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Parker v. State (05/14/2004) ap-1932
Parker v. State (05/14/2004) ap-1932
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
DAVID LEE PARKER, )
) Court of Appeals No.
A-8114
Appellant, )
Trial Court No. 3AN-98-9775 Cr
)
v. )
) O P I N
I O N
STATE OF ALASKA, ) ON REHEARING
)
Appellee. )
[No. 1932 May 14, 2004]
)
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Larry D. Card,
Judge.
Appearances: Averil Lerman, Assistant Public
Advocate, and Brant G. McGee, Public
Advocate, Anchorage, for the Appellant.
Timothy W. Terrell, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Gregg D. Renkes,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
In February 2000, David Lee Parker pleaded no contest
to three felonies as part of a plea bargain with the State of
Alaska, but he later sought permission to withdraw his pleas.
Parker asserted that he decided to accept the States plea
bargain, rather than going to trial, because he was laboring
under a mistaken belief concerning the consequences of winning a
suppression issue on appeal. Following an evidentiary hearing,
the superior court concluded that even if Parker had
misunderstood the consequences of winning the suppression motion,
this mistaken understanding had not been the motive for Parkers
decision to accept the States offered plea bargain. Accordingly,
the superior court ruled that Parker had failed to present a fair
and just reason for withdrawing his pleas. We affirmed the
superior courts decision in Parker v. State, Alaska App.
Memorandum Opinion No. 4850 (March 31, 2004), 2004 WL 720111.
Parker now seeks rehearing of our decision. He points
out that, in addition to challenging the superior courts refusal
to let him withdraw his pleas, he also challenged his sentence on
various grounds. Parker is correct that we failed to decide his
sentence appeal issues. We apologize to the parties for failing
to address those issues in our previous decision, and we address
them now.
Parker also seeks reconsideration of our decision of
the plea-withdrawal issue. For the reasons explained here, we
reaffirm our decision of that issue.
The basic facts of the plea-withdrawal issue
Parker had a sexual relationship with V.M., a
seventeen-year-old girl. Parker took sexually
suggestive photos of V.M. and he also made videotapes
of their sexual relations. The photographs and videos
were apparently made for private, non-commercial
purposes. Parker kept the photos and videos in a
briefcase. These materials came to the attention of
the authorities when Parkers son brought the briefcase
to the police.
Even though Parkers sexual relations with
V.M. were lawful (since V.M. was older than sixteen),1
Alaskas exploitation of minors statute,
AS 11.41.455(a), forbids sexually explicit photography
and videography of a child younger than eighteen.
Parker was therefore indicted for unlawful exploitation
of a minor and possession of child pornography.2 He
was also indicted for third-degree controlled substance
misconduct (distributing marijuana to a minor) and
interference with official proceedings (offering a
benefit to V.M. in an attempt to influence her
testimony).3
Seven months later, Parker was indicted on
far more serious charges. The police discovered LSD
inside Parkers briefcase, and further investigation
revealed evidence that Parker had given LSD to three
minors: V.M., A.B., and J.O.. Based on this
investigation, the grand jury indicted Parker on three
counts of first-degree controlled substance
misconduct.4 This offense is an unclassified felony
with a maximum penalty of 99 years imprisonment.5
The primary strategy of the defense was to
seek suppression of the evidence against Parker. In
pursuit of this strategy, Parkers attorney John
Bernitz filed a motion alleging that the police had
illegally obtained Parkers briefcase. But in the
meantime, Bernitz engaged in plea negotiations with the
State. These negotiations intensified after the
superior court denied Parkers suppression motion and
Parkers case was calendared for trial.
On January 11, 2000, Parker and Bernitz made
an offer to the State. When the State did not respond,
Parker and Bernitz made a revised offer on February 10:
Parker would plead no contest to one class A felony,
with a 7-year ceiling on Parkers prison term, and
Parker would preserve his right to litigate the
suppression motion on appeal (i.e., Parkers pleas would
be Cooksey pleas).6
Four days later, on February 14, the State
responded with a counter-offer. The State would reduce
Parkers three unclassified felonies (the three counts
charging distribution of LSD to minors) to a single
class A felony a single consolidated count of
attempted distribution of LSD to minors with the
proviso that Parker would concede aggravating factor AS
12.55.155(c)(10), conduct among the most serious within
the definition of the offense (because he was actually
guilty of the completed crime). Parker would plead no
contest to this reduced charge, as well as to one count
of exploitation of a minor and one count of possession
of child pornography.
