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Register v. State (6/6/2003) ap-1882
Register v. State (6/6/2003) ap-1882
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
WARREN L. REGISTER and )
ROGER A. REGISTER, ) Court of Appeals Nos. A-7923 &
A-7943
) Trial Court Nos. 3PA-98-
389 Civ &
Appellants, )
3PA-98-390 Civ
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1882 June 6, 2003]
)
Appeals from the Superior Court, Third Judi
cial District, Palmer, Eric B. Smith, Judge.
Appearances: Eugene B. Cyrus, Eagle River,
for Appellant Warren L. Register. Scott A.
Sterling, Sterling & DeArmond, Wasilla, for
Appellant Roger A. Register. Nancy R. Simel,
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.
Warren L. and Roger A. Register were charged with first-
degree assault arising from the same incident. They ultimately
reached plea agreements with the State; under these plea
agreements, Warren and Roger were allowed to plead no contest to
reduced charges of second-degree assault.
Later, the Register brothers were sued by the victim of
the assault. The superior court ruled that because Warren and
Roger had pleaded no contest to second-degree assault, they were
now estopped from contesting the fact that they had used force
against the victim. (The superior court also ruled, however,
that the Registers could still assert that their use of force had
been justified either as self-defense, or as defense of each
other, or for any other reason.)
In response to this ruling, the Registers asked the
superior court to allow them to withdraw their no contest pleas.
The Registers asserted that they had entered their pleas under
the mistaken understanding that the pleas could not be used
against them in related civil litigation, and they further
asserted that they would not have pleaded no contest had they
known that their pleas could in fact be used against them in the
victims civil suit.
Following an evidentiary hearing, the superior court
denied the Registers motions to withdraw their pleas.
In this appeal, the Registers ask us to declare that if
a defendant enters a no contest plea based on the mistaken
impression that this plea will not affect their ability to defend
a related civil lawsuit, and then the defendant is sued and it
turns out that the plea can be used against the defendant, the
defendants mistaken belief concerning the civil consequences of
their no contest plea constitutes a sufficient reason for the
defendant to be allowed to withdraw the plea.
We conclude that we need not answer this question. The
superior court found that both Registers had in fact understood
that their no contest pleas might be used against them in related
civil litigation. The superior court further found that even if
the Registers had mistakenly believed that their pleas could not
be used against them in related civil litigation, this mistaken
belief did not influence their decision to accept or reject the
States offered plea bargain. These findings are supported by the
record. Because these findings are not clearly erroneous, (1)
the legal issue that the Registers ask us to address is moot, and
(2) the superior court properly denied the Registers requests to
withdraw their no contest pleas.
Underlying facts
In April 1996, Warren L. and Roger A.
Register were indicted for first-degree assault arising
from the stabbing of Phillip Carter. Six months later,
in October 1996, they reached plea agreements with the
State: both Register brothers were allowed to plead
no contest to the reduced charge of second-degree
assault.1 Warren Register later received a sentence of
3 years imprisonment with 2 years suspended (1 year to
serve), thus securing his immediate release from
prison. Roger Register received a sentence of 3 years
imprisonment with 2 years suspended (1 years to serve).
The following year (1997), Carter filed a
civil lawsuit against the Registers, seeking money
damages for the stabbing. Based on the fact that both
Register brothers had pleaded no contest to second-
degree assault arising from this incident, Carter asked
the superior court to grant him summary judgement on
the issue of liability. Superior Court Judge Eric B.
Smith ultimately ruled that the Registers were estopped
from denying that they had stabbed Carter. At the same
time, however, Judge Smith ruled that the Registers
were free to argue that their conduct was justified by
self-defense, or by defense of others, or for any other
reason.
The filing of Carters motion for partial
summary judgement prompted both Warren and Roger
Register to file petitions for post-conviction relief,
claiming that they should be allowed to withdraw their
no contest pleas because they had been misled
concerning the effect of those pleas on related civil
litigation. Specifically, both Register brothers
claimed that their decision to plead no contest had
been influenced by their belief that their no contest
pleas could not be used against them in any related
civil lawsuit. The Registers asserted that this belief
was engendered by the content of the advice-of-rights
videotape that they viewed before their arraignment,
and that this belief was later confirmed by what their
attorneys told them during the consultations that
preceded the entry of their pleas.
Judge Smith held a hearing to investigate the
Registers claims. At this hearing, it was undisputed
that the advice-of-rights videotape that the Registers
viewed in April 1996 did indeed inform arraignees that
a plea of no contest could not be used against a person
in related civil litigation. But there was substantial
dispute concerning what the Registers attorneys had
told them about the consequences of a no contest plea
during their pre-plea discussions.
