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THE COURT OF APPEALS OF THE STATE OF ALASKA
KELLY WILEY, )
) Court of Appeals No. A-3557
Appellant, ) Trial Court No. 3AN-S88-8192CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1181 - December 13, 1991]
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Rene J. Gonzalez, Judge.
Appearances: Leslie A. Hiebert, Assistant
Public Advocate, and Brant McGee, Public
Advocate, Anchorage, for Appellant. Jill De
La Hunt, Assistant Attorney General, Office
of Special Prosecutions and Appeals,
Anchorage, and Charles E. Cole, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
Kelly Wiley entered a plea of no contest to one count
of sexual assault in the first degree. In return, the state
agreed to dismiss a second count of first-degree sexual assault,
as well as a charge of assault in the first degree. Prior to
sentencing, the state filed a notice of presumptive sentencing
and aggravating factors. The notice alleged that Wiley was a
first felony offender, that he had used a dangerous instrument
and caused serious physical injury to his victim, and that he was
therefore subject to the ten-year presumptive term specified in
AS 12.55.125(i)(2).1 The notice further alleged that six
statutory aggravating factors applied to Wiley's case. In an
accompanying sentencing memorandum the state asked the court to
sentence Wiley to a term of fifteen to twenty-five years.
Wiley moved to withdraw his no contest plea the next
day. He later filed a superseding motion, supported by his own
affidavit. Wiley alleged that his no contest plea had resulted
from ineffective assistance of the three public defender agency
attorneys who initially represented him. In particular, Wiley
asserted that his most recent public defender, Kevin Callahan,
had led him to believe that he would receive a sentence in the
range of four to eight years if he pled no contest to the first-
degree sexual assault charge:
Mr. Callahan . . . told me if I was convicted
at trial, I would probably receive
approximately thirty years in jail, but if I
entered a plea I would only receive four to
eight years in jail.
. . . Based on Mr. Callahan's statements
and the belief I would only receive four to
eight years in jail as opposed to 30 years in
jail, I entered a no contest plea.
After hearing oral argument, Superior Court Judge Rene
J. Gonzalez denied Wiley's motion to withdraw his plea. Judge
Gonzalez found that Wiley had failed to establish a fair and just
reason to withdraw his plea, as required under Alaska Criminal
Rule 11(h)(2).2 With regard to Wiley's claim that Callahan
misled him about the likely sentence, Judge Gonzalez concluded:
A review of the record of the change of plea
proceeding reveals that the undersigned judge
clearly informed Wiley of his rights as well
as the exposure he would have regarding a
sentence if the court accepted his plea of no
contest. Wiley has failed to present
sufficient evidence upon which this court
could conclude that he had a reasonable basis
to believe that by entering a plea to one
count he was exposing himself to a sentence
limited to a range of four (4) to eight (8)
years.
Judge Gonzalez also concluded that the state, as a
result of its reliance on Wiley's no contest plea, would incur
substantial prejudice if Wiley were to withdraw the plea:
Additionally, in its opposition the
state has produced sufficient evidence to
establish that it would be prejudiced by
permitting the Defendant to withdraw his plea
as the whereabouts of three of the State's
witnesses are unknown.
On appeal, Wiley argues that the superior court erred
in denying the motion to withdraw his plea. Abandoning his claim
of ineffective assistance of counsel, Wiley advances a slightly
different argument than he raised below. He now contends that,
at his change of plea hearing, Judge Gonzalez mistakenly
indicated that the applicable presumptive sentence in the case
would be eight years (the standard presumptive sentence for a
first offender convicted of first-degree sexual assault) instead
of ten years (the presumptive term for a first offender who uses
a dangerous instrument or causes serious physical injury).
Wiley characterizes this flaw as a breach of the
court's duty to inform him, prior to accepting his plea of no
contest, "of the mandatory minimum punishment, if any, and the
maximum possible punishment provided by the statute defining the
offense . . . ." Alaska R. Crim. P. 11(c)(3)(i). He argues that
this violation of Criminal Rule 11 mandated withdrawal of his
plea.
