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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
NICK A. FRANKSON,
Court of Appeals No. A-13690
Petitioner, Trial Court Nos. 2KB-18-00529 CR,
2KB-19-00373 CR, & 2KB-19-00374 CR
v.
O P I N I O N
STATE OF ALASKA,
Respondent. No. 2732 - September 16, 2022
Petition for Review from the Superior Court, Second Judicial
District, Kotzebue, Paul A. Roetman, Judge.
Appearances: Renee McFarland (petition), and Claire F.
DeWitte, (briefing and argument), Assistant Public Defenders,
and Samantha Cherot, Public Defender, Anchorage, for the
Petitioner. Hazel C. Blum, Assistant Attorney General, Office
of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney
General, Juneau, for the Respondent.
Before: Allard, Chief Judge, and Wollenberg and Harbison,
Judges.
Judge ALLARD.
In this petition for review, we are asked to decide whether a trial court may
sua sponte consider non- Blakely aggravating factors when evaluating whether to accept
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1
or reject a sentencing agreement under Alaska Criminal Rule 11. (A non- Blakely
aggravating factor is a statutory aggravating factor based on a defendant's prior
convictions that can be found by a judge and does not require a jury finding beyond a
2
reasonable doubt. )
For the reasons explained in this opinion, we conclude that, just as a trial
court has the authority to consider a mitigating factor when evaluating whether to reject
a sentencing agreement as too severe, a trial court has the authority to consider a non-
Blakely aggravating factor when evaluating whether to reject a sentencing agreement as
3
too lenient.
We further conclude that, while the decision of whether to accept or reject
a sentencing agreement rests in the sound discretion of the trial court after consideration
4
there are additional factors that a trial court should consider if
of the Chaney criteria,
re brought to the court's attention. These factors include, but are not limited to:
they a
(1) evidentiary and witness issues; (2) the victim's wishes; (3) resource limitations; and
(4) relevant circumstances beyond the parties' control (such as the COVID-19
pandemic).
Lastly, we hold that when a trial court rejects a sentencing agreement as
either too severe or too lenient, the court is required to follow the procedures outlined in
Criminal Rule 11(e)(3) and to place its reasons for rejecting the sentencing agreement
on the record for the benefit of the parties and any appellate review.
1 See Alaska R. Crim. P. 11(e)(1).
2 See Blakely v. Washington, 542 U.S. 296, 301-02 (2004).
3 See Alaska R. Crim. P. 11(e)(3) (describing the procedures for when a trial court
rejects a sentencing agreement as too severe or too lenient).
4 AS 12.55.005; State v. Chaney, 477 P.2d 441, 444 (Alaska 1970).
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----------------------- Page 3-----------------------
Background facts
In July 2018, Officers Gary Moore and Aaron Grimes were dispatched to
a residence in Point Hope after receiving a report that Nick A. Frankson was intoxicated
and might have discharged a firearm. When the officers arrived on the scene, they
observed Frankson holding a rifle inside the residence with the door open. The officers
drew their guns as Frankson raised the rifle towards Officer Moore. Officer Moore fired
one round at Frankson, who closed the door. A few minutes later, Frankson left the
residence and fled on foot. Officer Grimes followed Frankson until he surrendered.
Once in the patrol car, Frankson began kicking the car door. Officer
Grimes opened the doors to prevent damage, and Frankson kicked at Officer Grimes's
face. A breath test revealed that Frankson had a blood alcohol content of 0.133 percent.
The officers later observed "two spent .223 shell casings near the front
door" of the residence and received a report from a neighbor of shots being fired in the
area prior to the officers' arrival. The affidavit accompanying the complaint stated that
"due to the layout of the neighborhood there is no position in which a gun could be fired
without being in the direction of a building or dwelling."
Frankson was ultimately indicted on one count of second-degree
misconduct involving weapons (knowingly discharging a firearm at or in the direction
5
of a dwelling)
and two counts of third-degree assault (recklessly placing another person
6
in fear of imminent serious physical injury by means of a dangerous instrument).
