Summary
holding superior court was required to convert appellant's motion to withdraw plea to post-conviction relief action
Summary of this case from McDonald v. StateOpinion
Court of Appeals No. A-12080 No. 6718
10-10-2018
CHARLES R. WILKINSON, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Jane B. Martinez, Law Office of Jane B. Martinez, LLC, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. Michael Sean McLaughlin, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and James E. Cantor, Acting 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. Trial Court No. 3VA-13-100 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Valdez, Daniel Schally, Judge. Appearances: Jane B. Martinez, Law Office of Jane B. Martinez, LLC, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. Michael Sean McLaughlin, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and James E. Cantor, Acting Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge SUDDOCK.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Charles R. Wilkinson agreed to plead guilty to third-degree assault and to admit that he violated a condition of his probation in another case. In return, the State agreed to dismiss seven other charges against Wilkinson. During a telephone conversation with Wilkinson's defense attorney, the prosecutor allegedly stated that he would recommend a composite sentence of 2½ years to serve.
But a different prosecutor appeared for the State at Wilkinson's sentencing, and this prosecutor recommended a higher composite sentence, 3½ years to serve. The sentencing judge imposed an even higher composite sentence — 4 years to serve.
Wilkinson subsequently filed a motion seeking to withdraw his plea. In this motion, Wilkinson contended that he entered his plea in reliance on the first prosecutor's promised sentencing recommendation. The superior court summarily denied Wilkinson's motion without comment.
On appeal, the State correctly notes that, under Alaska Criminal Rule 11(h)(3), a post-sentencing motion to withdraw a plea can only be pursued as a post-conviction relief action. Wilkinson mistakenly sought to withdraw his plea by filing a motion in his criminal case, rather than filing a separate post-conviction relief action. The State contends that we should affirm the superior court on this procedural basis.
Criminal Rule 11(h)(3) states: "After imposition of sentence, the withdrawal of a plea may be sought only under [Alaska's post-conviction relief statute,] AS 12.72."
We agree with the State that Wilkinson should have raised his claim in a post-conviction relief action. But because it was evident that Wilkinson was seeking to withdraw his plea, and because Criminal Rule 11(h)(3) clearly specifies the proper procedural vehicle for doing this, the trial court should have converted Wilkinson's motion to a post-conviction relief action.
See State v. Howard, 357 P.3d 1207, 1213 (Alaska App. 2015) (authorizing the trial court to convert a post-sentencing motion regarding time accounting into an application for post-conviction relief); see also Moore v. State, 2015 WL 1881533 at *2 (Alaska App. Apr. 22, 2015) (unpublished).
This brings us to the superior court's summary dismissal of Wilkinson's request for relief.
Under Criminal Rule 11(h)(3), when a defendant seeks to withdraw their plea after they have been sentenced, the defendant must "prove that withdrawal is necessary to correct a manifest injustice." But as Criminal Rule 11(h)(4)(D)(i) declares, manifest injustice is shown if "the defendant did not receive the ... sentence concessions contemplated by the plea agreement, and the prosecuting attorney failed to seek or opposed the concessions promised in the plea agreement[.]"
Here, Wilkinson alleges that he agreed to plead guilty in reliance on the prosecutor's promise to recommend a composite sentence of 2½ years to serve — and that the State later failed to honor this promise. If Wilkinson's allegations are ultimately proved, he would be entitled to relief. Thus, Wilkinson alleged a prima facie case for relief, and the superior court could not dismiss Wilkinson's case without giving him the opportunity to prove his allegations.
See Santobello v. New York, 404 U.S. 257, 261-63; 92 S.Ct. 495, 498-99; 30 L.Ed.2d 427 (1971), where the Supreme Court held that a defendant's right to due process is violated when the government induces the defendant to accept a plea bargain by promising to recommend a particular type of sentence, or to refrain from making any sentencing recommendation, and then the government fails to abide by its promise. See also Puckett v. United States, 556 U.S. 129, 137; 129 S.Ct. 1423, 1430; 173 L.Ed.2d 266 (2009).
We accordingly remand Wilkinson's case to the superior court with directions to convert Wilkinson's motion to a petition for post-conviction relief. The superior court has the authority to direct Wilkinson to comply with the procedural requirements of Alaska Criminal Rule 35.1. Assuming this is done, the superior court should allow Wilkinson's case to go forward to discovery and, potentially, trial.
In the event that the superior court concludes that Wilkinson is entitled to relief in the form of a new sentencing hearing, that hearing should be conducted before a different judge.
See Harvey v. State, 285 P.3d 295, 307 (Alaska App. 2012). --------
We do not retain jurisdiction of this case.