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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
WILLIAM PETERSON, JR., )
) Court of Appeals No. A-6889
Appellant, ) Trial Court No. 4BE-94-824 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1640 - July 23, 1999]
______________________________)
Appeal from the Superior Court, Fourth Judicial District, Bethel,
Dale O. Curda, Judge.
Appearances: Robert John, Fairbanks, for Appellant. James L.
Hanley, Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart,
Judges.
MANNHEIMER, Judge.
Alaska Criminal Rule 11(c)(4) declares that, when a defendant offers to
plead guilty or no contest to a sex offense listed in AS 12.63.100, a judge must not accept
the plea until the judge has informed the defendant, personally and in writing, of the
requirements of Alaska's sex offender registration act, AS 12.63.010-100. This case
involves a defendant who pleaded no contest to a sex offense and was convicted and
sentenced based on that plea. In violation of Criminal Rule 11(c)(4), the judge who
accepted the defendant's plea did not warn the defendant about sex offender registration.
The question is whether the defendant can now withdraw his plea because of this
violation of Rule 11.
We conclude that if the defendant was not otherwise aware of the sex
offender registration requirement, and if the defendant would not have entered his plea
had he known of this requirement, then the defendant is entitled to withdraw his plea.
Because these issues of fact remain undecided in Peterson's case, we remand this case to
the superior court so that the court can investigate the circumstances surrounding
Peterson's decision to enter his plea.
Synopsis of the Proceedings
In July 1994, William Peterson, Jr. was indicted for first-
degree sexual assault for engaging in unconsented-to sexual penetration
with a woman in Mountain Village. Following plea negotiations, the State
reduced the charge to second-degree sexual assault.1 In October, Superior
Court Judge Dale O. Curda accepted Peterson's plea of no contest to this
reduced charge. Peterson was later sentenced to 6 years' imprisonment with
4 years suspended (2 years to serve).
In August 1996, Peterson filed a motion to withdraw his plea.
He relied on four claims of error. First, Peterson asserted that Judge Curda,
when he accepted Peterson's plea, violated Criminal Rule 11(c)(4) by failing
to warn Peterson about his duty to register as a sex offender upon his
release from prison. Second, Peterson asserted that he was denied his right
of allocution at sentencing. Third, Peterson asserted that he had not
understood the elements of the offense. And fourth, Peterson claimed that
he received ineffective assistance of counsel.
The superior court denied Peterson's application, based on the
pleadings. Peterson now appeals.
Preliminary Issues
Before reaching the issue of the superior court's failure to
warn Peterson about sex offender registration, we briefly address Peterson's
other claims.
Peterson alleges that he was denied his right of allocution at
sentencing. The record shows that this claim is meritless.
At sentencing, after the prosecutor and the defense attorney
finished their arguments, Judge Curda asked Peterson if he wished to speak.
The following exchange ensued:
Peterson: (Inaudible)
The Court: Is there anything you would like to relay to
[your attorney] that (indiscernible)?
Peterson: (Indiscernible)
[Whispered conversation between Peterson and his
attorney.]
Defense Attorney: As Your Honor understands, it's
very difficult for individuals to speak in court. But Mr.
Peterson has asked me to relay to the court ... the effect that
having gone through this case has had on him. I mean, his
commitment, his commitment to not get into any trouble ... ,
and the amount that he's learned from this case. That he
wants to express that, he's just finding it, you know, very, but
he wanted me to say that for him.
The Court: Okay.
Defense Attorney: [And] that he's very sincere about
that, that the court will not -- will never see him again.
The Court: Okay. Thank you.
Thus, the record demonstrates that Peterson was offered the
opportunity to speak and that he exercised that opportunity,
choosing to have his lawyer act as his spokesman.