The parties then entered into a plea agreement in which Frankson agreed
to plead guilty to one count of third-degree assault in exchange for dismissal of the other
counts. As part of the plea agreement, Frankson agreed to stipulate to three aggravating
5 AS 11.61.195(a)(3)(B).
6 AS 11.41.220(a)(1)(A).
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factors - AS 12.55.155(c)(8) ("defendant's prior criminal history includes conduct
involving . . . repeated instances of assaultive behavior"); AS 12.55.155(c)(13)
("defendant knowingly directed the conduct constituting the offense at . . . [a] law
enforcement officer"); and AS 12.55.155(c)(19) ("defendant's prior criminal history
includes an adjudication as a delinquent for conduct that would have been a felony if
committed by an adult").
Although Frankson had an extensiveprior history ofmisdemeanorassaults,
Frankson qualified as a first felony offender and faced a presumptive sentence of 0 to 2
7
years if no aggravating factors applied.
However, with the aggravators, Frankson could
be sentenced up to a maximum of 5 years. The parties agreed upon a sentence of 5 years
with 4 years suspended (1 year to serve) as part of their plea agreement.
In April 2019, the superior court accepted Frankson's plea of guilty and
ordered a presentence report, deferring the question of whether it accepted the parties'
8
sentence agreement until sentencing.
Prior to sentencing, while on bail release, Frankson was arrested for
allegedly making homebrew, punching his nephew and another man, and threatening the
two men with a whaling tool. Frankson was charged with five felonies and five
misdemeanors: one count of trafficking in liquor without a license or permit in a local
7 See AS 12.55.125(e)(1). The record shows that Frankson was convicted of a felony
offense in 2006, but the parties agreed that this conviction was outside the statutory look-
back period for prior felonies and therefore did not serve to increase the presumptive
sentencing range. See AS 12.55.145 (defining when prior felony convictions can be
considered).
8 See Alaska R. Crim. P. 11(e)(1) ("If the parties reach a sentencing agreement, the
court shall require disclosure of the agreement in open court at the time the plea is offered.
Once the agreement has been disclosed, the court may accept or reject the agreement, or may
defer that decision until receipt of a presentence report. If the court accepts the agreement,
the court may impose sentence without a presentence investigation.").
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9 10 11
option area, four counts of third-degree assault, two counts of fourth-degree assault,
12
and three counts of violating his conditions of release.
Frankson was separately charged in a third case with violating conditions
of release for contacting one of the witnesses from the original weapons misconduct
13
case.
The parties subsequently changed their plea agreement to resolve all three
cases through a global plea agreement. Under the new agreement, Frankson's guilty plea
to the third-degree assault charge in the first case would remain, and he would serve 600
days of imprisonment for that conviction. With regard to the second case, Frankson
agreed to plead guilty to one count of fourth-degree assault and to serve 120 days of
imprisonment consecutive to the term of imprisonment on the third-degree assault
conviction, for a total composite sentence of 720 days. In exchange, the State agreed to
dismiss the remaining counts from the second case and to dismiss the third case in its
entirety.
In January 2020, the superior court accepted Frankson's guilty pleas and
set the matter for a sentencing hearing. The court held the sentencing hearing in March
2020. At the hearing, Officer Moore objected to the plea agreement as too lenient,
asserting that Frankson was dangerous. The probation officer who authored the
presentence report also objected to the plea agreement as too lenient.
9 AS 04.11.010(a).
10 AS 11.41.220(a)(1)(A), (a)(5).
11 AS 11.41.230(a)(1).
12 AS 11.56.757(a).
13 Id.
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----------------------- Page 6-----------------------
Frankson and the State defended the plea agreement, explaining that all
three cases had serious evidentiary issues. The parties also indicated that the grand jury
indictment in the original weapons misconduct case had been difficult to obtain.
The court questioned the parties as to whether the global plea agreement
included the stipulated aggravating factors that had been part of the original agreement.
Frankson asserted that it did not; the State asserted that it did. The court continued the
sentencing hearing to allow the parties to submit briefing.
The State then filed a notice that it was withdrawing its offer on the ground
that there had been no meeting of the minds regarding whether the aggravating factors
applied. Frankson moved to enforce the plea agreement. The superior court granted
Frankson's motion to enforce the plea agreement, finding that the original stipulation to
the aggravating factors was not part of the new global plea agreement. However, the
superior court also ruled that it had the authority to sua sponte consider any non-Blakely
aggravators established by the record in evaluating whether to accept or reject the
sentencing agreement.
