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303 K Street, Anchorage, Alaska 99501
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| HARRIETTA ULAK, | ) | |
| ) Court of Appeals No. A-10177 | ||
| Appellant, | ) Trial Court No. 4BE-07-681 CR | |
| ) | ||
| v. | ) | ) O P I N I O N |
| STATE OF ALASKA, | ) | |
| ) | ||
| Appellee. | ) No. 2275 September 3, 2010 | |
| ) | ||
Appeal from the Superior Court, Fourth Judi
cial District, Bethel, Marvin Hamilton,
Judge.
Appearances: Marjorie K. Allard, Assistant
Public Defender, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellant.
Terisia K. Chleborad, 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.
BOLGER, Judge.
MANNHEIMER, Judge, concurring.
COATS, Chief Judge, concurring in part and dissenting
in part.
Harrietta Ulak pleaded guilty to assault in the third
degree for injuring C.S. on more than one occasion, and Ulak
admitted the aggravating factors that C.S. was a particularly
vulnerable victim, and that her conduct manifested deliberate
cruelty. At her sentencing hearing, however, Ulak denied that
she had ever injured C.S. deliberately, and she requested that
the superior court excise from the presentence report her
grandchildrens hearsay statements that she had deliberately
abused C.S. on numerous occasions. We remand the case and direct
the superior court to determine the factual basis for Ulaks plea.
If the grandchildrens statements comprise the factual basis for
Ulaks plea and the aggravating factors she admitted, these
statements may remain in the presentence report.
Background
C.S. was a three-year-old child that Ulak and her
husband took into their home approximately nine months before
this case arose. The State indicted Ulak on four counts of
assault for repeatedly beating C.S. Ulak entered into a plea
agreement in which she agreed to plead guilty to one count of
assault in the third degree for recklessly caus[ing] physical
injury to a child under 10 years of age on more than one
occasion.1 Ulak also agreed to admit two aggravating factors:
that her conduct during the commission of the offense manifested
deliberate cruelty to C.S., and that she knew or reasonably
should have known that C.S. was particularly vulnerable due to
her extreme youth.2
Prior to the sentencing hearing, Ulak objected to
several hearsay assertions made by her grandchildren that were
included in the presentence report. In response, the State
argued that Ulak was not entitled to deletion of these statements
because the statements formed the factual basis for her guilty
plea.
All of the disputed statements concerned Ulaks
infliction of physical injury upon C.S. Ulak disputed the
statements of her granddaughter, Kenny: that Ulak tried to kill
C.S., punched C.S. hard enough to give her two black eyes and a
broken nose, pulled her hair, put a knife to her throat, and
poked her in the stomach with a knife. Ulak also disputed the
statements of her granddaughter, Mary Jane: that Ulak hit C.S.
with a closed fist, kicked her, and frightened her with a knife.
All of these statements arguably underlie the charge that Ulak
admitted: that she recklessly caused physical injury to C.S. on
more than one occasion.
The presentence report also contained additional
evidence related to Ulaks offense. For example, when two social
workers came to Ulaks house, they found that C.S. was moving very
slowly and appeared to be in pain. Her face was completely
swollen with dark purple bruises, and she had bruises on her neck
and arms, dried blood on her nose and mouth, bald spots on her
head, sores all over her head, and a cut across the back of her
head. Her hair was singed on both sides of her head. But the
social workers did not witness any of the abuse that had caused
these injuries.
At the sentencing hearing, Ulak testified and denied
the hearsay reports by her grandchildren. Ulak said that she
spanked C.S. to discipline her, but that she never hit C.S. with
a closed fist. Ulak denied that she ever hit C.S. deliberately
for her personal satisfaction.
Ulak also called her husband, Paul Ulak, as a witness
on her behalf. He described his wife as a good mother. He
testified that he had seen Ulak hit C.S., but denied that Ulak
had ever used excessive force.
