NOTICE: This opinion is subject to formal
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
RANDY L. WELLS, )
) Court of Appeals No. A-6315
Appellant, ) Trial Court No. 4FA-96-858 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1557 - November 14, 1997]
______________________________)
Appeal from the Superior Court, Fourth Judicial
District, Fairbanks, Mark I. Wood, Judge.
Appearances: Law Offices of William R.
Satterberg, Jr., Fairbanks, 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: Coats, Chief Judge, Mannheimer, Judge,
and Rabinowitz, Senior Supreme Court Justice.
MANNHEIMER, Judge.
Randy L. Wells was charged with felony driving while
intoxicated (DWI) and driving while his license was suspended
(DWLS). Wells asked the superior court to suppress the statements
he had made to the arresting officer. Wells also asked the superior
court to suppress the result of the breath test he took at the
police station, plus the arresting officer's observations of Wells's
performance on various field sobriety tests; all of this evidence,
Wells argued, was the fruit of his illegally obtained statements.
On the morning set for Wells's trial, the superior court
held an evidentiary hearing on Wells's suppression motion. At the
conclusion of that hearing, the court denied the motion.
Immediately following this ruling, Wells pleaded no contest to the
misdemeanor charge against him driving while his license was
suspended. The court accepted Wells's plea, and then the court and
the parties began to prepare for a jury trial on the remaining
charge, felony driving while intoxicated.
However, in the midst of a discussion concerning jury
selection, the parties requested an anteroom conference. In the
anteroom, Wells's attorney announced that Wells now wished to enter
a no contest plea to the felony DWI, reserving his right to appeal
the court's denial of the suppression motion. See Cooksey v. State,
524 P.2d 1251, 1255-57 (Alaska 1974). As part of this agreement,
Wells would withdraw his already-accepted plea to the DWLS charge,
and the State would dismiss this charge.
Upon hearing this, the superior court dismissed the
assembled jurors, accepted the plea agreement, and sentenced Wells
for felony DWI. Pursuant to the plea agreement, Wells has now filed
an appeal with this court in which he challenges the superior
court's denial of his suppression motion. We, however, dismiss this
appeal for lack of jurisdiction; Wells's plea is not a proper
Cooksey plea.
Cooksey allows a defendant to plead no contest but at the
same time reserve an issue for appeal. The main limitation is that
the reserved issue must be dispositive of the entire case. Oveson
v. Anchorage, 574 P.2d 801, 803 n.4 (Alaska 1978); Cooksey, 524 P.2d
at 1256-57. In Miles v. State, 825 P.2d 904 (Alaska App. 1992), we
held that an issue is "dispositive" for Cooksey purposes "only if
resolution of the issue in the defendant's favor would either
legally preclude the government from pursuing the prosecution or
would leave the government without sufficient evidence to survive
a motion for judgement of acquittal." Id. at 906.
Wells reserved the issue of whether his statements to the
arresting officer were obtained illegally, and whether certain other
evidence should be suppressed as the tainted fruit of those
statements. However, the suppression of this evidence affected only
the State's ability to prosecute Wells for driving while
intoxicated; it had no effect on the State's ability to prove that
Wells had been driving while his license was suspended. Moreover,
as described above, the proceedings in the trial court clearly
suggest that the State agreed to dismissal of the DWLS charge so
that Wells's suppression motion would be dispositive of the case,
which now consisted only of the DWI charge.
We confronted a similar situation in Spinka v. State, 863
P.2d 251 (Alaska App. 1993). In Spinka, the defendant was charged
with both driving while intoxicated and refusing to submit to a
breath test. Spinka asked the court to suppress evidence of his
breath test refusal. When this suppression motion was denied,
Spinka wanted to plead no contest but preserve his suppression
issue. In order to make this issue "dispositive", the government
dismissed the driving while intoxicated charge. Id. at 252. We
held that Spinka's plea would not qualify as a valid Cooksey plea
if "the dismissal of Spinka's companion DWI charge was an integral
part of the negotiated disposition" that is, if the government's
reason for dismissing the DWI charge was to make Spinka's
suppression motion dispositive of the case. Id. at 252 n.1.
In Wells's case, the State dismissed the DWLS charge as
part of the negotiated settlement, and the record fails to disclose
any independent reason for the dismissal of that charge. Indeed,
Wells had already pleaded no contest to this charge, and the parties
had to ask the trial court to vacate Wells's plea so that this now-
bothersome charge could be dismissed.
Wells has failed to rebut the clear inference that the
DWLS charge was dismissed for the purpose of making Wells's suppres-
sion motion dispositive of the case. Under these circumstances, we
find that Wells has not shown that his plea was a valid Cooksey
plea. [Fn. 1]
This appeal is DISMISSED for lack of jurisdiction.
Because Wells entered his no contest plea to DWI on the
understanding that he would be allowed to litigate the suppression
issue on appeal, and because Wells has not received the benefit of
that bargain, the superior court should allow Wells the opportunity
to withdraw his no contest plea and go to trial on the DWI charge.
If Wells chooses to do this, then the superior court should
reinstate Wells's no contest plea to the DWLS charge (unless Wells
can show some good reason for withdrawing that plea apart from the
terms of the now-defunct plea bargain).
FOOTNOTES
Footnote 1:
We take this occasion to reiterate what we said in Miles, 825
P.2d at 906-07, regarding the procedural steps that must be taken
when the parties present the court with a Cooksey plea:
[T]he prosecuting attorney, as an officer of the court,
must certify that the issue which the defendant proposes to appeal
is dispositive, either because a ruling in the defendant's favor
would, as a matter of law, bar continuation of the prosecution or
because a ruling in the defendant's favor would leave the government
with insufficient evidence to withstand a motion for judgement of
acquittal at the conclusion of the government's case. Both the
defense attorney and the judge must concur in the prosecutor's
assessment.
