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Ferguson v. State (11/5/2010) ap-2281

Ferguson v. State (11/5/2010) ap-2281

                                               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 

DUANE GENE FERGUSON, 
                                                            Court of Appeals No. A-10107 
                                Appellant,                 Trial Court No. 2KB-05-040 Civ 

                        v. 
                                                                    O   P  I  N  I  O  N 
STATE OF ALASKA, 

                                Appellee.                  No. 2281    -    November 5, 2010 

                Appeal     from   the  Superior   Court,   Second    Judicial  District, 
                Kotzebue, Ben J. Esch, Judge. 

                Appearances:     Tracey Wollenberg, Assistant Public Defender, 
                and    Quinlan   Steiner,   Public   Defender,    Anchorage,    for  the 
                Appellant. Kenneth M. Rosenstein, 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. 

----------------------- Page 2-----------------------

                 In April 2004, Duane Gene Ferguson was indicted for furnishing drugs to 

a   nineteen-year-old       woman,      C.W.,    and   then   engaging     in  non-consensual       sexual 
penetration with her. 1      Both of these crimes are unclassified felonies. 2 

                 Through      his   attorney,   Robin    Koutchak,      Ferguson     negotiated     a  plea 

agreement with the State on the day that his trial was to begin.                Under the terms of this 

agreement, the State dismissed the drug-distribution charge, and the sexual assault charge 

was reduced to third-degree sexual assault (engaging in sexual contact with a person who 
the defendant knows is incapacitated), a class C felony. 3              Ferguson agreed to plead no 

contest   to   this   reduced   charge,   and   he   further   agreed   that   the   superior   court   would 

impose an aggravated presumptive term of seven years' imprisonment. 

                 (Because Ferguson committed his offense in March 2004, his sentencing 

for   third-degree   sexual   assault   was   not   governed   by   Alaska's   current   presumptive 

sentencing laws, but rather by the 2003 version of AS 12.55.125(i).   Under that statute, 

Ferguson faced a three-year presumptive term of imprisonment because he was a third 

felony offender.  See AS 12.55.125(i)(4)(C) (2003).) 

                 In January 2005, Ferguson appeared in front of Superior Court Judge Ben 

J. Esch for sentencing.       Judge Esch stated that he had read the pre-sentence report, and 

that he was willing to accept the negotiated disposition of Ferguson's case.  Toward the 

end of the sentencing hearing, after Judge Esch had sentenced Ferguson to the negotiated 

    1   First-degree controlled substance misconduct, AS 11.71.010(a)(2), and first-degree 

sexual assault, AS 11.41.410(a)(1). 

    2   AS 11.71.010(c) (first-degree controlled substance misconduct) and AS 11.41.410(b) 

(first-degree sexual assault). 

    3   AS 11.41.425(a)(1)(B) (definition of the crime); AS 11.41.425(b) (classifying the 

offense as a class C felony). 

                                                   - 2 -                                              2281
 

----------------------- Page 3-----------------------

seven-year term of imprisonment, the judge informed Ferguson that he would not be 

eligible for good time credit against this sentence. 

                Judge Esch was referring to AS 33.20.010(a)(3), which declares   that a 

defendant sentenced for a sexual felony is not eligible for good time credit against their 

sentence     if  they  have   previously   been   convicted    of  one   or  more   sexual   felonies. 

According to Ferguson's pre-sentence report, he had been convicted in 1996 of third- 

degree sexual assault for engaging in sexual penetration with a woman who was passed 

out or asleep. 

                In early March   2005   (i.e., a little over two months after Ferguson was 

sentenced), Ferguson filed apro se petition for post-conviction relief in which he alleged 

that he received ineffective assistance from his trial attorney during the negotiation of the 

plea agreement. 

                Specifically, Ferguson alleged that his trial attorney gave him incorrect 

information regarding two key aspects of the plea agreement:  (1) falsely informing him 

that   four   years   of   his   seven-year   term   of   imprisonment   would   be   suspended,   and 

(2) mistakenly informing him that he would be eligible for good time credit against the 

three-year "active" portion of his sentence (i.e., the portion that he would have to serve) 

- so that, if Ferguson behaved himself in prison, his actual time to serve would be only 

two years. 

                Ferguson's sister Cheree, who was apparently present during Ferguson's 

conference with his lawyer, submitted an affidavit supporting Ferguson's allegations. 

She declared that the trial attorney had indeed told her brother that his sentence would 

be three years to serve, and that he would be out of prison in two years because of good 

time credit. 

                Ferguson's mother Sophie also submitted an affidavit stating that she had 

talked to the trial attorney after the attorney's meeting with the prosecutor assigned to 

                                                - 3 -                                            2281
 

----------------------- Page 4-----------------------

Ferguson's case. According to Ferguson's mother, the trial attorney told her that she had 

negotiated a deal in which Ferguson would serve three years, and that she (the attorney) 

thought that this was a favorable offer because Ferguson was likely to get seven years 

to serve if he went to trial. 

               The trial attorney herself submitted an affidavit in which she declared that 

she explained to Ferguson that he would receive a seven-year term of imprisonment, but 

she told him that only three years of this seven-year term would be presumptive, so that 

Ferguson would be eligible to apply for discretionary parole during the remainder of his 
sentence - i.e., after he served the three-year presumptive portion of the sentence. 4  The 

trial attorney's affidavit did not address Ferguson's claim that she mistakenly told him 

that he would be eligible for good time credit against this three-year presumptive term. 

               Based    on  these  conflicting  affidavits,  Judge   Esch  concluded    that  an 

evidentiary hearing was needed to resolve the claims raised in Ferguson's petition for 

post-conviction relief.   The hearing was held on June 29, 2007. 