As part of his claim of ineffective assistance of
counsel, Peterson alleges that, during the whispered
conversation, his attorney actually told him that "it was not a
good time to argue and tell his side." However, Peterson
never presented an affidavit from his trial attorney addressing
this claim. The superior court could therefore disregard
Peterson's assertion.2
The existing record shows that Peterson's
attorney addressed the court at Peterson's request, articulating
Peterson's thoughts about his experience in the criminal
justice system and his resolve to be rehabilitated. Peterson
made no comments at the sentencing hearing to contradict his
attorney or to suggest that he did not endorse this method of
allocution.
Peterson's next claim is that, when he pleaded
no contest to second-degree sexual assault, he did not
understand the elements of the crime. Again, the record belies
Peterson's claim. At the change-of-plea hearing, Judge Curda
spoke directly to Peterson and explained the charge:
The Court: The reduced charge here, ... Mr. Peterson,
alleges that on or about the 19th day of July, 1994, at or near
Mountain Village, ... you did knowingly engage in sexual
[penetration] with another person, E.Q., who [you] knew was
incapacitated. ... Do you understand that reduced charge, Mr.
Peterson?
Peterson: Yes, I do.
On appeal, Peterson argues that later events
should have alerted Judge Curda to the need to question
Peterson again about the elements of the charge. Specifically,
Peterson points out that, in his statement to the pre-sentence
investigator, Peterson expressly contended that he was
innocent and had done nothing wrong. Peterson argues that,
because he protested his factual innocence to the pre-sentence
investigator, it should have been obvious that he did not
understand the nature of the charge to which he had pleaded
no contest.
This does not follow. Under Alaska law, a
defendant has the right to plead no contest to a criminal
charge even though the defendant simultaneously maintains
his factual innocence.3 Peterson was indicted for first-degree
sexual assault, an unclassified felony. Even if he believed
himself totally innocent of wrongdoing, it would not be
inconsistent for Peterson to conclude that his interests would
be furthered if he pleaded no contest to a lesser charge.
In Walsh v. State4, this court decided that a trial
judge should not have accepted a guilty plea from a defendant
who maintained his innocence. But the defendant in Walsh
entered the plea at arraignment, without the assistance of
counsel; moreover, in his allocution (immediately following
his plea), the defendant offered an explanation of events
which, if true, would not have supported his conviction.5
Peterson, on the other hand, was represented by experienced
counsel and his plea was the result of a negotiated bargain in
which the State reduced the charge.
To lawfully accept Peterson's plea, Judge Curda
did not have to find that Peterson acknowledged his factual
guilt of the charge. Judge Curda only had to find that
Peterson understood the charge and had voluntarily agreed not
to contest it. Though Peterson later declared his factual
innocence to the pre-sentence investigator, this occurrence did
not require Judge Curda to re-examine or re-determine
Peterson's understanding of the charge.
Peterson's third claim is that he received
ineffective assistance of counsel from his trial attorney.
Peterson alleges that he had only limited contact with his
attorney, that his attorney failed to provide him with copies of
legal materials that Peterson requested, that his attorney failed
to contact witnesses who would have been favorable to the
defense, and that, in general, the attorney gave Peterson bad
legal advice.
We have repeatedly held that a defendant
asserting ineffective assistance of counsel must provide the
court with an affidavit from the former attorney, addressing
the various claims of ineffective representation, or must
explain why such an affidavit can not be obtained.6 Peterson
never submitted an affidavit from his trial attorney, nor did he
explain why such an affidavit was unobtainable.
