 2003. Then, three days later, on October 16th, Lockuk met privately with Canarsky for almost an hour. During this private meeting between Lockuk and Canarsky, Canarsky "explained the ramifications" of the offered plea agreement to Lockuk. At the end of the meeting, Lockuk told Canarsky that he would "think about" the State's offer.
Lockuk further conceded that, approximately four weeks later — on November 11th or 12th — he met with Canarsky for about 20 minutes, and during this meeting he told Canarsky that he wanted to change his plea ( i.e., he wanted to accept the offered plea bargain).
The rest of the pertinent facts are reflected in the two change of plea hearings on November 13 and 14, 2003, during which Lockuk pleaded no contest to the charge of second-degree murder.
Lockuk appeared in court on November 13th and announced that he wished to plead no contest to second-degree murder. Judge Torrisi went through the advice of rights and questioning required by Alaska Criminal Rule 11(c). Then the judge asked Lockuk,
The Court: Have you had enough time over the last several months to talk to your lawyers about this?
Lockuk: Yes.
The Court: They've been able to answer your questions?
Lockuk: Uh-huh. Yes.
The Court: Do you need any more time to talk to them? Are you prepared to enter a plea at this time?
Lockuk: I'm prepared.
. . .
The Court: [Are you] satisfied with the representation you've had from [your] counsel?
Lockuk: (inaudible reply)
The Court: All right. I accept the plea as free and voluntary, intelligently made after talking with counsel.
A few minutes later, the parties left the court. There was, however, one technical problem with the change-of-plea proceeding: Lockuk had never actually declared that he pleaded no contest to second-degree murder. Because of this, the parties had to return to court the next morning (November 14th). At that time, Judge Torrisi addressed Lockuk:
The Court: Mr. Lockuk, you're back with us, as I neglected to ask you yesterday exactly how you pleaded. So, first, I want to make sure [that] you're not today sick or under the influence of anything. Are you feeling all right? Thinking clearly?
Lockuk: I'm okay.
The Court: All right. And you recall [that] we did the hearing yesterday, and . . . it was obviously your intention to plead to the amended indictment, or the information that [replaced] the indictment. But I neglected to ask you. So, first of all, do you have any questions or any reservations about what happened yesterday?
Lockuk: (inaudible reply)
The Court: No?
Lockuk: Unh-unh [negative].
The Court: What I didn't ask specifically [yesterday], and what I will ask now, is: . . . To the charge of murder in the second degree of Samuel Alakayak, how do you plead?
Lockuk: No contest.
Based on Lockuk's above-quoted responses during the court hearings of November 13 and 14, 2003, and based on the testimony presented at the evidentiary hearing, Judge Torrisi concluded that Lockuk had not offered a fair and just reason for withdrawing his plea:
The Court: [Lockuk had] two experienced lawyers meeting with him. He [told them], "Yes, I want to change my plea." He [came] into court and affirm[ed that decision] — actually, because of my mistake, [on] two different occasions, a day apart.
Judge Torrisi noted that Lockuk had offered "nothing . . ., other than [his] subjective statement, . . . to suggest that anything happened" other than a change of heart on Lockuk's part. Accordingly, Judge Torrisi ruled that Lockuk would not be allowed to withdraw his plea.
Under Alaska Criminal Rule 11(h)(2), the court may allow a defendant to withdraw a previously entered plea "for any fair and just reason" unless the State has been substantially prejudiced by reliance on the defendant's earlier plea. But we have previously ruled that a defendant's mere change of heart, or a defendant's post-plea re-evaluation of the chances for a favorable outcome at trial, do not constitute a "fair and just reason" for a plea withdrawal. See, e.g., Shetters v. State, 751 P.2d 31, 35 (Alaska App. 1988); McClain v. State, 742 P.2d 269, 271 (Alaska App. 1987).
Here, Judge Torrisi found (as a factual matter) that Lockuk had simply changed his mind about the advisability of accepting the State's plea bargain, and that Lockuk had failed to prove that his decision to enter the plea was the result of manipulation, coercion, or ineffectiveness on the part of his attorneys. The record supports Judge Torrisi's conclusions. Accordingly, we affirm the judge's decision.
On appeal, Lockuk makes a new argument as to why his plea should be withdrawn. As explained above, Lockuk came to court on November 13, 2003 for the purpose of entering a no contest plea, but Judge Torrisi neglected to have Lockuk actually enter this plea. For this reason, Lockuk had to return to court the next day. During Judge Torrisi's colloquy with Lockuk on November 14th, the judge said to Lockuk:
The Court: [Y]ou recall [that] we did the hearing yesterday, and . . . it was obviously your intention to plead to the amended indictment, or the information that [replaced] the indictment. But I neglected to ask you [to declare your plea].
In this appeal, Lockuk contends that he did not wish to plead no contest when he returned to court on November 14th, but that he felt pressured or intimidated to enter the no contest plea when Judge Torrisi said to him, "it was obviously your intention to plead to the . . . information" charging second-degree murder.
