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THE COURT OF APPEALS OF THE STATE OF ALASKA
ROBERT M. PERRY, )
) Court of Appeals No. A-5453
Appellant, ) Trial Court No. 3AN-S93-3812CR
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1502 - December 6, 1996]
______________________________)
Appeal from the Superior Court, Third Judicial
District, Kodiak, Donald D. Hopwood, Judge.
Appearances: Michael R. Smith, Law Office of
Michael R. Smith, Anchorage, for Appellant.
John A. Scukanec, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
COATS, Judge.
MANNHEIMER, Judge, concurring.
Robert M. Perry was indicted on two counts of first-
degree assault and one count of attempted murder in connection with
an altercation that occurred aboard a fishing vessel while the
vessel was docked in Dutch Harbor. Shortly before trial was set to
begin, Perry entered a no contest plea, pursuant to a plea
agreement with the state, to one count of first-degree assault
before Judge Donald D. Hopwood. The agreement limited Perry's
sentence to a term of imprisonment not to exceed fifteen (15) years
and stipulated to the existence of a mitigating factor. Within
hours of his change of plea, Perry regretted his decision to change
his plea; two business days later, he filed a motion to withdraw
his plea. Judge Hopwood denied Perry's motion to withdraw his plea
and subsequently sentenced Perry to fifteen years of
imprisonment. Perry now appeals the denial of his motion to
withdraw his plea. We reverse.
In Monroe v. State, 752 P.2d 1017, 1019 (Alaska App.
1988), we stated:
In seeking to withdraw a plea, the burden
is on the defendant to establish a "fair and
just" reason for withdrawal. Wahl v. State,
691 P.2d 1048, 1051 (Alaska App. 1984). The
decision of whether to grant the withdrawal is
within the trial court's discretion, but
presentence requests for withdrawal should be
liberally granted. Id.; Travelstead v. State,
689 P.2d 494, 497 (Alaska App. 1984). The
trial court's ruling will only be reversed
when the court abuses its discretion.
Ningealook v. State, 691 P.2d 1053, 1055-56
(Alaska App. 1984).
The trial court must consider the
totality of the circumstances surrounding the
defendant's request. "The defendant's reason
for seeking withdrawal must be evaluated
against the delay preceding the request, the
extent of prejudice to the prosecution, and
the likelihood that the defendant is attempt-
ing to manipulate the system to obtain an
unfair advantage." McClain v. State, 742 P.2d
269 (Alaska App. 1987) (citing Wahl, 691 P.2d
at 1051). Although presentence requests to
withdraw a plea should be liberally granted,
the defendant must nevertheless present a fair
and just reason for withdrawal. The court may
deny a request for withdrawal in the absence
of such a reason even if the state would not
suffer prejudice if the case went to trial.
McClain, 742 P.2d at 271-72.
Trial in this case was originally set to begin in
Unalaska in August of 1993, but after several continuances was set
for November 1, 1993. On Thursday, October 28, 1993, Judge Hopwood
conducted an evidentiary hearing in Unalaska on a defense motion to
suppress. The judge, prosecutor, defense counsel, and Perry were
all present in the courtroom at this time. Following the hearing,
defense counsel announced that he was ready for trial and left the
courtroom to take a plane to Anchorage. Perry then filed a pro se
motion to discharge his counsel, alleging ineffective assistance of
counsel and alleging that defense counsel was unprepared to go to
trial. He requested a thirty-day continuance to allow new counsel
to prepare for trial. On Friday, October 29, 1993, Judge Hopwood
denied the defense motion to suppress on the record. Judge
Hopwood, the prosecutor, and Perry were present in the Unalaska
courtroom; defense counsel participated telephonically from
Anchorage. After denying the motion to suppress, Judge Hopwood
took up Perry's motion to dismiss counsel and to continue the
trial. The state opposed the motion. The prosecutor told the
court that the state was flying in several witnesses from
Washington and California over the weekend and had invested
substantial time, money, and effort in making the arrangements for
those witnesses. The prosecutor pointed out that most of the
witnesses were fishermen who would be leaving in early December to
go to sea to fish, and that the state would have difficulty
assuring their attendance during the fishing season. Judge Hopwood
conducted an ex parte hearing with Perry and defense counsel to
determine the merits of the motion to dismiss counsel. Ultimately,
Judge Hopwood denied this motion and ordered that Perry's counsel
would continue to represent him and that trial would proceed as
scheduled on November 1.
