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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
NEWTON LINDOFF,
Appellant, Court of Appeals No. A-10323
Trial Court No. 1JU-08-092 Cr
v.
STATE OF ALASKA, O P I N I O N
Appellee.
End of Caption No. 2255 February 12, 2010
Appeal from the Superior Court, First Judi
cial District, Juneau, Philip M. Pallenberg,
Judge.
Appearances: Doug Miller, Assistant Public
Advocate, Appeals & Statewide Defense
Section, and Rachel Levitt, Public Advocate,
Anchorage, for the Appellant. Diane L.
Wendlandt, Assistant Attorney General, Office
of Special Prosecutions and Appeals,
Anchorage, and Daniel S. Sullivan, Attorney
General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Bolger, Judges.
MANNHEIMER, Judge.
| Alaska Criminal Rule 11(c | ) contains a list of warnings and advisements that a judge must give to a criminal defendant, as well as questions that the judge must pose to the defendant, before the judge accepts the defendants plea of guilty or no contest. This appeal requires us to examine and interpret the rules that apply when a defendant seeks to withdraw a plea of guilty or no contest based on the assertion that the judge who accepted their plea failed to comply with one or more of the provisions of Criminal Rule 11(c | ). | |||
| The defendant, Newton Lindoff, was indicted for attempted first-degree sexual assault, second-degree sexual assault, and two counts of first-degree burglary arising from an incident in Hoonah. Ultimately, Lindoff reached a plea bargain with the State; Lindoff agreed to plead guilty to attempted second-degree sexual assault, and the State agreed to drop the other charges. | |||||
| Attempted second-degree sexual assault is a sex offense for purposes of Alaskas sex offender registration act. See AS 12.63.100(6 | )(C | )(i | ). Criminal Rule 11(c | )(4 | ) states that when a defendant is offering a guilty plea to a sex offense, the judge taking the defendants plea must inform[] ... the defendant in writing of the [registration] requirements of AS 12.63.010 and, if it can be determined by the court, the period of registration required under AS 12.63. |
| During Lindoffs change-of-plea hearing, Superior Court Judge Philip M. Pallenberg mentioned to Lindoff that, because he was going to be convicted of a sex offense, he would have to register as a sex offender. However, Judge Pallenberg did not alert Lindoff that defendants convicted of two or more sex offenses must register for life (as opposed to the fifteen-year registration requirement that applies to first-time sex offenders | ).1 This omission was significant because Lindoff already had a prior conviction for a sex offense. | ||||
| After Lindoff entered his guilty plea, but before he was sentenced, Lindoff filed a motion seeking to withdraw his plea on various grounds. For purposes of the present appeal, only one of these grounds is pertinent: Lindoffs assertion that Judge Pallenberg failed to comply with Rule 11(c | ) by neglecting to alert Lindoff that he would have to register as a sex offender for life. | ||||
| At the evidentiary hearing on Lindoffs motion to withdraw his plea, the parties conceded and Judge Pallenberg acknowledged that the judge had not warned Lindoff about the lifetime registration requirement. The hearing then focused on two other issues: (1 | ) whether Lindoff had had independent knowledge of the lifetime registration requirement when he entered his plea, and (2 | ) if Lindoff had been ignorant of the lifetime registration requirement, whether this lack of knowledge affected his decision to plead guilty. | |||
| Based on the evidence presented at the hearing, Judge Pallenberg denied Lindoffs motion to withdraw his plea. Lindoff was then convicted based on his plea. He now appeals. | |||||
A discussion of the two
different substantial compliance tests adopted by the
Alaska Supreme Court in Lewis v. State and Joe v.
State, and a discussion of which party bears the
ultimate burden of persuasion when the superior court
has violated Criminal Rule 11(c)
In two decisions issued on the same day in
1977 (June 20th), the Alaska Supreme Court addressed
situations where the defendants alleged that the
superior court judges who took their pleas failed to
comply with one or more provisions of Criminal Rule
11(c).