The Alaska Supreme Courts recent decisions concerning
the effect of a no contest plea in related civil
litigation
Traditionally, one of the defining
characteristics of a no contest plea was that it could
not be used against a defendant if the defendant was
sued for damages arising from the criminal episode.2
But in a series of recent decisions, the Alaska Supreme
Court has suggested that this may no longer be the law.
In Burcina v. Ketchikan, 902 P.2d 817, 822
(Alaska 1995), the supreme court declared for the first
time that a civil plaintiff is collaterally estopped
from relitigating any element of a criminal charge to
which he has pled nolo contendere.
The following year, in Howarth v. Alaska
Public Defender Agency, 925 P.2d 1330, 1333 (Alaska
1996), the supreme court applied its holding in
Burcina, ruling that a former client of the Public
Defender Agency who was suing to recover money for
alleged malpractice was collaterally estopped from
asserting his innocence of a charge to which he had
pleaded no contest.
And in Lashbrook v. Lashbrook, 957 P.2d 326,
330 n. 2 (Alaska 1998), the supreme court (again
relying on Burcina) held that a defendant in a child
custody dispute was precluded from challenging the
facts which constitute the elements of the [domestic
assault and weapons offense] to which he pled no
contest.
The evidence presented at the post-conviction relief
hearing
As explained above, the Register brothers
asserted that their mistaken impression about the
consequences of a no contest plea their impression
that their pleas could not be used against them in
related civil litigation was confirmed by what their
attorneys told them during the plea negotiation
process. During these plea negotiations, Roger
Register was represented by attorney Sidney
Billingslea, while Warren Register was represented by
attorney Donna McCready.
The Register brothers entered their no
contest pleas in October 1996. The Burcina decision
had been issued one year before on September 22, 1995.
(The supreme courts decision in Howarth was issued on
November 8, 1996, just a few days after the Registers
entered their pleas.)
Sidney Billingslea, the attorney representing
Roger Register, testified that after the supreme court
decided Burcina, all [of her] clients received
information that a no contest plea ... might as well be
a guilty plea for purposes of fixing liability in ... a
subsequent civil proceeding, and that the plaintiffs in
a civil case can take [the facts conceded by] that no
contest plea as proved.
Billingslea was asked whether she gave this
advice only to clients who asked about this issue, or
whether she explained this point of law to all of her
clients, regardless of whether they were concerned
about civil liability. She replied, No, ... I just
give it. ... Its kind of my Miranda warning.
Billingslea conceded that she had no direct
memory of what she told Roger Register on this point.
She stated that she was fairly confident that she gave
this advice to Roger. But Billingslea added that if
Donna McCready or the Register brothers had a specific
memory to the contrary, the court should rely on that.
Roger Register then took the stand to rebut
Billingsleas testimony. He stated that Billingslea
never told him that a no contest plea might be used
against him in civil litigation. Indeed, Roger
asserted that, at some point during the representation,
Billingslea expressly confirmed the accuracy of the
information contained on the advice-of-rights
videotape. Roger declared that he remembered
Billingslea telling him that they can not use your no
contest plea as an admission of guilt ... in a civil
litigation.
In response to further questions, Roger
conceded that he had not asked Billingslea about this
issue when he was getting ready to accept the offered
plea bargain and enter his no contest plea. But he
stated that Billingslea never mentioned that the law
had changed from what she had previously told him.
Turning to Warren Registers case, Donna
McCready testified she did not remember much about her
discussions with Warren on this issue. (McCready
explained that she had not reviewed her notes, nor did
she have access to those notes, since she was
testifying from her car via cell phone.)
McCready could not recall whether potential
civil liability was a concern to Warren. She also said
that, until the Howarth decision came out, she was
unaware that a no contest plea might be used against a
defendant in related civil litigation. (As noted
above, Howarth was issued a few days after the
Registers entered their pleas but before they were
sentenced.)
For his part, Warren Register asserted that
he had a much firmer memory of the pre-plea
discussions. He testified that he specifically asked
McCready whether a no contest plea would put him at
risk for civil liability, and he declared that McCready
expressly advised him that a no contest plea could not
be used against him in a related civil lawsuit. Warren
stated that this conversation occurred in the
courthouse holding cell, just before he was scheduled
to appear in court for his trial call. Warren further
stated that, had he known that his no contest plea
might be used against him in related civil litigation,
he would not have accepted the States plea bargain.
Judge Smiths findings of fact
As to the conflict between the testimony
given by Sidney Billingslea and the testimony given by
Roger Register, Judge Smith concluded that Billingsleas
testimony was more credible. The judge stated, Given
Ms. Billingsleas obvious competence and her awareness
of the Burcina decision, the court finds that she did
not tell [Roger] Register that he could not be liable
in a civil case if he pled no contest. Instead, Judge
Smith found that it was highly likely that Billingslea
gave Roger Register the same advice ... that ... she
routinely gave her clients once she learned of the
Burcina decision the advice that a no contest plea
could well be used against him in a civil case.
