Opinion
Court of Appeals No. A-13080 No. 6872
06-03-2020
BRYAN EUGENE MARLIN, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Joshua B. Cooley, Ehrhardt, Elsner & Cooley, Kenai, for the Appellant. RuthAnne B. Bergt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, 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. 3KN-17-00772 CI
MEMORANDUM OPINION
Appeal from the District Court, Third Judicial District, Kenai, Martin C. Fallon, Magistrate Judge. Appearances: Joshua B. Cooley, Ehrhardt, Elsner & Cooley, Kenai, for the Appellant. RuthAnne B. Bergt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee. Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges. Judge HARBISON.
Bryan Eugene Marlin pleaded guilty at arraignment to one charge of fourth-degree assault. He was not represented by counsel.
AS 11.41.230(a)(3).
The district court accepted Marlin's plea and entered a judgment of conviction. Less than a month later, Marlin sought to withdraw his guilty plea by filing an application for post-conviction relief. In his application, Marlin contended that he did not understand the nature of the charge against him and that there was no reasonable factual basis for his plea. The trial court dismissed the application for failure to state a prima facie claim. Marlin now appeals.
For the reasons explained in this opinion, we agree with Marlin that he established a prima facie case that he did not understand the nature of the charge. Accordingly, we remand Marlin's case to the trial court for further proceedings on this claim.
Facts and proceedings
The complaint
Marlin was charged with fourth-degree assault under AS 11.41.230(a)(3). The complaint alleged that "by words or other conduct [Marlin] recklessly place[d] another person in fear of imminent physical injury," and it identified the victim as Shauna Brincefield.
The police officer's affidavit in support of the complaint stated that Brincefield initially reported to the police that Marlin was at her house and was refusing to leave. The affidavit went on to summarize the statements that Brincefield gave to the troopers when they responded to her residence.
According to Brincefield, she had been in a relationship with Marlin for about three and a half months. During the relationship, Marlin elbowed her in the head on a couple of occasions and had appeared at her place of employment without her permission.
The affidavit in support of the complaint stated that Brincefield had recently ended her relationship with Marlin. According to Brincefield, Marlin tried to talk to her through the door when he arrived at her home to pick up belongings that Brincefield had told him she would leave outside for him. Brincefield asked Marlin to leave, but he refused, and instead yelled at her and banged on her door for at least thirty minutes. Marlin did not leave even after being informed that law enforcement was being called.
Brincefield said that Marlin had a key to her house, that she was not used to Marlin acting in this way, and that she did not feel comfortable seeing Marlin face-to-face. She said that while Marlin was yelling at her, she was leaning against the door on the inside to try to stop Marlin from coming in if Marlin decided to use his key. The affidavit concluded, "Based on Brincefield's clearly articulated fear of imminent physical injury if Marlin would have gained access into her home, Marlin was arrested on a single count of Assault in the Fourth Degree."
Marlin's arraignment
Marlin was arraigned in August 2017 without an attorney. Because Marlin claims that he did not understand the nature of the charge against him, it is necessary for us to describe the arraignment proceedings in some detail.
At the outset, the court explained to Marlin that he was charged with "one count of assault in the fourth degree," that the charge was "alleged to be a crime of domestic violence," and that it was "a fear assault, Class A misdemeanor." The court asked if Marlin had a copy of the complaint and Marlin agreed that he did. But the court did not ask Marlin if he had read the complaint, nor did the court independently advise Marlin of the elements of the offense.
A short while later, the court explained the possible penalties Marlin could face if he were convicted, and asked Marlin whether he wanted to have the help of an attorney. Marlin interjected that the State had made him an offer, and the court responded, "If you want[] the offer, that's fine, or you can ask for an attorney [and] we'll just set it for trial. . . . [W]hat [do] you want to do, Mr. Marlin?" Marlin answered, "I'll go ahead and do what the State — but I'd also like to — there was some evidence that was taken from my vehicle in letter form."