Superior Court Judge Marvin Hamilton denied Ulaks
motion to strike her grandchildrens statements from the
presentence report. Instead, he supplemented the record with
Ulaks affidavit setting forth her competing version of events.
Judge Hamilton imposed a sentence of 4 years with 1 year
suspended, and Ulak now appeals.
Discussion
Upon a defendants objection, a sentencing judge is
required to determine the admissibility of assertions contained
in the presentence report.3 Ordinarily, verified assertions of
prior misconduct are admissible for sentencing.4 But when the
defendant denies hearsay assertions regarding prior misconduct
under oath, the State is required to prove that the declarants
are unavailable or to present live testimony to support their
assertions.5 The sentencing judge then decides whether the
assertions are true. If the assertions are not proven, then the
judge must delete the assertions from the presentence report.6
Special rules apply to assertions that relate to the
charge under consideration at the sentencing hearing. A plea of
guilty or no contest constitutes an admission that establishes
the truth of the charge for sentencing purposes.7 The factual
assertions that underlie the offense are considered to be true
even though the defendant might deny those assertions under oath.
Therefore, even when the defendant testifies that he is innocent,
the assertions underlying the offense should not be stricken from
the presentence report.8
The same rule applies to the facts that underlie any
conceded aggravating factors. The prosecution is required to
give notice of the factual basis for each factor that it
alleges.9 The sentencing judge is required to enter specific
findings on aggravating factors as part of the sentencing
process.10 The defendant may waive his right to a trial or
hearing by admitting these factors.11 But even when the
defendant admits an aggravating factor, the judge has a duty to
ensure that there is a reasonable basis for the admission.12
Accordingly, when the defendant makes such an admission, the
facts that support the aggravating factor are deemed to be true
for sentencing purposes.
We have not previously resolved the process that a
judge should use to determine whether assertions in the
presentence report underlie the offense to which the defendant
has pleaded guilty or no contest, and therefore must remain in
the report even if the defendant objects to the assertions.
However, the answer is already provided in Alaska Criminal Rule
11(f) for defendants like Ulak, who enter a plea of guilty.
Rule 11(f) requires that The court shall not enter a
judgment upon a plea of guilty without first being satisfied that
there is a reasonable basis for the plea. The court is required
to explicitly determine that a guilty plea is supported by an
adequate factual basis. A guilty plea that lacks an adequate
factual basis is not a valid plea.13 A similar inquiry also
applies to ensure that a defendant understands the basis for his
plea, even when the plea is no contest.14
The court is not required to conduct a trial or follow
the rules of evidence when it determines the basis for a guilty
plea.15 But the courts inquiry should be sufficiently definite
to establish that there is a factual basis for the plea:
The court should satisfy itself, by inquiry
of the defendant or the attorney for the
government, or by examining the presentence
report, or otherwise, that the conduct which
the defendant admits constitutes the offense
charged in the indictment or information or
an offense included therein to which the
defendant has pleaded guilty.[16]
This inquiry may be achieved by statements and stipulations of
counsel, including references to the grand jury transcript,
complaint affidavit, or police report.17
In the present case, the superior court did not
determine the basis for Ulaks guilty plea before the judgment was
entered. This omission prevented the court from making an
accurate determination about whether the acts that Ulaks
grandchildren described were the conduct underlying Ulaks
conviction. On remand, the superior court must determine the
factual basis for Ulaks plea using the methods described above.