Bernitz discussed the States counter-offer
with Parker. Parker said that he was willing to plead
no contest to the three charges proposed by the State,
but he wanted to preserve his right to litigate the
suppression motion on appeal. Bernitz then contacted
the State and said that Parker would plead no contest
to the three charges if his pleas could be Cooksey
pleas i.e., if Parker could reserve his right to
appeal the superior courts denial of the suppression
motion.
Sometime mid-day on February 15, 2000, the
district attorneys office delivered a memo to Bernitz
in which the prosecutor rejected the suggestion of
Cooksey pleas. The prosecutors memo stated that
Cooksey pleas would not be legal in Parkers case
because the suppression issue that Parker wished to
litigate (suppression of the contents of the briefcase)
would not be dispositive of the charges against Parker.
The text of the third paragraph of this memo read:
[A] problem with a Cooksey plea in this
case [is that] the search issue is [not]
truly dispositive. The principal victim,
V.M., could testify about most, if not all,
of the crimes Mr. Parker is charged with,
even if the entire contents of the briefcase
were suppressed. Other witnesses could also
testify about those crimes, [even] without
the briefcase.
After Bernitz received this memo from the prosecutor,
he sent a memo in reply. In his memo, Bernitz stated
that he was going to meet with Parker before noon that
day, and they were going to discuss whether to accept
the States offer (that is, whether to give up the idea
of Cooksey pleas) or go to trial.
Bernitz did indeed meet with Parker that day, and he
made written notes of their discussion. Bernitz
explained to Parker that if Parker chose to reject the
States offer and go to trial, he would face more prison
time if he was convicted (because Parker would be tried
on three unclassified felonies), but Parker would
preserve the motion seeking suppression of the contents
of the briefcase. On the other hand, if Parker
accepted the States offer, he could avoid having to go
through a trial and he would face less prison time, but
he would have to abandon the suppression motion.
Bernitz advised Parker that, in his opinion, Parker
would probably lose at trial. Moreover, Bernitz
advised Parker that even if Parker went to trial so
that he could preserve the suppression issue, Parker
would probably lose the appeal.
Bernitzs concluding note from that meeting was,
[Parker] was unwilling to take the risk, so he decided
to take [the States] offer. The parties appeared in
court the following day (February 16, 2000), and Parker
entered no contest pleas to the three charges proposed
by the State.
Later, when Parker sought to withdraw his pleas, he
asserted that he had been misled by the final sentence of the
district attorneys memo quoted above. Parker testified that he
believed that sentence to mean that, even if he pursued the
suppression issue on appeal and won, the police who discovered
the LSD in the briefcase would still be able to testify about
what they had found (even though the physical substance itself
was suppressed). Parker asserted that this mistaken belief was
the reason he chose to accept the States plea bargain rather than
going to trial and, if convicted, pursuing an appeal.
John Bernitz also testified at the plea-withdrawal
hearing. Bernitz acknowledged that he advised Parker that
winning the suppression motion would not stop the State from
proving the drug offenses not because the police could still
testify about finding the LSD in Parkers briefcase, but because
the three teenagers could still testify that Parker gave them LSD
(that is, LSD other than what was found in the briefcase).
Bernitz declared that he remembered several conversations with
Parker in which they discussed the possibility that the three
teenagers could testify against him even if his suppression
motion was successful on appeal.
After hearing Parkers and Bernitzs testimony, Judge
Card concluded that even if Parker had been laboring under the
mistake he claimed, this was not the reason why Parker decided to
accept the States plea bargain. As we explained in our prior
decision:
Judge Card noted that Parker had a
substantial motive to reach a plea agreement
with the State: he was charged with three
counts of distributing LSD to minors, an
unclassified felony with a maximum sentence
of 99 years imprisonment. Moreover, Parker
understood that he still could be convicted
of these offenses based on the young womens
testimony, even if the Court of Appeals
ultimately agreed with him about suppressing
the briefcase.