This contention was never presented to Judge Torrisi. Thus, Lockuk must show that Judge Torrisi's challenged remark was plainly coercive. The remark was not plainly coercive. Instead, the judge appears merely to have stated the obvious: Lockuk and his attorney scheduled the change-of-plea hearing because it was Lockuk's intention to accept the State's plea bargain and plead no contest to second-degree murder. Accordingly, we find no plain error.
Lockuk's claim that Judge Torrisi relied on information outside the record when he sentenced Lockuk
A judge is generally prohibited from relying on personal knowledge of matters outside the record to resolve a disputed issue of fact. Lockuk contends that Judge Torrisi violated this restriction when, at sentencing, Judge Torrisi referred to his previous knowledge of Lockuk's family history and background.
See Tuttle v. State, 65 P.3d 884, 887 (Alaska App. 2002).
This issue arose at Lockuk's sentencing because Lockuk relied upon his family's history of violence and abuse when asking the judge to impose a lenient sentence.
At the sentencing hearing, Lockuk's attorney called Lockuk's mother to the stand. She testified that Lockuk's father was physically abusive both to her and to Lockuk. This testimony corroborated the description of Lockuk's family life and upbringing that Lockuk gave to the pre-sentence investigator. According to the pre-sentence investigator, Lockuk reported "that his father was an alcoholic who physically abused him and his mother". Lockuk further reported that, eventually, he testified against his father in court and, as a result, his father was sentenced to jail.
Based on this information, as well as on other portions of the pre-sentence report, Lockuk's attorney argued that the court should deal leniently with Lockuk:
Defense Attorney: Mr. Lockuk has [had] a very difficult life. He has overcome a great deal, and it is incredibly unfortunate that [his life] came to this point. . . . He has an excellent prospect of rehab[ilitation, as shown by the comments from Southcentral Foundation]. . . . He's not just another one that went through the door with very little hope. This is somebody who has a chance.
When Judge Torrisi responded to the defense attorney's argument, he noted the presence of several members of Lockuk's family in the courtroom, and he addressed Lockuk personally:
The Court: You know, families come together for weddings and funerals . . . and, in this case, [for] a sentencing.
And I've had a lot of cases involving this family, and these . . . girls that are sitting behind you — your sisters, your mother. I appreciate the fact that they are there for you. . . . And, unfortunately, I do know way too much about your family, Mr. Lockuk. And there is no question but that you . . . did not start off in the best of circumstances. You started off in very difficult circumstances, with parents who were alcoholics, [and] with a father who was extremely and repeatedly violent over a long period of time. But you were 22 [years old] when this [murder] happened, and you are now in a situation where I have to apply the law.
At the sentencing hearing, Lockuk's attorney had no objection to the above-quoted remarks. But on appeal, Lockuk argues that Judge Torrisi's remarks — especially the comment that the judge knew "way too much about [Lockuk's] family" — show that the judge was relying on information outside the record when he sentenced Lockuk.
Because no objection was made to the judge's remark at the time, Lockuk must now show that this remark was plain error. We conclude, for two related reasons, that the judge's remark was not plain error.
First, to establish plain error, Lockuk must show that the alleged error was so prejudicial to the fairness of the proceedings that this Court's failure to take corrective action would perpetuate a miscarriage of justice. That is not the situation here.
See Hosier v. State, 1 P.3d 107, 112 (Alaska App. 2000); Potts v. State, 712 P.2d 385, 390 (Alaska App. 1985); Roberts v. State, 680 P.2d 503, 507 (Alaska App. 1984).
We assume, for purposes of argument, that Judge Torrisi was referring to court cases that were not already summarized in the pre-sentence report and in Mrs. Lockuk's testimony at the sentencing hearing. Even so, the content and the context of Judge Torrisi's remark shows that the judge's knowledge of Lockuk's family and Lockuk's background corroborated the defense attorney's argument that Lockuk had grown up under difficult circumstances. In other words, if Judge Torrisi was committing error, that error ran in Lockuk's favor.
This leads to the second reason why the challenged remark does not constitute plain error. An alleged error does not qualify as "plain error" if the party who now alleges error had a tactical reason for not making a contemporaneous objection. That is the situation here. Because Judge Torrisi apparently viewed his outside knowledge of the Lockuk family as corroboration of the defense attorney's argument, the defense attorney had a tactical reason for not objecting to the judge's comment.
See Jackson v. American Equity Ins. Co., 90 P.3d 136, 144 (Alaska 2004); Henry v. State, 861 P.2d 582, 589 (Alaska App. 1993); Massey v. State, 771 P.2d 448, 453 (Alaska App. 1989); Potts v. State, 712 P.2d 385, 394 n. 11 (Alaska App. 1985).
For these two reasons, we find no plain error.
Conclusion
The judgement of the superior court is AFFIRMED.