The superior court also erred when it failed to
determine whether the assertions to which Ulak objected had been
proven. Assertions that are included in the factual basis for
the plea need no further proof; the defendants plea proves those
assertions.18 But other hearsay assertions that the defendant
has denied under oath must be deleted, unless the State submits
evidence showing that those assertions are true.19
It is not sufficient for the court to merely note the
disputed assertions, or attach the defendants version of the
events to the presentence report. The court must delete the
unproven assertions from the presentence report by marking them
out so that they cannot be used for improper reference in the
future. The courts corrected copy must be labeled the approved
version of the presentence report, and delivered to the
Department of Corrections within seven days after the sentencing
hearing.20
Judge Coatss dissenting opinion suggests that it is now
unfair for the sentencing judge to determine the factual basis
for Ulaks plea. Judge Coats would apparently require the judge
to delete the hearsay statements from the presentence report even
if the deletion would leave a sentencing record without any
description of the circumstances of Ulaks offense. But the
circumstances of Ulaks offense are part of the statutory factors
the sentencing judge is required to consider.21 Thus Ulak has no
right to have the facts that underlie her guilty plea and the
aggravating factors she admitted stricken from the presentence
report. Even if Ulak now denies these facts, they have been
established, for purposes of the presentence report and the
sentencing proceeding, based on Ulaks decision to enter a guilty
plea.22
We realize that Rule 11(f) only requires a judge to
ensure that there is a reasonable basis for a guilty plea before
issuing the judgment. We note, however, that the trial courts
failure to explicitly determine the factual basis for Ulaks
guilty plea has resulted in a great deal of litigation on this
issue. If trial judges determine the factual basis for a guilty
or no contest plea at the time the plea is entered and accepted,
this will avoid unnecessary disputes.
We therefore REMAND this case to the superior court for
further proceedings. The court shall explicitly determine the
factual basis for Ulaks guilty plea and the aggravating factors
she admitted. The court shall then focus on the assertions in
the presentence report that Ulak has disputed in her testimonial
denials. The court may allow the State an opportunity to present
testimony to corroborate the grandchildrens statements. The
disputed assertions that are not proven either by Ulaks plea,
admission, or other evidence shall be deleted from the report.
We do not retain jurisdiction of this matter.
MANNHEIMER, Judge, concurring.
Under Alaska law, when a defendant pleads guilty or no
contest to a criminal charge, that plea limits the defendants
ability to contest issues of fact at sentencing. We held in
Ashenfelter v. State, 988 P.2d 120 (Alaska App. 1999), that
defendants are not entitled to deny their factual guilt of the
charges to which they have pleaded guilty or no contest. Id. at
123.1 Thus, a sentencing judge can properly disregard a
defendants claim of innocence regarding the charge to which they
have pleaded guilty or no contest, even when that claim of
innocence is made under oath. Evans v. State, 23 P.3d 650, 652
(Alaska App. 2001).
As explained in Judge Bolgers lead opinion, Ulak and
the State chose to resolve the various criminal charges against
Ulak by having Ulak plead guilty to a single count of third-
degree assault under AS 11.41.220(a)(1)(C)(ii) (recklessly
caus[ing] physical injury to a child under 10 years of age on
more than one occasion), and by having Ulak concede aggravating
factor AS 12.55.155(c)(2) (that [her] conduct during the
commission of the offense manifested deliberate cruelty to
another person). The problem in this case arises from the fact
that the parties and the superior court went into the sentencing
hearing without any clear understanding of what facts Ulak
conceded when she entered this plea and admitted this aggravating
factor.
Ulak took the stand and essentially denied any
misconduct: she admitted that she had struck the child, but she
contended that this had been normal discipline. She denied
physically abusing the child, or injuring the child deliberately,
or treating the child with cruelty. Then, based on this
testimony, she demanded that the superior court redact the pre-
sentence report by excising the statements attributed to her
grandchildren, who told the authorities that Ulak deliberately
abused the victim on numerous occasions.2
The State responded that, because Ulak pleaded guilty
to recklessly injuring the victim on more than one occasion, and
because Ulak conceded that she acted with manifest cruelty toward
the victim, she was barred from disputing any of the information
in the pre-sentence report.
The sentencing judge Superior Court Judge Marvin
Hamilton decided to circumvent this legal problem by leaving the
grandchildrens inculpatory assertions in the pre-sentence report,
but supplementing the pre-sentence report with Ulaks exculpatory
statements. All three members of this Court agree that this was
error. Under Criminal Rule 32.1(f), Judge Hamilton was required
to resolve the disputed factual issues.
