Opinion
Court of Appeals No. A-10494.
August 3, 2011.
Appeal from the Superior Court, Third Judicial District, Naknek, Fred Torrisi, Judge, Trial Court No. 3NA-08-23 CR.
Josie Garton, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Alvin E. Wassillie appeals the superior court's refusal to allow him to withdraw his no contest plea to the crime of third-degree assault.
Wassillie argues that he was entitled to withdraw his plea because he believed, when he entered his plea, that he would be able to deny his factual guilt of the assault charge when he addressed the court at his sentencing hearing.
See Miller v. State, 617 P.2d 516, 518-19 (Alaska 1980) (holding that defendants are entitled to plead no contest even though they affirmatively deny their factual guilt of the crime).
We conclude that the superior court did not err in refusing to allow Wassillie to withdraw his plea.
Factual and procedural background
In April of 2008, Wassillie was indicted for assault in the third degree and criminal mischief in the third degree. Wassillie entered into a Rule 11 plea agreement with the State. Wassillie agreed that he would plead no contest to assault in the third degree and that he would receive a sentence of sixty months with thirty months suspended. Wassillie would be immediately released on his own recognizance provided he immediately reported to the Salvation Army substance abuse program. The State agreed that Wassillie would receive credit toward his sentence for the time he spent in the Salvation Army program if he successfully completed it.
AS 11.41.220(a)(1)(A).
Superior Court Judge Fred Torrisi accepted Wassillie's no contest plea on June 24, 2008. The parties requested a sentencing date approximately six months after the change of plea hearing to give Wassillie the opportunity to complete treatment at the Salvation Army program. The court set sentencing for December 15, 2008.
On December 4, 2008, Wassillie filed a motion to withdraw his plea. In his memorandum in support of his motion, Wassillie stated that although he did not complete the Salvation Army program, he applied for and was accepted into another program. He stated that, unless the State would agree to give him credit toward his sentence for time he spent in this new rehabilitation program, he wanted to withdraw his plea.
In the memorandum, Wassillie stated that he "pled no contest specifically because he did not wish to admit the conduct charged." He argued that, in Miller v. State, the Alaska Supreme Court had established a policy which allowed a defendant to enter a plea of no contest while maintaining his innocence of the crime for which he was charged. He argued that this court, in cases such as Scott v. State and Ashenfelter v. State, had undermined the policy of the Alaska Supreme Court by holding that "defendants who plead no contest can no longer contest their factual guilt for sentencing purposes." He argued that he therefore had "lost his right to proclaim his innocence even while submitting to the sentence of the court." He asserted that because he was unaware that he could not assert his innocence at sentencing, his plea was not knowing. He argued that he should therefore be able to withdraw his plea.
617 P.2d 516 (Alaska 1980).
928 P.2d 1234 (Alaska App. 1996).
988 P.2d 120 (Alaska App. 1999).
Id. at 123.
Judge Torrisi denied Wassillie's motion to withdraw his plea. He first pointed out that Wassillie's motion was "unfocused and unsupported by affidavit." He observed that it was well established that, when a defendant enters a plea of no contest, the plea has the same legal effect as a plea of guilty and establishes the elements of the offense for sentencing purposes. He relied on the same case Wassillie had cited, Scott v. State, where we stated:
In Alaska, a defendant charged with a criminal offense has the right to plead no contest even when the defendant simultaneously maintains his or her factual innocence. But . . . once a defendant enters a knowing and voluntary no contest plea, the sentencing court is entitled to treat each element of the offense as having been proved, despite the defendant's protestations of innocence.
Scott, 928 P.2d at 1238.
On appeal, Wassillie argues that Judge Torrisi erred in not allowing him to withdraw his plea. He argues that because he did not know that he could not assert at sentencing that he did not actually commit the crime of assault in the third degree, his plea was not knowing. We conclude that Judge Torrisi did not abuse his discretion in denying Wassillie's motion to withdraw his plea. As Judge Torrisi pointed out, Wassillie's motion was unsupported by an affidavit and consisted only of representations in his memorandum. But even if we overlook this defect, Wassillie's allegations do not support his motion to withdraw his plea. Wassillie argues that he did not understand that, at sentencing, he could not insist on his innocence. But this is simply a misunderstanding of the law. Wassillie was entitled to enter a plea of no contest while asserting his factual innocence, as long as the plea was knowing and voluntary. As Judge Torrisi pointed out, it is well established that a plea of no contest entitles the sentencing court to sentence the defendant under the assumption that all of the elements of the offense are established. But nothing prevented Wassillie from declaring his factual innocence before the sentencing court.
