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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).
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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
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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."
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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.
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----------------------- 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
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----------------------- 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
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----------------------- 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.
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----------------------- 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.
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(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
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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.
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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 .
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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
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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
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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).
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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.
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