Technically, Criminal Rule 32.1(f) offered Judge
Hamilton another option: he could have declared that the
disputed factual issues were irrelevant to his sentencing
decision, and then deleted the inculpatory assertions from the
pre-sentence report. However, in Ulaks case, the disputed
accusations of child abuse go to the very heart of the States
case against Ulak. Because there was no trial (and thus no
evidentiary record to support Ulaks assault conviction and her
concession of the deliberate cruelty aggravating factor), the pre-
sentence report is the only source for determining the underlying
factual basis for Ulaks conviction and the underlying factual
support for the superior courts sentencing decision.
At first blush, the answer to this legal problem might
appear to be simple. Under this Courts decision in Ashenfelter,
because Ulak pleaded guilty to recklessly causing physical injury
to the victim on more than one occasion, and because Ulak
conceded that her conduct toward the victim manifested deliberate
cruelty, the sentencing judge apparently should have disregarded
Ulaks denials of the facts underlying this charge and this
aggravating factor. In other words, Ulak would be foreclosed
from asserting that she never physically abused the victim, and
never struck the victim except for normal discipline, and never
treated the victim cruelly because these assertions are
seemingly inconsistent with Ulaks admission of the elements of
third-degree assault as defined in AS 11.41.220(a)(1)(C)(ii) and
Ulaks concession of the deliberate cruelty aggravator.
The matter is more complicated, however, because Ulaks
crime is not defined in terms of a single assault, but rather as
repeated conduct reckless infliction of injury to the child on
more than one occasion. The grandchildrens statements recounted
in the pre-sentence report describe several incidents of abuse;
but, technically, the State needed to prove only two incidents of
abuse to establish the charged crime. Arguably, Ulak might be
able to object to assertions in the pre-sentence report
describing more than two incidents of her violence toward the
victim. But even then, it is not clear which of the various
incidents described in the pre-sentence report Ulak might be
allowed to challenge.
Judge Bolgers lead opinion resolves this problem by
relying on the rule that governs the acceptance of a guilty plea
under Alaska Criminal Rule 11(f) and the corresponding federal
law. Basically, Criminal Rule 11(f) states that a court should
not enter a criminal judgement based on a defendants guilty plea
without hearing an offer of proof as to the factual basis of that
plea i.e., a description of the facts which the State would be
prepared to prove at trial to justify the defendants conviction
for the specified crime. I agree that this is the correct rule
under Alaska law, and I further agree that we should remand Ulaks
case to the superior court so that Judge Hamilton can determine
the factual basis of Ulaks plea. This, in turn, will determine
the extent to which Ulak is barred from attacking the inculpatory
assertions in the pre-sentence report.
However, a related and potentially more difficult
problem exists when a defendant pleads no contest (rather than
guilty). In Alaska, defendants may plead no contest by right,
and the court is not allowed to demand that the defendant admit
that there is a factual basis for the plea. See Miller v. State,
617 P.2d 516, 518 (Alaska 1980); Jones v. State, 215 P.3d 1091,
1095-96 (Alaska App. 2009). More specifically, our supreme court
held in Miller that Criminal Rule 11(f) does not apply when a
defendant pleads no contest:
[T]he only inquiry permitted the trial court
by Criminal Rule 11 is that of determining
whether the plea [of no contest] is knowing
and voluntary. ... [O]nce the trial court
determines that a plea of nolo contendere is
knowing and voluntary, [the court] is bound
to accept that plea. ... Subsection (f) [of
Criminal Rule 11], by its terms[,] applies
only to guilty pleas. ... [T]o require a
defendant to show that there is a reasonable
basis for a plea of nolo contendere puts the
defendant in the awkward position of having
to demonstrate his guilt in order to be
allowed to plead nolo contendere. Such a
practice destroys the unique purpose of the
nolo [contendere] plea, which is that the
issue of guilt shall not be contested.