               At the evidentiary hearing, Ferguson's sister Cheree testified that she and 

her brother were waiting in the library of the courthouse on the first day of trial, during 

a recess in the jury selection process, when the trial attorney communicated two different 

plea offers to Ferguson.     The first offer called for   Ferguson to receive a seven-year 

sentence. According to Cheree, she and Ferguson agreed that this proposed sentence was 

too high, and that it would be better for Ferguson to proceed with the trial. 

    4  Under the 2003 version of AS 33.16.090(c), a defendant who received an aggravated 

presumptive term of imprisonment was required to serve the non-enhanced portion of the 
sentence (i.e., the normal applicable presumptive term) before becoming eligible to apply for 
discretionary parole.  This statute declared that a defendant was deemed to have served the 
normal presumptive term "on the date [that] the unenhanced presumptive sentence is due to 
expire[,] less good time [credit] earned under AS 33.20.010." 

                                             - 4 -                                         2281
 

----------------------- Page 5-----------------------

                 After Ferguson rejected the seven-year offer, his trial attorney left the room 

for a few minutes and then returned with a revised offer:               two years to serve.      The trial 

attorney told Ferguson and his sister that the attorneys and the judge might describe the 

sentence somewhat differently in court, but that the sentence would really be two years 

to serve.    After both Ferguson and his sister requested the trial attorney to confirm that 

Ferguson's sentence would really be only two years to serve, Ferguson accepted the plea 

bargain. 

                 Ferguson took the stand himself and corroborated his sister's account of the 

negotiations.       Ferguson     testified  that   his  trial   attorney  originally   proposed     a  plea 

agreement that would have required Ferguson to serve seven years, but Ferguson rejected 

that proposal.  Then, several minutes later, his attorney came back and offered a revised 

agreement.  Under this new offer, Ferguson would receive a sentence of three years, but 

he would be out of prison in two years because of good time credit. 

                 Ferguson testified that when he heard his sentence described in court as 

"seven years", he turned to his attorney and asked her what was going on.  According 

to Ferguson, his attorney touched his wrist and, in so many words, told him not to worry. 

                 Ferguson's trial attorney also took the stand at the evidentiary hearing.  She 

corroborated some of the testimony already given by Ferguson and his sister - that the 

State's first offer was a seven-year sentence, and that Ferguson would not accept that 

offer. According to the trial attorney, Ferguson told her, "I can't do seven years.  I'm not 

going to go for that." 

                 The trial attorney testified that, after receiving Ferguson's negative response 

to   this   first   offer,   she   spoke   to   the   prosecutor   again. The   attorney   stated   that   the 

prosecutor "really wanted a deal" (i.e., wanted a negotiated settlement of the case), so the 

prosecutor "was willing to come down to the three-year presumptive [term], and there 

                                                   - 5 -                                              2281
 

----------------------- Page 6-----------------------

would be aggravators that would [increase the sentence by] four years in addition to [the 

three-year presumptive term]." 

                 Seemingly, the proposed sentence described in the preceding paragraph was 

not a reduction from the State's original proposal, but was rather the same seven-year 

term     of   imprisonment   that   Ferguson        had   already    rejected.    But   in   her   testimony, 

Ferguson's trial attorney attempted to distinguish this second proposal from the first 

proposal by asserting that, under the second proposal, the first three years of Ferguson's 

sentence      were     "presumptive",       but    the   additional     four   years    were     "completely 

discretionary".  When Ferguson's new defense attorney asked the trial attorney what she 

meant by "completely discretionary", the trial attorney answered: 

                          Trial Attorney: I mean - how I would have explained 
                 it   to  Duane     [Ferguson]      -    and   he   knew     the  difference 
                 between "presumptive" and "discretionary" already - but 
                 "presumptive" would mean that you're going to serve [the] 
                 three years.  You're going to serve three years. After that, the 
                 rest   of   the   [jail]   time,   the   four   years   that   are   going   to   be 
                 tacked on [because of the] aggravators, is going to be purely 
                 discretionary       -    at  the  discretion     of  the   Department      of 
                 Corrections. 
                          .  .  . 

                          I explained to him how the Department of Corrections 
                 works,      where     -    you    know,      in  certain    instances,     on 
                 sentences, they get to make the decision.              And that a lot of 
                 those decisions are made based on the good behavior of the 
                 inmates.  And I remember specifically pointing out to Duane 
                 that, in the past, he's had very good behavior when he's been 
                 incarcerated, and he seems to gain favor with ... the guards. 
                 ...  I said [to him], "You know, Duane, you're not one of 
                 those people that fight ... when you're in jail.  You're not one 
                 of   those   obnoxious   guys   that   ...   is   really   overbearing     or 
                 anything like that.  [So] you probably have a good chance of 

                                                     - 6 -                                                2281
 

----------------------- Page 7-----------------------

                  getting out right after the three years."            And he understood 
                  that, and ... he was willing to go with that. 

                  The   trial   attorney   denied   telling   Ferguson   that,   by   virtue   of   good   time 

credit, he could get out of prison in two years.               However, during this same discussion, 

the   trial   attorney   again   repeatedly   declared   that   it   was   up   to   the   discretion   of   the 

Department of Corrections whether Ferguson would be required to serve the final four 

years of his sentence (i.e., the enhancement above the three-year presumptive term). 

                  Here is the pertinent portion of the colloquy between the trial attorney and 

Ferguson's new defense attorney: 

                           Trial Attorney:   We didn't talk about good time credit 
                  prior to [the day of the scheduled trial, because] we'd been 
                  planning on going to trial right up until that morning. 

                          New Defense Attorney :  Well, when did you have that 
                  discussion about [the fact that Ferguson was ineligible for] 
                  good time credit, then? 

