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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
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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
| ROSS L. DOW, | ) |
| ) Court of Appeals No. A-9212 | |
| Appellant, | ) Trial Court No. 4FA-04-890 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2093 April 6, 2007 |
| ) | |
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Mark I. Wood,
Judge.
Appearances: Robert John, Law Office of
Robert John, Fairbanks, for the Appellant.
W. H. Hawley, Jr., 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.
This case presents one more instance of a recurring
problem. The criminal charges against Ross L. Dow were resolved
when Dow entered a Cooksey plea i.e., a plea of no contest
which, with the consent of the State, incorporated the right to
litigate a dispositive issue on appeal. See Cooksey v. State,
524 P.2d 1251, 1255-57 (Alaska 1974). But when the parties
appeared in court to present this negotiated settlement of the
case, neither the lawyers nor the judge carefully described the
issue or issues that were being reserved for appeal.
Most of the evidence against Dow was found during a
police search of his basement. There was no warrant for this
search, but the State contended that Dows domestic partner,
Starla Noyes-Norris, consented to the initial police entry of the
residence, and that Dow himself later consented to the search of
the basement.
Dows attorney filed a suppression motion in which he
challenged the entry and the search. In his motion, and in the
later hearing on that motion, Dows attorney mentioned numerous
factual and legal theories that could potentially undermine the
propriety of the entry and the search.
After Superior Court Judge Mark I. Wood denied the
suppression motion, Dow decided to enter a Cooksey plea. But
when the parties assembled in court to have Dow formally express
his agreement to this negotiated plea, there was little talk of
the issue preserved for appeal. This matter was addressed only
briefly, and the reserved issue was described only vaguely as
whether Norris and Dow consented to let [the police] in there.
Here is the pertinent portion of the transcript:
The Court: And the State stipulates
that [the issue reserved under the plea
agreement] qualifies under Cooksey ... [as]
dispositive?
Prosecutor: Correct, Judge. ... It,
the consent issue, starts the case, so ...
The Court: Right; yeah. I mean, [the
police] dont get to find [the evidence] if
... I didnt find that you consented to
letting them in there. Right. So ... you
have the right to appeal that; ... youre not
losing your right to appeal that issue.
Dow: Right.
Now, on appeal, Dows appellate
attorney (a different attorney from the one
who represented Dow in the superior court)
has filed a brief that challenges the entry
and the search on at least seven different
grounds. The State, in its responding brief,
contends that most of these legal arguments
were not preserved when Dow entered his plea,
and that this Court should therefore refuse
to decide these unpreserved claims.
The dilemma facing this Court is
that, if we ultimately agree with the State
that one or more of Dows claims were not
preserved when he entered his Cooksey plea,
Dow would seemingly be entitled to return to
the superior court and ask to withdraw his
plea on the basis that he thought that these
claims were preserved, and that his decision
to enter his Cooksey plea was premised on his
right to raise these claims and have them
resolved on appeal.
(When a defendant is denied the
opportunity to litigate an issue that was
purportedly reserved for appeal as part of a
Cooksey plea, the remedy is to allow the
defendant to withdraw the plea.)1
In other words, this Court could
devote substantial time and effort to
deciding Dows appeal, only to have our
decision become moot because there never was
a meeting of the minds between Dow and the
State concerning the issues preserved for
appeal.
Under these circumstances, we must
stay our consideration of this appeal and
remand Dows case to the superior court, so
that the precise contours of the Cooksey plea
can be clarified. We direct the superior
court to ask the parties to explain their
understanding of the plea agreement in
particular, the issues that they anticipated
would be reserved for appeal.
If the parties can reach agreement
regarding the claims that were preserved for
appeal when Dow entered his plea, the
superior court shall notify this Court of the
agreed-upon claims. Assuming that these
claims are dispositive as defined in Miles v.
State, 825 P.2d 904, 906 (Alaska App. 1992),
this Court will resume work on Dows appeal
ignoring any claims presented in Dows current
brief that fall outside the parties
agreement.