Miller, 617 P.2d at 518 (internal citations
omitted).
But even though a court may not
demand that a defendant who offers a plea of
no contest concomitantly acknowledge the
factual truth of the States case, the court
still needs to identify the factual
assertions that will be taken as proved for
purposes of the sentencing proceedings. If
these factual assertions are unidentified,
the court will be unable to ascertain the
scope of the facts that the defendant has
conceded (for purposes the Ashenfelter rule)
when resolving questions involving the proper
content of the pre-sentence report and
whether the State is required to present live
testimony at the sentencing hearing.
Because of this, I would expand the
rule that we are now adopting for guilty
pleas, so that it covers no contest pleas as
well. Even though a defendant who pleads
no contest need not concede the factual truth
of the States allegations, the legal effect
of the plea is that the sentencing court is
entitled to treat each element of the offense
as proved (despite the defendants
protestations of factual innocence). Scott
v. State, 928 P.2d 1234, 1238 (Alaska App.
1996). I therefore believe that, even in
cases where defendants plead no contest, a
court can still require the parties to
describe or identify the factual assertions
that will be taken as proved for purposes of
sentencing.
Judge Coats contends (in his
separate opinion) that it is too late for the
superior court to go back and identify the
factual basis of Ulaks plea and the factual
basis of Ulaks concession of the deliberate
cruelty aggravator. Judge Coats explains his
conclusion by noting that the superior court
long ago accepted Ulaks plea and ...
sentenced her, and thus Ulak would be unable
to walk away from the plea agreement without
prejudice.
Judge Coatss statement implies that
he believes that Ulaks double jeopardy or due
process rights would be violated if the
superior court were to inquire into the
factual basis of Ulaks plea at this time.
But there is no double jeopardy problem,
because Ulak has not appealed her sentence.
In other words, Ulak has not challenged Judge
Hamiltons reliance on the grandchildrens
factual assertions when he made the
sentencing decision in this case. Instead,
Ulaks sole contention on appeal is that those
factual assertions should not remain part of
her pre-sentence report.
With regard to the due process
aspects of this case, Judge Coats argues
that, because the parties failed to specify
the factual basis of Ulaks plea to third-
degree assault and the factual basis of her
concession of the aggravating factor, the
only fair thing to do is to have the superior
court offer the State the choice of either
(1) producing the live testimony of the
grandchildren or else (2) suffering the
deletion of all the incriminatory assertions
from the pre-sentence report. But Judge
Coatss approach to the situation ignores the
rule of Ashenfelter and Evans. Defendants
are not allowed to plead guilty and then
demand that the State affirmatively prove
their guilt during the sentencing
proceedings.
In effect, Judge Coats is arguing
that, at this point, Ulak must be deemed to
have conceded nothing when she pleaded guilty
to assaulting the child and when she agreed
to the deliberate cruelty aggravating factor.
To my mind, this suggestion is unfair and
fundamentally inconsistent with Ashenfelter
and Evans. It requires everyone to pretend
that Ulaks guilty plea and Ulaks concession
of the deliberate cruelty aggravating factor
had no ascertainable factual basis thus
leaving the State the task of proving Ulaks
guilt from scratch for purposes of
sentencing.
The problem in this case arises
from the fact that the parties failed to
specify the factual basis of Ulaks plea. The
solution is either to identify the basis of
the plea or, failing that, to have Ulak ask
the superior court to let her withdraw the
plea. It would be unfair and improper to
allow Ulak to maintain her guilty plea but,
at the same time, demand that the State
affirmatively prove Ulaks guilt at the
sentencing hearing. For these reasons, I
concur with Judge Bolgers resolution of this
appeal.
COATS, Chief Judge, concurring in part and
dissenting in part.