                           Trial Attorney:   ...   When we [i.e., Ferguson, his sister 
                  Cheree, and the trial attorney] were in ... the law library, ... 
                  and we were discussing the pros and cons of whether ... we 
                  should   go   forward   with   the   trial,   we   talked   about   the   flat 
                  three-year term.       ...  When [the subject of good time credit] 
                  was brought up - if it was brought up - and I'm not sure 
                  that it was.     I was just trying to rack my brain [as to] why 
                  he'd   think   that   there   was   just   two   years   to   serve.    ...    I 
                  would've told him that, no, there was no good time attached 
                  to his three years.        That was a flat three-year presumptive 
                  term.   So good time was not an issue. 
                           .  .  . 

                          I didn't think it was an   issue.          ...  We were talking 
                  about a flat three-year presumptive term. 

                                                      - 7 -                                                 2281
 

----------------------- Page 8-----------------------

          .   .  . 

          New Defense Attorney :              [A] three-year, flat presump­ 
tive term.  Could you explain exactly what you mean by that? 
How you would've explained it to Duane Ferguson? 

          Trial Attorney:          I already answered that question with 
[the prosecutor].  But if you weren't listening, I'd be glad to 
repeat   it.    "Presumptive   term"   is   what   you   have   to   serve. 
"Discretionary term" would be what [is] up to the Depart­ 
ment of Corrections - of you serving the remainder of. 
          .   .  . 

          New Defense Attorney :  And is that your impression of 
how   things   work,   [Ms.   K.]?             That when   somebody   has   a 
seven-year   sentence,   that   [the   Department   of   Corrections] 
will just let them out after three years if they behave nicely? 

          Trial Attorney: Well, I'm not nearly as simplistic [sic] 
as   you   think      I   am.    I   -    no.    But   after   three   years   [of] 
presumptive   term,   the   discretionary   part   of   the   term   does 
pretty much work that way.                 It's been my experience, over 
the years, that clients who keep their nose clean and stay out 
of trouble get treated better, and they do get certain benefits. 
And   being   released   early,   or   released   to   a   work   farm,   or 
something like that, usually occurs. 
          .   .  . 

          New       Defense       Attorney :         [So]    you     explained        to 
[Ferguson], if I'm understanding you correctly, that there was 
a   three-year   presumptive   term,   and   then   there   [were]   four 
years      which       were      somehow         at   the     discretion       of   the 
Department of Corrections, whether or not they were going 
to make Duane serve that time? 

          Trial Attorney:          Yes, that's accurate. 

                                        - 8 -                                                        2281
 

----------------------- Page 9-----------------------

                Because the trial attorney repeatedly asserted that the final four years of 

Ferguson's sentence were "discretionary", Ferguson's new defense attorney asked the 

trial  attorney    whether    she   was   referring    to  the  possibility   that  Ferguson     might 

successfully petition the Parole Board for release on discretionary parole.              But the trial 

attorney replied that this was not what she was talking about: 

                        Trial Attorney:     We didn't talk about parole boards. 
                We talked about the Department of Corrections in general. 
                We    did   not   discuss  about   -   we   did  not   discuss   parole 
                boards, no. 

                        New Defense Attorney :  Well, if you didn't talk about 
                parole boards, how did you talk about [Ferguson's] being 
                released    from   [prison]   after  serving    three  years   of  [his] 
                sentence?    Who was going to release him? 

                        Trial    Attorney:      Generally,      the   Department      of 
                Corrections.     I'm not sure - there's other - there's other 
                things   that   the   Department   of   Corrections   can   do   besides 
                putting someone through a parole board.  There's other types 
                of discretionary release.      So, you know, what I focused on 
                [when talking to] Duane was simply what I've talked about 
                ad nauseam here:       a three-year presumptive, the rest [of the 
                sentence] was - the rest was going to be up to him. 

                        I don't think [I] can make it any clearer to the Court. 
                I didn't talk to him about parole boards. 

                Toward the end of the evidentiary hearing, when the parties summarized 

what they believed the testimony revealed, Ferguson's new attorney emphasized the fact 

that, when Ferguson's trial attorney described the final four years of Ferguson's sentence 

as   "discretionary",     the  trial  attorney  had   not  been    speaking    of  the  possibility   of 

discretionary     parole.   But   Judge    Esch    disagreed   with   the  new    defense   attorney's 

                                                 - 9 -                                            2281
 

----------------------- Page 10-----------------------

characterization of trial attorney's testimony:            the judge declared that, in his view, the 

trial attorney's description of the sentence was the equivalent (in so many words) of an 

explanation that Ferguson would be eligible to apply for discretionary parole during the 

last four years of his sentence. 

                 Judge Esch then changed the focus of the discussion by asking the new 

defense attorney to explain why she believed that the trial attorney's description of the 

parole process had been inadequate.   In response, the new defense attorney argued that 

even   if   the   judge's   view   of   the   testimony   was   correct   -   that   is,   even   if   the   trial 

attorney's description of the sentence to Ferguson could be interpreted as an explanation 

that Ferguson would be eligible to apply for discretionary parole during the last four 

years of the sentence - the trial attorney's advice to Ferguson was incompetent because 

the trial attorney failed to explain to Ferguson that it was extremely unlikely that the 

Parole Board would ever grant his application for discretionary parole release. 

                 Here   is   the   pertinent   portion   of   the   colloquy   between   Judge   Esch   and 

Ferguson's new defense attorney: 

                         New Defense Attorney : There is evidence that [the trial 
                 attorney] seemed to believe that this sentence was something 
                 other than it really was.  ...  She believed that [after Ferguson 
                 served the] three-year presumptive term ... , that there was 
                 [then] four years that, somehow, [the Department of Correc­ 
                 tions]   was    just  going    to  let  [him]   go.   And,     from    her 
                 testimony, there wasn't even a discussion of parole.              It was 
                just, "Oh, well, DOC can let you go" - which is ... 

