Opinion
Court of Appeals No. A-9589.
June 4, 2008.
Appeal from the Superior Court, Third Judicial District, Palmer, Eric Smith, Judge, Trial Court No. 3PA-03-1075 Cr.
Daniel Lowery, Assistant Public Defender, and Q uinlan Steiner, Public Defender, Anchorage, for the Appellant.
Tamara E. de Lucia, 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 presents the question of whether a criminal defendant was entitled to the assistance of an independent attorney when the defendant sought to withdraw from a negotiated plea. For the reasons explained here, we conclude that, under the facts of this case, it was an abuse of discretion for the superior court to deny the defendant's request for an independent attorney to litigate this issue.
Underlying facts: the change-of-plea hearing
Kevin L. Ricker was indicted on two counts of first-degree sexual assault, two counts of second-degree sexual abuse of a minor, one count of third-degree sexual abuse of a minor, one count of incest, and one count of third-degree weapons misconduct. Ricker reached a plea agreement with the State, and a change-of-plea hearing was scheduled for May 9, 2005.
At this change-of-plea hearing, the prosecutor announced that the State was going to amend Count II of the indictment to charge Ricker with attempted second-degree sexual abuse of a minor, thus lowering the degree of crime to a class C felony. With the charge in Count II reduced in this fashion, Ricker was prepared to enter a plea of guilty or no contest (nobody ever specified which) to Counts II and IV of the indictment. (Count IV alleged third-degree sexual abuse of a minor, another class C felony).
Ricker's offenses were committed prior to March 2005, so his sentencing was governed by the pre-March 2005 version of Alaska's presumptive sentencing law. Ricker was a third felony offender for purposes of presumptive sentencing, so he faced a presumptive term of 3 years' imprisonment for each of the two class C felonies. According to the prosecutor, the plea agreement called for Ricker to concede two aggravating factors (conduct among the most serious, and three or more prior felonies) — thus authorizing the superior court to impose more than the 3-year presumptive term.
Former AS 12.55.125(e)(2) (pre-March 2005 version).
AS 12.55.155(c)(10) and (c)(15), respectively.
Former AS 12.55.155(a)(1) (pre-March 2005 version).
The prosecutor told the superior court that "the agreement is [that Ricker will receive] 10 years with 5 suspended". The prosecutor noted that, because the court had to impose a presumptive 3-year term on each of the two felonies, Ricker's sentences for these felonies would "be partially consecutive, partially concurrent".
Ricker's defense attorney, Eugene B. Cyrus, offered no pertinent comment or clarification to the prosecutor's description of the plea agreement.
Superior Court Judge Eric Smith then questioned Ricker personally about the plea agreement. During his colloquy with Ricker, Judge Smith explained many of the rights that Ricker was relinquishing, and many of the consequences of entering the negotiated pleas — but the judge never actually called upon Ricker to enter a revised plea to the charges. Nevertheless, at the end of his conversation with Ricker, Judge Smith declared that he would "accept the plea as knowing, voluntary, and intelligent", and the judge then proceeded to calendar Ricker's sentencing hearing.
While the parties were waiting for the in-court clerk to consult the court's calendar and come up with a precise date for the sentencing hearing, Judge Smith realized that he had forgotten to discuss the portion of the plea agreement that specified Ricker's term of imprisonment:
The Court: Mr. Ricker, I forgot to say that . . . [your class] C felonies come with a presumptive three-year sentence.
Mr. Ricker: Apiece, right?
The Court: Yeah.
Mr. Ricker: So if I — I'm pleading out to two [of them], so that'll be six years?
Mr. Cyrus: But they're going to — one . . .
The Court: Well, if I accept the agreement, you would actually be doing five [years] because I can run them concurrently in part.
Mr. Ricker: Okay. Thank you.
A few moments later, Judge Smith realized that he had forgotten to comply with Alaska Criminal Rule 11(c)(4), which prohibits a court from accepting a plea of guilty or no contest to a sex offense as defined in AS 12.63.100 unless the court has first advised the defendant of the sex offender registration requirement.
Judge Smith told Ricker that he would have to register as a sex offender "for fifteen years after your unconditional discharge". Ricker's attorney immediately corrected Judge Smith's statement:
Mr. Cyrus: I think it would be lifetime.
The Court: Actually, it may be for life — yeah.
Mr. Cyrus: Yeah, because there's two [convictions for a sex offense] . . .
The Court: [To Ricker] It will be for life if you're — yeah, it'll be for life.
(The correctness of Cyrus's and Judge Smith's interpretation of AS 12.63.020(a)(1) is not before us in this appeal.)