On the evening of October 29, 1993, Perry called his
attorney in Anchorage and asked him to speak to the state about a
possible plea agreement. Defense counsel did so, and worked out a
tentative agreement with the state. On Saturday, October 30, 1993,
at 12:30 p.m., the court held a hearing in the Unalaska courtroom
for Perry's change of plea. Judge Hopwood presided telephonically
from Kodiak and Perry's defense counsel appeared telephonically
from Anchorage. Perry sat alone at the defense table in the
Unalaska courtroom. Also in the courtroom were the prosecutor, the
Unalaska magistrate, and three corrections officers.
At the beginning of the hearing, defense counsel asked
Judge Hopwood to determine if Perry was actually interested in
entering a plea. Following inquiry by the court, Perry stated that
he "was considering accepting a deal." For two and one-quarter
hours the parties discussed taking Perry's plea. During this time,
Perry appeared hesitant about entering his plea, and raised several
questions. Judge Hopwood allowed Perry to talk privately with his
attorney several times on the telephone to work out questions about
the plea agreement. At one point, the court asked how Perry was
feeling. Perry replied that he was not feeling well, and that he
was under a lot of stress in deciding what to do about the
plea. However, he did say that he understood what was going on.
Perry also stated that he was a long-term smoker and had not been
able to smoke at the jail, which had a no smoking policy. (EN1) In
response to Judge Hopwood's question, Perry indicated that he was
not entering the plea so he could smoke, but that he was really
nervous and going through withdrawal at the time. At one point
during the proceedings, Perry indicated that he wanted to talk with
his wife about whether he should enter a plea. Judge Hopwood
allowed Perry to attempt to telephone his wife, but told him that
he had at most five minutes. Perry was unable to contact his
wife. Perry again indicated that he needed to talk to his
attorney. Judge Hopwood said that he would allow Perry to talk
with his attorney, but for five minutes only. After talking to his
attorney for a few minutes, Perry entered his no contest plea.
Judge Hopwood accepted the plea and adjourned at 2:44 p.m.,
approximately two and one-quarter hours after the hearing began.
Shortly after 10:00 p.m. that same evening, Perry
notified a guard at the Unalaska jail that he wanted to withdraw
his plea. Perry asked the guard to call his attorney and the
assistant district attorney. The guard was unable to reach Perry's
attorney but did manage to notify the district attorney's office.
Perry was finally able to contact his attorney on Sunday, October
31 with his request to withdraw his plea. The attorney filed a
motion on November 2.
Following a hearing, Judge Hopwood denied the motion. In
denying the motion, Judge Hopwood found that Perry had been able to
adequately consult with his attorney and had not been prejudiced by
the fact that he had to talk to his attorney by telephone. He
noted that Perry had been able to consult with his attorney several
times during the change of plea hearing. He concluded that Perry
acted only under the ordinary pressure that anyone would have faced
who was entering a plea to a serious felony charge shortly before
a scheduled trial. He concluded that Perry was trying to
manipulate the system by delaying the resolution of his case. He
further found that the state was prejudiced by the entry of the
plea. He noted that the state's witnesses were fishermen who all
resided outside of Unalaska, a remote town on the Aleutian Chain.
He pointed out that it was extremely difficult to get witnesses and
court personnel in and out of Unalaska. He also found that it was
very difficult and disruptive to try to schedule witnesses who are
fishermen, because they are unavailable during the fishing season.
He pointed out that Perry had at least eight prior felony
convictions and therefore had considerable experience in entering
pleas, and was able to manipulate the system. He also found that
it would be difficult to reschedule Perry's case in a crowded court
calendar now that it had been removed.