Introduction
This case involves a dispute over
what information may be included in a
presentence report. In brief, Ulak entered a
plea of guilty to one count of assault in the
third degree. Later, at sentencing, Ulak
offered testimony in which she denied
statements by her grandchildren describing
her treatment of C.S., the victim in this
case. Ulaks grandchildren did not testify at
the sentencing hearing and the State did not
provide any evidence that they were
unavailable to testify. Ulak moved to strike
the grandchildrens statements from the
presentence report. Judge Hamilton denied
the motion but agreed to supplement the
record with Ulaks affidavit setting forth her
version of the offense. This was
error. Criminal Rule 32.1(f) requires the
trial court to resolve all disputed
allegations in the presentence report, or
else declare that they do not need to be
resolved and strike them from the record. I
therefore would remand the case to allow the
trial court to do this.
However, I have concerns about this
courts opinion, which appears to allow the
State to establish contested facts under
Criminal Rule 11(f) facts that the State
might not be able to establish under Criminal
Rule 32.1. Because Ulak has entered her plea
and has been sentenced, she is not in the
same position she would have been in if the
court had established the basis for her plea
before accepting the plea. Therefore, the
State should be bound by the procedures for
establishing facts under Rule 32.1(f).
Discussion
The State indicted Harrietta Ulak
on four counts of assault in the first,
second, and third degree for abusing her
three-year-old adopted daughter, C.S.1 Ulak
entered into a plea agreement with the State
in which she pleaded guilty to one count of
assault in the third degree under AS
11.41.220(a)(1)(C)(ii), a class C felony, for
recklessly [causing] physical injury to a
child under 10 years of age on more than one
occasion. Ulak also agreed to admit two
aggravating factors that her conduct during
the commission of the offense manifested
deliberate cruelty to C.S., and that she knew
or reasonably should have known that C.S. was
particularly vulnerable or incapable of
resistance due to her extreme youth.2
In preparation for sentencing, a
probation officer prepared a presentence
report. Ulak filed a notice of several
objections to assertions in the presentence
report. In particular, Ulak objected to
several hearsay reports by her grandchildren
which purported to describe Ulaks abuse of
C.S.
Sentencing was held before Superior
Court Judge Marvin Hamilton. Ulak testified
at the sentencing hearing and denied many of
the allegations in the presentence report.
In particular, she denied the accuracy of
most of the hearsay reports by her
grandchildren. The State cross-examined Ulak
about prior admissions that she had made to a
state trooper. Ulak also called her husband,
Paul Ulak, as a witness on her behalf. He
described his wife as a good mother. The
State cross-examined Paul Ulak on prior
statements he had made in which he had
accused his wife of physically abusing C.S.
Ulaks grandchildren, who made the
hearsay statements to which Ulak objected,
did not testify at the sentencing hearing,
and the State did not provide any evidence
that they were unavailable to testify. Ulak
then moved to strike the childrens statements
from the presentence report. Judge Hamilton
denied this motion, but he agreed to
supplement the record with Ulaks affidavit
setting forth her version of the offense.
Judge Hamilton imposed a sentence of 4 years
with 1 year suspended and placed Ulak on
probation for 5 years.
Under Alaska Criminal Rule 32.1(f),
in sentencing proceedings, the trial court
must resolve all disputed allegations in the
presentence report or else declare that they
do not need to be resolved and strike them
from the record:
[T]he State can normally
rely on hearsay
allegations of a
defendants other
misconduct but not if
the defendant takes the
stand, denies the
allegation, and submits
to cross-examination
regarding the matter. In
that case, the State must
either support its
allegation with live
testimony or,
alternatively, prove that
the hearsay declarant is
not available to testify
and furnish information
to support the hearsay
declarants
credibility.[3]
Ulak took the stand and denied the
substance of the grandchildrens hearsay
statements. The State never presented Ulaks
grandchildren as witnesses or attempted to
show that they were unavailable to testify.
