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State v. District Court (9/13/2002) ap-1827
State v. District Court (9/13/2002) ap-1827
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA and )
THOMAS J. PHILLIPS, JR., )
) Court of Appeals No.
A-8101
Petitioners, )
Trial Court No. 3AN-01-5388 Cr
)
v. )
) O P I N
I O N
DISTRICT COURT, )
)
Respondent. ) [No.
1827 September 13, 2002]
)
Petition for Review from the District Court,
Third Judicial District, Anchorage, Natalie
K. Finn, Judge.
Appearances: Kim S. Stone, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau,
for Petitioner State of Alaska. Margi A.
Mock, Assistant Public Defender, and Barbara
K. Brink, Public Defender, Anchorage, for
Petitioner Thomas J. Phillips, Jr.. Robert
C. Bundy and Maarten Vermaat, Dorsey &
Whitney, LLP, Anchorage, for Respondent.
Before: Mannheimer and Stewart, Judges, and
Andrews, Superior Court Judge.*
[Coats, Chief Judge, not participating]
MANNHEIMER, Judge.
This case is unusual because the State and a criminal
defendant find themselves making common cause against a ruling of
the district court.
The State charged Thomas J. Phillips, Jr., with the
felony of first-degree failure to register as a sex offender, AS
11.56.835(a)(1). A person commits this offense if they fail to
register as a sex offender and, additionally, they have a
previous conviction for failing to register.
About a month later, the State and Phillips reached a
plea agreement. Under the terms of this agreement, Phillips
would plead no contest to a misdemeanor: the lesser charge of
second-degree failure to register, AS 11.56.840(a). This is the
same basic offense, but without the allegation that Phillips had
a previous conviction. The parties further agreed that Phillips
would receive a sentence of 12 months imprisonment with 6 months
suspended.
But when the State and Phillips presented this plea
agreement to District Court Judge Natalie K. Finn, she refused to
accept it. Judge Finn told the parties that she was unwilling to
accept a plea to a misdemeanor when, [under the facts], this is a
felony. The judge explained:
The Court: I dont feel [that] its
within the States discretion to choose to
treat [Phillipss offense] as a misdemeanor
... because this is not a misdemeanor; its a
felony, according to the legislature. Im
unwilling to accept a plea to a misdemeanor
[when], factually, it is not a misdemeanor;
factually, its a felony. So you need to go
back to the drawing boards on this one. ...
I think its an elements issue, counsel. If
[Phillips] is pleading no contest to [this]
charge and [he] has previously been
convicted, then, under the ... law [enacted
by] the legislature ... , thats a felony. So
its not ... discretionary, from my point of
view.
Both the State and Phillips now petition this Court to
review and reverse the district courts decision asking us, in
essence, to direct the district court to accept Phillipss plea to
the lesser charge of second-degree failure to register even
though the State could prove the greater charge.
The district courts response
Before we decide the issue raised by the
State and Phillips, we must address the response filed
by the attorneys hired by the Alaska Court System to
represent the district court. The attorneys for the
district court argue that Judge Finn rejected the plea
agreement, not because the State lacked legal authority
to reduce the charge, but rather because Judge Finn
concluded that the proposed sentence of 6 months to
serve was inappropriately lenient for a defendant with
Phillipss criminal record.
There are two problems with this argument.
First, it is inconsistent with Judge Finns own
explanation of why she rejected the plea bargain.
Second, if Judge Finn had indeed believed that the flaw
in the plea agreement was an overly lenient sentence,
she would have followed a different course.
Under Alaska Criminal Rule 11(e)(3), if a
judge believes that a proposed plea agreement calls for
a sentence that is too lenient, the court shall inform
the parties of this fact[, shall] advise ... the
defendant personally in open court that the court [will
not be] bound by the agreement[, and shall] afford the
defendant the opportunity to withdraw the plea. In
other words, if Judge Finn believed that Phillipss
proposed sentence of 6 months to serve was unreasonably
lenient, she would have warned Phillips that, if he
persisted in his plea, she would likely impose a
greater sentence, and she would have offered Phillips
the opportunity to withdraw his tendered plea of no
contest. Instead, Judge Finn told the parties that
under no circumstances would she accept Phillipss plea
to a misdemeanor when, factually, his conduct amounted
to a felony.
For these reasons, we reject the gloss placed
on events by the attorneys representing the district
court. We agree with the State and Phillips that Judge
Finn rejected the plea agreement because she concluded
that, as a legal matter, the State was barred from
reducing the charge to a misdemeanor.
Judge Finns ruling was based on the premise
that if Phillips indeed had a prior conviction for
failing to register as a sex offender, then the State
was legally obliged to plead and prove that prior
conviction. For the reasons explained in the next
section of this opinion, we conclude that this premise
is wrong.
