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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
| CHESTER L. LOVE, | ) |
| ) Court of Appeals No. A-9136 | |
| Appellant, | ) Trial Court No. 3AN-02-6197 CR |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) [No. 2136 - December 28, 2007] |
| ) | |
Appeal from the
Superior Court, Third Judicial District,
Anchorage, Larry D. Card, Judge.
Appearances: Dan S. Bair, Assistant Public
Advocate, Chad W. Holt, Section Supervising
Attorney, Anchorage Adult and Juvenile
Section, and Joshua P. Fink, Public Advocate,
Anchorage, for the Appellant. Terisia
Chleborad, Assistant Attorney General, Office
of Special Prosecutions and Appeals,
Anchorage, and Talis J. Colberg, Attorney
General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
STEWART, Judge, dissenting.
On February 2, 2002, while he was on parole release
from a prior felony, Chester L. Love was arrested for possession
of heroin (fourth-degree controlled substance misconduct).
Because Loves possession of the heroin was also a violation of
his parole, he was taken into custody both for the new crime and
for the parole violation.
Based on Loves possession of the heroin, the Alaska
Parole Board revoked his parole, and Love served approximately
another two years in prison. The new criminal charge (possession
of heroin) was still pending trial.
In March 2004, Love completed serving his time on the
parole revocation and was released on bail for the heroin
possession charge. But while he was on bail release, Love was
charged with an assault and returned to custody.
In December 2004, while Love was still in custody
(awaiting trial on both the heroin possession charge and the
assault charge), Love reached a plea agreement with the State.
Under this plea bargain, Love agreed to plead guilty to the
heroin possession charge, and it was further agreed that Love
would serve a 2-year term of imprisonment on this charge. The
agreement provided that Love would receive credit for all time
served under this case.
At Loves sentencing hearing, his defense attorney asked
Superior Court Judge Pro Tem Sigurd E. Murphy to include language
in the judgment that indicated Love was to receive credit for
time served. The attorney told the court that he was requesting
the addition of this language to the judgment because he and his
client believed that Love had already done his time.
One week later, Love moved to withdraw his plea. In
support of this motion, Love told the superior court that he had
not received the benefit of his bargain because the Department
of Corrections had told Love that he was not going to receive
credit against his heroin possession sentence for the two years
that he had earlier spent in custody on his parole revocation.
Superior Court Judge Larry D. Card conducted an
evidentiary hearing on Loves motion to withdraw his plea. Loves
attorney testified at this hearing. According to the attorney,
Love agreed to the 2-year sentence on the heroin possession
charge only because Love believed that he would be credited for
the two years that he had already spent in prison on the parole
revocation. Love assumed that, because he had been taken into
custody on both the parole violation and the new heroin
possession charge, the two years that he served in prison between
February 2002 and March 2004 would be credited against both the
parole revocation and the new heroin possession charge (in the
event that Love was convicted of that charge).
The attorney acknowledged that he had questioned Loves
interpretation of his legal situation. In particular, the
attorney testified that he had spoken to Love about former AS
12.55.025(e), a statute that has been repealed,1 but previously
provided that if [a] defendant has been convicted of two or more
crimes, sentences of imprisonment shall run consecutively. The
attorney testified that he told Love that the sentences may be
consecutive, but that Love was convinced and, as it turns out,
right that ... they could [be] concurrent. According to the
attorney, Love was convinced (based on his prior experience in
these matters) that the Department of Corrections would give him
double credit for these two years and, thus, the 2-year
sentence for heroin possession would essentially be served as
soon as it was pronounced.
The defense attorney and Love decided to ask the
superior court to put language in the judgment that Love was
entitled to credit for all time served under this case and then
they would leave the actual calculation of Loves sentence to the
Department of Corrections. The defense attorney stated that Love
was convinced, and again rightfully so, that he was going to get
credit for time served and [that he] had done all his time and
would be out shortly. Thats the only reason he took the deal.