Wiley's argument is unpersuasive. Criminal Rule 11(c)
requires the court, before it accepts a plea of guilty or no
contest, to advise the defendant of any mandatory minimum or
statutory maximum term applicable to the case. The rule does not
purport to require specific information concerning the applicable
presumptive term. While it is certainly desirable that pertinent
information concerning presumptive sentencing be given by the
court in a change of plea hearing, such advice is not explicitly
mandated under Criminal Rule 11(c).
Wiley points out that this court has previously held
that presumptive sentencing is mandatory, not discretionary. See
Kelly v. State, 663 P.2d 967, 974 (Alaska App. 1983). He
contends that, for this reason, the presumptive sentence
specified for a given case is the equivalent of a mandatory
minimum sentence.
We find little merit to this argument. The mere fact
that the statutory system of presumptive sentencing is, as a
whole, obligatory, does not mean that the presumptive term in any
given case is the equivalent of a mandatory minimum sentence. In
fact, we have previously held that mandatory minimum sentences
are not the same as presumptive sentences. See, e.g., Middleton
v. State, 673 P.2d 283, 284 (Alaska App. 1983).
A presumptive term is subject to upward or downward
adjustment in light of various statutory aggravating and
mitigating factors.3 Even in the absence of mitigating factors,
the sentencing court is authorized to refer any case to the three-
judge sentencing panel to avoid manifest injustice.4
Only when the court finds no mitigating factors or
manifest injustice will it be precluded from imposing a sentence
below the applicable presumptive term for an offense. However,
it would be unrealistic to construe Criminal Rule 11(c) to apply
even to such cases, because, at a change of plea hearing, the
court will seldom be in a position to accurately determine
whether and to what extent presumptive sentencing will apply to a
case and what if any mitigating factors may be established.
Issues pertaining to the defendant's prior record and to the
existence of aggravating and mitigating factors are ordinarily
resolved immediately before a sentence is actually imposed --
well after the change of plea hearing has occurred.5 For this
reason, it will rarely be possible for the court, at the change
of plea hearing, to give the defendant accurate and specific
information about the effect that presumptive sentencing will
actually have in the case at hand.
Wiley's case provides a good example. Wiley was found
subject to the ten-year presumptive term specified in AS
12.55.125(i)(2) because he used a dangerous instrument and caused
serious physical injury. Had he not used a dangerous instrument
or caused serious physical injury, he would have been subject to
a presumptive term of eight years. AS 12.55.125(i)(1).6 Wiley's
indictment did not specifically allege either the existence of
serious physical injury to the victim or the use of a dangerous
instrument by Wiley, and no such allegation was required. Thus,
at the change of plea hearing, Judge Gonzalez had no basis for
determining that Wiley would ultimately be found subject to the
ten-year presumptive term. Judge Gonzalez explained the
presumptive sentencing scheme to Wiley on the assumption that the
eight-year presumptive term might apply. Only later -- shortly
before the sentencing hearing -- did the state file its notice
alleging that Wiley was subject to the ten-year presumptive term.
Under the circumstances, it would be unrealistic to expect that
Judge Gonzalez could have divined that Wiley would eventually be
found subject to the ten-year presumptive sentence and that no
mitigating factors or manifest injustice would be established in
his case.
Of course, a defendant who is misinformed as to the
potential effect of presumptive sentencing in a given case or
who is inadequately advised about the overall workings of the
presumptive sentencing system might, in consequence thereof, have
a fair and just reason for withdrawing a plea prior to
sentencing. Alaska R. Crim. P. 11(h)(2). Likewise, depending on
the circum-stances, such misinformation might amount to manifest
injustice warranting a post-sentence plea withdrawal. Criminal
Rule 11(h)(1). But Wiley has shown neither manifest injustice
nor a fair and just reason for withdrawing his plea in the
present case.