At the continued sentencing hearing, Frankson argued that the superior
court had no authority to consider any non-Blakely aggravators and that the sentencing
agreement should therefore be evaluated based on the assumption that the maximum
sentence Frankson could receive on the third-degree assault charge was 2 years. The
State disagreed. The State pointed out that there was a non-Blakely aggravator that could
be found based on Frankson's prior misdemeanor assault convictions -
AS 12.55.155(c)(8) ("defendant's prior criminal history includes conduct involving . . .
repeated instances of assaultive behavior"). And the State argued that the court should
therefore evaluate the sentencing agreement based on the 5-year maximum that could
theoretically be imposed given the existence of this aggravator.
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----------------------- Page 7-----------------------
The superior court agreed with the State. The court further reasoned that,
having found the non- Blakely aggravator based on Frankson's prior convictions, it could
also consider the Blakely aggravator under AS 12.55.155(c)(13) - "defendant
knowingly directed the conduct constituting the offense at . . . [a] law enforcement
officer." The court then announced that it was rejecting the sentencing agreement as too
lenient in light of these aggravating factors.
Frankson petitioned this Court for interlocutory review, arguing that it was
error for the superior court to consider a non- Blakely aggravator when evaluating the
reasonableness of the sentencing agreement given that there was no agreement between
the parties regarding that aggravator.
We granted the petition and ordered briefing on two questions: (1) whether
a sentencing court may sua sponte consider non-Blakely aggravating factors when
evaluating a sentencing agreement under Alaska Criminal Rule 11; and (2) whether a
sentencing court should apply the "clearly mistaken" standard used to review a sentence
on appeal when deciding whether to accept or reject a sentencing agreement.
Background information on Alaska's presumptive sentencing scheme
In order to address the legal questions raised by this case, we must first
provide some background information about Alaska's presumptive sentencing scheme
and the effect that the United States Supreme Court's 2004 case Blakely v. Washington
had on that scheme. 14
In 1978, the Alaska legislature enacted a presumptive sentencing scheme
for most felony convictions, with the intended purpose of "eliminating disparity in the
sentencing of similarly situated offenders and making criminal sentencing a predictable,
14 Blakely v. Washington, 542 U.S. 296 (2004).
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----------------------- Page 8-----------------------
15
internally consistent process." Under this "relatively inflexible" scheme, a defendant's
presumptive felony sentence was determined by (1) the level of the defendant's offense
16
and (2) the defendant's prior felony convictions.
Certain felony offenses, such as
murder and kidnapping, were placed outside the presumptive sentencing scheme and
17
The remainder of the felony offenses were
designated as "unclassified" felonies.
18
divided into three classes (A, B, and C) - with class A felonies being the most serious.
Defendants were also classified based on their criminal history, with first felony
offenders having no prior felony convictions, second felony offenders having one prior
felony conviction, and third felony offenders having two or more prior felony
19
convictions.
Thus, under the scheme, a defendant convicted of a class A felony would
face a higher presumptive sentence than a defendant convicted of a class B or class C
felony. Likewise, a defendant with prior felony convictions would face a higher
15 Juneby v. State , 641 P.2d 823, 829-30 (Alaska App. 1982), modified on other grounds,
665 P.2d 30 (Alaska App. 1983); see SLA 1978, ch. 166, § 12; AS 12.55.005. Prior to 1978,
the Alaska legislature commissioned a number of studies on sentencing patterns in Alaska.
These studies revealed disparities in sentencing based on race and the identity of the judge.
See, e.g., Beverly Cutler, Sentencing in Alaska: A Description of the Process and Summary
of Statistical Data for 1973, at 176 (1975) (concluding that "disparities of such great
proportion as noted [in this study], especially among racial groups, suggests strongly an
anomalous influence in the sentencing process that warrants careful follow-up
investigation"); Alaska Judicial Council, Alaska Felony Sentencing Patterns: A Multivariate
Statistical Analysis (1974-1976), at iii-iv (1977) (finding that the strictness or leniency of the
individual sentencing judge was an important determinant of the length of a sentence).
16 Juneby , 641 P.2d at 830-33.
17 SLA 1978, ch. 166, §§ 3, 10, 12.
18 SLA 1978, ch. 166, § 10.
19 SLA 1978, ch. 166, § 12; see AS 12.55.125.
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----------------------- Page 9-----------------------
presumptive sentence than a defendant convicted of the same offense who did not have
any prior felony convictions.