If, on the other hand, the parties
can not reach agreement regarding the claims
preserved for appeal, the superior court
shall notify this Court of this fact. We
will then dismiss Dows appeal on the basis
that Dows Cooksey plea was not valid, and Dow
will be given the opportunity to withdraw his
plea.
In this latter event, Dow has
several options. He may negotiate another
plea bargain with the State, or he may
withdraw his no contest plea and go to trial
on the original charges. If Dow elects to go
to trial, but if he believes that it would be
pointless to dispute his factual guilt, Dow
may choose to be tried on stipulated facts or
on the grand jury record. As we noted in
Miles,
[I]f the parties concur that ... there
are no material factual disputes to be
litigated, the parties may agree to hold a
trial on stipulated facts or upon the grand
jury record, thus obtaining an appealable
judgement.
Miles, 825 P.2d at 907.
The superior court shall notify
this Court of the result of the remand
proceedings within 90 days of the issuance of
this opinion.
We now address one further issue.
Over the years, this Court has
repeatedly been presented with flawed Cooksey
pleas flawed either because the issue
reserved for appeal was not dispositive, or
because the parties never reached true
agreement regarding the issues reserved for
appeal. In Miles, we responded to this
problem by laying out the procedural steps
that must be taken when the parties present
the trial court with a proposed Cooksey plea:
[T]he prosecuting attorney, as an officer of
the court, must certify that the issue which
the defendant proposes to appeal is
dispositive, either because a ruling in the
defendants favor would, as a matter of law,
bar continuation of the prosecution or
because a ruling in the defendants favor
would leave the government with insufficient
evidence to withstand a motion for judgement
of acquittal at the conclusion of the
governments case. Both the defense attorney
and the judge must concur in the prosecutors
assessment.
Miles, 825 P.2d at 906-07.
Our opinion in Miles was issued
fifteen years ago, but we continue to receive
appeals in which the defendants Cooksey plea
suffers from these same flaws. We now take
the step of requiring the negotiated terms of
a Cooksey plea to be presented to the trial
court in writing.
In this writing, the parties must
specify precisely what issue or issues are
being reserved for appeal. In addition, the
parties must specify how the issue(s) are
dispositive of the case under the test
announced in Miles.
If more than one issue is being
reserved for appeal, the parties must either
explain why they believe that each separate
issue is independently dispositive of the
case, or the parties must explicitly agree
that the separate issues are dispositive only
when taken in combination and that the
defendant will prevail on appeal only if all
issues are resolved in the defendants favor.
The writing must be signed by both
the prosecutor and the defense attorney, and
the writing must be submitted to the trial
court promptly, so that the court has
sufficient time to review and evaluate the
terms of the proposed plea agreement before
the court is asked to accept the defendants
plea. As we pointed out in Miles, 825 P.2d
at 907, all three participants the
prosecutor, the defense attorney, and the
judge must agree that the proposed Cooksey
plea is proper.
We caution both attorneys and trial
judges that we will not accept a writing that
describes a reserved issue in generic terms
or in boilerplate language. Rather, the
writing must describe the reserved issue by
specifically referring to the facts of the
defendants case and the legal theories that
the parties are relying on.
We harbor no illusions that this
new procedural requirement will achieve the
goal of eliminating all Cooksey plea
problems. However, we believe that the
requirement of a writing will significantly
advance this goal by requiring attorneys and
judges to give focused attention to the terms
of all proposed Cooksey pleas.
Conclusion
This case is REMANDED to the superior court
for the proceedings described in this opinion.
The superior court shall report to us on the
result of the remand proceedings within 90 days of
the issuance of this opinion. After we have
received the superior courts report, we shall
renew our consideration of this appeal.
_______________________________
1See Miles v. State, 825 P.2d 904, 907 (Alaska App. 1992).
See also Ritter v. State, 16 P.3d 191, 196 (Alaska App.
2001); Clark v. Anchorage, 2 P.3d 639, 644 (Alaska App.
2000); Wells v. State, 945 P.2d 1248, 1250 (Alaska App.
1997).
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