                         The    Court:      Is  that   inconsistent    with    the  parole 
                process? 

                         New Defense Attorney :   Yes.  That's very inconsistent 
                 with the parole process.       DOC doesn't just let you go. 

                                                  -  10 -                                             2281
 

----------------------- Page 11-----------------------

                        The     Court:     Well,     no,   no,   no.    There     was    a 
                discretionary process thereafter, during those four years, at 
                which he may be released. 

                        New Defense Attorney :         Yes, there is such a thing as 
                discretionary parole, [but the trial attorney] testified that she 
                didn't discuss parole with him. 

                        The Court:   No, she said she didn't discuss the Parole 
                Board [with him].  She said she discussed the fact that DOC 
                could discretionarily let him out during the four-year period, 
                and   I'm   asking   you,   Do   you   believe   that's   an   inadequate 
                description of the parole process? 

                        New Defense Attorney :  Absolutely.   ...   I think it's not 
                only inadequate, but grossly misleading to tell a man in his 
                40s, [who will stand convicted of] his fourth felony [and] 
                essentially his second rape conviction, who has a homicide 
                on     his   record,    that,   "Sure,    you've     got   three    years 
                presumptive, and then they can let you out" - because that's 
                not how the process works.   In fact, he's in a worse situation 
                than many [defendants], because he's not even eligible for 
                good time [credit] or mandatory parole. ...            Somebody like 
                Mr. Ferguson should be made aware [that], frankly, there's 
                not    a  snowball's     chance     in  hell  that   they'd   give   him 
                discretionary parole. 

                At the close of the evidentiary hearing, Judge Esch allowed the parties to 

file supplemental memoranda explaining their positions on the testimony presented. 

Two months later, after receiving these memoranda, Judge Esch issued a written decision 

denying Ferguson's petition for post-conviction relief. 

                In his written decision, Judge Esch found that Ferguson's trial attorney had 

accurately described the proposed sentence to Ferguson:                a seven-year sentence, with 

                                                 -  11 -                                            2281
 

----------------------- Page 12-----------------------

eligibility for discretionary parole after the first three years.             Here is what the judge 

wrote: 

                         [The trial attorney's] testimony [was] unequivocal as 
                 to what she told Mr. Ferguson about the terms of the [plea 
                 agreement].     The defendant would ... receive an aggravated 
                 presumptive sentence of seven years and would be eligible 
                 for discretionary parole after the first three years.  While [the 
                 trial attorney] is apparently confused ... about some matters, 
                 her    recollection    of   the   central   issue   of   [this]  case    is 
                 unwavering.       ...   The    evidence     is  most   persuasive     that 
                 Ferguson      was    ...  aware   that   his  sentence     would     be  a 
                 presumptive       term   of  three   years,   with   parole    eligibility 
                 thereafter, up to a maximum of seven years. 

                 Judge Esch also rejected Ferguson's alternative argument - the argument 

that even if the evidence were interpreted as establishing that Ferguson's trial attorney 

discussed the possibility of discretionary parole release with Ferguson, the trial attorney 

still acted   incompetently because she failed to tell Ferguson that parole release was 

extremely unlikely in his case.   Judge Esch concluded that, as a matter of law, a defense 

attorney does not need to warn a client about the unlikelihood of successfully petitioning 

the Parole Board for discretionary parole release. 

         Why     we   conclude     that  Ferguson      received    incompetent      legal   advice 
        concerning the plea agreement 

                 When the State proposes a plea agreement in a criminal case, the defendant 

is entitled to competent advice from their attorney regarding whether to accept the State's 

proposal.  Love v. State, 173 P.3d 433, 436-37 (Alaska App. 2007).                   If the defendant's 

attorney   provides   incompetent   advice   on   an   issue   that   is   crucial   to   the   defendant's 

                                                  -  12 -                                             2281
 

----------------------- Page 13-----------------------

decision whether to accept the plea bargain, and if, as a result of this incompetent advice, 

the defendant accepts the plea bargain when he or she otherwise would not have done 

so, this constitutes "manifest injustice" for purposes of Alaska Criminal Rule 11(h)(3), 

and the defendant is entitled to withdraw their previously entered plea.  Love, 173 P.3d 
at 437. 5  In particular, a defendant is entitled to withdraw their plea if (1) the defendant 

was given incompetent advice concerning the nature of the sentence they would receive 

if they accepted the plea bargain, and (2) the defendant would not have entered into the 

plea bargain had they received accurate advice on this subject.  Knox v. State, 130 P.3d 

971, 973 (Alaska App. 2006). 

                     Judge Esch's decision to deny Ferguson's petition for post-conviction relief 

rested on two bases.  The first basis of Judge Esch's decision was a finding of fact:  the 

finding that, when Ferguson's trial attorney told Ferguson that the final four years of his 

proposed          sentence        would       be    "discretionary",           the    trial    attorney       was     speaking         of 

Ferguson's right to apply to the Parole Board for discretionary parole release during 

those four years.             The second basis of Judge Esch's decision was a ruling of law:                                           a 

ruling   that,   when   a   defense   attorney   seeks   to   persuade   a   defendant   to   accept   a   plea 

agreement   by   telling   the   defendant   that   he   or   she   will   have   the   right   to   apply   for 

     5     The pertinent portion of Alaska Criminal Rule 11(h) reads: 

     (h)    Plea Withdrawal.	 
                .   .  . 