On appeal, Peterson's new attorney asserts that
he did not seek an affidavit from Peterson's trial attorney
because he thought that, under Criminal Rule 35.1, he would
be able to obtain the trial attorney's affidavit or testimony
during the discovery process. Judge Curda could justifiably
reject this assertion. We have repeatedly stated that the trial
attorney's affidavit is an essential component of the
defendant's prima facie case - that without the affidavit (or
an explanation of why the affidavit can not be obtained), the
defendant's pleading is subject to summary dismissal.7
Peterson's new attorney also appears to argue
that he failed to obtain the trial attorney's affidavit because he
was uncertain whether Peterson's plea-withdrawal request
would ultimately be categorized as a "motion" under Criminal
Rule 11(h) or a "petition for post-conviction relief" under
Criminal Rule 35.1. Judge Curda could justifiably conclude
that this explanation, too, was unconvincing. In Lott v. State
8, we expressly held that an affidavit from the former attorney
is always required when a defendant seeks to withdraw a plea
based on allegations of ineffective representation, regardless
of whether plea withdrawal is pursued under Criminal
Rule 11(h) or Criminal Rule 35.1.9
In his reply brief, Peterson's new attorney
contends for the first time that he did not have sufficient time
to obtain an affidavit from the trial attorney. This contention
is waived for two reasons. First, Peterson did not present this
assertion to the superior court.10 Second, this assertion is
presented for the first time in Peterson's reply brief.11
Finally, Peterson contends that his trial
attorney's deficiencies are so apparent that no reasonable
explanation for them could possibly be offered, and thus no
attorney affidavit is required. This contention is frivolous.
Peterson's allegations of ineffective assistance of counsel rest
on assertions about off-record conversations and assertions
about the attorney's trial preparation and tactical decisions -
actions and inactions that occurred outside of the courtroom.
Peterson was obliged to confront his trial attorney with these
assertions and provide the superior court with his trial
attorney's explanations.12
For these reasons, we uphold the superior
court's decision to summarily dismiss three of Peterson's
claims - the alleged denial of allocution, the alleged failure
to ascertain that Peterson understood the charge, and the
alleged ineffectiveness of Peterson's trial attorney. We now
turn to Peterson's remaining claim - that he should be
allowed to withdraw his plea because the court failed to warn
him about sex offender registration.
The Violation of Criminal Rule 11(c)(4)
Peterson pleaded no contest to second-degree sexual assault
13, one of the offenses listed in AS 12.63.100.14 When Judge Curda
accepted Peterson's plea to this offense, he failed to inform Peterson of the
requirements of the sex offender registration act.15 Approximately two
years later (in August 1996), Peterson moved to withdraw his plea based on
the judge's failure to tell Peterson about his duty to register as a sex
offender.
Judge Curda denied Peterson's request. The judge conceded
that he had violated Rule 11(c)(4) by failing to warn Peterson that he would
be required to register as a sex offender following his release from prison,
but the judge concluded that this error was harmless.
In deciding that the error was harmless, Judge Curda pointed
to the fact that Peterson had initially been charged with first-degree sexual
assault, an unclassified felony; thus, Peterson had obtained a substantial
benefit from the negotiated plea - the reduction of the charge to second-
degree sexual assault, a class B felony. In addition, because Peterson had
waited so long before asking to withdraw his plea, Judge Curda questioned
whether Peterson was acting in good faith. Finally, Judge Curda relied on
the fact that, other than failing to warn Peterson of his duty to register as a
sex offender, the judge had complied with all the other provisions of
Criminal Rule 11(c).
In this appeal, Peterson argues that Judge Curda's failure to
warn him about sex offender registration was not harmless. Peterson asserts
that he did not know about the registration requirement when he entered his
plea, and he also asserts that he would not have pleaded no contest if he had
known about the registration requirement. Peterson further asserts that a
court violates a defendant's right to due process if the court accepts a guilty
plea to a sex offense when the defendant is ignorant of the registration
requirement. That is, Peterson contends that such a plea is not "knowing"
and "voluntary" for purposes of the due process clause.
The State, in response, relies on case law holding that the due
process clause requires only that a defendant be advised of the "direct"
consequences of a plea, and that a defendant's ignorance of collateral
consequences does not affect the validity of the plea.16 The State contends
that, under the case law distinguishing "direct" consequences from
"collateral" consequences, sex offender registration is not a component of
a defendant's sentence but is rather a "collateral" consequence of the plea.