Shortly before this exchange, the in-court clerk announced that Ricker's sentencing hearing would take place on Monday, October 24, 2005. Then, just before the change-of-plea hearing was adjourned, Cyrus made one further, unprompted comment to Judge Smith concerning the terms of the plea agreement:
Mr. Cyrus: There was [a] discussion with the D.A. about [delaying Mr. Ricker's] remand date [until] after the holidays. That is not an agreement with the D.A., and I wanted to make sure [that] the record [reflects] that.The Court: Okay. Thank you for that clarification.
Mr. Cyrus: [And] my client understands it that way, too.
The Court: Okay.
The hearing then adjourned.
Underlying facts: the litigation of Ricker's motion to withdraw his pleas
As explained above, Ricker's sentencing hearing was calendared for October 24, 2005. One week before that hearing, on October 17th, Mr. Cyrus filed a motion asking the court to allow Ricker to withdraw from the plea agreement.
According to Cyrus's supporting affidavits, Ricker had "advised [him] that he [ i.e., Ricker] misunderstood the agreement as to the actual time to serve, the length of his sex offender registration, and whether he would be granted a delayed remand [to custody]."
In an attempt to explain why this motion was being filed one week before Ricker's sentencing hearing, Cyrus declared that Ricker had wanted to withdraw his pleas "for some time", but that he (Cyrus) had "[been] delayed in getting to this motion" because of "health issues" and because he had been otherwise occupied "closing other cases".
Cyrus also asked the superior court to appoint the Public Defender Agency to assist Ricker in litigating this motion because he (Cyrus) might be "a supporting witness" on Ricker's claims.
Judge Smith held a hearing to address Ricker's claims. At this hearing, Judge Smith (relying on some portions of the change-of-plea hearing quoted above) noted that (1) both he and the prosecutor had described Ricker's agreed-upon sentence as 10 years' imprisonment with 5 years to serve, and that (2) Cyrus had corrected the judge's statement about the sex offender registration requirement lasting only 15 years. Judge Smith told the parties that, given this record, he "[had] some difficulty with the notion that [Mr. Ricker] should be allowed to withdraw his plea on the ground that nobody explained . . . the ramifications and nature of the plea [agreement]."
In answer to this, Cyrus told Judge Smith that, when the agreement was described as 5 years with a presumptive 3 years, Ricker "got it in his head that he would only have to [serve] the presumptive 3." Judge Smith replied that even if Ricker took the stand and testified to this misunderstanding, and even if Ricker's testimony was "believable as can be", and even if Cyrus supported Ricker's claims by asserting that he did not adequately communicate the terms of the agreement to his client, Judge Smith would still deny Ricker's motion — "because [he] went through it [all] with [Ricker at the change-of-plea hearing]".
Hearing this, Cyrus backtracked on the question of whether he had failed to adequately advise his client of the terms of the plea agreement, or whether there had been any miscommunication between himself and Ricker:
Mr. Cyrus: I misstated [the facts of the case] in the motion [when I said] that I didn't go over [the terms of the plea agreement] with him. I only meant to say that, if he had a misunderstanding about it, I didn't clarify [that] misunderstanding — okay?The Court: Well, . . . that's a little different from . . .
Mr. Cyrus: Right.
The Court: . . . what you said on the record . . .
Mr. Cyrus: Right.
The Court: . . . [before]. But that's fine.
Mr. Cyrus: That's right. So, in other words,
[Mr. Ricker] asserts that when he [heard] "presumptive" — [that] he had to serve 5, [with] a presumptive 3, that [this] meant [that] he got the 3. And so, when he [said], "You mean I get 6?", he was still thinking it was . . . 3, even though we said 5.
. . .
The Court: All right, . . . I will accept [that] as an offer of proof — that that's what Mr. Ricker somehow thought. . . . [But] I have a lot of trouble accepting [the proposition] that he can withdraw his plea when it was stated, as clear as clear can be on the record, what the sentence was.
At this point, Cyrus told Judge Smith that he did not mind if the judge denied Ricker's motion:
Mr. Cyrus: Judge, . . . I don't have any problems with you ruling that way. You can rule that way. I'm just trying to say that [Mr. Ricker] believed — he had a misunderstanding about what the ultimate consequences [of his pleas] are going to be.
Cyrus did, however, request an opportunity for Ricker to take the stand in support of the motion.