As originally enacted, Alaska's presumptive sentencing scheme used
presumptive terms - i.e., a set term of imprisonment for each defendant based on the
20
level of offense and the defendant's prior felony convictions. For the most part, the
presumptive terms were "intended as appropriate for imposition in most cases, without
21
significant upward or downward adjustment." But the legislature also created statutory
factors in aggravation and mitigation that gave the sentencing court the authority to
impose additional active or suspended time over the presumptive term or to impose a
22
sentence below the presumptive term, as appropriate. These statutory aggravating and
20 SLA 1978, ch. 166, § 12. In fact, the 1978 law only created "presumptive terms" for
second and third felony offenders, as courts retained broader discretion for sentencing first
felony o ffenders (except for some serious offenses or when the offender used a firearm or
caused serious physical injury). Id. ; see Juneby, 641 P.2d at 830-31. However, this
distinction is not significant for our purposes and has since been eradicated by later
legislation. See, e.g., AS 12.55.125(c)(1).
21 Juneby , 641 P.2d at 833.
22 SLA 1978, ch. 166, § 12; see AS 12.55.155 (factors in aggravation and mitigation);
Juneby , 641 P.2d at 831 (noting that AS 12.55.155 "allows a sentencing judge to adjust a
presumptive term upward or downward based on a finding of aggravating or mitigating
factors"). The legislature also authorized sentencing courts, in extraordinary cases, to refer
a presumptive sentencing case to a three-judge sentencing panel based on a non-statutory
mitigating or aggravating factor or manifest injustice. SLA 1978, ch. 166, § 12; see
AS 12.55.165 (defining extraordinary circumstances); AS 12.55.175 (providing procedures
for three-judge sentencing panel); Dancer v. State, 715 P.2d 1174, 1177 (Alaska App. 1986)
(explaining that the legislature intended AS 12.55.165 to establish two separate bases for
referral of a case to a three-judge sentencing panel).
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----------------------- Page 10-----------------------
mitigating factors had to be proved by clear and convincing evidence and found by the
23
judge.
Trialcourts were nevertheless cautioned to take a "measured andrestrained
approach" in adjusting sentences to accommodate aggravating and mitigating factors so
as to ensure that the overall goal of eliminating disparity and achieving some measure
24
of uniformity was maintained.
Alaska Criminal Rule 32.1 governs the procedures for litigating a statutory
25
aggravator or mitigator to the trial court. As a general matter, the State is required to
give notice prior to the sentencing hearing of any aggravators it intends to argue at
26
sentencing.
The defendant likewise must give notice of any proposed mitigators prior
27
The rule requires the court to then give the parties the
to the sentencing hearing.
opportunity to present evidence and arguments regarding the proposed aggravators or
23 SLA 1978, ch. 166, § 12 (creating AS 12.55.155(f)).
24 Juneby , 641 P.2d at 833 ("Unless the provisions of AS 12.55.155 are adhered to
strictly, and unless a measured and restrained approach is taken in the adjustment of
presumptive sentences for both aggravating and mitigating factors, then the prospect of
attaining the statutory goal of uniform treatment for similarly situated offenders would
quickly be eroded, the potential for irrational disparity in sentencing would threaten to
become reality, and the revised code's carefully fashioned system of escalating penalties for
repeat offenders would be rendered utterly ineffective.").
25 See also AS 12.55.155(f) (setting forth procedures for both Blakely and non-Blakely
aggravators).
26
See Alaska R. Crim. P. 32.1(c) (requiring notice seven days after receipt of the
presentence report or at least thirty days prior to sentencing if no report is ordered). But see
AS 12.55.155(f)(1) (stating that written notice of non-Blakely aggravators must be filed "not
later than 10 days before the date set for imposition of sentence"); AS 12.55.155(f)(2)
(setting pretrial or pre-guilty plea notice requirements for Blakely aggravators).
27
Alaska R. Crim. P. 32.1(d) (requiring defendant to give notice of proposed mitigating
factors within seven days after the State's notice of aggravating factors).
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28
mitigators. Notably, the rule grants trial courts the discretion not to enter any findings
on a disputed aggravator or mitigator if the court "affirmatively determines that
29
resolution of a disputed factor . . . is immaterial to the imposition of a just sentence."
In a 1982 case, Hartley v. State, this Court addressed the question of
ourt could sua sponte find a statutory aggravating factor that had not
whether a trial c
30
been raised or argued by the State.