But rather than resolve the disputed factual
issues, Judge Hamilton simply augmented the
presentence report so that it contained the
conflicting accounts. Therefore, Judge
Hamilton did not follow the procedure
mandated by Criminal Rule 32.1(f). The State
agrees that Judge Hamilton erred in failing
to follow the rule.
The State contends, however, that
Ulak was not entitled to deny her
grandchildrens statements because Ulaks
testimonial denial was inconsistent with her
plea of guilty to assault in the third degree
and her concession of the aggravating
factors, particularly the aggravating factor
that Ulaks conduct manifested deliberate
cruelty to C.S. [Ae. Br. 11-12] The State
relies on Evans v. State.4
In Evans, the defendant pleaded no
contest to one count of sexual abuse of a
minor in the first degree.5 At the
sentencing hearing, Evans testified under
oath and denied any sexual misconduct. The
trial judge denied Evanss motion to strike
the allegations in the presentence report.
The judge simply noted that Evans had denied
the allegations under oath, and stated that
the evidence supported many of Evanss
denials.6
Evans appealed, arguing that the
trial judge erred in failing to redact the
portions of the presentence report that he
had challenged with his testimonial denial.7
We concluded that the trial judge had
violated the provisions of Criminal Rule
32.1, and we stated that the judge was
obliged to resolve the disputed allegations
or expressly declare that he did not need to
resolve them (and then order them removed
from the pre-sentence report).8
We observed, however, that
defendants are not entitled to deny their
factual guilt of the charges to which they
have pled guilty or no contest.9 Because
Evans had entered a plea of no contest to one
count of sexual abuse of a minor in the first
degree, the judge could properly disregard
Evanss claim of innocence regarding this
count, even though the claim was made under
oath.10 In addition, we noted that in Evanss
testimony, he had admitted making arguably
incriminatory statements.11 We stated that
the trial judge could consider these
statements in determining the factual
background of Evanss offense.12
Thus, under Evans, Judge Hamilton
could rely on the fact that Ulak entered a
plea of guilty to assault in the third degree
and conceded two aggravating factors to
reject Ulaks testimonial denial of the facts
that formed the basis of the charge and the
aggravating factors to which she pleaded.13
The court could also rely on the allegations
in the presentence report, as long as they
were sufficiently verified.14 But under
Criminal Rule 32.1(f), Judge Hamilton was
required to resolve all disputed allegations
in the presentence report, or else declare
that they did not need to be resolved and
strike them from the record. Because Ulak
made a testimonial denial and submitted to
cross-examination, the State was required
toeither support its allegations with live
testimony or, alternatively, prove that the
[grandchildren were] not available to testify
and furnish information to support [their]
credibility.15
The State did not do this. And
going back and revisiting Criminal Rule 11(f)
at this time appears to me to raise serious
problems. The trial court long ago accepted
Ulaks plea and sentenced her. The parties
are simply not in the same position they were
in when Ulak entered her plea, when either
side could walk away from the plea agreement
without prejudice. If the State had wanted
Ulak to concede certain facts as a condition
of her plea agreement, the time to do that
was before the court accepted Ulaks plea.
Now that Ulak has entered her plea and has
been sentenced, the fairest way to proceed is
under the long-established procedures set
forth in Criminal Rule 32.1(f) for resolving
disputed issues in presentence reports.
This procedure is set out in
Evans.16 Because I see this courts decision
as potentially a major departure from this
established procedure, I am concerned that
the effect of the decision will be
unpredictable in any case in which the
defendant enters a plea without agreeing to
the facts that constitute the offense. And
the courts decision could certainly be unfair
to Ulak, who could not have foreseen this
change in procedure.
I therefore agree with this courts
decision that the case must be remanded to
Judge Hamilton to resolve the disputed issues
in the presentence report under Criminal Rule
32.1(f). But to the extent that the courts
decision would allow the State to
retroactively revisit Criminal Rule 11(f) to
establish facts that it would not be able to
establish under Criminal Rule 32.1(f), I
disagree with this courts decision.