Ricker took the stand and testified that, as soon as he and Cyrus left the courtroom after the change-of-plea hearing, Ricker told Cyrus that the terms of the plea agreement described in court were not the same terms that he had agreed to. Ricker explained:
Mr. Ricker: [As soon as] we walked out in the hallway, I asked [Mr. Cyrus], "What's this all about?" . . . I said [to him], "You need to tell somebody [about this problem]." And he said, "Well, I'll get the motions [filed] so [that] we can clear this up." And then it was like four or five months before he even — I called him every day — twice, sometimes three times a day — to get the motions filed, and he didn't do it for five or six months.
With specific regard to the negotiated term of imprisonment, Ricker testified that, based on the way the plea agreement was described "in the hallway" ( i.e., during the parties' off-the-record discussion that took place just before the change-of-plea hearing convened), he thought that he would only have to serve the presumptive portion of the term of imprisonment ( i.e., 3 years).
With regard to the requirement of sex offender registration, Ricker testified that he thought he would only have to register for 15 years, not for life. After Ricker made this statement, Cyrus asked him if he recalled the exchange that occurred toward the end of the change-of-plea hearing — when Judge Smith announced that the registration requirement would last 15 years, and then Cyrus corrected the judge and asserted that Ricker would be subject to a lifetime registration requirement. Ricker stated that he did not recall that exchange, and that he remained unaware of the lifetime registration requirement "until [he] got over to the probation officer's office" following the sentencing.
Cyrus then, in effect, cross-examined Ricker: he asked Ricker to concede that, before the change-of-plea hearing, the two of them had discussed the fact that Ricker would have to register as a sex offender for life. Ricker denied that Cyrus had told him this. In the face of Ricker's denial, Cyrus altered his question in a significant way:
Mr. Cyrus: But you understood, when we talked earlier . . ., we had agreed that you would have to do a lifetime registration — I mean, at least a 15-year registration for pleading out to one sex offense. You understood [this]?
Mr. Ricker: Correct.
With regard to the date of Ricker's remand to custody, Ricker testified that when he and Cyrus spoke to the prosecutor in the hallway just before the change-of-plea hearing, the prosecutor expressed his willingness to allow Ricker to surrender himself "after the holidays" because Ricker was going to go into residential treatment pending his sentencing.
Upon hearing Ricker give this testimony, Cyrus immediately interrupted his questioning of his client to inform Judge Smith that he (Cyrus) had recently listened to the audio recording of the change-of-plea hearing — and that his recollection of what was said about Ricker's remand to custody differed from Ricker's testimony.
When Judge Smith stated that he had not listened to the audio recording of the hearing all the way through, Cyrus assured the judge that a discussion of the remand issue was contained in the audio record at the very end of the hearing.
A few minutes later, Judge Smith asked the in-court clerk to play back the audio of the change-of-plea hearing, looking for the discussion of the remand date that Cyrus was referring to. However, the clerk did not run the playback through to the very end, and Judge Smith stated that he heard nothing about Ricker's remand date. In response, Cyrus repeatedly asserted that the discussion about the remand could be heard at the end of the hearing, and he persistently urged Judge Smith to continue the playback. At last, Judge Smith heard the portion that Cyrus was referring to — the portion quoted at the end of the preceding section of this opinion, where Cyrus declared that a delayed remand was not part of the plea agreement.
Following Cyrus's examination of Ricker, the prosecutor conducted cross-examination. In response to the prosecutor's questions, Ricker reiterated that he thought he would only have to serve the 3-year presumptive term for his offenses. The prosecutor expressed disbelief at Ricker's answer:
Prosecutor: Did you sit here and admit to two [class] C felonies with the understanding that it was two five-year [sentences] and you knew that three [years] of those were presumptive?
Mr. Ricker: I never pled to nothing. We just went in and talked about [the terms of] a plea bargain. The judge never asked me what my plea was, or anything like that. We just went in and talked about the plea bargain. He never asked me what my plea was, . . .
Prosecutor: So it's your . . .
Mr. Ricker: . . . or if I changed my plea, or anything. We were supposed to do that at the next hearing.
Prosecutor: So it's your testimony that you were here on May 9th, [but] that you did not change your plea?
Mr. Ricker: Correct.
In a series of follow-up questions, the prosecutor repeatedly expressed incredulity at Ricker's assertion that he had never changed his plea. And when Ricker stuck by this assertion, Judge Smith himself cross-examined Ricker on this point. From the judge's questions, it is clear that he, too, disbelieved Ricker's testimony about never actually entering a plea of guilty or no contest.
But as we explained above, Ricker's testimony on this point was correct. Judge Smith never did ask Ricker to enter a plea to the charges encompassed by the plea bargain, and Ricker never pleaded either guilty or no contest to those charges.