We resolve this issue in another opinion being issued today:
Patterson v. State, Opinion No. 1641 (Alaska App., July 23, 1999). In
Patterson, we hold that sex offender registration is not part of a defendant's
sentence but is, instead, a civil regulatory measure that attaches certain
collateral consequences to a conviction for a sex offense. These
consequences remain "collateral" for due process purposes even though
they inevitably attend a conviction for any offense listed in AS 12.63.100.
As we said in Limani v. State17,
[T]he distinction between a direct and collateral consequence
of a conviction does not turn on whether the consequence is
inevitable or a mere possibility. Rather, a collateral
consequence is one originating outside of the trial court.
A guilty plea is "knowing" and "voluntary" for
due process purposes if "the record, taken as a whole, ...
show[s] [the defendant's] understanding of the nature of the
offense charged and [the] voluntar[iness] [of the] plea."18 A
plea meets the standards of due process even though the
defendant is not "informed about every conceivable collateral
effect the conviction might have".19 A plea remains
constitutionally valid even though the court may fail to
comply with one or more provisions of Criminal Rule 11(c).20
We therefore agree with the State that Peterson's plea was
"knowing" and "voluntary" for due process purposes even if
Peterson did not know about the registration requirement
when he entered his plea.
This does not end the matter, however. Even
though we conclude that sex offender registration is a
"collateral" consequence of Peterson's plea, the fact remains
that the legislature expressly amended Criminal Rule 11(c) to
make sure that defendants are warned about their duty to
register as sex offenders before they plead guilty or no contest
to a sex crime.21 Our constitution guarantees many
procedural protections to criminal defendants, but the
legislature may enact other procedural protections to
supplement the ones found in the constitution. Our duty is to
enforce all of a defendant's procedural rights, including the
statutory ones. We must therefore decide whether the
violation of Rule 11(c)(4) entitles Peterson to withdraw his
plea.
Before we address that question, we must
answer a procedural objection raised by the State. The State
contends that the legislature has expressly barred defendants
from attacking their pleas based on a trial judge's failure to
warn the defendant about sex offender registration if the
defendant does not raise this defect until after sentencing.
The State's argument is based on legislative
changes to the law governing withdrawals of pleas and post-
conviction relief. In 1995, the legislature enacted AS 12.72,
the series of statutes governing petitions for post-conviction
relief.22 At the same time, the legislature amended Criminal
Rule 11(h), the rule governing withdrawal of pleas.23 As amended, Criminal Rule 11(h)(3) declares that a defendant wishing to withdraw a guilty plea after sentencing must file a petition for post-conviction relief under AS 12.72. And within AS 12.72, the pertinent statute - AS
12.72.010(8) - declares that a defendant seeking to withdraw
a guilty plea after sentencing must show that the withdrawal
is required "in order to correct manifest injustice under the
Alaska Rules of Criminal Procedure".
The State points out that Criminal Rule 11(h)(4)
contains a list of circumstances that constitute "manifest
injustice".24 Among the circumstances listed in Rule
11(h)(4), the only arguably pertinent provision is section
(h)(4)(C), which declares that manifest injustice exists when
a defendant's plea "was involuntary ... or was entered without
knowledge ... that the sentence actually imposed could be
imposed". We have already ruled that Peterson's plea was
"voluntary" within the meaning of the due process clause and
that sex offender registration was not part of Peterson's
sentence. The State therefore argues that Peterson has no
legal avenue for attacking his plea.
In essence, the State argues that the
circumstances listed in Rule 11(h)(4) are the sole
circumstances that can constitute "manifest injustice". We
reject this contention because it is inconsistent with the
legislative history of the rule.