Marlin explained that he wanted the State to return letters that were taken from his vehicle, and he told the court that he wanted the letters so that he could "work a case against [Brincefield]." Marlin told the court that Brincefield was an alcoholic, that he paid her attorney's fees and posted bail for her when she was arrested for driving under the influence, and that she left him after the case was resolved. According to Marlin, "it was . . . a scam." Marlin explained to the court that Brincefield had written letters to him while she was in jail, and that the letters "showed her feelings toward me and it showed that she wasn't afraid of me."
Marlin's remarks led to a conversation between the court and the parties about when and how Marlin could retrieve the letters. After it became apparent that he would be unable to get the letters back that day, Marlin said,
And just for the record, too, I wasn't — there was no physical or verbal abuse being used by myself or her. There was nothing said like what is said inside here, but — and the only reason I'm saying this is for the — I guess the (indiscernible). . . . It's just a silly situation that I shouldn't have been in.
The court then asked Marlin whether he wanted to enter a guilty plea. The court stated:
[I]f you want to do this, it's fine. Sometimes people want to do it even though they — you know, you're going to dispute what actually happened, but entering a plea is an admission to the facts. So you don't have to do that if you don't want to. We can just . . . set it for trial.The court told Marlin that it wanted to make sure that Marlin understood his rights and that Marlin was willing to waive them, and the court then explained these rights to Marlin.
The court then asked Marlin, "Are you doing this voluntarily?" Marlin responded, "No." The court did not ask Marlin any clarifying questions, nor did it take any further steps to ensure that Marlin's plea was voluntary.
Finally, the court concluded its inquiry by discussing the factual basis for the plea:
Court: And we talked a little bit about the facts earlier, but it's all concerning being at Ms. Brincefield's residence and yelling back and forth that put Ms. Brincefield in fear. So there's the factual basis, or at least that's what you're pleading to here today, so —The court then accepted Marlin's plea, finding that it was entered "knowingly and voluntarily." The court entered a judgment of conviction and imposed the sentence that had been offered by the State.
Marlin: I — I — yes, sir. Yeah.
Marlin's application for post-conviction relief
Less than a month after his arraignment, Marlin, through counsel, filed an application for post-conviction relief, asking to withdraw his guilty plea. In the application, Marlin's attorney claimed that Marlin's plea was not supported by a reasonable factual basis and that, at the time of entering the plea, Marlin did not understand the nature of the charges against him. The application was supported by an affidavit from Marlin.
The State moved to dismiss Marlin's application for failure to state a prima facie case. The State argued that the court's colloquy with Marlin was sufficient to establish that Marlin understood the charge against him and that the judge substantially complied with the requirements of Alaska Criminal Rule 11.
The district court summarily dismissed Marlin's application for the reasons set out in the State's motion. This appeal followed.
Why we conclude that Marlin's application for post-conviction relief established a prima facie case that Marlin entered his plea without knowledge of the charge
A person who seeks to withdraw a guilty plea after sentencing must establish that withdrawal is necessary to correct a manifest injustice. Pursuant to Alaska Criminal Rule 11(h)(4)(C), withdrawal is necessary to correct a manifest injustice when "[t]he plea was involuntary, or was entered without knowledge of the charge."
AS 12.72.010(8); Alaska R. Crim. P. 11(h)(3), 35.1(a)(8).
See Else v. State, 555 P.2d 1210, 1213-14 (Alaska 1976) (citing Henderson v. Morgan, 426 U.S. 637, 644-47 (1976)).
Marlin argues that he entered his plea without knowledge of the charge, and he is therefore entitled to withdraw his plea. In particular, Marlin contends that he was unaware that the State was required to establish that: (1) Brincefield's fear was reasonable, (2) Brincefield feared "imminent" physical injury, and (3) Brincefield's fear was created by Marlin's own reckless conduct.