The State has the authority to refrain from charging a
defendant with the most serious crime that the facts of
the case would support
Both the Alaska Supreme Court and this Court
have declared that charging decisions are committed to
the discretion of the executive branch; so long as
these decisions are exercised within constitutional
bounds, they are not subject to judicial control or
review.
In Public Defender Agency v. Superior Court1,
the supreme court declared that the executive branch
has exclusive authority to decide whether and how to
prosecute a case: the Attorney General cannot be
controlled in either his decision of whether to
proceed, or in his disposition of the proceeding.2 The
supreme court ruled that the superior court had usurped
this executive discretion thereby violating the
doctrine of separation of powers when the court
ordered the Attorney Generals office to prosecute a
civil action for child support.3
In State v. Carlson4, the supreme court
applied this principle in a criminal case. Over the
States objection, a superior court judge accepted a
murder defendants plea to the lesser offense of
manslaughter. The supreme court ruled that even though
Alaska Criminal Rule 43(c) gives trial judges the
authority to dismiss a criminal case when justice
requires, this authority does not include the power to
engage in charge bargaining with the defendant.5 The
supreme court concluded that the trial court had, in
effect, ordered the district attorney not to prosecute
the defendant for murder thus usurp[ing] the executive
function of choosing which charge to initiate.6
Subsequent Alaska cases have reaffirmed that
the executive branch has broad discretion to decide
whether to initiate criminal charges and, if so, what
charges to bring. See Surina v. Buckalew7 (noting that
prosecutors have wide discretion in deciding whether to
institute criminal proceedings); Nao v. State8
(declaring that prosecutors have traditionally been
vested with wide-ranging discretion as to whether to
bring criminal charges and, if so, what charges to
bring); and State v. Jones9 (holding that Criminal Rule
43(c) does not give courts the authority to intrude
into the executive function by choosing which charge to
bring against a defendant or which defendant should be
prosecuted).
However, none of these cases directly
addresses the issue raised in the present appeal.
Here, Judge Finn did not purport to substitute her own
judgement for the district attorneys judgement
concerning what charge to pursue against Phillips.
Rather, Judge Finn ruled that the district attorneys
office lacked the authority to exercise its discretion
in the way contemplated by the plea agreement.
The true issue presented here is whether the
executive branch has the discretion to charge a
defendant with a less serious crime than the undisputed
facts would support. Although there is no Alaska
appellate decision directly on point, other courts are
virtually unanimous that the executive branch does have
this authority.
In State v. Medina, 793 A.2d 68 (N.J. App.
2002), the court examined the structure of New Jerseys
criminal code which, like Alaskas criminal code,
generally contains one or more lesser offenses related
to each serious crime. The purpose of this structure,
the New Jersey court declared, is to allow the
prosecutor to exercise his discretion in determining
whether to charge the more serious crime or the
lesser-included offense, and to facilitate plea
negotiations.10
In State ex rel. Kurkierewicz v. Cannon, 166
N.W.2d 255 (Wis. 1969)11, the Wisconsin Supreme Court
likewise declared that the executive branch need not
charge every crime that the facts would support:
There is no obligation or duty upon a
district attorney to prosecute all complaints
that may be filed with him. While it is his
duty to prosecute criminals, it is obvious
that a great portion of the power of the
state has been placed in his hands for him to
use in the furtherance of justice, and this
does not per se require prosecution in all
cases where there appears to be a violation
of the law[.]
Kurkierewicz, 166 N.W.2d at 260.
The Nebraska Supreme Court echoed this view in State v.
Blair, 433 N.W.2d 518 (Neb. 1988).
There are many offenses ... which might
legitimately be filed either as a misdemeanor
or a felony. [But the] prosecutor is not
obliged to present all charges which the
evidence might support. Nor is it desirable
that he prosecute all crimes at the highest
degree available. ... In exercising
discretion in this way, the prosecutor is not
neglecting his public duty or discriminating
among offenders. The public interest is best
served and even-handed justice best dispensed
not by a mechanical application of the letter
of the law but by a flexible and
individualized application of its norms
through the exercise of the trained
discretion of the prosecutor as an
administrator of justice.
Blair, 433 N.W.2d at 521.
The Supreme Court of California summed up this legal
doctrine in Mitchell v. Superior Court, 783 P.2d 731
(Cal. 1989):
[I]n innumerable situations it has been
recognized that a prosecutor generally has
the discretion to charge a defendant with a
more general lesser offense even when there
is a more specific greater offense that might
embrace the facts of the case. ... Thus,
for example, it has never been questioned
that a prosecutor may charge a defendant with
simple assault when the facts of which the
prosecutor is aware would support an
assault-with-a-deadly-weapon charge, or that
a prosecutor may choose to charge a defendant
with straight first degree murder even though
the facts of the case could support a
murder-with-special-circumstance charge.