Hartley involved a defendant who was convicted,
31
Hartley proposed
following a jury trial, of first-degree sexual assault and burglary.
three mitigating factors which were rejected by the trial court. The State opposed the
mitigating factors but did not file notice of any aggravating factors. At sentencing, the
prosecutor indicated that the State would be satisfied with the presumptive term. The
trial court nevertheless sua sponte found an aggravating factor and sentenced Hartley to
32
a sentence above the presumptive term.
Hartley appealed, arguing that the trial court had no authority to find a
statutory aggravating factor that the State had not raised or argued. According to
Hartley, an aggravating factor was akin to a criminal charge, and therefore only the State
33
had the power to decide whether an aggravating factor should apply to a given case.
This Court disagreed that statutory aggravating factors fell within the
State's charging authority. Instead, we held that statutory aggravating factors fell within
28 Alaska R. Crim. P. 32.1(f).
29 Alaska R. Crim. P. 32.1(f)(2).
30 Hartley v. State, 653 P.2d 1052, 1056 (Alaska App. 1982).
31 Id. at 1053.
32 Id. at 1055.
33 Id. at 1056.
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34
the court's sentencing authority. We noted that the Alaska legislature had enacted a
presumptive sentencing scheme with the stated intention of increasing uniformity in
35
sentencing and eliminating unjustified disparities.
And we reasoned that to allow the
parties to ignore aggravating and mitigating factors suggested by the evidence at trial or
disclosed in a presentence report would be contrary to that legislative intent. We
therefore held that the trial court had the authority to sua sponte alert the parties to
possible aggravating and mitigating factors present in the record as long as the parties
36
were given an adequate opportunity to argue for or against those factors. Because the
parties had not been given an opportunity to respond to the trial court's sua sponte
application of a statutory aggravating factor in Hartley's case, we remanded the case to
37
the trial court to provide them with that opportunity.
The Hartley rule that a trial court has the authority to sua sponte consider
statutory aggravating and mitigating factors that were not raised by the parties remained
good law in Alaska until 2004, when the United States Supreme Court decided Blakely
38
v. Washington. In Blakely, the Supreme Court held that the Sixth Amendment right to
a jury trial prohibits judges from enhancing maximum sentences based on facts other
than those facts decided by a jury beyond a reasonable doubt, conceded by the defendant,
39
or based on the defendant's prior convictions.
34 Id.
35 Id.
36 Id.
37 Id.
38 Blakely v. Washington, 542 U.S. 296 (2004).
39 Id. at 301-04.
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In response to Blakely, the 2005 Alaska legislature revised Alaska's
presumptive sentencing laws in two substantive ways. 40 First, the legislature replaced
the previous presumptive terms with presumptive ranges, with the former presumptive
41
In doing so, the legislature made clear
term serving as the low-end of the new range.
that its intent was to restore judicial sentencing discretion that had been "unduly
constrain[ed]" by Blakely; it was "not . . . to bring about an overall increase in the
42
amount of active imprisonment for felony sentences."
Second, the legislature created two classes of aggravating factors:
(1) aggravating factors that could be proved to a judge, sitting without a jury, by clear
43
and convincing evidence, and (2) aggravating factors that had to be proved to a jury
44
beyond a reasonable doubt. The first set of aggravating factors - those that can be
proved to a judge and found by clear and convincing evidence - are those aggravators
that are based on a defendant's prior convictions and are referred to as "non-Blakely
aggravators" because they do not implicate the Sixth Amendment jury trial right
45
recognized in Blakely. The second set of aggravating factors - those that must be
40 SLA 2005, ch. 2, § 1.
41 SLA 2005, ch. 2, §§ 9-14.
42 SLA 2005, ch. 2, § 1 ("Although the presumptive terms are being replaced by
presumptive ranges, it is not the intent of this Act in doing so to bring about an overall
increase in the amount of active imprisonment for felony sentences. Rather, this Act is
intended to give judges the authority to impose an appropriate sentence, with an appropriate
amount of probation supervision, by taking into account the consideration set out in
AS 12.55.005 and 12.55.015.").
43 SLA 2005, ch. 2, § 21; see AS 12.55.155(f)(1).
44 SLA 2005, ch. 2, § 21; see AS 12.55.155(f)(2).
45 See AS 12.55.155(f)(1); Blakely v. Washington, 542 U.S. 296, 301-02 (2004)
(continued...)