Although Judge Gonzalez may have incorrectly assumed
that an eight-year presumptive term would apply in Wiley's case,
the balance of the judge's explanation at Wiley's change of plea
hearing accurately portrayed the overall manner in which the
presumptive sentencing system would work in his case.7 In
particular, after explaining the thirty-year statutory maximum
term and the eight-year first offense presumptive term for first-
degree sexual assault, Judge Gonzalez made it clear to Wiley that
the presumptive term was simply a starting point for sentencing,
and that the court would have a broad range of discretion to
adjust it upward or downward, depending on the presence of
aggravating or mitigating factors:
COURT: I have a lot of
discretion to adjust it [the eight-
year presumptive term] downward to
four years or I could go way beyond
the eight years depending on the
aggravating factors or mitigating
factors. So you should not be
sitting there believing that eight
years is the only thing that I can
give you. I can give you more than
that. Or I can give you less than
that. It all depends on the
information that is provided to me
and the respective notices that
will be filed by the prosecutor or
your defense counsel or both. Do
you have any questions regarding
the sentence that you expose
yourself to?
WILEY: No.
By this explanation, Judge Gonzalez informed Wiley,
with unmistakable clarity, that he was exposing himself to a
sentence "way beyond" the eight-year first offense presumptive
term. Wiley professed to understand the explanation and had no
questions. He indicated that he was satisfied with the
opportunity he had had to discuss his case with Callahan, the
attorney who then represented him.
There is nothing in the record suggesting that Wiley
could have had any reasonable basis to believe that his case was
not an aggravated one and that the state would not seek an upward
adjustment of the presumptive term by alleging aggravating
factors. The record as a whole establishes that Judge Gonzalez
substantially met the need to explain presumptive sentencing to
Wiley and to explain the parameters within which his sentence
would actually be determined.
Of equal significance here is Wiley's utter failure to
establish that he actually relied on or was misled by the court's
mistaken reference to the eight-year, rather than ten-year
presumptive sentence. Wiley bears the burden of establishing a
fair and just reason to withdraw his plea. See, e.g., Lewis v.
State, 565 P.2d 846 (Alaska 1977); Monroe v. State, 752 P.2d 1017
(Alaska App. 1988).
Although, on appeal, Wiley alleges that the court's
mistaken reference to an eight-year presumptive term misled him,
this allegation finds no support in the record. In his own
affidavit, Wiley stated only that Callahan had informed him that
he would probably receive a sentence of four to eight years. At
no point did Wiley suggest that he was misled by Judge Gonzalez's
reference to the eight-year presumptive term. Apart from his own
affidavit, Wiley adduced no evidence concerning the effect of
Judge Gonzalez's reference to the eight-year presumptive term.
Wiley's conclusory and unsupported assertion on appeal
that he might have been misled by the reference to an eight-year
presumptive term does not suffice to establish a fair and just
reason for the withdrawal of his plea:
[A defendant] may not, merely by suggesting
possible motives for a plea, shift to the
state the burden of proving what was in his
mind when he entered the plea. Any defendant
could make allegations such as these. To
hold that they are sufficient for withdrawal
of a plea would have the same effect as
adopting [a rule of per se reversal].
Lewis v. State, 565 P.2d at 853 (footnote omitted).
Particularly in light of its finding that the state
would be substantially prejudiced by a plea withdrawal (a finding
that Wiley has not disputed), the superior court did not abuse
its discretion in concluding that Wiley failed to establish a
fair and just reason to withdraw his plea.
Wiley alternatively contends that his sentence is
excessive. After finding no mitigating factors and five
aggravating factors applicable to the case, Judge Gonzalez
sentenced Wiley to an enhanced presumptive term of fifteen years.
One of the aggravating factors relied on by Judge Gonzalez was
that Wiley's conduct was among the most serious included in the
definition of first-degree sexual assault. AS 12.55.155(c)(10).
Wiley reasons that, in finding this factor applicable, Judge
Gonzalez relied on Wiley's use of a dangerous instrument and on
his having caused serious injury to his victim. Wiley argues
that, because these circumstances already resulted in the
enhancement of his presumptive sentence from eight to ten years,
they could not properly be relied on to further enhance his
sentence by finding his conduct to be among the most serious
included in the definition of the offense.