The record sets out several matters which should have
alerted the trial court to be extremely cautious in accepting
Perry's plea. Perry was having problems with his attorney and had
moved to get another attorney. He apparently believed that his
attorney was not prepared for trial. On the eve of the trial,
Perry asked his attorney to negotiate a plea bargain with the
state. At the beginning of the hearing to enter his plea, it was
obvious from Perry's responses that he was not sure whether he
wanted to enter a plea and that he had not fully discussed the
matter with his attorney. Commendably, Judge Hopwood gave Perry
several opportunities to talk to his attorney. However, Perry had
to talk to his attorney over the telephone and was obviously under
considerable time pressure when he was talking to his attorney.
Perry stated that he was not feeling well at the change of plea
hearing, not only because of the anxiety of entering a plea to a
serious charge, but because, as a long-term smoker, he was
undergoing withdrawal due to his inability to smoke cigarettes.
Perry attempted to contact his wife to discuss entering the plea,
but was unable to contact her. The record shows that Perry was
skeptical and uncertain about entering a plea until near the
conclusion of the hearing. At that time, under considerable time
pressure, Perry did enter his plea. However, given this
background, what happened next was highly predictable. Only a few
hours after entering his plea, Perry told the officials in the jail
that he wanted to withdraw his plea.
In denying Perry's motion to withdraw his plea, Judge
Hopwood found Perry was attempting to manipulate the system by
having his trial canceled. We do not believe that this assessment
is realistic. Perry contacted the jail officials only a few hours
after entering his plea. This was on Saturday evening; trial was
not set until Monday morning. At the time Perry contacted the jail
officials he must have known that, given this quick notice,
the state might be able to reestablish the witnesses' travel plans
and proceed to trial either as scheduled or with a slight delay.
Furthermore, although Judge Hopwood found that the state
would be prejudiced by allowing Perry to withdraw his plea, we do
not believe that the prejudice was sufficiently substantial to
justify depriving Perry of his right to a trial. We recognize that
it is extremely difficult to get court personnel and witnesses to
an outlying area such as Unalaska. Although this might be entitled
to some weight, we do not believe that it should be given
significant weight. The difficulty of servicing outlying areas is
inherent in providing judicial services to those areas. It is
routinely difficult to get court personnel and witnesses to those
areas. Therefore, the problems which Judge Hopwood noted in this
case are far from extraordinary. The fact that the witnesses in
this case were fishermen who were about to start a long fishing
season does not appear to be critical. Many people have seasonal
employment which would interfere with their ability to attend a
trial in Unalaska. The record shows that fishing season started
some time in December and ran until spring. Apparently it would be
difficult to schedule these witnesses during that period. However,
the record does not demonstrate that the state could not have
rescheduled a trial before the fishing season started. We
recognize that the court found that the Unalaska court calendar was
crowded and that it would be difficult to reschedule the case.
However, although we recognize this difficulty, we do not see it as
determinative. Working with crowded court calendars is a challenge
which the courts in this state routinely face. We do not believe
that this entitles the court system to deprive Perry of his right
to a trial. Furthermore, there is no showing that the trial could
not have been rescheduled for spring at the conclusion of fishing
season. In the event that a trial in the spring was the most
realistic alternative, it would be reasonable to charge Perry with
this delay under the speedy trial rule, Criminal Rule 45. We
Hopwood erred in finding that the state established sufficient
prejudice to prevent Perry from withdrawing his plea.
We do not arrive at this decision easily. We recognize
that many pleas are entered shortly before trial and that the
defendants who enter these pleas are making difficult decisions
under significant pressure. We recognize that many defendants will
reconsider after entering a plea at the last minute. If courts
allow routine withdrawal of these pleas it could allow defendants
to manipulate the system and would be very disruptive. See McClain
v. State, 742 P.2d 269, 271 (Alaska App. 1987); Ningealook v.
State, 691 P.2d 1053, 1055-56 (Alaska App. 1984). Therefore, in
general, while stating that "presentence requests to withdraw a
plea should be liberally granted," Monroe v. State, 752 P.2d 1017,
1019 (Alaska App. 1988); McClain, 742 P.2d at 271; see also Love v.
State, 630 P.2d 21, 24-25 (Alaska App. 1981), we have upheld trial
courts which have refused to allow defendants to withdraw pleas
unless we found that the defendant had established a substantial
reason for withdrawing the plea. See, e.g., Wiley v. State, 822
P.2d 940 (Alaska App. 1991); Ortberg v. State, 751 P.2d 1368
(Alaska App. 1988); Shetters v. State, 751 P.2d 31 (Alaska App.