Love himself also testified at the hearing. According
to Love, he told his attorney that he would be willing to accept
a plea bargain only if he received credit against his sentence
for all the time that he had previously served in prison after he
was arrested in February 2002. That is, Love would accept a plea
agreement only if it would make him eligible for immediate
release.
Love conceded that his attorney had shown him AS
12.55.025(e). But they also discussed other statutes that they
thought supported Loves position. Love stated that, based on his
experience, the Department of Corrections would allow the
sentence on the heroin possession charge to run concurrently with
the remainder of his prior felony sentence that he was forced to
serve because of the parole revocation. In other words, Love was
convinced that he would receive a two-year credit against both
sentences for the time he spent in prison between February 2002
and March 2004.
Having heard this testimony, Judge Card denied Loves
motion to withdraw his plea. Judge Card found that Love had
indeed thought he would be given double credit for the time he
served in prison following his parole revocation. However,
Judge Card further found that Loves belief was mistaken, and
that neither Loves defense attorney nor the prosecuting attorney
had told Love anything to foster or confirm this belief. Judge
Card further found that the parties had negotiated in good faith,
that they fully intended to enter a legal agreement, and that
Love should not have been surprised when the Department of
Corrections refused to give him double credit for the two years.
Love now appeals the superior courts decision.
Why we conclude that Love is entitled to withdraw his
plea
Under Alaska law, it is clear that Love could not
receive double credit for the two years he spent in prison
following his parole revocation. These two years had already
been credited against the remainder of Loves sentence on his
prior felony the sentence he was forced to serve after his
parole from that prior felony was revoked. After receiving that
credit, Love could not receive another two-year credit against
his new sentence for heroin possession.
We explained the law on this point twelve years ago in
Smith v. State, 892 P.2d 202 (Alaska App. 1995):
Smiths present appeal concerns the
calculation of [his] sentence. At the time
he was sentenced, Smith had spent 266 days in
jail. [The sentencing judge] declared that
Smith should receive credit against his
sentence for these 266 days. The State
objected, pointing out that Smith had not
been arrested for his present offenses, but
rather for violating his parole from [a]
prior felony. The State argued that, since
Smith was going to be credited with these 266
days in his prior felony, he should not
receive another 266-day credit in his present
case. [The sentencing judge] disagreed,
ruling that Smith should receive the 266-day
credit in both cases.
This ruling was incorrect. By law,
Smiths sentence in the present case had to
run consecutively to his sentence from his
previous felony. AS 12.55.025(e); Jennings
v. State, 713 P.2d 1222 (Alaska App. 1986).
This being so, Smiths 266 days in jail could
be applied against only one of these
sentences. Endell v. Johnson, 738 P.2d 769
(Alaska App. 1987).
Smith, 892 P.2d at 203.
It is uncontested that Loves
mistaken belief that he would receive double
credit for the two years he served in jail
between February 2002 and March 2004 was a
critical factor in Loves decision to accept
the plea bargain offered by the State. Love
accepted the proposed 2-year sentence for
heroin possession because he believed that,
with the double credit, he would be released
from jail immediately after the sentence was
imposed. And as soon as Love discovered that
the Department of Corrections disagreed with
his interpretation of the law, he promptly
moved to withdraw his plea.
The defense attorney warned Love
that his interpretation of sentencing law
might be wrong. The record reflects that
Loves attorney talked to him about former
AS 12.55.025(e), the statute that required
Love to serve the heroin possession sentence
consecutively to the remainder of his
sentence from his previous felony.
But it seems to us that the crucial
fact here is that Loves attorney did not
flatly tell Love that his understanding of
the law was wrong. Rather, the defense
attorney left open the possibility that Loves
understanding of the law might be correct.
Moreover, the attorney encouraged Love to
think that it might make a difference if the
judgment included wording that Love shall
receive credit for all time served under this
case. Indeed, the defense attorney stated at
the sentencing hearing, [W]e think that [Love
has] already done his time.