Wiley's argument is without merit. Judge Gonzalez's
sentencing remarks establish that, in relying on the most-serious
conduct aggravating factor as a partial basis for enhancing
Wiley's ten-year presumptive sentence, the judge found Wiley's
conduct to be among the most serious within the aggravated class
of first-degree sexual assaults qualifying for the enhanced, ten-
year presumptive term.
The record supports Judge Gonzalez's finding. A first
felony offender who commits a first-degree sexual assault can
qualify for the ten-year presumptive term specified in AS
12.55.125(i)(2) either by using a dangerous instrument or by
inflicting serious physical injury. Here, Wiley's conduct
involved both the use of a dangerous instrument and the
infliction of serious physical injury. In finding Wiley's
conduct the most serious in its class, Judge Gonzalez could
properly consider this fact.
Moreover, Judge Gonzalez could properly consider that
Wiley's use of a dangerous instrument against his victim was
exceptionally brutal and involved deliberate cruelty. Similarly,
the judge could consider the extraordinary level of both physical
and sexual violence involved in Wiley's assault -- violence that
led to profound and lasting injuries, which went well beyond what
might be considered typical even in cases of serious physical
injury. Finally, Judge Gonzalez could properly consider the
protracted and repeated nature of Wiley's assaultive conduct -- a
consideration wholly independent of his use of a dangerous
instrument and his infliction of serious physical injury.
Considering the record as a whole, we conclude that
Judge Gonzalez was not clearly erroneous in finding Wiley's
conduct among the most serious in its class and in relying on
this aggravating factor to enhance Wiley's sentence beyond the
applicable ten-year presumptive term.
Wiley further argues that his fifteen-year sentence is
excessive for a first offender. As we have already indicated,
however, Wiley's crime involved exceptionally serious conduct,
which resulted in unusually severe injuries to his victim. The
sentencing record establishes that Wiley has an extensive history
of assaultive conduct toward women. Judge Gonzalez found Wiley
to display little if any remorse for his crime. Both by his
background and the seriousness of his conduct in the present
case, Wiley easily qualifies for inclusion at the top of the ten
to fifteen-year benchmark range for first offenders convicted in
cases of aggravated first-degree sexual assault. See State v.
Andrews, 707 P.2d 900 (Alaska App. 1985), aff'd, 723 P.2d 85
(Alaska 1986). Having independently reviewed the entire
sentencing record, we conclude that the sentence imposed below
was not clearly mistaken. State v. Wentz, 805 P.2d 962 (Alaska
1991).
The judgment is AFFIRMED.
_______________________________
1. AS 12.55.125(i)(2) provides, in relevant part:
A defendant convicted of sexual assault
in the first degree . . . may be sentenced to
a definite term of imprisonment of not more
than 30 years, and shall be sentenced to the
following presumptive terms, subject to
adjustment as provided in AS 12.55.155-
12.55.175:
. . . .
(2) If the offense is a first felony
conviction, and the defendant possessed a
firearm, used a dangerous instrument, or
caused serious physical injury during the
commission of the offense, 10 years . . . .
2. Alaska Criminal Rule 11(h)(2) provides:
Once the plea has been accepted by the
court and absent a showing that withdrawal is
necessary to correct a manifest injustice, a
defendant may not withdraw a plea of guilty
or nolo contendere as a matter of right.
Before sentence, the court in its discretion
may allow the defendant to withdraw a plea
for any fair and just reason unless the
prosecution has been substantially prejudiced
by reliance upon the defendant's plea.
3. Alaska Statute 12.55.155(b) specifies:
Sentence increments and decrements under
this section [governing factors in
aggravation and mitigation] shall be based on
the totality of the aggravating and
mitigating factors set out in (c) and (d) of
this section.
Under subsection (c) of AS 12.55.155, twenty-eight
aggravating factors are listed. Subsection (d) sets forth
sixteen mitigating factors.
4. In this regard, AS 12.55.165 specifies:
If the defendant is subject to
[presumptive sentencing] and the court finds
by clear and convincing evidence that
manifest injustice would result from failure
to consider relevant aggravating or
mitigating factors not specifically included
in AS 12.55.155 or from imposition of the
presumptive term, whether or not adjusted for
aggravating or mitigating factors, the court
shall enter findings and conclusions and
cause a record of proceedings to be
transmitted to a three-judge panel for
sentencing under AS 12.55.175.
