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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 @ akcourts.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
SHUBHRANJAN GHOSH,
Court of Appeals No. A-12374
Appellant, Trial Court No. 3AN-14-3371 CR
v.
O P I N I O N
STATE OF ALASKA,
Appellee. No. 2559 - June 16, 2017
Appeal f
rom the Superior Court, Third Judicial District,
Anchorage, Philip R. Volland, Judge.
Appearances: Ronald A. Offret and J. E. Wiederholt, Aglietti,
Offret & Woofter, Anchorage, for the Appellant. Jonas M.
Walker, Assistant Attorney General, Office of Special
Prosecutions, Anchorage, and Craig W. Richards, Attorney
General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,
Superior Court Judge. *
Judge MANNHEIMER.
Followinganinvestigation bytheStateofAlaska's Medicaid Fraud Control
Unit, psychiatrist Shubhranjan Ghosh was indicted for 18 crimes: one count of medical
* Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska
Constitution and Administrative Rule 24(d).
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assistance fraud, one count of scheme to defraud, one count of tampering with physical
evidence, and 15 counts of controlled substance misconduct (writing drug prescriptions
that were not medically justified).
Several months later, the State and Ghosh reached a plea agreement to
resolve the case. Under this agreement, Ghosh would plead guilty to two charges (the
1 2
medical assistancefraud count
and the evidence tampering count ), and theStatewould
dismiss the other 16 charges.
Because Ghosh's act of fraud involved unlawful gain of $25,000 or more,
3
his crime was a class B felony. As a first felony offender, Ghosh faced a presumptive
4
sentencing range of 1 to 3 years' imprisonment for this offense.
As part of his plea bargain, Ghosh stipulated that his criminal conduct was
aggravated under AS 12.55.155(c)(16) - i.e., that his conduct was designed to obtain
substantial pecuniary gain, and that the risk of prosecution and punishment for this
conduct was slight. The existence of this aggravator gave the superior court the authority
to sentence Ghosh to any term of imprisonment up to the 10-year maximum sentence for
5
class B felonies.
And because Ghosh did not plead any mitigating factors, his effective
mandatory minimum sentence was the low end of the applicable presumptive range -
i.e., 1 year's imprisonment. Thus, Ghosh ostensibly faced a sentencing range of 1 to 10
years' imprisonment.
1 AS 47.05.210(a)(2).
2 AS 11.56.610(a)(2).
3 AS 47.05.210(b)(1).
4 AS 12.55.125(d)(1) (pre-2016 version).
5 AS 12.55.125(d); AS 12.55.155(a)(1).
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One of the clauses of Ghosh's plea agreement was designed to restrict the
superior court's sentencing authority within this 9-year range. The present appeal arises
because the prosecutor and the defense attorney apparently had differing understandings
of this clause of the plea agreement. Here is the pertinent clause of the agreement, with
the contested wording in italics:
Sentencing will be open to the court with the following
exceptions: jail range will be from the 1 year statutorily
mandated minimum to a maximumof 3.5 years (time for both
counts to run concurrent)[.]
The prosecuting attorney stated that he understood the term "jail range" to
mean Ghosh's active term of imprisonment - i.e., Ghosh's time to serve, apart fromany
suspended term of imprisonment. Thus, under the prosecutor's understanding of the
agreement, Ghosh could receive as much as 3 ½ years to serve, plus additional suspended
time - up to a total of 10 years.
The defense attorney, on the other hand, told the court that he understood
the term "jail range" to mean Ghosh's total term of imprisonment - the combination of
Ghosh's active term of imprisonment and any suspended term of imprisonment.
According to the defense attorney, he thought that Ghosh's time to serve and his
suspended jail time, taken together, could total no more than 3 ½ years.
Because of a series of procedural irregularities, this discrepancy in the two
attorneys' interpretations of the plea agreement was not revealed until after the superior
court sentenced Ghosh to a term of 7 years with 3 ½ years suspended - a sentence that
would be proper under the prosecutor's interpretation of the agreement, but improper
under the defense attorney's interpretation.
The question is what to do about this problem now.
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A more detailed description of the proceedings in the superior court
On December 1, 2014, the parties assembled in court to sign the written
plea agreement, and to have Ghosh formally offer his guilty pleas to the two counts
specified in the agreement (medical assistance fraud and evidence tampering). Ghosh's
case was assigned to Superior Court Judge Philip R. Volland, but Judge Volland was
apparently unavailable to handlethis change-of-plea hearing, so Judge Michael R. Spaan
took Ghosh's pleas.
At this December 1st hearing, Judge Spaan accepted Ghosh's guilty pleas
- that is, he ostensibly found that Ghosh's pleas were knowing and voluntary - but
Judge Spaan failed to meaningfully question Ghosh about his understanding of the plea
agreement before he accepted Ghosh's pleas.