Judge Smith further concluded that even if
Roger Register had misunderstood the civil consequences
of a no contest plea, this had no effect on Rogers
decision to accept the States plea bargain.
The judge noted that Roger was initially
charged with first-degree assault, a class A felony
carrying a maximum penalty of 20 years imprisonment and
a presumptive term of 7 years imprisonment.3 Under the
States plea bargain, Roger was offered the opportunity
to plead guilty or no contest to second-degree assault,
a class B felony. In addition, the State agreed to a
sentence cap of 3 years to serve. Given these
circumstances, Judge Smith concluded that it was
difficult to believe that the possibility of liability
in a civil suit would have been enough to impel [Roger]
Register to reject this rather lenient deal.
To resolve Warren Registers case, Judge Smith
noted another aspect of Sidney Billingsleas testimony:
Billingslea testified that the bulk of her discussions
on the issue of whether to [accept the] plea [bargain]
were held ... with Ms. McCready and both of the
Registers.
Judge Smith noted that Billingsleas routine
advice to clients changed after the supreme court
issued the Burcina decision in 1995 that, after
Burcina, she routinely advised clients that a no
contest plea was equivalent to a guilty plea for
purposes of civil liability. Based on the fact that
the Registers and their attorneys discussed the
proposed plea bargain as a group, and on the fact that
Billingslea made a point of explaining to her clients
that a no contest plea could be used against them in
related civil litigation, Judge Smith concluded that it
was quite possible that Mr. Warren Register received
the benefit of Ms. Billingsleas opinion concerning the
civil consequences of a no contest plea.
Judge Smith further concluded that it was
highly unlikely that Warren Register received the
advice he claimed he was given i.e., advice that
confirmed the videotapes mistaken description of the
effect of a no contest plea. Judge Smith declared that
he [did] not find credible Warren Registers assertions
that [his attorney] Ms. McCready confirmed the ...
information [on the advice-of-rights videotape] shortly
before he walked into court [to accept the plea
bargain].
Moreover, similar to his ruling in Rogers
case, Judge Smith concluded that even if Warren
Register had misunderstood the civil consequences of a
no contest plea, this had no effect on Warrens decision
to accept the States plea bargain.
The judge noted that Warren, like his brother
Roger, was initially charged with first-degree assault,
a class A felony carrying a maximum penalty of 20 years
imprisonment and a presumptive term of 7 years
imprisonment. Under the States plea bargain, Warren
was offered the opportunity to plead guilty or no
contest to second-degree assault, a class B felony. In
addition, the State agreed to a sentence cap of 3 years
to serve. Moreover, when this initial plea bargain
threatened to unravel, Warren was able to persuade the
state to make some additional sentencing concessions in
order to keep the plea bargain on track.
Given these circumstances, Judge Smith
concluded that it was difficult to believe that the
possibility of liability in a civil suit would have
been enough to impel [Warren] Register to reject this
rather lenient deal.
Based on these findings, Judge Smith denied
both Roger Registers and Warren Registers petitions to
withdraw their pleas.
Our review of Judge Smiths decision
Under Alaska Criminal Rule 11(h)(3) and AS
12.72.040, it was the Registers burden to prove by
clear and convincing evidence that they were entitled
to withdraw their pleas. Judge Smith concluded that
the Registers had failed to meet this burden. Indeed,
the judge concluded that Registers had failed to prove
their case by even a preponderance of the evidence: he
found that the true facts of the case were contrary to
the Registers assertions.
As the Registers concede, if they are to
prevail in this appeal, they must demonstrate that
Judge Smiths findings of fact are clearly erroneous.4
We have reviewed the record, and we conclude that Judge
Smiths findings are not clearly erroneous. It was
Judge Smiths job to resolve the conflicts in the
testimony and to draw inferences from the testimony.
His resolution of the conflicts and the inferences he
drew from the testimony are reasonable. We are not
left with a definite and firm conviction on the entire
record that a mistake has been made.5
Accordingly, the judgements of the superior
court are AFFIRMED.
_______________________________
1 AS 11.41.210(a).
2 See Miller v. State, 617 P.2d 516, 518 (Alaska 1972).
Compare State v. Ruby, 650 P.2d 412, 413-14 (Alaska App.
1982) (holding that a plea of no contest may be used to
establish the defendants violation of pre-existing
probation, but the plea is not conclusive evidence of the
defendants commission of the new crime).
3 See AS 11.41.200(b); AS 12.55.125(c) and (c)(2)(A).
4 See Dolchok v. State, 639 P.2d 277, 282-83 (Alaska 1982).
5 Geczy v. LaChappelle, 636 P.2d 604, 606 n. 6 (Alaska
1981); Mathis v. Meyeres, 574 P.2d 447, 449 (Alaska 1978).