Judge Card appears to have believed
the testimony given by Love and his attorney
on these matters. Nevertheless, Judge Card
denied Loves motion to withdraw his plea on
the theory that it was sufficient for the
defense attorney to inform Love of the risk
that the Department of Corrections might
disagree with Loves interpretation of the law
the risk that the Department would not give
Love the double credit he expected.
We disagree. We issued our decision
in Smith long before the plea negotiations in
this case. Thus, when Love and his attorney
were discussing the proposed plea agreement,
Alaska law was already absolutely clear that
Love could not receive double credit for the
two years of imprisonment. These two years
had already been credited against the
remainder of Loves sentence from his prior
felony the remainder that Love was forced
to serve after his parole was revoked.
Alaska law flatly stated that these same two
years could not additionally count against
the new sentence that Love was about to
receive on the heroin possession charge.
Love was entitled to competent
legal advice when he assessed the proposed
plea agreement and decided whether to accept
it. The record demonstrates that he did not
receive competent advice. The defense
attorney did not tell Love that his under
standing of Alaska sentencing law was wrong,
and that Love would have to serve another two
years in prison if he accepted the proposed
plea agreement. Instead, the attorney told
Love that his understanding of the law might
be correct, and that Love would be in a
better position if they asked the sentencing
judge to insert language about credit for
time served in the judgment.
The record shows that the defense
attorney had questions on this point. But
if the attorney performed legal research to
resolve his questions, he failed to find our
decision in Smith. (We note that the Smith
decision is listed in the annotations to
AS 12.55.025 in the 2004 edition of the
Alaska Statutes, Titles 10 to 12, page 622.)2
Nor is there any indication that the defense
attorney contacted the Department of
Corrections to obtain their view on how Loves
sentence would be calculated.
Because Love did not receive
competent legal advice on this issue, and
because this issue was crucial to Loves
decision to accept the plea bargain, we
conclude that Love is entitled to withdraw
his plea. Alaska Criminal Rule 11(h)(3)
declares that, even after sentencing,
defendants are entitled to withdraw their
plea if they prove that withdrawal is
necessary to correct a manifest injustice a
term that is defined to include ineffective
assistance of counsel.3
The decision of the superior court
is REVERSED. Love must be allowed to
withdraw his plea.
Stewart, Judge, dissenting:
Because I conclude that Love has
not shown manifest injustice, I would affirm
the superior court.
Love was acting as co-counsel on
his case when he entered into a plea
agreement with the State. Under the Alaska
Rule of Professional Conduct 1.2(a), it was
Loves choice whether to accept a compromise
in his case and what plea to enter. See also
Standard 4-5.2 of the American Bar
Associations Standards for Criminal Justice,
The Defense Function.
All essential terms of the plea
agreement were in writing and filed with the
court. The agreement called for Love to
plead no contest to one count of fourth-
degree misconduct involving a controlled
substance.1 The State agreed that statutory
mitigating factor AS 12.55.155(d)(14) (now
(d)(13) under the present code; Loves offense
involved a small quantity of controlled
substances) applied and agreed that Love
would receive a mitigated presumptive 2-year
term. (Love had prior felonies and faced a
presumptive 3-year term to serve under the
pre-March 2005 sentencing law.) The State
agreed that the other pending count Love
faced in this case resisting arrest 2 would
be dismissed along with another misdemeanor
case, State v. Love, 3AN-04-11604. Love
agreed to waive the presentence report and be
sentenced at his change of plea. The Notice
of Agreement filed with the court included a
provision that read: The defendant shall
receive credit for all time served under this
case.
At the change of plea before
Superior Court Judge pro tem Sigurd E.