In the face of this cross-examination by the prosecutor and by Judge Smith, Ricker's attorney, Cyrus, remained silent. From Cyrus's earlier comments to Judge Smith, it was obvious that he had reviewed the audio recording of the change-of-plea hearing with some care. And such a review of the audio record would have revealed that Ricker's testimony on this point was correct. Nevertheless, Cyrus made no effort to support his client's testimony on this issue.
At the conclusion of the hearing, Judge Smith declared that he saw no reason to appoint independent counsel to assist Ricker in litigating the plea-withdrawal motion. The judge concluded that Cyrus could continue to represent Ricker in this matter because, even though it was clear that Cyrus was taking a position opposed to his client, Cyrus was not offering his own personal testimony in opposition to Ricker's version of the facts; rather, Cyrus was merely referring to "what was said on the record" when he impeached Ricker's assertions of fact.
Judge Smith then ruled that, even if Cyrus had incorrectly advised Ricker concerning the terms of the plea agreement before he and Ricker came to court for the change-of-plea hearing, Cyrus's incorrect description of the agreement would be irrelevant — because "Mr. Ricker was very clearly advised on the record as to exactly what the deal was". On this basis, Judge Smith denied Ricker's motion to withdraw his plea.
Why we conclude that Judge Smith should have granted Ricker's request for independent counsel
As one component of the guarantee of effective assistance of counsel, criminal defendants are entitled to the assistance of an attorney who will zealously represent their interests. In the present case, Ricker's attorney actively thwarted Ricker's interests.
See Smith v. Robbins, 528 U.S. 259, 278 n. 10; 120 S.Ct. 746, 760 n. 10; 145 L.Ed.2d 756 (2000); Johnson v. State, 24 P.3d 1267, 1267 (Alaska App. 2001); Griffin v. State, 18 P.3d 71, 73 (Alaska App. 2001).
As explained above, Ricker asserted that he misunderstood three aspects of his plea agreement with the State: (1) how much time he would have to serve in prison; (2) how long he would have to register as a sex offender; and (3) whether he would be allowed to delay his surrender to prison until after the winter holidays.
Initially, Cyrus indicated that he might be a witness in support of these assertions — because he might not have adequately gone over the terms of the plea agreement with Ricker. But at the hearing on Ricker's motion, Cyrus disavowed the assertion that he might have failed to adequately explain the plea agreement to his client. Instead, Cyrus told Judge Smith, "I only meant . . . that, if [Ricker] had a misunderstanding about [the plea agreement], I didn't clarify [that] misunderstanding."
When Ricker took the stand to testify in support of the plea-withdrawal motion, he gave testimony that at least potentially impeached Cyrus's disclaimer of responsibility for any misunderstanding. As explained above, Ricker testified that, immediately after the hearing adjourned, he complained to Cyrus that the terms of the agreement as described in court differed from the terms that Ricker had given his assent to. According to Ricker, Cyrus assured him that he would file "the [proper] motions . . . so [that] we can clear this up" — but then Cyrus delayed filing any motion for almost half a year.
This testimony, if believed, would potentially impeach Cyrus's earlier assertion to Judge Smith that he (Cyrus) had adequately explained the plea agreement to Ricker and that, if Ricker subjectively misunderstood any of the terms of the agreement, this was not due to any mistake or omission on Cyrus's part. For if Cyrus believed that he had accurately and competently advised Ricker concerning the terms of the agreement, it would be surprising for Cyrus to promise Ricker, immediately after the change-of-plea hearing, that he would be filing "motions [to] clear this up."
In addition, when Ricker testified that he believed he would be subject to sex offender registration for only 15 years rather than for life, Cyrus took the lead role in impeaching Ricker's testimony.
Cyrus first confronted Ricker with the exchange during the change-of-plea hearing (quoted in full above) when (1) Judge Smith announced that Ricker's sex offender registration requirement would last only 15 years, and then (2) Cyrus convinced the judge that Ricker would have to register throughout his lifetime. In response, Ricker answered that he did not remember this exchange.
But even if we assume that Ricker actually heard and understood this exchange, an attorney zealously representing Ricker's interests would have pointed out that (1) this discussion about the longer sex offender registration requirement occurred after Judge Smith had already announced that he was accepting Ricker's plea, and (2) Judge Smith never asked Ricker to personally confirm that he still wished to proceed with the plea agreement despite this longer sex offender registration requirement.
These facts are significant because, under Alaska Criminal Rule 11(c)(4), a judge
shall not accept a plea of guilty or nolo contendere from a defendant without first addressing the defendant personally and . . . informing the defendant . . . of the requirements of [Alaska's Sex Offender Registration Act] and, if it can be determined by the court, the period of registration required under [the Act].