           (3)  After imposition of sentence, the withdrawal of a plea may be sought only under 
     AS   12.72.        A     defendant   requesting            post-sentence   plea           withdrawal   must   prove   that 
     withdrawal is necessary to correct a manifest injustice. 

           (4)      Withdrawal           is   necessary       to   correct      a   manifest       injustice      whenever         it   is 
     demonstrated   that   ...   [t]he   defendant   was   denied   the   effective   assistance   of   counsel 
     guaranteed by constitution, statute or rule[.] 

                                                                -  13 -	                                                          2281
 

----------------------- Page 14-----------------------

discretionary      parole   release,   the   defense    attorney   has   no   obligation    to  advise   the 

defendant   concerning   the   realistic   chances   that   the   Parole   Board   would   grant   the 

defendant's application for parole release. 

                 For the reasons explained here, we conclude that the judge's finding of fact 

is clearly erroneous, and we conclude that the judge's ruling of law is wrong. 

                 (a) The evidence fails to support the superior court's finding that the 
             trial attorney's description of the proposed sentence was, in essence, an 
             explanation that Ferguson would be eligible to apply for discretionary 
            parole release during the last four years of his sentence 

                 As we have explained, the major contention raised in Ferguson's petition 

for post-conviction relief was the claim that Ferguson's trial attorney misdescribed the 

sentence   that   Ferguson   would   receive   under   the   second   proposed   plea   agreement. 

Ferguson claimed that his trial attorney mistakenly told him that the final four years of 

the seven-year sentence were completely "discretionary", and that the Department of 

Corrections would release him after only three years if he behaved himself in prison. 

                 Judge Esch concluded that the trial attorney's description of these final four 

years   as   being   "discretionary"   was   in   fact   accurate   -   that   this   description   was,   in 

essence, an explanation of the fact that Ferguson would be eligible to ask the Parole 

Board to release him on discretionary parole during the final four years of the sentence. 

The record does not support the judge's conclusion. 

                 It is true that the trial attorney, in her pre-hearing affidavit, asserted that she 

told Ferguson that he would be eligible for discretionary parole during the final four 

years   of his sentence.      But when the trial attorney took the stand at the evidentiary 

hearing, she gave a different account of her conversations with Ferguson. 

                                                  -  14 -                                              2281
 

----------------------- Page 15-----------------------

                 At the evidentiary hearing, the trial attorney testified that she told Ferguson 

that, after he served the first three years of his sentence, "the rest of the [jail] time, the 

four years that are going to be tacked on [because of the] aggravators, is going to be 

purely discretionary - at the discretion of the Department of Corrections."                      The trial 

attorney     also  testified   that  she   "explained     to  [Ferguson]     how    the   Department      of 

Corrections works" - that "in certain instances, on sentences, they get to make the 

decision.    And that a lot of those decisions are made based on the good behavior of the 

inmates." 

                 In her testimony, Ferguson's trial attorney repeatedly sought to distinguish 

a   presumptive   term   of   imprisonment   from   a   "discretionary"   term   of   imprisonment. 

Because the Alaska sentencing statutes do not define or refer to "discretionary" terms of 

imprisonment, Ferguson's new defense attorney asked the trial attorney to explain what 

she meant by that phrase.          The trial attorney answered that "[a] 'presumptive term' is 

what you have to serve, [while a] '[d]iscretionary term' would be what [is] up to the 

Department of Corrections - of you serving the remainder of." 

                 The trial attorney's answer led to the following colloquy: 

                         New Defense Attorney :  And is that your impression of 
                 how     things    work,    [Ms.    Trial   Attorney]?      That     when 
                 somebody has a seven-year sentence, that [the Department of 
                 Corrections] will just let them out after three years if they 
                 behave nicely? 

                         Trial Attorney: Well, I'm not nearly as simplistic [sic] 
                 as   you   think   I   am. I   -   no.   But   after   three   years   [of] 
                 presumptive   term,   the   discretionary   part   of   the   term   does 
                 pretty much work that way.           It's been my experience, over 
                 the years, that clients who keep their nose clean and stay out 
                 of trouble get treated better, and they do get certain benefits. 

                                                  -  15 -                                             2281
 

----------------------- Page 16-----------------------

                  And   being   released   early,   or   released   to   a   work   farm,   or 
                  something like that, usually occurs. 
                           .  .  . 

                           New      Defense      Attorney :       [So]    you    explained      to 
                  [Ferguson], if I'm understanding you correctly, that there was 
                  a   three-year   presumptive   term,   and   then   there   [were]   four 
                  years     which      were     somehow        at  the    discretion     of   the 
                  Department of Corrections, whether or not they were going 
                  to make Duane serve that time? 

                           Trial Attorney:       Yes, that's accurate. 

                  The above-quoted testimony does not appear to be a reference to parole 

release. Ferguson's trial attorney never mentioned the Parole Board. And, when the trial 

attorney explained the ways in which she thought the Department of Corrections might 

excuse   Ferguson   from   serving   the   last   four   years   of   his   sentence,   her   explanation 

included alternatives that clearly did not constitute early release from the service of the 

sentence - for instance, a prisoner reclassification to a low-security facility such as a 

"work farm". 

                  Moreover, when Ferguson's new defense attorney offered the trial attorney 

the   opportunity   to   clarify   her   vague   references   to   the   Department   of   Corrections' 

"discretion" to release Ferguson after he served the first three years of his sentence, the 

trial attorney expressly declared that she had not been referring to Ferguson's ability to 

petition the Parole Board for release on discretionary parole: 

                           Trial   Attorney:      [Ferguson   and   I]   didn't   talk   about 
                  parole     boards.       We      talked    about     the    Department        of 
                  Corrections in general.         We did not discuss about - we did 
                  not discuss parole boards, no. 