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----------------------- Page 14-----------------------
proved to a jury beyond a reasonable doubt - are referred to as " Blakely aggravators"
46
because they do implicate a defendant's Sixth Amendment right to a jury trial.
As this Court subsequently recognized in Alexiadis v. State , the distinction
between Blakely and non-Blakely aggravators has significant repercussions for a trial
47
court's sentencing authority.
Alexiadis involved a trial court's rejection of a sentencing agreement in
48
which the parties agreed that no aggravating factors would be argued. The defendant
in Alexiadis pleaded guilty, pursuant to a partial plea agreement, to a consolidated count
of second-degree assault for injuring his infant son. As part of the partial plea
agreement, the defendant agreed not to argue any mitigating factors or to seek referral
to the three-judge sentencing panel. The State also agreed not to pursue any aggravating
factors. Sentencing was otherwise left open to the court. Because the parties agreed that
49
no aggravators would apply, the defendant faced a presumptive range of 1 to 3 years.
The superior court rejected the parties' agreement as too lenient because it
found that there were two Blakely aggravators - AS 12.55.155(c)(5) (particularly
vulnerable victim) and AS 12.55.155(c)(18)(A) (offense committed against a member
of the same social unit) - that clearly applied and would give the court the authority to
sentence the defendant to more than 3 years to serve if they had been found. The
45 (...continued)
(holding that trial courts can rely on prior convictions); see also Apprendi v. New Jersey, 530
U.S. 466, 488-90 (2000) (explaining that prior convictions have sufficient procedural
safeguards because they had to be proved to a jury beyond a reasonable doubt).
46 See AS 12.55.155(f)(2).
47 Alexiadis v. State , 355 P.3d 570, 572-73 (Alaska App. 2015).
48 Id. at 571.
49 Id.
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defendant filed a petition for review in this Court, challenging the rejection of their
agreement and arguing that whether to pursue a Blakely aggravator was a charging
50
decision entrusted to the sole discretion of the prosecuting authority.
The State agreed.
51
In our decision, we noted the
We reversed the superior court's decision.
difference between a "sentencing agreement" - i.e., an agreement that "limits the
court's sentencing authority for a particular charge or set of charges" - and a "charge
agreement" - i.e., an agreement that "specifies the charges to which the defendant will
52
plead guilty" often in exchange for the dismissal of other charges. And we noted that
Alaska Criminal Rule 11(e) only grants trial courts the authority to reject sentencing
53
agreements; it does not grant trial courts any authority to reject charge agreements.
We then reasoned that because prosecutors were now required to prove the
underlying facts of a Blakely aggravator to a jury beyond a reasonable doubt, the
50 Id.
51 Id. at 573.
52 Id.
53 Id. ; see also Alaska R. Crim. P. 11(e) (referring only to "sentencing agreements").
As we noted in Alexiadis ,
[A] previous version of Rule 11(e) granted courts the authority to reject charge
agreements as well as sentencing agreements, but the rule was quickly
amended to delete the reference to charge agreements. A memorandum
written by the court rules attorney to the supreme court explained that the
Criminal Rules Committee viewed this amendment as a "correction" -
because under Alaska law, "a judge has no authority to disapprove a charge
agreement."
Alexiadis , 355 P.3d at 573 (citing Supreme Court Order No. 1194 (July 15, 1995) and
quoting Memorandum to the Alaska Supreme Court from Court Rules Attorney Christine
Johnson (Aug. 3, 1995)).
- 15 - 2732
----------------------- Page 16-----------------------
decision of whether to pursue a Blakely aggravator was akin to a charging decision over
which the court had no authority.54
We therefore concluded that, just as the trial court
had no authority to reject the parties' charge agreement and force the State to go to trial
on the dismissed charges, the trial court also had no authority to reject the parties'
agreement that the State would not litigate the Blakely aggravators and force the
55
prosecutor to litigate those Blakely aggravators. In other words, there was no basis for
rejecting the agreement as too lenient because the court had no authority to sentence the
defendant above the 1 to 3 years sentencing range that otherwise applied to the
agreement.
Our decision in Alexiadis did not directly address the status of non-Blakely
aggravators because the defendant in that case did not have any prior convictions, and
there were accordingly no non-Blakely aggravators that could have applied. However,
in dicta, we suggested that our reasoning in Hartley remained sound as to non-Blakely
aggravators and that a trial court consequently retained the authority to sua sponte
consider a non-Blakely aggravator when deciding whether to accept or reject a
56
sentencing agreement as too lenient.