Although the Legislature presumably would
have the power to specify that an individual
who commits particular contemptuous conduct
must be prosecuted under a particular statute
or not at all, there would have to be a clear
indication of such legislative intent before
it would be appropriate to construe a statute
... to preclude a prosecutor from exercising
his traditional discretion to charge a
defendant with a less serious offense which
the facts also support.
Mitchell, 783 P.2d at 744-45.
This is not to say that Alaska law offers no
conceivable support for Judge Finns ruling. This Court
has ruled that, in cases governed by presumptive
sentencing, neither the prosecutor nor the sentencing
judge has the power to ignore a defendants undisputed
prior felony convictions or the existence of plainly
applicable aggravating or mitigating factors.
In Kelly v. State, 663 P.2d 967 (Alaska App. 1983), we
declared that
[t]he legislature did not intend the
presumptive sentencing provisions of the
revised criminal code to be applied
optionally, at the discretion of the court or
the prosecution. The presumptive sentencing
structure is mandatory, and it must be
followed when it applies. ... Failure to
consider prior crimes for presumptive
sentencing purposes can be condoned only in
those cases where the state, after exercising
due diligence, is unable to meet the
statutory requirements for proof of a prior
conviction.
Kelly, 663 P.2d at 974.
And in Hartley v. State, 653 P.2d 1052 (Alaska App.
1982), we applied this same rationale when we held that neither
the State nor the sentencing judge has the discretion to ignore
plainly applicable aggravating and mitigating factors:
[T]he legislature has established
specific guidelines governing sentencing.
These guidelines are particularly important
in determining presumptive sentences for
those previously convicted of felonies. The
[legislatures] decision to circumscribe
sentencing discretion was in large part based
upon a legislative belief that greater
uniformity in sentencing should be sought and
unjustified disparity eliminated. AS 12.
55.005.
To allow the parties to ignore past
convictions or aggravating and mitigating
factors suggested by the evidence at trial or
disclosed in the presentence report ... would
be to encourage unjustified disparity in
sentencing. We therefore hold that the state
has no discretion to suppress evidence of
past convictions or aggravating or mitigating
factors. ... We [also] therefore conclude
that the trial court has the power sua sponte
to alert the parties to possible aggravating
and mitigating factors present in the
record[,] so long as the parties are given an
opportunity to marshal the relevant evidence,
pro and con, and make their arguments
accordingly.
Hartley, 653 P.2d at 1056.
There is obviously a potential tension between Kelly
and Hartley, on the one hand, and the various cases that endorse
the executive branchs wide-ranging charging discretion. But we
conclude that this is only a seeming conflict.
The principle that underlies our decisions in Kelly and
Hartley is our duty to uphold and promote the legislative goal
behind Alaskas presumptive sentencing laws. That goal, as
expressed in AS 12.55.005, is the elimination of unjustified
disparity in sentenc[ing] and the attainment of reasonable
uniformity in sentences. In particular, Alaskas presumptive
sentencing laws are designed to ensure that offenders convicted
of serious crimes, who have equivalent felony records, will
receive equivalent sentences unless there is good reason under AS
12.55.155-175 for the sentencing discrepancy.
But though the legislature has clearly expressed its
desire to eliminate unjustified disparity in the sentences
imposed on similarly situated defendants convicted of the same
crime, the legislature has not indicated an intention to abrogate
or limit the long-recognized charging discretion of the executive
branch the discretion to decide whether to bring charges against
a person who has broken the law and, if so, to decide what those
charges will be. Moreover, our supreme court indicated in Public
Defender Agency v. Superior Court and State v. Carlson that this
charging discretion is inherent in the executive branchs role
under the doctrine of separation of powers.
For these reasons, we formally endorse the view of our
sibling states: The executive branch has the discretion to
charge a defendant with a less serious crime than the facts would
support. Likewise, if a defendant is initially charged with the
most serious crime that the facts would support, the executive
branch has the discretion to reduce the charge to a less serious
crime.
Accordingly, we hold that the district court had no
authority to reject the plea bargain between the State and
Phillips on the basis that the State could have proved a more
serious charge against Phillips. The decision of the district
court is REVERSED, and the district court is directed to resume
its consideration of the proposed plea bargain under Alaska
Criminal Rule 11(e).
_______________________________
* Sitting by assignment made pursuant to Article IV, Section
16 of the Alaska Constitution.
1 534 P.2d 947 (Alaska 1975).
2 Id. at 950.
3 Id. at 951.
4 555 P.2d 269 (Alaska 1976).
5 Id. at 271-72.
6 Id. at 272.
7 629 P.2d 969, 973 (Alaska 1981).
8 953 P.2d 522, 526 (Alaska App. 1998).
9 751 P.2d 1379, 1382 (Alaska App. 1988).
10 Id. at 79.
11 Abrogated on other grounds in State v. Kenyon, 270
N.W.2d 160, 164 (Wis. 1978).
