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Grasser v. State (08/26/2005) ap-2004
Grasser v. State (08/26/2005) ap-2004
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
BRADLEY P. GRASSER,
)
) Court of
Appeals No. A-8867
Appellant,
)
Trial Court Nos. 1CR-04-018 Cr
) &
1CR-04-036 Cr
v.
)
) O
P I N I O N
STATE OF ALASKA,
)
)
Appellee.
)
[No. 2004 August 26, 2005]
)
Appeal from the District Court, First Judi
cial District, Craig, Christine Ellis,
Magistrate.
Appearances: Samuel A. McQuerry, Assistant
Public Defender, Ketchikan, and Barbara K.
Brink, Public Defender, Anchorage, for the
Appellant. Diane L. Wendlandt, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
David W. M rquez, Attorney General, Juneau,
for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Bradley P. Grasser was charged with nine crimes, all
related to domestic violence against his girlfriend assault,
unlawful contact, violating a protective order, and violating the
conditions of bail release. He ultimately reached a plea
agreement with the State in which he pleaded guilty to two counts
of fourth-degree assault, one count of first-degree unlawful
contact, and one count of violating a protective order.1 (The
remaining charges were dismissed.)
Grassers plea agreement called for him to receive a
specified amount of jail time, but another significant aspect of
Grassers sentence was left unresolved: whether the district
court should order Grasser to participate in a domestic violence
rehabilitation program (the batterers intervention program) run
by the Ketchikan Indian Community.
This program is located in Ketchikan, and Grasser lives
in Craig. Grasser contended that the court should not order him
to participate in this rehabilitative program because the costs
of traveling back and forth between Craig and Ketchikan would
impose an unfair financial burden on him. The State, for its
part, believed that the costs were reasonable, and that Grasser
was in need of the rehabilitative treatment offered at the
program. In their plea bargain, Grasser and the State agreed
that they would litigate this issue at sentencing, and that the
sentencing judge would make the final decision.
After hearing the parties arguments on this issue,
Magistrate Christine Ellis found that Grasser was in need of the
rehabilitative treatment offered by the program, and she rejected
Grassers contention that the costs of attending this program
would be unreasonable. The magistrate found that Grasser could
afford ferry transportation between Craig and Ketchikan. She
further found that the directors of the program were willing to
schedule their sessions to accommodate Grasser and other
defendants who lived outside of Ketchikan. In addition,
Magistrate Ellis declared that she would impose no fine on
Grasser for any of his four convictions, so that Grassers money
could be devoted to the rehabilitative program.
(The magistrate structured Grassers judgements so that
he could begin the rehabilitative program while he was serving
his jail sentence, if the Department of Corrections offered him
this opportunity. Otherwise, Grasser was ordered to begin the
program upon his release, as a condition of his probation.)
Grasser raises two arguments in this appeal. First, he
contends that Magistrate Ellis was clearly erroneous when she
concluded that participation in the Ketchikan program would not
impose an unreasonable financial burden on Grasser. We reject
this contention. Magistrate Ellis explained the basis of her
decision in some detail, and she refrained from imposing any fine
on Grasser, so that he would be better able to pay the cost of
transportation and the other expenses involved. We find no error
in the magistrates resolution of this issue.
Next, Grasser contends that, leaving aside any issue of
financial burden, Magistrate Ellis had no authority to order him
to participate in the Ketchikan batterers program. Grasser
argues that the pertinent provisions of Title 12 of the Alaska
Statutes do not give sentencing judges the authority to order a
defendant to participate in a rehabilitative program located
outside the defendants place of residence, either as a direct
component of his sentence or as a condition of his probation.
Grasser did not make this argument in the district
court. Instead, as explained above, Grassers plea agreement with
the State expressly provided that the district court could order
Grasser to participate in this program if the court rejected
Grassers contention that participation in the program would put
him to an unreasonable expense.
In other words, Grassers position in this appeal is a
repudiation of the position that he took when he negotiated his
plea agreement with the State. An attorney has a duty to deal
fairly with judges and opposing counsel. We question whether
this duty is met when an attorney expressly agrees to a procedure
in the trial court and then, having suffered an adverse ruling,
the attorney argues on appeal that this procedure is illegal.
In any event, Grassers argument was not preserved in
the district court, and any error was invited. Because of this,
Grasser is estopped from pursuing this argument on appeal.
If Grasser now believes that he agreed to an illegal
procedure or an illegal sentence when he negotiated his plea
bargain with the State, his proper course of action is to ask the
district court to allow him to withdraw his pleas (i.e., rescind
the plea bargain). Because Grasser negotiated a plea agreement
with the government, and because he was sentenced under the terms
of that agreement, Grasser can not now claim the benefit of the
portions of the agreement that he likes while, at the same time,
mounting an appellate attack on the portions that he does not
like.
The judgement of the district court is AFFIRMED.
_______________________________
1AS 11.41.230(a), AS 11.56.750(a), and AS 11.56.740(a),
respectively.