The arguments in the current case
On appeal, Frankson agrees that trial courts have the authority to sua sponte
consider a non-Blakely aggravator when sentencing a defendant after trial or pursuant
54 Alexiadis , 355 P.3d at 573.
55 Id.
56 Id. at 572 ("Our reasoning in Hartley remains sound as applied to aggravating factors
that do not require a jury trial under Blakely - aggravating factors that are based on the
defendant's prior convictions, or on facts necessarily encompassed by the jury's verdicts, or
on facts expressly conceded by the defendant.").
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----------------------- Page 17-----------------------
to a plea agreement that allows open sentencing. But he argues that trial courts have no
authority to consider non- Blakely aggravators when evaluating a "complete" or "closed"
Rule 11 agreement - that is, an agreement where the parties have agreed to a particular
sentence. According to Frankson, when the parties agree to a sentence within the
presumptive range, the trial court is bound by the State's agreement not to pursue any
aggravators, and the court thereforehas noauthority toconsider non- Blakely aggravators
that might apply when evaluating whether to accept or reject the agreed-upon sentence.
But Frankson's position is contrary to principles of separation of powers
and the history of plea bargaining under Alaska law. As we explained in Alexiadis , the
distinction between sentencing agreements and charge agreements is grounded in the
57
constitutional separation of powers doctrine.
As a general matter, the executive branch
has the sole authority to decide whether to bring criminal charges and what criminal
58
charges to bring. In contrast, sentencing is primarily considered a judicial function,
59
subject to the parameters and guidelines created by the legislature.
57 Id. at 572-73.
58 Id. ; see also State v. Carlson, 555 P.2d 269, 271-72 (Alaska 1976) (holding that trial
court had no authority to accept defendant's plea to manslaughter over prosecutor's objection
where defendant had been charged with first- and second-degree murder because accepting
such a plea was "in effect ordering the district attorney not to prosecute the murder charge
against [the defendant]"); Pub. Def. Agency v. Superior Ct., 534 P.2d 947, 950-51 (Alaska
1975) (holding that trial court's order directing the Attorney General to prosecute a civil
action for child support violated the separation of powers because the decision whether to
prosecute a case was committed to the discretion of the executive branch and not subject to
judicial control or review); State v. Dist. Ct., 53 P.3d 629, 634 (Alaska App. 2002) (holding
that the district court had no authority to reject the plea bargain between the State and the
defendant on the basis that the State could have proved a more serious charge against the
defendant).
59 Rust v. State, 582 P.2d 134, 136-37 (Alaska 1978); see also United States v.
(continued...)
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----------------------- Page 18-----------------------
Under Alaska law, prosecutors additionally have full authority to dismiss
60
charges that have already been filed and they are not required to seek court approval.
Thus, as already discussed, courts in Alaska have no authority to reject
61
And the criminal rule that governs the acceptance or rejection of
charge agreements.
plea agreements, Rule 11(e), is limited to the presentation and evaluation of sentencing
agreements, over which the courts do have authority.
Alaska Criminal Rule 11(e)(1) provides, "If the parties reach a sentencing
agreement, the court shall require disclosure of the agreement in open court at the time
the plea is offered." Once the sentencing agreement has been disclosed, the trial court
"may accept or reject the agreement, or may defer that decision until receipt of a
59 (...continued)
Ammidown , 497 F.2d 615, 621 (D.C. Cir. 1973) ("It is axiomatic that, within the limits
imposed by the legislature, imposition of sentence is a matter for discretion of the trial
judge."); People v. Farrar, 419 N.E.2d 864, 866 (N.Y. 1981) ("The propriety of sentence
bargaining notwithstanding, neither the prosecutor nor the court may ignore that the ultimate
determination of an appropriate sentence is to be made by the court.").
60 See Alaska R. Crim. P. 43(a). In many jurisdictions, the criminal rules require a
prosecutor to obtain "leave of court" before dismissing charges that have already been filed.
See, e.g., Fed. R. Crim. P. 48(a); Ga. Code Ann. § 17-8-3 (1989); Tenn. R. Crim. P. 48(a);
W. Va. R. Crim. P. 48(a); Tex. Code Crim. P. Ann. art. 32.02 (1966).
61 However, courts in many other jurisdictions have the authority to reject charge
agreements, notwithstanding the separation of power concerns. See, e.g., United States v.