The judge merely asked if Ghosh understood that he was entitled to persist
in his pleas of "not guilty", and if Ghosh understood that he was giving up his right to
a jury trial and "the [other] constitutional rights that [he had]." The judge never asked
Ghosh if he understood what sentencing range his plea agreement called for. Nor did the
judge ask the attorneys to clarify what the plea agreement meant when it stated that
6
Ghosh's "jail range" would be from "1 year ... to a maximum of 3.5 years".
In addition, Judge Spaan did not make any decision as to whether the terms
of the plea agreement were acceptable to the court. Under Alaska Criminal Rule 11(e),
a court is required to affirmatively accept or reject a plea agreement, either at the time
6 See United States v. Kerdachi , 756 F.2d 349, 352 (5th Cir. 1985) ("When it became
apparent that a plea agreement was involved in [the defendant's] entry of a guilty plea, the
trial court was obliged to become informed as to all of the material terms of the agreement,
after which the court was required to determine on the record that [the defendant] had an
adequate understanding of those terms. A guilty plea is not voluntary if it is based on a
misapprehension of a significant term of a plea agreement.").
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----------------------- Page 5-----------------------
the terms of the agreement are disclosed to the court or later, after the court has read the
pre-sentence report - but in any event, before the court sentences the defendant.
In Ghosh's case, Judge Spaan ordered a full pre-sentence report, and he
expressly deferred any decision on whether to accept the plea agreement - apparently
believing that it was better to have Judge Volland make this decision.
Ghosh's sentencing in front of Judge Volland did not take place until
almost eight months later, on July 29, 2015.
In the State's pre-sentencing memorandum, the prosecutor asked the court
to sentence Ghosh to 10 years' imprisonment with 6 ½ years suspended - in other
words, 3 ½ years to serve plus a substantial amount of suspended jail time. Ghosh's
attorney filed a responsive sentencing memorandum one week later, but the defense
attorney never objected to the prosecutor's proposed sentence as being outside the
sentencing range permitted by the plea agreement.
Similarly, during the sentencing hearing itself, the prosecutor explicitly
asked Judge Volland to impose a sentence of 3 ½ years to serve plus suspended time.
Ghosh's attorney did not object.
After the prosecutor finished his sentencing remarks, the defense attorney
delivered his own sentencing argument - an extensive presentation totaling almost 50
minutes. But during his sentencing argument, the defense attorney never objected to the
prosecutor's proposed sentence as being outside the plea agreement.
After theattorneys had deliveredtheirsentencingarguments,JudgeVolland
7
engaged in a lengthy analysis of the Chaney sentencing criteria,
and he also examined
a number of this Court's prior cases dealing with sentencing for white-collar crimes. The
7 That is, the sentencing criteria now codified in AS 12.55.005, but originally
announced in State v. Chaney, 477 P.2d 441 (Alaska 1970).
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judge ultimately sentenced Ghosh to 7 years' imprisonment with 3 ½ years suspended -
in other words, 3 ½ years to serve plus another 3 ½ years suspended.
Again, Ghosh's attorney did not object to this sentence as being outside the
sentencing range specified in the plea agreement.
However, a few minutes later, while the parties were still in court, Ghosh's
attorney asked Judge Volland if he had decided to accept the terms of the plea agreement
between Ghosh and the State. Judge Volland was surprised by the defense attorney's
question:
Defense Attorney : Your Honor, I need to ask: Did
you accept the terms of ... the Rule 11 plea agreement? It
says, "This plea agreement, if accept[ed] by the Court, ... "
I never did hear you say [whether] you accepted it or not.
The Court
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In his argument to this Court, Ghosh repeatedly emphasizes the fact that,
after Judge Volland imposed Ghosh's sentence, Ghosh's defense attorney asked the
judge if he accepted the plea agreement, and Judge Volland declared that he did accept
the plea agreement. Ghosh essentially takes the position that Judge Volland uttered
magic words when the judge declared that he accepted the plea agreement - words that
retroactively bound Judge Volland to Ghosh's interpretation of the plea agreement, thus
invalidating the sentence that Judge Volland had just pronounced, and obligating the
judge to impose a new, lesser sentence.
But it is clear from the record that, when Judge Volland declared that he
accepted the plea agreement, the judge said so because he thought that the plea
agreement authorized the sentence he had just imposed: 7 years' imprisonment with
3 ½ years suspended.
As shown by Judge Volland's contemporaneous statements on the record,
the judge believed that the phrase "jail range" referred to the time-to-serve component
of Ghosh's sentence - and that a sentence of 7 years with 3 ½ suspended was within the
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