                                                      -  16 -                                                2281
 

----------------------- Page 17-----------------------

                        New Defense Attorney :   Well, if you didn't talk about 
                parole boards, how did you talk about [Ferguson's] being 
                released     from   [prison]   after  serving    three   years  of   [his] 
                sentence?     Who was going to release him? 

                         Trial    Attorney:      Generally,      the   Department       of 
                Corrections - I'm not sure - there's other - there's other 
                things   that   the   Department   of   Corrections   can   do   besides 
                putting someone through a parole board.  There's other types 
                of discretionary release.  So, you know, what I focused on 
                [when talking to] Duane was simply what I've talked about 
                ad nauseam here:       a three-year presumptive, the rest [of the 
                sentence] was - the rest was going to be up to him. 

                        I don't think [I] can make it any clearer to the Court. 
                I didn't talk to him about parole boards. 

(Emphasis added) 

                We acknowledge that when Ferguson's trial attorney testified about the 

Department of Corrections' supposed "discretion" to excuse Ferguson from serving the 

last   four   years   of   his   sentence,   some   of   her   descriptions   were   so   vague   that   they 

conceivably might be interpreted as oblique references to Ferguson's right to apply to 

the Parole Board for discretionary parole release. But given the trial attorney's testimony 

as a whole, it is clear that she was not referring to Ferguson's eligibility to apply for 

parole   release.    Rather,   she   was   referring   to   some   other   supposed   authority   of   the 

Department of Corrections to excuse Ferguson from serving the final four years of his 

seven-year sentence if Ferguson behaved himself well in prison. 

                                                 -  17 -                                            2281
 

----------------------- Page 18-----------------------

                Based on our review of the record, we conclude that Judge Esch's contrary 

finding is clearly erroneous.  That is, we are "left with a definite and firm conviction that 
a mistake has been made". 6 

                And given the fact that the trial attorney was not referring to Ferguson's 

ability to petition the Parole Board for release on discretionary parole, we conclude that 

the trial attorney gave Ferguson incompetent advice when she encouraged Ferguson to 

believe that he could avoid serving the last four years of his seven-year sentence by 

simply behaving well in prison. 

                The Department of Corrections (as distinct from the Parole Board) has no 

discretionary authority to simply release or excuse a prisoner from serving the full term 

of   a   sentence   imposed   by   the   superior   court.  Yet,   according   to   the   trial   attorney's 

testimony, she told Ferguson that the opposite was true. 

                The trial attorney testified that she told Ferguson that the last four years of 

his seven-year sentence were "completely discretionary" - that those four years "[were] 

going to be purely ... at the discretion of the Department of Corrections".                    The trial 

attorney recalled that she "explained to [Ferguson] how the Department of Corrections 

works" - "[that] in certain instances, on sentences, they get to make the decision.  And 

that a lot of those decisions are made based on the good behavior of the inmates." 

                The trial attorney "remember[ed] specifically pointing out to [Ferguson] 

that, in the past, he's had very good behavior when he's been incarcerated, and he seems 

to gain favor with ... the guards", so that "[he] probably [had] a good chance of getting 

out right after the [first] three years [of his sentence]." 

                After hearing this testimony, Ferguson's new defense attorney asked the 

trial   attorney,   "And   is   that   your   impression   of   how   things   work   ...   ? That   when 

    6   See, e.g., Majaev v. State, 223 P.3d 629, 631 (Alaska 2010). 

                                                 -  18 -                                              2281 

----------------------- Page 19-----------------------

somebody has a seven-year sentence, [the Department of Corrections] will just let them 

out after three years if they behave nicely?"    The trial attorney answered, 

                      Trial Attorney: [After Ferguson serves the] three years 
               [of his] presumptive term, the [four-year] discretionary part 
              of [his] term does pretty much work that way.       It's been my 
              experience, over the years, that clients who keep their nose 
              clean and stay out of trouble get treated better, and they do 
              get certain benefits.  And being released early, or released to 
              a work farm, or something like that, usually occurs. 

A few minutes later, the trial attorney added, "[W]hat I focused on [when talking to] 

Duane was simply what I've talked about ad nauseam here:          [he was to serve] a three- 

year presumptive [term], [and] the rest [of the sentence] was - the rest was going to be 

up to him." 

              The trial attorney's explanation of the proposed sentence agreement was 

a substantial mischaracterization of Alaska law and a substantial misrepresentation of 

Ferguson's status if he accepted the agreement.   The trial attorney told Ferguson that, if 

he behaved himself, he could expect to serve no more than three years of his seven-year 

sentence.  She told him that the length of his sentence "was going to be up to him" - not 

because of any possibility of parole, but because of the purported independent discretion 

of the Department of Corrections to grant early release to well-behaved prisoners. 

              This advice was incompetent. 

                                            -  19 -                                      2281
 

----------------------- Page 20-----------------------

                 (b) Even   if   the   record   had   supported   Judge   Esch's   finding   that 
            Ferguson's trial attorney was merely explaining the fact that Ferguson 
            could apply to the Parole Board for release on discretionary parole, 
            Ferguson's   case   presents   an   instance   where   the   trial   attorney   was 
            required      to   explain    Ferguson's       realistic   chances     of   obtaining 
            discretionary parole release 

                 As we explained above, Judge Esch tentatively concluded (toward the close 

of the evidentiary hearing) that the trial attorney's discussions with Ferguson had been 

an explanation of Ferguson's eligibility to apply for discretionary parole after serving the 

first three years of the sentence. Judge Esch then asked Ferguson's new defense attorney 

if she contended that the trial attorney's explanation of Ferguson's parole eligibility was 

inadequate.     The defense attorney responded that, even if the trial attorney's testimony 

was construed in this fashion, the trial attorney's explanation of discretionary parole 

release was inadequate - because the trial attorney encouraged Ferguson to believe that 

he would be granted parole release if he simply behaved himself in prison, whereas the 

truth was that Ferguson faced substantial obstacles in obtaining discretionary parole. 