Alaska's Criminal Rule 11(h) was enacted in
1973 by Supreme Court Order No. 157. The rule was drawn
from the 1968 version of Standard 2.1 of the American Bar
Association's Standards Relating to Pleas of Guilty
(Approved Draft, 1968). Like Alaska's Rule 11(h), the 1968
version of ABA Standard 2.1 stated that "[a] court should
allow [a] defendant to withdraw [a] plea of guilty or nolo
contendere whenever the defendant ... proves that withdrawal
is necessary to correct a manifest injustice."25 And, like
Alaska's Rule 11(h), ABA Standard 2.1(a) contained a list of
situations that constituted "manifest injustice":
(ii) Withdrawal is necessary to correct a manifest
injustice whenever the defendant proves that:
(1) he was denied the effective assistance of
counsel guaranteed to him by constitution, statute, or
rule;
(2) the plea was not entered or ratified by the
defendant or a person authorized to so act in his behalf;
(3) the plea was involuntary, or was entered
without knowledge of the charge or that the sentence
actually imposed could be imposed; or
(4) he did not receive the charge or sentence
concessions contemplated by the plea agreement and
the prosecuting attorney failed to seek or not to oppose
these concessions as promised in the plea agreement.
Standards Relating to Pleas of Guilty (Approved Draft, 1968),
page 53. With a few editorial changes (primarily, to make the
language gender-neutral and to eliminate the ABA's stumbling
phrase, "failed ... not to oppose" from the fourth clause), the
language of ABA Standard 2.1 survives intact in Alaska's
current Criminal Rule 11(h)(4).
The ABA drafters did not view the four clauses
of section 2.1(a)(ii) as defining the limits of "manifest
injustice". Rather, they viewed the four clauses as prime
examples of "manifest injustice", but they believed that other
circumstances might also present "manifest injustice", thus
requiring withdrawal of the defendant's plea.
The 1968 ABA commentary to Standard
2.1(a)(ii) describes the four clauses this way: "This section
identifies four factual situations which the Advisory
Committee believes independently establish manifest injustice
when proved by the defendant."26 As used in this
commentary, the word "independently" appears to be the
equivalent of "per se"; in other words, these four listed
situations will be deemed "manifest injustice" regardless of
what the other circumstances may be. This, in turn, implies
that if the other circumstances surrounding the plea are
egregious enough, they may constitute "manifest injustice"
even though the defendant fails to prove any of the four listed
situations.
This implication was made explicit in the ABA's
1979 revision of Standard 2.1, now redesignated as Standard
14-2.1 of the ABA's Standards for Criminal Justice. In the
1979 version of the standard, the ABA amended the language
preceding the list of circumstances constituting "manifest
injustice". This new prefatory language declares:
[(b)](ii) Withdrawal is necessary to correct a manifest
injustice whenever the defendant proves, for example, that ...
Standards for Criminal Justice (2nd ed., 1980), page 14?50
(emphasis added). The ABA's accompanying commentary
states that the phrase "for example" was added to the standard
"in order to make clear that there may be other situations
when withdrawal of a plea may be necessary to correct
'manifest injustice'."27
Based on this history of the ABA standard from
which Alaska Criminal Rule 11(h)(4) was drawn, we conclude
that the four clauses of Rule 11(h)(4) are not intended to
define the outer limits of "manifest injustice". Other
circumstances may constitute manifest injustice and thus call
for withdrawal of a defendant's plea. We therefore reject the
State's contention that Peterson is barred from seeking relief
because his claim does not match any of the circumstances
specifically listed in the rule.
We now reach the final issue: Does the superior
court's violation of Criminal Rule 11(c)(4) amount to manifest
injustice?
Peterson is the moving party, and (as discussed
above) a violation of Rule 11(c)(4) is not a constitutional
error.28 Peterson thus bears the ultimate the burden of
proving that the superior court's violation of Rule 11(c)(4)
resulted in manifest injustice to him.29 The Alaska Supreme
Court's decisions in this area suggest that "manifest injustice"
exists only when a violation of Rule 11(c) "affect[s]
substantial rights of the defendant".30 This accords with the
view expressed in the ABA's 1968 commentary to Guilty Plea
Standard 2.1(a)(ii): "even [when] some procedural
requirement has not been met[,] the defendant usually must
put in additional proof to establish an actual injustice".31
At present, however, we need not decide
whether Peterson has met or will ultimately meet his burden
of proving actual injustice. The superior court has held no
hearing into Peterson's allegations. Rather, the superior court
granted summary judgement to the State on the basis of the
pleadings. The issue before us, then, is whether Peterson
would be entitled to withdraw his plea if he successfully
proves all the well-pleaded assertions of fact in his petition.32
In other words, will Peterson establish "manifest injustice"
under Criminal Rule 11(h) if he proves all of his factual
assertions?