Under AS 12.55.175, the three-judge sentencing panel is
authorized to impose any sentence it determines appropriate,
without regard to the applicable presumptive term. In relevant
part, AS 12.55.175 provides:
(b) . . . If the panel finds that
manifest injustice would result from failure
to consider relevant aggravating or
mitigating factors not specifically included
in AS 12.55.155 or from imposition of the
presumptive term, whether or not adjusted for
aggravating or mitigating factors, it shall
sentence the defendant in accordance with
this section. . . .
(c) The three-judge panel may in the
interest of justice sentence the defendant to
any definite term of imprisonment up to the
maximum term provided for the offense . . . .
5. Under AS 12.55.145(b), the state is required to serve
on the defendant authenticated copies of court records
establishing prior convictions twenty days prior to the date set
for imposition of sentence. Under AS 12.55.145(c), the defendant
is then allowed until ten days before the sentencing hearing to
submit a formal notice of denial as to the prior conviction. The
filing of a notice of denial triggers a hearing before the court
immediately prior to imposition of the sentence. See
AS 12.55.145(d). Likewise, with respect to aggravating and
mitigating factors, AS 12.55.155(f) requires any party proposing
an aggravating or mitigating factor to submit a written notice to
the court ten days before the sentencing hearing; applicability
of the proposed factor is then determined immediately prior to
the imposition of sentence.
6. AS 12.55.125(i)(1) provides, in relevant part:
A defendant convicted of sexual assault
in the first degree . . . may be sentenced to
a definite term of imprisonment of not more
than 30 years, and shall be sentenced to
the following presumptive terms, subject
to adjustment as provided in AS 12.55.155-
12.55.175:
(1) If the offense is a first felony
conviction and does not involve circumstances
described in (2) of this subsection, eight
years[.]
7. In relevant part, the colloquy between Judge Gonzalez
and Wiley at the change of plea hearing went as follows:
COURT: The sentence that you
would be exposing yourself to . . .
would be a sentence of up to thirty
years in jail. . . . It's
important for you to know that the
crime of sexual assault in the
first degree has a presumptive
sentence of eight years if this is
your first felony offense. What
this means is that I am required by
law to impose a sentence of eight
years. I don't start at zero. I
have to start at eight. So you
will be sentenced to at least eight
years of incarcera-tion. Do you
understand that?
WILEY: Yes.
. . . .
COURT: I have a lot of
discretion to adjust it downward to
four years or I could go way beyond
the eight years depending on the
aggravating factors or mitigating
factors. So you should not be
sitting there believing that eight
years is the only thing that I can
give you. I can give you more than
that. Or I can give you less than
that. It all depends on the
information that is provided to me
and the respective notices that
will be filed by the prosecutor or
your defense counsel or both. Do
you have any questions regarding
the sentence that you expose
yourself to?
WILEY: No.
COURT: Are you satisfied with
the opportunities you have had to
discuss this case with [Mr.
Callahan]?
WILEY: Yes.
. . . .
COURT: Is your decision to
change your plea
a free and voluntary decision?
WILEY: Yes.
COURT: Is that what you want to
do?
WILEY: Yes.
COURT: Has any person threatened
harm to you or any other person to
get you to change your plea?
WILEY: No.
COURT: Have you been informed
that I would be more likely to give
you a lesser sentence if you
entered a plea at this time than if
you were to go to trial?
WILEY: No.
COURT: Has anybody made any
representation to you that there is
some kind of understanding that has
not been disclosed to me between
your attorneys and the state's
attorneys as to what I would do at
the time of sentencing?
WILEY: No.
COURT: Do you fully understand that
the court will be authorized to give you
any sentence authorized by law?
WILEY: Yes.
At this point Wiley's attorney said, "We have discussed
sentencing extensively."
COURT: It's important for you to
also understand that I can
disregard any recommendation made
to me by the state or your defense
attorney. I will be completely
free to determine on my own an
appropriate sentence in your case.
Do you understand that?
WILEY: Yes.