(Ferguson   was   a   mature   offender   with   three   prior   felonies,   including   a   prior   sexual 

felony.) 

                 In his written decision, Judge Esch concluded that even if it was unlikely 

that Ferguson would be granted discretionary parole, and even if the trial attorney failed 

to explain how unlikely it was that Ferguson would be released on discretionary parole, 

this did not constitute ineffective assistance of counsel.              In reaching this conclusion, 

Judge Esch relied on this Court's decision in Cole v. State, 72 P.3d 322 (Alaska App. 

2003). 

                 The   defendant   in  Cole  was   charged   with   first-degree   murder.        His   co­ 

defendant accepted the State's offer to plead guilty to second-degree murder, but Cole 

                                                  - 20 -                                              2281
 

----------------------- Page 21-----------------------

rejected the State's offer, went to trial, and was convicted of first-degree murder. 7              Later, 

Cole filed a petition for post-conviction relief, alleging (among other things) that he 

received ineffective assistance of counsel because, even though his attorney advised him 

to accept the State's offer, she failed to tell him that he might be eligible to apply for 

discretionary parole earlier if he was sentenced for second-degree murder (as the State 
proposed) rather than first-degree murder. 8 

                 This Court held that the defense attorney was not required to advise Cole 

concerning   his   potential   for   parole   release   when   she   counseled   him   concerning   the 
advantages and disadvantages of the State's proposed plea bargain. 9                     We noted that 

when a court accepts a defendant's guilty plea, the court is not required to advise the 

defendant      regarding     the  defendant's      eligibility  to   apply   for   discretionary     parole 
release. 10   We further noted that Cole had failed to cite "any persuasive authority" in 

support of his contention that his attorney was incompetent because she did not advise 
him about parole eligibility. 11       Nor had Cole asserted "that his attorney provided him 

with any misleading advice about the offered charge bargain or the consequences of his 
... reject[ing] the charge bargain and go[ing] to trial on first-degree murder." 12 

                 We then declared "that an attorney is not required to advise a defendant 

about   parole   eligibility   when   the   defendant   is   offered   a   charge   bargain   with   open 

sentencing", and that "Cole's attorney was not required to provide Cole with an analysis 

    7   Cole, 72 P.3d at 323. 
 

    8   Id. at 324. 
 

    9   Ibid.
 

    10  Ibid., citing Morgan v. State, 582 P.2d 1017, 1027 (Alaska 1978). 
 

    11  Ibid.
 

    12  Ibid.
 

                                                  - 21 -                                              2281
 

----------------------- Page 22-----------------------

of his potential for parole release when she recommended that he accept the charge 
bargain." 13 

                 Judge Esch apparently relied on these portions of the Cole opinion when 

he   ruled   that   it   made   no  difference   whether   Ferguson's   trial   attorney   encouraged 

Ferguson to have unjustifiable hopes or expectations regarding the possibility that he 

would obtain release on discretionary parole after serving three years of his seven-year 

sentence. 

                 In retrospect, we see that our broad statements in Cole need clarification. 

While an attorney may be under no obligation to bring up the subject of parole eligibility 

when counseling a defendant regarding a proposed plea agreement, a defense attorney 

who does discuss parole eligibility with their client must not affirmatively mislead the 

defendant concerning their eligibility for, or their chances of obtaining, discretionary 

parole release. 

                 As the Missouri Court of Appeals explained in Moore v. State, 207 S.W.3d 

725 (Mo. App. 2006), 

                 As    a  general   proposition,     ...  defense   counsel    ...  is  [not] 
                 required to inform a defendant about parole in order for a 
                 guilty plea to be voluntary and intelligent; such information 
                 deals with a collateral, rather than a direct, consequence of 
                 the   plea.    Thus,    counsel's    failure   to  advise   a  defendant 
                 concerning eligibility for parole cannot give rise to a claim of 
                 ineffective assistance of counsel.        A different rule [applies], 
                 however, if counsel provides erroneous advice about parole 
                 eligibility: 

                         Where      counsel     misinforms      a   client   regarding     a 
                         particular   consequence   and   the   client   relies   on   that 

    13  Ibid . 

                                                  - 22 -                                                2281 

----------------------- Page 23-----------------------

                         misrepresentation in deciding whether to plead guilty, 
                         the     distinction     between       direct    and     collateral 
                         consequences   of   the   guilty   plea   is   unimportant.       If 
                         counsel      affirmatively      misrepresents       a   collateral 
                         consequence of pleading guilty, that misrepresentation 
                         may result in an ineffective assistance of counsel. 

                 Fogle v. State, 124 S.W.3d 509, 511-12 (Mo. App. 2004) 
                 (citations omitted).  Under such circumstances, relief can be 
                 granted if:  (1) the defendant was reasonably mistaken about 
                 when   he   or   she   would   become   eligible   for   parole;   (2)   the 
                 mistake     was   based   upon   a   positive   misrepresentation       by 
                 counsel   on   which   the   defendant   was   entitled   to   rely;   and 
                 (3) the defendant did rely upon counsel's misrepresentation 
                 in deciding to plead guilty. 

Moore, 207 S.W.3d at 730 (citations omitted). 

                 See also Nicholson v. State, unpublished, 2010 WL 1980190 (Tenn. Crim. 

App. 2010), where the court granted post-conviction relief to a defendant whose trial 

attorney mistakenly informed him that, if he accepted the government's offer, he would 

be    released    after  serving    thirty   percent    of  his   sentence.     The     defense    attorney 

"acknowledged that he 'probably did not' inform the [defendant] that sex offenders are 

not usually released on parole", and the Tennessee appeals court found that the prospect 

of the defendant's being released on parole "was highly unlikely".  Id. at *19-20. 