We have already ruled that sex offender
registration is not a direct consequence of Peterson's
conviction. Thus, there is no violation of due process in
holding Peterson to his plea. This conclusion would normally
also indicate that Peterson's substantive rights were unaffected
by the court's failure to warn him of the registration
requirement. On the other hand, the Alaska Legislature
specially amended Criminal Rule 11(c) to make sure that all
defendants who contemplate pleading guilty to a sex offense
will be personally warned of the sex offender registration law.
Indeed, of all the warnings included in Rule 11(c), the
warning about sex offender registration is unique - for the
legislature has specified that this warning must be delivered
to the defendant in writing. These legislative actions lead us
to conclude that the legislature inserted section (c)(4) into
Criminal Rule 11 because the legislature believed it was very
important for a defendant to be aware of the sex offender
registration requirement before pleading guilty (or no contest)
to a sex offense.
The State argues that the warning specified in
Rule 11(c)(4) is not intended to influence the defendant's
decision-making, but rather is intended merely to guarantee
that all sex offenders are apprised of their duty to register -
so that, when these defendants leave prison, they will know
that they must comply with the sex offender registration law.
The State's interpretation of Rule 11(c)(4)
seems unlikely. In the same session law that amended
Criminal Rule 11(c) to include a written warning about sex
offender registration, the legislature also amended Criminal
Rule 32, the rule governing the form of criminal judgements.
33 This amendment added section (c) to Rule 32:
Judgment for Sex Offenses. When a defendant is
convicted of a sex offense defined in AS 12.63.100, the
written judgment must set out the requirements of AS
12.63.010.
That is, the legislature declared that whenever a defendant is
convicted of a sex offense - whether by plea or by verdict -
the written judgement must inform the defendant of the
registration requirement.
Had the legislature been concerned simply with
informing convicted sex offenders that they must register, the
amendment to Rule 32 would have been sufficient to achieve
this goal; there would have been no need for the legislature to
also amend Rule 11(c). We therefore conclude that, when the
legislature amended Rule 11(c) to include a warning about sex
offender registration, the legislature wished to make sure that
defendants considered this consequence before they pleaded
guilty or no contest to a sex offense. The legislature's
amendment of Rule 11(c) indicates that the legislature
believed it would be unfair to allow defendants to plead guilty
to a sex offense without first telling them about the
registration requirement.
The State correctly points out that, when the
legislature enacted sex offender registration, the legislature
extended the registration requirement to defendants convicted
before the law was enacted.34 Thus, there are conceivably
hundreds of defendants who pleaded guilty or no contest to a
sex offense before August 1994 and who now must register as
sex offenders, but who had no warning of this consequence
when they entered their pleas (because sex offender
registration did not yet exist). The State argues, with some
logic, that if the legislature believed it would be fundamentally
unfair to allow an unwarned defendant to plead guilty to a sex
offense, then the legislature would not have imposed
registration on the many defendants who pleaded guilty before
the registration law was enacted.
It is true that the legislature has enacted
disparate treatment for these two groups of defendants.
However, there is a plausible explanation for this disparity.
The legislature could have concluded that, even though
defendants now should be warned about sex offender
registration before they enter their pleas, it would be too
disruptive of the justice system to extend this requirement to
already-convicted defendants, thus potentially re-opening
hundreds of criminal cases.
The judicial branch uses this same criterion
when deciding whether to give retroactive effect to a
constitutional interpretation or procedural requirement
announced in a court decision. See, for example, State v.