In addition, Judge Card noted that
Bernitz, in a pre-hearing affidavit, had
stated that one of Parkers main motivations
for choosing to accept the plea bargain was
his desire to spare his family the stress
that a trial would entail. According to
Bernitz, Parker repeatedly told him that his
mother was urging him not to go to trial
because a trial would put too much stress on
Parkers young sons. Judge Card noted that he
had independent knowledge, from prior court
hearings in Parkers case, that one of Parkers
sons suffered from a debilitating disease and
had become very distraught at one hearing.
Judge Card concluded that those are the
types of things [that] Mr. Parker was
thinking about at the time he entered his
plea[s], rather than Parkers alleged
misunderstanding about the admissibility of
police testimony.
Parker v. State, Memorandum Opinion No. 4850
at 12, 2004 WL 720111 at *6-7.
Parkers request for reconsideration of our decision
In his petition for rehearing, Parker asserts
that this Court reviewed the trial court record,
and essentially concluded that Parker ... only
sought to withdraw his plea for reasons unrelated
to the reasons he asserted and testified about [in
the] evidentiary hearing [in] the trial court.
This is a mischaracterization of what an appellate
court does, and a mischaracterization of what we
did in Parkers case.
It was Superior Court Judge Larry D. Card who
concluded that Parkers decision to plead no
contest was not materially influenced by Parkers
mistaken understanding concerning the consequences
of winning the suppression motion. Our task, as
an appellate court, was not to reweigh the
evidence or to make our own decision about Parkers
reasons for entering his pleas. Rather, our task
was to determine whether the evidence presented at
the evidentiary hearing supported Judge Cards
decision.
Parker further asserts that we misconstrued
the trial court record when we asserted, on page 14 of
our opinion, that Parker did not challenge Bernitzs
testimony that he had held several discussions with
Parker about the suppression motion and the related
problem that, even if Parker ultimately won the
suppression motion, the three teenagers could still
testify that Parker delivered LSD to them. In his
petition for rehearing, Parker asserts that this is an
erroneous characterization of the record:
Although David Parker understood that
the teenage girls might well be able to
testify against him at a retrial (if he were
to win the appeal of the denial of his
suppression motion, and succeed in
suppressing the LSD [in the briefcase])[,] he
never believed that he would be convicted of
serious drug charges on their unsupported
testimony alone. ... Parker was willing and
ready to go forward and face the testimony of
the teenagers; it was his mistaken idea that
[their] testimony would then be corroborated
by police testimony that [convinced] him to
enter [his no contest] plea[s]. Although he
knew [that] he could get convicted on the
basis of the teenagers[] testimony, Parker
did not think that he would get convicted on
the basis of [their] testimony alone.
(Emphasis in the original)
But Parkers petition for rehearing
contains no citations to the record to
support these factual assertions. We have re-
read Parkers testimony at the hearing
(transcript pages 375 to 421), and we are
unable to find any instance where Parker
asserted that he would have been willing to
risk retrial, even with the teenagers
testifying against him, so long as the police
were barred from giving corroborating
testimony about their discovery of another
quantity of LSD in Parkers briefcase. If
anything, Parkers testimony at the
evidentiary hearing indicates that he did not
draw any distinction between the teenagers
testimony and police testimony.
In his direct testimony, Parker
repeatedly declared that he lost heart in his
case after he read the district attorneys
memo and concluded that, even if he won his
suppression motion on appeal, all the
testimony and all the witnesses could be
used against him at a retrial. Parkers
repeated references to all of the witnesses
prompted the States attorney to engage in the
following cross-examination:
Prosecutor: I ... want to focus [the
inquiry] a little tighter than that. Were
you [and Bernitz] just talking about the
[LSD], or [were you] talking about everybody?
Parker: We were talking about
testimony.
Prosecutor: All the testimony?
Parker: All testimony; all the
testimony. ... [The district attorneys
memo] says that, you know, it says other
witnesses, all the witnesses, everybody.