In Walsh v. State, we held under similar circumstances that the trial court's failure to ensure that the defendant understood the elements of the charge to which he pleaded entitled the defendant to withdraw his plea. Walsh entered a plea to one count of theft of services. The State's theory was that Walsh had knowingly obtained a meal by deception — i.e., knowing that the restaurant would not be compensated. During his allocution, Walsh provided an innocent explanation for his conduct; he contended that he left the restaurant without paying to retrieve his forgotten wallet.
Walsh v. State, 758 P.2d 124, 127-28 (Alaska App. 1988).
In reversing Walsh's conviction, we emphasized that a court must be particularly attentive to protestations of innocence by a pro se defendant. We recognized that a jury would not have been obligated to believe Walsh's explanation, but we held that it was improper to accept Walsh's plea without first ensuring that he understood that if the jury accepted his explanation, he could be exonerated. In other words, although "it is not inappropriate for a court to accept a guilty plea coupled by protestations of innocence," the court must undertake active measures to ensure that there is a factual basis for the plea and that the defendant understands the nature of the charge.
Id. at 127.
Miller v. State, 617 P.2d 516, 519 n.8 (Alaska 1980); see also Walsh, 758 P.2d at 127.
Here, Marlin did not have an attorney. And although the court confirmed that Marlin had a copy of the complaint, it failed to take affirmative steps to ensure that Marlin understood the nature of the charge, even though at two points in the hearing, Marlin seemed to be asserting his innocence. The court did not ask whether Marlin had read the complaint, nor did it independently advise Marlin of the elements of the offense. And when Marlin told the court that his plea was not voluntary, the court did nothing to clarify this statement, leaving the record void of any contrary information.
Moreover, when the court summarized the factual basis for the plea, it explained that the offense was, "being at Ms. Brincefield's residence and yelling back and forth that put Ms. Brincefield in fear." This description was misleading because it failed to clarify that Brincefield's fear of imminent physical injury had to be reasonable and that Marlin must have acted in reckless disregard of this fear.
The State argues that it was not necessary for Marlin to understand that the fear in question needed to be reasonable fear of imminent physical injury that was created by Marlin's reckless conduct. According to the State, Marlin's understanding of the elements did not need to rise to this level of "technical expertise" in order for him to understand the nature of the charge.
But in order to prove the crime of fourth-degree assault as charged in this case, the State was required to establish that, by words or other conduct, Marlin recklessly placed Brincefield in reasonable fear of imminent physical injury. Accordingly, what the State considers to be "technical expertise" is actually an understanding of the elements of the offense of fourth-degree assault.
See AS 11.41.230(a)(3).
We note that in Else v. State, the Alaska Supreme Court rejected an argument that is similar to the State's argument about "technical expertise." In that case, the defendant, who did not have an attorney, was charged with assault with a dangerous weapon and pleaded guilty to the charge. He later argued that he did not understand the nature of the charge because he did not know that the gun could be considered a dangerous weapon only if it was loaded — a requirement created by judicial construction and not contained in the wording of the statute. In reversing Else's conviction, the supreme court concluded that, for purposes of instructing a nonrepresented defendant, the court must ensure that the defendant understands not only the statutory elements of the offense but also the requirements created by judicial construction that are not contained in the wording of the statute.
Else, 555 P.2d at 1214.
Id. at 1215.
Similarly, here, as used in the assault statutes, the word "fear" does not refer broadly to its common meaning — i.e., fright, dread, intimidation, panic, or terror. Rather, as construed by this Court, the word "fear" denotes a person's reasonable perception or understanding of a threat of imminent injury.
Hughes v. State, 56 P.3d 1088, 1090 (Alaska App. 2002).
The court did not explain this to Marlin, even though Marlin told the court that he wanted to obtain certain letters from Brincefield in order to show that she was "not afraid of [him]." Marlin's statements reflected that he did not understand that the definition of fear has a specific meaning based on judicial construction and that he thought that the word "fear" referred broadly to whether Brincefield was frightened of him. Under these circumstances, given Marlin's status as an unrepresented litigant, we conclude that Marlin's application established a prima facie claim that he did not enter his plea knowingly and voluntarily.