Glass35, where the supreme court decided not to give
retroactive effect to its ruling that the Alaska Constitution
forbids the government from engaging in warrantless
electronic monitoring. One of the court's main concerns was
that retroactive application of this rule would require re-
examination of every case in which a criminal conviction
rested on tape-recorded statements of the defendant, the
defendant's accomplices, or witnesses.36
As the supreme court noted in Glass, whenever
a court decides that some people will benefit from a new rule
and other people will not, the line drawn "will inevitably be
somewhat arbitrary".37 The same is true when the legislature
is confronted with an equivalent line-drawing problem. But
in the case of sex offender registration, it would be reasonable
for the legislature to conclude simultaneously (1) that
defendants pleading guilty to sex offenses in the future should
be warned about the registration requirement but (2) that it
would be intolerably disruptive of the criminal justice system
to apply this requirement retroactively to all defendants who
had previously pleaded guilty to sex offenses.
We readily admit that this matter is not free
from doubt. But examining the legislature's actions as a
whole, we conclude that the legislature enacted Criminal Rule
11(c)(4) because they concluded that it would be manifestly
unfair to allow a defendant to plead guilty or no contest to a
sex offense without first warning the defendant about the
requirement of sex offender registration. We therefore hold
that, for defendants who pleaded guilty or no contest to an
offense listed in AS 12.63.100 on or after August 10, 1994
(the effective date of SLA 1994, chapter 41), the court's
failure to warn the defendant of sex offender registration is
potentially "manifest injustice" for purposes of Criminal Rule
11(h)(3).
We say that this omission is "potentially"
manifest injustice because, as discussed above, the court's
failure to give the warning is not, in itself, enough to prove the
defendant's case. It is still the defendant's burden to prove
that the omission resulted in actual injustice. There would be
no injustice if, for example, the defendant was otherwise
aware of the registration requirement or if the defendant
would have entered the plea anyway.
In Peterson's case, Peterson asserted that he was
unaware of the registration requirement; he further asserted
that, had he known of this requirement, he would not have
pleaded no contest to second-degree sexual assault. These
assertions are sufficient to state a prima facie case for relief
- a prima facie case of manifest injustice under Criminal
Rule 11(h).
When Judge Curda granted judgement to the
State and ruled that Peterson should not be allowed to
withdraw his plea, the judge expressed skepticism about the
truthfulness of Peterson's assertions. The judge pointed out
that Peterson had waited a long time before trying to withdraw
his plea, and the judge also pointed out that Peterson had
received a significant reduction of the charge in exchange for
his plea. However, as we noted above, this case comes to us
on appeal from a dismissal on the pleadings. The superior
court has never held a hearing on Peterson's claims, and thus
the time has not yet arrived for the superior court to determine
the facts of the case and the truth or falsity of Peterson's
assertions. The question is whether the superior court was
authorized to grant summary judgement to the State and
dismiss Peterson's petition without a hearing. Because the
assertions in Peterson's petition are, if true, sufficient to
establish his entitlement to withdraw his plea, the superior
court should not have dismissed Peterson's claim.
Conclusion
For the reasons discussed above, we AFFIRM the superior
court's order dismissing Peterson's claims (1) that he was denied the right
of allocution, (2) that the court failed to ascertain that he understood the
nature of the charge, and (3) that he received ineffective assistance of
counsel. However, we REVERSE the superior court's order dismissing
Peterson's claim regarding the court's failure to apprise Peterson of the sex
offender registration law.
Accordingly, we remand Peterson's case to the superior court
for further proceedings on this remaining claim. We do not retain
jurisdiction of this case.
Footnotes:
1 AS 11.41.420(a)(3)(B).
2 See Steffensen v. State, 837 P.2d 1123, 1126-27 (Alaska App. 1992).
3 See Miller v. State, 617 P.2d 516, 518-19 (Alaska 1980).
4 758 P.2d 124 (Alaska App. 1988).
5 See id. at 127.
6 See, e.g., Steffensen, 837 P.2d at 1126-27; State v. Jones, 759 P.2d 558, 570 (Alaska App.
1988).