1988). However, in Perry's case, we conclude that the totality of
the circumstances demonstrates that he should have been allowed to
withdraw his plea. As we have stated, there were many reasons why
Perry's entry of plea was problematic. Furthermore, almost
immediately after entering the plea, Perry contacted jail officials
to attempt to withdraw his plea. Although the state did show that
it would undergo substantial inconvenience, we do not believe that
the inconvenience rose to a level of sufficient prejudice which
would justify a decision to deprive Perry of his right to a trial.
We accordingly conclude that Judge Hopwood erred in refusing to
allow Perry to withdraw his plea. (EN2)
REVERSED.MANNHEIMER, Judge, concurring.
I am writing separately to clarify which facets of this
case lead me to conclude that Perry should have been allowed to
withdraw his plea.
For present purposes, the story of Perry's plea and his
later attempt to withdraw it begins two days before the plea, on
Thursday, October 28, 1993. On that day, Judge Hopwood held a
hearing in Unalaska on a defense motion to suppress certain
evidence. At the close of the suppression hearing, after Perry's
attorney had left the courtroom to board a plane back to Anchorage,
Perry told Judge Hopwood that he believed his attorney was not
prepared for trial (which was set for the next Monday). Perry
asked Judge Hopwood to discharge his attorney, appoint him a new
one, and continue the trial for 30 days to allow the new attorney
to prepare. Judge Hopwood took no action on Perry's request at
that time.
The next day (Friday, October 29), Judge Hopwood convened
the parties to announce his decision on the suppression motion.
(Perry's attorney was in Anchorage, participating by telephone.)
After announcing that he was denying the suppression motion, Judge
Hopwood took up Perry's motion to dismiss counsel and to continue
the trial.
After hearing the State's position (EN1), Judge Hopwood
allowed Perry to air his complaints about his attorney in an ex
parte hearing. Ultimately, Judge Hopwood denied Perry's motion and
ordered Perry's attorney to continue to represent him. Judge
Hopwood announced that Perry's trial would proceed as scheduled the
following Monday, November 1.
That evening (Friday, October 29), Perry called his
attorney in Anchorage and asked him to speak to the State about a
possible plea agreement. Pursuant to this request, Perry's
attorney worked out a tentative agreement with the State. On
Saturday, October 30 at 12:30 p.m., Judge Hopwood convened a
hearing to accept Perry's change of plea. Judge Hopwood presided
telephonically (having returned to Kodiak for the weekend), and
Perry's counsel participated telephonically from Anchorage. The
prosecutor and Perry were in the Unalaska courtroom, accompanied by
the Unalaska magistrate and three corrections officers.
Apparently, Perry's attorney had calendared the hearing
even though he was not certain if Perry was going to accept the
newly negotiated plea bargain: at the beginning of the hearing,
Perry's attorney asked Judge Hopwood to determine if Perry was
actually interested in changing his plea. When Judge Hopwood made
this inquiry, Perry stated that he "was considering accepting a
deal".
For the next two and a quarter hours, the judge, the
attorneys, and Perry discussed whether Perry would change his plea.
Perry repeatedly expressed hesitancy about pleading no contest to
first-degree assault, and he raised several questions about the
consequences of such a decision. Several times, Judge Hopwood
allowed Perry to interrupt the proceedings to consult privately
with his attorney. However, as the afternoon wore on, Judge
Hopwood expressed increasing impatience with the fact that court
had been convened to accept a change of plea even when Perry's
acceptance of the plea agreement remained unsettled.
At one point during the discussions, Perry told Judge
Hopwood that he wished to consult his wife about whether he should
change his plea. Judge Hopwood recessed the proceedings to allow
Perry to try to telephone his wife, but he told Perry that the
recess would last no more than five minutes. Perry tried to
contact his wife but was unable to do so within the allotted five
minutes. The hearing moved on.