The lead case was Lewis v. State, 565 P.2d
846 (Alaska 1977). In Lewis, the supreme court
rejected the position that any violation of Rule 11(c)
should automatically entitle the defendant to withdraw
their previous plea of guilty or no contest. Id. at
851. Instead, the court adopted what it called the
substantial compliance approach to violations of Rule
11(c). Id. at 852. However, a close reading of the
Lewis case reveals that the supreme court was not using
the phrase substantial compliance in its usual sense.
Normally, the phrase substantial compliance
refers to situations where an official may not have
followed the applicable statute or rule to the letter,
but the officials actions sufficiently complied with
the spirit or intent of the law. For example, in
Lockwood v. State, 591 P.2d 969 (Alaska 1979), the
supreme court held that a technical violation of the
knock and announce statute, AS 12.25.100, will be
excused if the police officers demonstrate substantial
compliance with the statute that is (in the words of
the supreme court), if police procedures fail to
conform to the precise demands of the statute but
nevertheless serve its policies. Id. at 972 (internal
citation and quotation marks omitted).
If, for instance, a superior court judge
fully advised the defendant of their duty to register
as a sex offender, but failed to put this information
in writing as required by Rule 11(c)(4), we might say
that the judge substantially complied with the rule,
even though the judge failed to follow the rule to the
letter.
But the supreme courts analysis in Lewis was
different from this. In Lewis, the court declared that
it was adopting a substantial compliance approach to
violations of Rule 11(c) because we have determined to
treat violations of Criminal Rule 11(c) in the same
manner as other errors [which are] not of
constitutional dimension reversible only if they
affect substantial rights of the defendant. 565 P.2d
at 852.
This is not a substantial compliance test;
rather, it is a harmless error test and the supreme
court applied it that way in Lewis. The court
concluded that Lewis was not entitled to withdraw his
guilty plea because Lewis failed to present any
evidence that he would have declined to enter the plea
if the superior court had given him all the warnings
and advisements required by Rule 11(c). Id. at 852-
53. In other words, Lewis failed to present any
evidence that he was prejudiced by the superior courts
failure to comply with Rule 11(c). Id.
On the same day that the supreme court issued
its decision in Lewis, the court issued its decision in
Joe v. State, 565 P.2d 508 (Alaska 1977). In Joe, the
court purported to apply the substantial compliance
test that it had adopted in Lewis, but the facts of Joe
did not present an issue of substantial compliance
either in the usual sense of imperfect but satisfactory
compliance or in the Lewis sense of harmless error.
The defendant in Joe asserted that the
superior court failed to comply with various provisions
of Rule 11(c) when the court accepted his no contest
plea. 565 P.2d at 509-510. The problem presented in
Joe was that, because of a malfunction of the courtroom
audio recording equipment, no audio record was made of
the defendants change-of-plea hearing. Id. at 510. To
solve this defect in the record, a second superior
court judge held an evidentiary hearing to determine
whether the judge who accepted Joes plea had actually
advised him of the things required by Criminal Rule
11(c). Id. at 510-11.
Based on the testimony presented at this
evidentiary hearing, the hearing judge concluded that
the judge who accepted Joes guilty plea had, in fact,
advised Joe of everything required by Criminal Rule
11(c). Id. at 511. (As an alternative holding, the
hearing judge concluded that even if the superior
courts Rule 11(c) advisement to Joe had been deficient
in one or more ways, Joe was nevertheless aware of all
of his rights, and thus Joe had not been prejudiced by
any arguable deficiencies in the superior courts Rule
11(c) advisement. Id.)
In its decision of Joes appeal, the supreme
court upheld the hearing judges primary conclusion
that is, the hearing judges conclusion that the
original superior court judge had fully advised Joe of
the information and warnings required by Criminal Rule
11(c). Id. at 513-14.