Prosecutor: Okay, well ... I want to be
a little more specific because, ... [in] the
last sentence of the third paragraph ... [the
district attorneys memo] actually says, other
witnesses rather than all witnesses, doesnt
it?
Parker: Yes, sir, but I didnt make a
distinction like that.
We note, moreover, that when Judge
Card announced his decision (denying Parkers
motion to withdraw his pleas), the judge
spoke at length about the fact that, even if
the contents of the briefcase were
suppressed, the State would still be able to
present the testimony of the young women ...
about having received LSD [from Parker]. The
judge declared that, because the womens
testimony would still be available to the
State, Parker had a substantial motivation to
negotiate his case [down] to a single class A
felony, as opposed to having the potential
for [conviction of] three unclassified
felonies.
A little later in his remarks,
Judge Card again declared that Parker had
very good reasons for accepting the States
plea bargain. He directed the parties
attention to Bernitzs pre-hearing affidavit,
in which Bernitz stated that he explained to
Parker that even if the briefcase contents
were suppressed, the victims would still be
able to testify. Judge Card then emphasized
Bernitzs choice of words: [He said] the
victims. The police were not victims.
As explained above, Parker asserts
in his petition for rehearing that his
decision to accept the States plea bargain
hinged primarily on his evaluation of his
differing chances for success (1) at a
retrial in which only the three teenagers
would testify about the drug charges, versus
(2) a retrial in which both the teenagers and
the police would testify. Given Parkers
current assertion about his decision-making
process, we find it significant that Parker
and his attorney listened to Judge Card give
the above-described analysis of Parkers
motivation for accepting the plea bargain,
and they never objected or sought an
opportunity to clarify their position.
In sum, we conclude that the
assertions of fact contained in Parkers
petition for rehearing concerning his reasons
for accepting the plea bargain were never
presented to the trial court and are not
supported by the record. We therefore deny
Parkers petition on this issue.
Parkers sentence appeal
Parker pleaded no contest to three crimes:
attempted first-degree misconduct involving a
controlled substance (i.e., attempted delivery of LSD
to a minor),7 unlawful exploitation of a minor (for
taking sexually explicit photographs and videos of his
seventeen-year-old girlfriend),8 and possession of
child pornography (possessing these same photographs
and videos).9
As part of his plea bargain, Parker
stipulated that his conduct with regard to the drug
charge was among the most serious (aggravator
AS 12.55.155(c)(10)) because he was factually guilty of
the completed crime, not just the attempt.10 However,
Parker asked the superior court to find that his other
two offenses (exploitation of a minor and possession of
child pornography) were mitigated under AS
12.55.155(d)(9); that is, Parker asked Judge Card to
find that his conduct was among the least serious
included within the definitions of these crimes.
In arguing for mitigator (d)(9), Parker noted
that all of the photographs and videos seized by the
State depicted V.M., Parkers seventeen-year-old
girlfriend. As we have explained, Parkers sexual
relations with V.M. were lawful (because she was over
the age of consent). Parker further noted that the
State produced no evidence that Parker had distributed
or shown these photos and videos to anyone else
(besides V.M.). Parker argued that, considering all of
the conduct encompassed by the statutes defining
exploitation of a minor and possession of child
pornography, Parkers private creation and private
possession of photographic and videographic images for
the personal use of himself and his lover was among the
least serious conduct.
We agree. We acknowledge that Parker, by
pleading no contest to these offenses, abandoned his
earlier contention that Alaskas exploitation of a minor
statute and possession of child pornography statute
were unconstitutional as applied to his conduct in this
case.11 Nevertheless, Parker was still entitled to
argue that, given the lawfulness of his sexual
relations with V.M., and given the lack of evidence
that Parker distributed these images to anyone else
(whether commercially or non-commercially), his conduct
was minimally serious when compared to the chief evils
targeted by these statutes: the commercial creation of
child pornography and its distribution to pedophiles.
The State argues that Parkers conduct can not
be deemed among the least serious because
[the exploitation of a minor statute] is
concerned with ... the adverse effects on a
minors future ability to form normal adult
sexual relationships [after the] minor is
manipulated into engaging in sexual activity.