Murphy, Loves attorney asked the court to
include a provision in the judgment that Love
get credit for time served because Love
thought he had already done his time. Judge
Murphy understood this to mean that the
Department of Corrections (DOC) would
calculate the time that Love had accrued
rather than a situation where Love had
completed serving his time because he
understood that he should endorse DOC to give
credit for time served rather than saying its
a time served [case.] Neither Love nor his
attorney said anything to Judge Murphy about
his understanding and neither claimed the
notice of plea agreement was incomplete.
Although Loves attorney told Judge Murphy
that they thought Love had served all his
time, they did not tell Judge Murphy that the
plea agreement guaranteed that Love would not
serve any additional time. Judge Murphy
accepted the plea, and Love received the
agreed mitigated presumptive term. Judge
Murphy included a provision in the temporary
order for DOC to give credit for time served
for the 2 years imposed.
Shortly after sentencing, Loves
attorney moved to withdraw, informing the
court that Love would attempt to withdraw his
plea and that a potential reason under
Criminal Rule 11(h) was that Love might
assert ineffective assistance of counsel.
The attorney informed the court that Love
thought that the Department of Corrections
erred when it charged time he had previously
served to his parole revocation case. When
the Department of Corrections calculated
Loves time served on this case, it did not
grant Love double credit for the time he
served on the parole violation and for the
time he was subject to bail conditions in
this case. Superior Court Judge Larry D.
Card allowed Loves assistant public defender
to withdraw and appointed the Office of
Public Advocacy.
Love, as co-counsel, personally
filed a motion to withdraw his plea. Love
contended that plea withdrawal was necessary
to correct manifest injustice under Criminal
Rule 11(h)(4)(D)(i) because he did not
receive the sentence concessions contemplated
by the agreement, and the State had failed to
seek the concessions promised in the
agreement. Love did not contend there was
manifest injustice under Criminal Rule
11(h)(4)(A) because he received ineffective
assistance of counsel. Later, the assistant
public advocate assigned to Loves case, and
Love as co-counsel, both replied to the
States opposition consistent with Loves
original claim that the State was not
fulfilling its bargain. Neither pleading
filed by Love or Loves assistant public
advocate claimed ineffective assistance of
counsel.
Judge Card held an evidentiary
hearing on Loves motion. There were no
opening statements by the parties before
Judge Card heard testimony from Love, Loves
trial attorney, and the assistant district
attorney involved in the plea negotiations.
After hearing the evidence presented, Judge
Card heard argument on the motion from the
State, Loves attorney, and Love himself.
Neither Love nor his attorney argued that he
had received ineffective assistance of
counsel.
Under Alaska Criminal Rule
11(h)(3), a defendant moving to withdraw a
plea after sentencing must prove that
withdrawal of the plea is necessary to
correct manifest injustice.
Judge Card found that Loves co-
counsel discussed with Love the relevant
statutes and whether concurrent time was
possible in Loves situation. However, Judge
Card found that Love relied on his own
beliefs and concluded that he would obtain
double credit even though he had been
informed of the contrary from his co-counsel.
The answer to the underlying legal
issue is clear. Former AS 12.55.025(e)
provided in pertinent part that if the
defendant has been convicted of two or more
crimes, sentences of imprisonment shall run
consecutively. We have consistently
interpreted that provision to require
sentences to be imposed consecutively in
circumstances that exist in Loves case where
a defendant is on parole and commits another
offense. In Jennings v. State,3 this court
held that under former AS 12.55.025(e), trial
judges were required to impose a consecutive
sentence when a defendant is convicted for a
crime which the defendant committed after the
defendant had been imprisoned on a former
offense.4 We followed that interpretation in
cases that followed.5
Judge Card reviewed the potential
claims of manifest injustice specified in
Criminal Rule 11(h)(4)(A)-(D). Judge Card
noted that Loves original trial attorney had
identified ineffective assistance as a
potential claim (in the motion to withdraw),
and although the issue had not been litigated
at the hearing, Judge Card found that Loves
attorney had been effective and rejected
(4)(A) as a potential basis for manifest
injustice. Judge Card found that Loves
attorney had discussed the impact of former
AS 12.55.025(e) with Love. However, Love
chose to follow his own analysis of the
situation. As Judge Card found, Mr. Love has
his own thought process[.] Essentially,
Judge Card found that Love relied on his own
legal analysis, not that of his co-counsel.