The supreme court referred to this as proof
of the original judges substantial compliance with
Criminal Rule 11(c). But, in fact, it was proof of the
judges actual compliance with the rule.
The supreme court never reached the issue of
substantial compliance as that phrase is defined in
Lewis; that is, the supreme court never had to decide
whether Joes rights were adversely affected by the
superior courts failure to comply with one or more
provisions of Rule 11(c). The facts of Joe simply did
not raise that issue because the supreme court upheld
the hearing judges finding that the judge who took Joes
plea fully complied with Rule 11(c).
Even though the facts of Joe did not raise an
issue of substantial compliance, the supreme court in
Joe seemingly declared that it was the States burden to
show substantial compliance with Rule 11(c). What the
court actually said was this:
Given the absence of a record which
affirmatively demonstrates compliance by the
sentencing court with the requirements of
Rule 11, we are in agreement with [the]
appellants argument that the burden is upon
the state to prove by a preponderance of the
evidence that there was substantial
compliance with the provisions of Rule 11 by
the trial court.
Joe, 565 P.2d at 513.
In light of the problem actually
presented in Joe that is, given Joes
allegations that the superior court failed to
comply with Rule 11(c), and in light of the
fact that there was no audio record of the
change-of-plea hearing it makes perfect
sense for the supreme court to put the burden
on the State of reconstructing the record and
demonstrating that the superior court
complied with Rule 11(c).
But the task of reconstructing a
missing record and demonstrating that the
superior court properly conducted the change-
of-plea hearing is not the same as showing
substantial compliance under the test adopted
in Lewis. The Lewis test begins with the
premise that the superior court indeed failed
to comply with Rule 11(c) in one or more
particulars; the question to be answered is
whether this error was harmless under the
circumstances of the case or, conversely,
whether the superior courts failure to comply
with the rule adversely affected the
defendants rights.
Despite the fact that this quoted
passage from Joe appears to be pure dictum
under the facts of Joes case, this Court has
issued decisions in which we relied on Joe
for the proposition that, when a violation of
Rule 11(c) is proved, it is the States burden
to demonstrate substantial compliance with
the rule (as that phrase is defined in the
Lewis decision). In other words, we relied
on Joe for the proposition that it is the
States burden to show that the violation of
Rule 11(c) did not prejudice the defendant.
See Fulton v. State, 630 P.2d 1004, 1007
(Alaska App. 1981); Bratcher v. State, 681
P.2d 358, 361 (Alaska App. 1984).
But in this Courts more recent
decisions involving violations of Rule 11(c),
we have declared that it is the defendants
burden to demonstrate that they suffered
prejudice as a result of the Rule 11(c)
violation. See Aiken v. State, 730 P.2d 821,
823 (Alaska App. 1987); Peterson v. State,
988 P.2d 109, 117 (Alaska App. 1999). In
other words, we followed the rule that
normally applies to appellants who seek
relief based on claims of non-constitutional
error: the appellant must demonstrate both
that an error occurred and that they were
prejudiced by it.2
In sum, the law on this point is
confused owing to the decisions of both the
supreme court and this Court.
However, as we explain in the next
section of this opinion, we do not need to
resolve this point of law in order to decide
Lindoffs case.
Regardless of whether the State bears the burden of
proving lack of prejudice or the defendant bears
the burden of proving prejudice, it is the
defendants burden to come forward with evidence
that would support a finding of prejudice
As we have explained, Alaska law is unclear
as to whether, when a violation of Rule 11(c) is
proved, the State bears the burden of showing that
the defendant was not prejudiced by the violation
or, conversely, the defendant bears the burden of
showing that he or she was indeed prejudiced by
the violation. But wherever the burden lies, two
other things are clear.
First, when we speak of prejudice in cases
involving a judges violation of Rule 11(c), we
mean (1) that the defendant was not otherwise
aware of the information that the judge forgot or
neglected to say, and (2) that the defendant would
not have entered the guilty plea or the no contest
plea if the defendant had been aware of this
information. Peterson v. State, 988 P.2d 109, 119-
120 (Alaska App. 1999).