In addition to his misgivings about the consequences of
the plea, Perry also told Judge Hopwood that he was a long-term
smoker and that, because the jail had a no-smoking policy, he was
going through nicotine withdrawal at the hearing. (Perry had been
allowed a cigarette before the hearing began, but the hearing was
now stretching toward two hours' duration.)
Toward the end of the hearing, Perry again indicated that
he needed to talk privately with his attorney. Judge Hopwood told
Perry that the conversation could last no more than five minutes.
After talking to his attorney for a few minutes, Perry finally
entered his no contest plea. Judge Hopwood accepted the plea and
adjourned the court. The time was 2:45 p.m..
Shortly after 10:00 p.m. that evening, Perry notified a
guard at the Unalaska jail that he wanted to withdraw his plea.
Perry asked the guard to call his attorney and the assistant
district attorney. The guard was unable to reach Perry's attorney
but did manage to notify the district attorney's office. Perry was
finally able to contact his attorney on Sunday, October 31 with his
request to withdraw his plea. The attorney filed a motion to
withdraw Perry's plea on Tuesday, November 2.
Following a hearing, Judge Hopwood denied this motion.
Judge Hopwood found that Perry had been able to adequately consult
with his attorney, and that Perry faced only the ordinary pressure
that anyone would face who was entering a plea to a serious felony
charge shortly before a scheduled trial. Judge Hopwood concluded
that Perry was only trying to manipulate the system by delaying the
resolution of his case. The judge further found that the state
would be prejudiced if Perry were allowed to withdraw his plea
(because of the witness difficulties described above).
Although a trial judge has considerable discretion in
deciding whether to allow a plea withdrawal, I conclude that Perry
should have been allowed to withdraw his plea. The record in this
case reveals several matters that should have alerted Judge Hopwood
to be extremely cautious in accepting Perry's plea.
is plea, Perry had asked the court to remove his attorney and
appoint him a new one. Perry apparently believed that his
attorney was not prepared for trial.
Shortly after his request for a new attorney was denied,
Perry asked his attorney to see about a plea bargain. This chain
of events should have put the court on guard to the possibility
that Perry was seeking a plea agreement only because he considered
a negotiated settlement preferable to going to trial with an
attorney who (he believed) was unprepared to adequately represent
him.
When Judge Hopwood convened the change of plea hearing on
Saturday afternoon, it was obvious from the defense attorney's
statements and Perry's responses that neither Perry nor his
attorney was quite sure whether Perry wanted to change his plea.
Clearly, this was a matter that had not been fully discussed
between attorney and client. Commendably, Judge Hopwood gave Perry
several opportunities to talk with his attorney. However, Perry
had to talk with his attorney by telephone. Moreover, as the
hearing stretched to over two hours, Judge Hopwood began to apply
pressure to Perry to limit his discussions with his attorney.
Perry told Judge Hopwood that he was not feeling well þ
that he was suffering from nicotine withdrawal. However, rather
than recessing the hearing to allow Perry to smoke, Judge Hopwood
pressed on. Perry expressed the desire to consult his wife about
the plea bargain, but Judge Hopwood gave Perry only five minutes to
try to contact his wife, and Perry was unable to contact her.
In sum, the record shows that Perry repeatedly expressed
skepticism and uncertainty about changing his plea until the very
conclusion of the hearing. He was placed under psychological,
physiological, and time pressure to make a decision. His ability
to consult with his attorney and his spouse was limited. Given
these circumstances, what happened next was not surprising: a few
hours adraw the plea.
In denying Perry's motion to withdraw his plea, Judge
Hopwood found that Perry was attempting to manipulate the system by
having his trial cancelled. I find this conclusion dubious. Perry
contacted the jail officials only a few hours after entering his
plea. This was on Saturday evening; trial was not set until Monday
morning. When Perry asked the jail officials to contact the
attorneys, he must have known that there was a good chance the
State either had not yet called off its witnesses or would be able
to reestablish the witnesses' travel plans and proceed to trial,
either on Monday as scheduled or with only a slight delay.
Judge Hopwood also found that the State would be
prejudiced by allowing Perry to withdraw his plea. However, this
prejudice stemmed primarily from the fact that many of the State's
witnesses might not be available again until the spring. Given the
facts of this case, I do not believe that this anticipated delay
justified depriving Perry of his right to a trial. I recognize
that it is sometimes extremely difficult to get court personnel and
witnesses to an outlying area such as Unalaska. Judge Hopwood
could properly take this into account. However, under the facts of
this case, I do not think that this factor was entitled to
determinative weight.