Miller, 617 P.2d at 518-19.
But this discussion appears to be academic under the facts of Wassillie's case. Wassillie had entered into a plea bargain with the State for a sentence of sixty months with thirty months suspended. If he adhered to the plea bargain, Judge Torrisi was required to impose this sentence. Therefore, any statements which Wassillie made at sentencing would not have any impact on the sentence which Judge Torrisi was required to impose.
Conclusion
The judgment of the superior court is AFFIRMED.
I agree with my colleagues that the superior court properly denied Wassillie's request to withdraw his plea of no contest to the charge of third-degree assault. I write separately because I reach that conclusion for a slightly different reason than my colleagues.
In his motion to withdraw his plea, Wassillie argued that he should be allowed to withdraw his plea because he misunderstood the consequences of the plea. Specifically, Wassillie stated that he believed, when he entered his plea, that even though he was authorizing the superior court to convict him of third-degree assault and to punish him as if he were guilty, he nevertheless would be able to deny his factual guilt of the assault charge when he addressed the court at his sentencing hearing. In his motion, Wassillie relied on our supreme court's decision in Miller v. State, 617 P.2d 516 (Alaska 1980), where the supreme court held that defendants are entitled to plead no contest to a criminal charge even though they affirmatively maintain that they are factually innocent of the charge.
Wassillie further contended that, after he entered his plea, he discovered that this Court's decisions in Ashenfelter v. State and Scott v. State essentially overrule Miller. Wassillie pointed out that, in Ashenfelter, this Court stated that defendants who plead no contest "can no longer contest their factual guilt for sentencing purposes". 988 P.2d at 123. Based on this passage from Ashenfelter, Wassillie asserted that he was barred from maintaining his factual innocence at his sentencing hearing — the right that he thought was granted to defendants by Miller.
988 P.2d 120 (Alaska App. 1999).
928 P.2d 1234 (Alaska App. 1996).
In Judge Torrisi's written decision denying Wassillie's motion, he explained that Wassillie (and his attorney) had misconstrued the relationship between the supreme court's decision in Miller and this Court's decisions in Ashenfelter and Scott. Specifically, the judge explained that Ashenfelter and Scott stand for the proposition that, once a defendant pleads "no contest", the defendant can no longer contest — for purposes of conviction and sentencing — that the government has proved each essential element of the charged crime. However, under the supreme court's decision in Miller, a defendant who pleads no contest can not be required to publicly admit their factual guilt of the crime.
In other words, Judge Torrisi explained that Wassillie was correct in his original understanding of his no contest plea — that it allowed him to maintain his factual innocence of the crime, even though he would be convicted as if he were factually guilty. It was Wassillie's later understanding of the plea that was mistaken: this Court's decisions in Ashenfelter and Scott did not overrule the supreme court's decision in Miller. (Indeed, as a legal matter, the decisions of this Court can never overrule a decision of the supreme court.) Accordingly, there was no reason for the superior court to allow Wassillie to withdraw his plea.
Of course, a different result might have been required if Wassillie, laboring under this misunderstanding, had already refrained from asserting his factual innocence when he presented his allocution at sentencing. But Wassillie's sentencing hearing had not occurred yet.
Judge Torrisi issued his decision on January 23, 2009. Wassillie was not sentenced until one month later, on February 23rd. Thus, to the extent that Wassillie and his attorney may have been confused about the applicable law, this confusion was rectified several weeks before Wassilie appeared in front of Judge Torrisi for sentencing, and the content of Wassillie's allocution at the sentencing hearing could not possibly have been affected by his earlier misunderstanding.
For these reasons, I agree with my colleagues that the judgement of the superior court should be affirmed.