                 Given     the  defendant's     testimony     "that   he   would    not  have    pled   nolo 

contendere had he known he would have to serve the full sentence", the Tennessee court 

concluded that the defendant was prejudiced by his trial attorney's incompetent advice, 

and that the trial court erred in dismissing the defendant's application for post-conviction 

relief.  The Tennessee court explained that, although "an attorney who merely fails to 

discuss   parole   eligibility   with   his   client   does   not   render   ineffective   assistance",   an 

                                                   - 23 -                                              2281
 

----------------------- Page 24-----------------------

attorney's act of "[affirmatively] giving erroneous advice to a sex offender about [their] 

release eligibility" can constitute incompetent representation.  Ibid. 

                Accord :    Hill v. Lockhart, 877 F.2d 698, 699-700, 703 (8th Cir. 1989), 

affirmed   on   rehearing,   894   F.2d   1009   (1990)   (the   defendant   established   ineffective 

assistance of counsel where the defendant made it clear that his eligibility for parole 

would be a major factor in his decision whether to accept a proposed plea agreement, and 

his defense attorney failed to even read the applicable parole statute - thus resulting in 

his giving mistaken advice to the defendant); Tillman v. Gee, 667 S.E.2d 600, 601-03 

(Ga. 2008) (the defendant received ineffective assistance when his attorney told him that 

he would be eligible for parole after serving a majority of his sentence, when in fact the 

applicable statute made the defendant ineligible for parole release). 

                 This same rule applies to Ferguson's case.   Ferguson had already rejected 

the State's initial offer of seven years to serve. Ferguson's trial attorney encouraged him 

to accept the State's second offer - which was, again, a sentence of seven years - by 

emphasizing that Ferguson would not have to serve the last four years of this sentence 

if he behaved himself in prison.  Even if Judge Esch was correct when he construed the 

trial attorney's statements to Ferguson as an explanation that Ferguson would be eligible 

to apply to the Parole Board for discretionary parole release during the last four years of 

his sentence, the trial attorney's advice to Ferguson appears to have been affirmatively 

misleading concerning Ferguson's realistic prospects for obtaining parole release. 

                 If   Ferguson   accepted   the   State's   plea   agreement,   he   would   be   a   fourth 

felony offender.       Moreover, one of Ferguson's earlier felonies was a conviction for 

sexual     assault   stemming     from    his  act  of  engaging     in  sexual    penetration    with   an 

incapacitated   teenage   girl.     In   the   superior   court,   Ferguson's   post-conviction   relief 

attorney asserted that, given these circumstances, there was "not a snowball's chance in 

                                                  - 24 -                                              2281
 

----------------------- Page 25-----------------------

hell that [the Parole Board would] give [Ferguson] discretionary parole".  The State did 

not, and does not, seriously contest that assessment. 

                 Yet, according to the trial attorney's testimony, she told Ferguson that if he 

behaved himself in prison, "[he] probably [had] a good chance of getting out right after 

the [first] three years [of his sentence]." When Ferguson's post-conviction relief attorney 

questioned this assertion, the trial attorney did not back down.  Rather, the trial attorney 

declared that, in her experience, if a defendant behaves well in jail, the defendant will 

"usually" be granted early release after they have served the presumptive portion of their 

prison term. 

                 A   few   minutes   later   in   her   testimony,   the   trial   attorney   added   that   she 

expressly      advised    Ferguson     that,   although   he   would    have    to  serve   the  three-year 

presumptive portion of the sentence, "the rest [of the sentence] was going to be up to 

him."     This    was    not  true   -   and,   under    the   circumstances,      this  mistaken     advice 

constituted ineffective assistance of counsel. 

                 The remaining question is whether Ferguson may have been prejudiced by 

this incompetent advice.          If a defendant proves that their attorney was ineffective, the 

defendant then bears the burden of demonstrating at least a reasonable possibility that the 

attorney's ineffective assistance affected the outcome of the proceedings against the 
defendant. 14  Specifically, in cases that were resolved by a plea agreement, the defendant 

must show a reasonable possibility that they would not have agreed to the negotiated 
settlement of the case if they had received competent assistance from their attorney. 15 

                 Everyone who testified at the evidentiary hearing in Ferguson's case agreed 

that   Ferguson   unequivocally   rejected   the   State's   first   offer   of   seven   years   to   serve. 

    14  Risher v. State, 523 P.2d 421, 424-25 (Alaska 1974). 

    15   Garay v. State, 53 P.3d 626, 628 (Alaska App. 2002). 

                                                   - 25 -                                                2281 

----------------------- Page 26-----------------------

Consequently, it appears that there is at least a reasonable possibility that Ferguson 

would not have accepted the State's second offer if Ferguson had understood that this 

second offer was essentially the same one he had just rejected.   Ferguson's trial attorney 

convinced him that the second offer was materially more favorable to him by mistakenly 

and incompetently telling him that there was an excellent chance that the Department of 

Corrections would voluntarily release him from prison after only three years.  Given this 

record, Ferguson established a reasonable possibility that he was prejudiced. 

        Conclusion 

                The judgement of the superior court is REVERSED, and the superior court 

is   directed   to   grant   Ferguson's   petition   for   post-conviction   relief.  In   other   words, 

Ferguson is entitled to withdraw his plea.            If he does so, the State may reinstate the 

original   charges   against   Ferguson,   and   the   parties   will   return   to   the   positions   they 

occupied on the day of Ferguson's scheduled trial. 

                                                 - 26 -                                             2281
 
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