7 See Steffensen, 837 P.2d at 1126-27; Jones, 759 P.2d at 570.
8 836 P.2d 371 (Alaska App. 1992).
9 See id. at 375-77.
10 See Groff v. Kohler, 922 P.2d 870, 875 (Alaska 1996) (arguments not raised below cannot
be pursued on appeal).
11 See Petersen v. Mutual Life Ins. Co., 803 P.2d 406, 411 (Alaska 1990) (issues raised for
the first time in a reply brief are waived).
12 See Steffensen, 837 P.2d at 1126-27.
13 AS 11.41.420(a)(3)(B).
14 See AS 12.63.100(5)(A).
15 This omission does not necessarily indicate Judge Curda's lack of diligence or attention
to the rules. Section (c)(4) of Criminal Rule 11 was added by the Alaska Legislature in 1994.
See SLA 1994, ch. 41, § 10. However, the Alaska Supreme Court did not repromulgate Rule
11 to incorporate the legislated change until eleven months later. See Supreme Court Order No.
1204 (effective July 15, 1995). Thus, for almost a year, the published rule books contained an
inaccurate version of Rule 11(c) - a version that omitted section (c)(4).
16 See, for example, Limani v. State, 880 P.2d 1065 (Alaska App. 1994).
17 Id. at 1067 (citations omitted).
18 Barrett v. State, 544 P.2d 830, 832 (Alaska 1975).
19 Tafoya v. State, 500 P.2d 247, 250 (Alaska 1972).
20 See Barrett, 544 P.2d at 833-34; see also Lewis v. State, 565 P.2d 846, 851-52 (Alaska
1977) (holding that violations of Criminal Rule 11(c) are not errors of "constitutional
dimension").
21 See SLA 1994, ch. 41, § 10.
22 See SLA 1995, ch. 79, § 9.
23 See SLA 1995, ch. 79, § 27.
24 Criminal Rule 11(h)(4) states:
Withdrawal [of a plea] is necessary to correct a manifest injustice
whenever it is demonstrated that:
(A) The defendant was denied the effective assistance of counsel
guaranteed by constitution, statute or rule, or
(B) The plea was not entered or ratified by the defendant or a person
authorized to act in the defendant's behalf, or
(C) The plea was involuntary, or was entered without knowledge of the
charge or that the sentence actually imposed could be imposed, or
(D) The defendant did not receive the charge or sentence concessions
contemplated by the plea agreement, and
(i) the prosecuting attorney failed to seek or opposed the
concessions promised in the plea agreement, or
(ii) after being advised that the court no longer concurred [in the
plea agreement] and after being called upon to affirm or withdraw the plea,
the defendant did not affirm the plea.
25 Standards Relating to Pleas of Guilty (Approved Draft, 1968), page 52.
26 Id. at page 55 (commentary to Section 2.1(a)(ii)) (emphasis added).
27 Standards for Criminal Justice (2nd ed., 1980), page 14?51.
28 See Lewis, 565 P.2d at 851-52.
29 This is the general rule: a defendant who seeks to withdraw a plea based on a violation
of Rule 11(c) must prove not only the violation but also that the violation resulted in actual
prejudice to the defendant. See, e.g., Morgan v. State, 582 P.2d 1017, 1025-26 (Alaska 1978).
30 Lewis, 565 P.2d at 852.
31 Standards Relating to Pleas of Guilty (Approved Draft, 1968), page 55 (commentary to
Section 2.1(a)(ii)).
32 See Hampel v. State, 911 P.2d 517, 523-24 (Alaska App. 1996); Steffensen, 837 P.2d at
1125-26.
33 See SLA 1994, ch. 41, § 3.
34 See AS 12.63.100(4), both in its current version and in its various predecessor versions.
35 596 P.2d 10 (Alaska 1979) (on rehearing).
36 See id. at 14-15.
37 Id. at 13.
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