The record in this case reveals that Perry was pressured
into making his decision, not just by the circumstances that
normally confront a defendant whose trial is fast approaching, but
also by his attorney and, to a certain extent, by the court.
Perry's attorney calendared the change of plea hearing before he
knew whether his client wished to accept the plea bargain. The
attorney-client discussion of the plea bargain took place, in large
measure, during the hearing itself. Perry's discussions with his
attorney were hampered by the fact that the attorney was not
personally present in Unalaska with Perry. Perry was told that he
had only a limited time to consult his attorney about the various
facets of the plea bargain. Perry was given only a limited
opportunity to try to contact his wife, and during the lengthy
proceedings no accommodation was made for Perry's nicotine
addiction. Again and again, Perry expressed uncertainty about
whether to accept the plea bargain. It appears that he ultimately
changed his plea because he was worn down.
Under the totality of these circumstances, I conclude
that Perry established good cause for withdrawing his plea.
ENDNOTES:
1. Apparently, Perry was allowed to smoke a cigarette before the
hearing began.
2. Perry also objects on appeal to the telephonic nature of the
change of plea hearing, claiming that his right to be present under
Criminal Rule 38(a) was violated. Criminal Rule 38(a) lists
criminal proceedings at which the defendant has a right to be
present:
The defendant shall be present at the
arraignment, at the preliminary hearing, at
the time of plea, at the omnibus hearing, and
at every stage of the trial, including the
impaneling of the jury and return of the
verdict, and at the imposition of sentence,
except as otherwise provided in this rule.
Alaska R. Crim. P. 38(a) (emphasis added). Criminal Rule 38.1,
however, allows these stages of the criminal proceeding to be
conducted telephonically under certain circumstances:
In any proceeding at which the defendant's
presence is required under Criminal Rule
38(a), as modified by Rule 38.2, the defendant
may waive the right to be present and request
to participate by telephone. The defendant's
waiver of the right to be physically present
may be obtained orally on the record or in
writing. The court may allow telephonic
participation of one or more parties, counsel
or the judge at any proceeding in its
discretion. The court may allow telephonic
participation of witnesses at bail hearings,
omnibus hearings, probation revocation
hearings or at trial with the consent of the
prosecution and the defendant. The court may
allow telephonic participation of witnesses at
other hearings in its discretion.
Alaska R. Crim. P. 38.1(a). Perry contends that the court was
required to obtain his waiver of the right to be physically present
either orally on the record or in writing. However, Perry was
physically present in the courtroom; it was his attorney and the
judge who appeared telephonically, a procedure allowed in the
court's discretion. Perry also relies on this court's decision in
Henry v. State, 861 P.2d 582 (Alaska App. 1993), in which we found
that the trial court had abused its discretion by presiding
telephonically, over the defendant's objection, at a sentencing
hearing during which the defendant exercised his right of
allocution. Perry's case is at least partially distinguishable
from that in Henry because he did not object to the telephonic
appearance of his attorney and Judge Hopwood. At the hearing on
the motion to withdraw plea, Judge Hopwood determined that Perry
had waived any objection to the telephonic hearing by requesting
the hearing on short notice, knowing that his attorney and the
judge were not in Unalaska.
We need not resolve this issue, given our decision to
reverse on other grounds. Whether or not Perry waived any right he
might have had to object to counsel's and Judge Hopwood's
telephonic appearance, in reachingt circumstances, particularly
Perry's difficulty in communicating with counsel who was not in the
courtroom with him, in concluding that Perry should be allowed to
withdraw his plea.
ENDNOTES (Concurrence):
1. The State opposed a continuance. Several of the State's
witnesses were fishermen who were flying to Unalaska from
Washington and California over the weekend to attend the trial.
The prosecutor told the court that most of these fishermen would be
going to sea in early December to fish; if Perry's trial were
continued for 30 days, the State would have a difficult time
obtaining the fishermen's attendance.