The State advances one other argument on appeal in support of its claim that Marlin's application did not establish a prima facie case. According to the State, Marlin's application was deficient because Marlin failed to set out separately in an affidavit his allegation that he did not understand the nature of the charges and that he would not have pleaded guilty if he had (as required by Criminal Rule 35.1(d)). But the State did not argue that Marlin's affidavit was inadequate in its motion to dismiss. The district court, therefore, was required either to consider Marlin's allegation when ruling on the motion to dismiss or to allow Marlin the opportunity to remedy the deficiency. This deficiency may be addressed on remand.
See Wilson v. State, 244 P.3d 535, 539 (Alaska App. 2010) (holding that where the State pointed out for the first time on appeal that the post-conviction relief applicant's expert opinion was set out in a letter, rather than in an affidavit, the trial court was required to consider the opinion or to give the defendant an opportunity to remedy any deficiency).
For the reasons we have explained, Marlin's application established a prima facie claim that he did not enter his plea knowingly and voluntarily. We accordingly conclude that the trial court erred in dismissing this claim.
We note that, on appeal, Marlin assumes that if the trial court erred in dismissing his application, he is automatically entitled to withdraw his plea. But in this case, the trial court dismissed the application before the State filed an answer. On remand, Marlin is free to file a motion for summary judgment once the State has answered.
Why we conclude that Marlin's application failed to establish a prima facie case that the record did not contain a factual basis for his plea
Marlin next argues that there was no reasonable factual basis to support his guilty plea. Criminal Rule 11(f) provides, "The court shall not enter a judgment upon a plea of guilty without first being satisfied that there is a reasonable basis for the plea." We have explained that "[t]he purpose of the rule is to ensure that the conduct the defendant is admitting actually amounts to a violation of the offense to which he is entering a guilty plea."
Hannam v. State, 327 P.3d 209, 211 (Alaska App. 2014).
In Ulak v. State, we discussed the inquiry that is necessary to establish that there is a reasonable factual basis for the plea. There, we held that, although the court "is not required to conduct a trial or follow the rules of evidence when it determines the basis for a guilty plea," the court must satisfy itself that the conduct which the defendant admits constitutes the offense charged.
Ulak v. State, 238 P.3d 1254, 1257 (Alaska App. 2010).
Id.
Marlin does not dispute that a reasonable factual basis for a plea may be established by referring to the complaint and supporting police affidavit. Instead, he argues that, in this case, the information in the affidavit was insufficient to establish this reasonable factual basis. Marlin argues that the affidavit was deficient because it did not establish that Brincefield was in fear of imminent physical injury. According to Marlin, because the affidavit did not allege that he "touch[ed] or restrain[ed] [her] or ma[de] any overt or implicit threats of harm" and did not allege that he "occupied the same physical space as [her]" nor "undertook any action to do so," the information in the affidavit did not establish a reasonable factual basis for his plea.
See id. ("[The reasonable basis] inquiry may be achieved by statements and stipulations of counsel, including references to the grand jury transcript, complaint affidavit, or police report."). --------
We disagree. According to the affidavit, Marlin had a key to Brincefield's house, and he was banging on the door and yelling at her. While he was doing this, she was directly on the other side of the door, positioning herself to block him from coming in if he tried to use the key to enter the home. While the State would have been required to prove the elements of the offense beyond a reasonable doubt if the case had gone to trial, the assertions in the affidavit provided at least a reasonable factual basis that Brincefield was in fear of imminent physical injury. Accordingly, the trial court did not err in dismissing this claim.
Conclusion
The district court's dismissal of Marlin's claim that there was no reasonable factual basis to support his plea is AFFIRMED. But the district court's dismissal of Marlin's claim that he did not understand the charge is REVERSED. This case is REMANDED to the district court for further proceedings consistent with this opinion. We do not retain jurisdiction.