The statute is concerned with disparities in
power and maturity. ... The record actually
demonstrates that the 51-year-old Parker
manipulated or induced the 16- [and 17-] year-
old V.M. to pose [in sexually suggestive
ways] and engage in occasional sexual acts
... .
One can hardly argue with the States position that
disparities in maturity and power can sometimes lead to
unfair manipulation or unfair pressure to engage in sexual
conduct. This is true regardless of the ages of the people
involved. But the Alaska legislature has declared that, in
most instances, persons who have attained the age of sixteen
are mature enough to make these decisions for themselves.
The States argument that V.M. was manipulated into
engaging in sexual activity is really an attack on the
legislatures decision to establish sixteen as the age of consent.
But this Court has no authority to re-evaluate the legislatures
decision in this matter.
In sum, we agree with Parker that his private creation
and private possession of sexual images of his seventeen-year-old
girlfriend constituted conduct among the least serious within the
definition of exploitation of a minor and possession of child
pornography. Judge Cards decision to the contrary is clearly
erroneous.12 Parker must be resentenced.
Parker also argues that Judge Card imposed an illegal
sentence on the possession of child pornography count.
Possession of child pornography is a class C felony.13 Parker,
as a second felony offender, faced a presumptive term of 2 years
imprisonment for this charge.14
When a defendant is subject to presumptive sentencing,
the sentencing judge can not adjust the specified presumptive
term upward even if the increased term of imprisonment is
suspended in whole or in part unless the State proves one or
more aggravating factors under AS 12.55.155(c).15 The State did
not prove any aggravators with respect to the child pornography
charge, but Judge Card nevertheless sentenced Parker to serve 3
years with 2 years suspended.
On appeal, the State concedes that this sentence is
illegal, and we conclude that the States concession is well-
founded.16 The superior court must reduce Parkers sentence on
this count to no more than 2 years imprisonment with 1 year
suspended.
Conclusion
We re-affirm our prior decision concerning
Parkers effort to withdraw his pleas. However, we
reverse the decision of the superior court regarding
mitigator (d)(9), and we vacate Parkers sentence for
possession of child pornography because that sentence
is illegal.
Parkers convictions are AFFIRMED. Parkers
sentences for exploitation of a minor and for
possession of child pornography are VACATED. The
superior court shall resentence Parker in conformity
with this opinion.
_______________________________
1 See AS 11.41.434(a)(3).
2 AS 11.41.455(a) and AS 11.61.127(a), respectively.
3 AS 11.71.030(a)(2) and AS 11.56.510(a)(2)(A),
respectively.
4 AS 11.71.010(a)(2).
5 AS 11.71.010(c); AS 12.55.125(b).
6 See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska
1974).
7 AS 11.71.010(a)(2).
8 AS 11.41.455(a).
9 AS 11.61.127(a).
10 See Parker, Memorandum Opinion No. 4850 at 4, 2004 WL
720111 at *2.
11 Compare Ashcroft v. Free Speech Coalition, 535 U.S.
234, 254-55; 122 S.Ct. 1389, 1404; 152 L.Ed.2d 403 (2002)
(striking down the portion of the Child Pornography
Prevention Act of 1996 that prohibited the creation of
computerized images depicting sexual activity with underage
children); Massachusetts v. Oakes, 491 U.S. 576, 109 S.Ct.
2633, 105 L.Ed.2d 493 (1989) (declining to decide the
constitutionality of a statute that prohibited adults from
posing or exhibiting nude minors for purposes of visual
representation or reproduction in any book, magazine,
pamphlet, motion picture, photograph, or picture because the
state legislature had amended the statute in the interim).
12 See Lepley v. State, 807 P.2d 1095, 1099 n. 1 (Alaska
App. 1991) (a sentencing judges findings as to the existence of
aggravating and mitigating factors are reviewed under the clearly
erroneous standard).
13 See AS 11.61.127(d).
14 AS 12.55.125(e)(1).
15 See Connolly v. State, 758 P.2d 633, 635, 636 & n. 3
(Alaska App. 1988); McManners v. State, 650 P.2d 414, 416 (Alaska
App. 1982).
16 See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972)
(holding that an appellate court is obliged to independently
evaluate any concession of error by the State in a criminal
case).