Judge Card also concluded that Love
had not shown manifest injustice under (4)(B)
(the plea was entered by one not acting on
the defendants behalf) or (4)(C) (the plea
was entered involuntarily).
Finally, Judge Card found that Love
received the charge and sentence concessions
contemplated by the plea agreement and
rejected Loves claim that there was manifest
injustice under Rule 11(h)(4)(D).
There was no evidence presented at
the hearing that the prosecuting attorney
promised Love the result he hoped for. Love
entered into the plea agreement relying on
his own analysis of the law and his personal
expectations of the result. Furthermore,
Love has not shown that the judge who handled
his change of plea and his sentencing,
Superior Court Judge pro tem Sigurd E.
Murphy, was informed of Loves personal
interpretation of the law, nor has Love shown
that Judge Murphy did anything to credit
Loves unilateral interpretation of the law.
Judge Card found that Loves co-counsel told
Love about the policy for crediting time
served, explained the statutes, and discussed
the law with Love.
Judge Card found that the parties
were not attempting to enter an illegal plea
agreement. He found that Love did not
develop a misunderstanding of the plea
agreement from his co-counsel, from the
Department of Corrections, from the
prosecution, or from the judge at his change
of plea and sentencing.
Although the parties did not
litigate the issue in the superior court,
Judge Card addressed the point when he
rejected all the listed grounds in Criminal
Rule 11(h)(4). After Judge Card ruled on the
motion, Loves assistant public advocate moved
to withdraw and reassign the case to the
Public Defender Agency, pointing out that
Love had not claimed that his original trial
attorney was ineffective.
Even though the issue was not
litigated in the superior court, the majority
finds as a matter of plain error that Loves
co-counsel was incompetent, apparently
because Loves attorney did not flatly tell
Love that [Loves] understanding of the law
was wrong. And the court implicitly
concludes that the incompetence contributed
to Loves actions.
But Judge Card found that Loves
attorney explained the statutes and talked
over the law with Love. He found that Loves
attorney acted as any reasonable attorney
would have in advising Love of his rights,
obligations, and potential liability. But as
Judge Card found, Love thought he had an
answer. Love thought, based on anecdotal
information in other prisoners cases and
based on his own analysis, that he would
obtain concurrent time. Judge Card also
found that Love did not obtain this view
based on his lawyers advice, on anything the
prosecutor did, or on anything Judge Murphy
did at the change of plea.
In my view, Judge Cards findings
show that Love decided to go forward with the
plea agreement contained in the written
notice to the court no matter what his
attorney may have advised because he was
convinced that his own analysis was correct.
I also do not conclude that the record
establishes as a matter of law that Loves
trial attorney was incompetent, especially
when the issue was not litigated and the
State was not on notice that the trial
attorneys competence was an issue.
_______________________________
1 See SLA 2004, ch. 125, 7.
2 Following the repeal of AS 12.55.025(e) and the enactment
of a new statute governing consecutive sentencing, AS
12.55.127, the Smith decision is now listed in the
annotations to AS 12.55.127. See the 2006 edition of
the Alaska Statutes, Titles 10 to 12, page 704.
3 Alaska R. Crim. P. 11(h)(4)(A).
1 AS 11.71.040(a)(3)(a) (possession of heroin).
2 AS 11.56.700(a)(1).
3 713 P.2d 1222 (Alaska App. 1986).
4 Id. at 1223.
5 See Griffin v. State, 9 P.3d 301, 308 (Alaska App. 2000),
Smith v. State, 892 P.2d 202, 203 (Alaska App. 1995),
Sanders v. State, 718 P.2d 167, 168 (Alaska App. 1986).
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