_______________________________
1 AS 11.41.220(a)(1)(C)(ii).
2 AS 12.55.155(c)(2) & (c)(5).
3 Alaska R. Crim. P. 32.1(d)(5), (f)(5).
4 Nukapigak v. State, 562 P.2d 697, 701 (Alaska 1977).
5 Hamilton v. State, 771 P.2d 1358, 1362-63 (Alaska App.
1989).
6 Alaska R. Crim. P. 32.1(f)(5).
7 Ashenfelter v. State, 988 P.2d 120, 123 (Alaska App.
1999); Scott v. State, 928 P.2d 1234, 1238 (Alaska App. 1996).
8 Evans v. State, 23 P.3d 650, 652 (Alaska App. 2001).
9 Alaska R. Crim. P. 32.1(c)(1).
10 AS 12.55.155(f)(1); Alaska R. Crim. P. 32.1(f)(2).
11 Malutin v. State, 198 P.3d 1177, 1184 (Alaska App.
2009).
12 Id. at 1185.
13 See Swensen v. Anchorage, 616 P.2d 874, 880-81 (Alaska
1980); Else v. State, 555 P.2d 1210, 1215 n.15 (Alaska 1976); see
generally 2 Charles Alan Wright & Andrew D. Leipold, Federal
Practice and Procedure, 179 (4th ed. 2008).
14 See Lamb v. Anderson, 147 P.3d 736, 742 n.47 (Alaska
2006); Johnson v. State, 739 P.2d 781, 784 n.3 (Alaska App.
1987).
15 See People v. Watts, 136 Cal. Rptr. 496, 500 (Cal. Ct.
App. 1977).
16 Advisory Committees Note to the Amendment to Rule 11,
Federal Rules of Criminal Procedure, 39 F.R.D. 69, 172 (1966);
see Jones v. State, 215 P.3d 1091, 1095 (Alaska App. 2009)
(noting that Alaska Criminal Rule 11(f) was prompted by the
amendment of the federal rule).
17 See People v. Holmes, 84 P.3d 366, 372 (Cal. 2004);
Watts, 136 Cal. Rptr. at 500.
18 Evans, 23 P.3d at 652.
19 Id.
20 Alaska R. Crim. P. 32.1(f)(5).
21 AS 12.55.005(1) & (4).
22 See Evans, 23 P.3d at 652; Ashenfelter, 988 P.2d at
123.
1 Citing Scott v. State, 928 P.2d 1234, 1238 (Alaska App.
1996).
2 See Alaska Criminal Rule 32.1(f). See also Evans v.
State, 23 P.3d 650, 652 (Alaska App. 2001), and Hamilton v.
State, 771 P.2d 1358, 1362-63 (Alaska App. 1989), both of which
hold that a defendant has a conditional right of confrontation at
sentencing: although a sentencing judge can normally rely on
out-of-court statements described in the pre-sentence report for
proof of the matters asserted, the State must support its
assertions with live testimony if the defendant offers a
testimonial denial of those matters and submits to
cross-examination.
1 AS 11.41.200(a)(3); 11.41.210(a)(3); 11.41.220(a)(1)(A),
(C)(i).
2 AS 12.55.155(c)(2) & (c)(5).
3 Charliaga v. State, 157 P.3d 1053, 1054 (Alaska App.
2007) (citing Evan v. State, 899 P.2d 926, 929 (Alaska
App. 1995); Hamilton v. State, 771 P.2d 1358, 1362-63
(Alaska App. 1989)).
4 23 P.3d 650 (Alaska App. 2001).
5 Id. at 651.
6 Id.
7 Id.
8 Id. at 652.
9 Id. (footnote omitted).
10Id. (footnote omitted).
11Id.
12Id.
13Id.
14Nukapigak v. State, 562 P.2d 697, 701 (Alaska 1977).
15Charliaga, 157 P.3d at 1054.
16Id. at 651-52.
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