Second, regardless of which party bears the
ultimate burden of proof, the defendant bears a
burden of production a burden of coming forward
with evidence which, if believed, would be
sufficient to establish the two prongs of the test
for prejudice set forth in Peterson.
In Lewis, the supreme court upheld the
defendants guilty plea because the defendant failed to
present a prima facie case for relief i.e., failed to
come forward with affirmative evidence that he would
not have entered his guilty plea if the superior court
had informed him of all the information required by
Criminal Rule 11(c). 565 P.2d at 852-53.
Similarly, in Aiken v. State, 730 P.2d 821
(Alaska App. 1987), this Court held that, despite the
superior courts violation of Rule 11(c), the defendant
was not entitled to withdraw his plea because the
defendant failed to assert, much less prove, that he
would not have pleaded guilty if the superior court had
given him the proper advice under Rule 11(c). Id. at
823.
Compare Morgan v. State, 582 P.2d 1017, 1020
(Alaska 1978), where the defendant asserted that he
should be allowed to withdraw his plea because his
attorney failed to adequately advise him concerning his
rights and the consequences of the plea. The supreme
court rejected this claim because the defendant fell
short of meeting his burden of proof: he presented no
evidence by way of affidavits, testimony[,] or
otherwise in support of his contention that his trial
counsel did not advise him on these subjects. Id. at
1023.
Turning to the facts of Lindoffs case,
Lindoff took the stand at the evidentiary hearing and
his attorney asked him the following crucial questions:
Defense Attorney: Would you have pled
[guilty under] this [plea agreement] had you
known, at the change of plea [hearing], that
you were going to have to register [as a sex
offender] for the rest of your life?
Lindoff: I do not know that I would
have.
Defense Attorney: [Its] [h]ard to know
a hypothetical [sic] under this ...
Lindoff: Yeah; yes.
Lindoffs equivocal response was not
sufficient to support a prima facie case of
prejudice under Peterson. If a defendant
wishes to withdraw a previous plea of guilty
or no contest because of the superior courts
violation of Criminal Rule 11(c), the
defendant must, at a minimum, assert that
they would not have entered their plea if the
judge had advised them of all the information
required by the rule.
Because Lindoff failed to make such
an assertion, his request to withdraw his
plea was insufficient as a matter of law, and
the superior court therefore properly denied
Lindoffs request.
We acknowledge that the superior
court denied Lindoffs request for other
reasons. We express no opinion regarding the
sufficiency of the superior courts grounds
for denying Lindoffs motion to withdraw his
plea. Rather, we invoke our authority to
affirm the superior courts action on an
independent ground revealed by the record.3
Conclusion
The judgement of the superior court is
AFFIRMED.
_______________________________
1 Compare AS 12.63.020(a)(1)(B) with 020(a)(2).
2Civil cases: See, e.g., Audrey H. v. Office of Childrens
Services, 188 P.3d 668, 677 (Alaska 2008); Bennett v.
Hedglin, 995 P.2d 668, 674 (Alaska 2000); Uchitel Co.
v. Telephone Co., 646 P.2d 229, 238 (Alaska 1982).
Criminal cases: See, e.g., Hammock v. State, 52 P.3d
746, 750 (Alaska App. 2002); Steffensen v. State, 900
P.2d 735, 739 (Alaska App. 1995); Hurn v. State, 872
P.2d 189, 193 (Alaska App. 1994); Jonas v. State, 773
P.2d 960, 968-69 (Alaska App. 1989).
3See, e.g., Torrey v. Hamilton, 872 P.2d 186, 188 (Alaska
1994); Demoski v. New, 737 P.2d 780, 786 (Alaska 1987);
Millman v. State, 841 P.2d 190, 195 (Alaska App. 1992);
Russell v. Anchorage, 626 P.2d 586, 588 n. 4 (Alaska
App. 1981).
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