(An explanatory note: When we say that the exchange about the length of the sex offender registration requirement occurred "after Judge Smith announced that he was accepting Ricker's plea", we mean this literally. Judge Smith stated that he was accepting Ricker's plea — even though Ricker never actually offered a plea for the judge to accept. As we explained earlier, Ricker did not withdraw his plea of not guilty and enter a superseding plea of guilty or no contest.)
Rather than pointing out the factors that potentially favored Ricker's argument on this issue, Cyrus continued his attempt to impeach Ricker by asserting (through questioning) that he and Ricker had in fact discussed the fact that Ricker would have to register as a sex offender for life. Then (as explained above), when Ricker denied this, Cyrus backtracked and asked Ricker whether they had discussed the fact that Ricker would have to register as a sex offender at least for 15 years. Ricker readily affirmed that this was correct.
Obviously, this discrepancy in the content of the pre-plea discussions between Cyrus and Ricker was crucial to Ricker's plea-withdrawal motion. But Cyrus did not argue this point to Judge Smith. In fact, Cyrus never mentioned this discrepancy again.
See Peterson v. State, 988 P.2d 109, 119 (Alaska App. 1999) (holding that if the court fails to advise a defendant about sex offender registration as required by Criminal Rule 11(c)(4), the defendant is entitled to withdraw their plea of guilty or no contest unless the defendant was otherwise aware of the registration obligation, or unless the defendant would have entered the plea anyway).
Cyrus once more took up the task of impeaching his client after Ricker asserted that the plea agreement contained a clause that would allow him to delay his surrender to custody until after the winter holidays. Upon hearing Ricker's assertion, Cyrus immediately interrupted his examination of his client to inform Judge Smith that the audio recording of the change-of-plea hearing contained information that impeached Ricker's assertion — specifically, Cyrus's own announcement, at the very end of the proceedings, that although he and Ricker had discussed a delayed remand with the prosecutor, this was not part of the agreement.
When Judge Smith declared that, even though he had reviewed the record of the change-of-plea hearing, he had not heard the passage that Cyrus was referring to, Cyrus urged Judge Smith to replay the audio recording — and, when the judge's first replay failed to disclose the passage that Cyrus was referring to, Cyrus urged the judge to keep listening to the very end (where the judge finally found it).
Thus, Cyrus went to great lengths to make sure that Judge Smith was apprised of the portion of the earlier hearing that undercut Ricker's assertion — i.e., Ricker's assertion that he thought the plea agreement included a delayed remand to custody. But again, even assuming that Ricker was paying attention when, at the end of the earlier hearing, Cyrus declared that the plea agreement did not include such a provision, an attorney zealously representing Ricker's interests would have pointed out that (1) Cyrus's statement about the remand date occurred after Judge Smith had already announced that he was accepting Ricker's plea, and (2) Judge Smith never asked Ricker to personally confirm that this was his understanding of the plea agreement as well ( i.e., that the State was making no promise regarding the date of Ricker's surrender to prison), and that he still wished to proceed with the plea agreement.
All in all, Cyrus failed to point out the aspects of the earlier hearing that potentially favored Ricker's motion. Instead, Cyrus worked hard to impeach his client's testimony.
Nor did Cyrus come to Ricker's aid when Ricker pointed out — correctly — that he never actually entered a plea of guilty or no contest at the change-of-plea hearing. Both the prosecutor and Judge Smith openly expressed disbelief of Ricker's assertion, but this assertion was in fact correct — and anyone who had diligently reviewed the audio record of the change-of-plea hearing would have known that.
Finally, when Judge Smith declared that he was prepared to deny Ricker's motion for plea withdrawal no matter what miscommunication might have occurred between Cyrus and Ricker before they came to court for the change of plea, and no matter what subjective misunderstanding Ricker might have been laboring under when he appeared in court, Cyrus responded, "Judge, . . . I don't have any problems with you ruling that way. You can rule that way."
In sum, the record reveals that Ricker did not receive zealous representation from Cyrus. Rather than raising arguments that plausibly would have supported Ricker's motion, Cyrus consistently attacked his client's position.
Under these circumstances, Judge Smith abused his discretion when he failed to provide an independent attorney to assist Ricker in litigating the motion to withdraw his plea. We accordingly VACATE the superior court's decision, and we direct the superior court to allow Ricker to re-litigate his motion.
Given our resolution of this issue, we will not decide Ricker's claim that he should have received credit against his sentence for the time he spent on electronic monitoring before his sentencing.
We do not retain jurisdiction over this case.