Torres-Echavarria, 129 F.3d 692, 697 (2d Cir. 1997) ("[A] prosecutor's proposal to dismiss
a claim . . . in consideration of a plea of guilty to some other offense . . . implicates core
judicial functions. In such a case, the court's adjudicatory and sentencing responsibilities
justify active scrutiny of the plea agreement[.]"); State v. Montiel, 122 P.3d 571, 580 (Utah
2005) ("Even though a 'plea bargain [may be] cast in the form of a dismissal of [a] count,
[its] effect [is] to limit the sentence available;' thus, 'the district judge [may] properly
exercise[ ] reasonable discretion in rejecting the plea bargain.'" (quoting United States v.
Carrigan, 778 F.2d 1454, 1463 (10th Cir. 1985))).
- 18 - 2732
----------------------- Page 19-----------------------
62
presentence report." If the court accepts the sentencing agreement, then "the court shall
63
impose sentence in accordance with the terms of that agreement."
If the court rejects
the sentencing agreement, then the following procedures apply:
[T]he court shall inform the parties of this fact and advise the
prosecuting attorney and the defendant personally in open
court that the court is not bound by the agreement. If the
court rejects the agreement as too lenient, the court shall then
afford the defendant the opportunity to withdraw the plea. If
the court rejects the agreement as too severe, the court shall
then afford the prosecuting attorney the opportunity to
[64]
withdraw from the agreement.
In other words, a trial court's rejection of a sentencing agreement as too lenient does not
mean that the other parts of the plea agreement - i.e., the charge agreement and any
agreement about Blakely aggravators - automatically go away. Instead, the defendant
must be given the choice to either withdraw their plea or to move forward with open
sentencing under the remaining terms of the plea agreement. Likewise, the prosecutor
must be given the opportunity to withdraw from the sentencing agreement if the trial
65
court rejects the agreement as too severe.
62 Alaska R. Crim. P. 11(e)(1).
63 Alaska R. Crim. P. 11(e)(2).
64 Alaska R. Crim. P. 11(e)(3).
65 The party that has not been prejudiced by the court's rejection of the sentencing
agreement is not entitled to withdraw from the agreement. Thus, when the court rejects the
sentencing agreement as too lenient, the State maynot automaticallywithdraw from the other
parts of the plea agreement. The defendant is entitled to withdraw their plea under these
circumstances, but the State has not been prejudiced if the defendant chooses to maintain
their plea and proceed to open sentencing; the only difference to the State is that the
defendant would likely receive a higher sentence than what the State bargained for. In
(continued...)
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----------------------- Page 20-----------------------
But in order to properly evaluate the severity or leniency of a sentencing
agreement, the trial court must know the breadth of its sentencing authority in light of
the other parts of the agreement that it has no authority to reject - i.e., in light of the
charge agreement and any agreement about Blakely aggravators. In other words, the trial
court must know what sentencing range would apply if the agreed-upon sentence was
rejected and the parties nevertheless proceeded to open sentencing under the remaining
terms of the agreement. (The parties also need to know what that sentencing range
would be so that they can make an informed decision about whether to withdraw from
the plea or proceed to open sentencing if the sentencing agreement is rejected as either
too severe or too lenient.)
Prior to Blakely, it was clear that the trial court had the authority to sua
sponte consider any aggravating factors that might apply when evaluating whether to
reject a sentencing agreement as too lenient. But post- Blakely, the trial court no longer
has the authority to consider those Blakely aggravators that must be tried to a jury and
found beyond a reasonable doubt. Instead, as Alexiadis explained, those Blakely
aggravators are now akin to charging decisions over which the trial court has no
66
authority under Alaska law.
Frankson argues that non-Blakely aggravators should be treated the same
as Blakely aggravators, and a court should therefore not be allowed to consider non-
Blakely aggravators when evaluating a sentencing agreement in which the parties have
65 (...continued)
contrast, when a trial court rejects a sentencing agreement as too severe, the State has been
deprived of its bargained-for exchange and the entire plea agreement is affected. In that case,
the State is entitled to withdraw from the plea agreement as a whole. See Alaska R. Crim.
P. 11(e)(3).
66 Alexiadis v. State , 355 P.3d 570, 572-73 (Alaska App. 2015).
- 20 - 2732
----------------------- Page 21-----------------------
agreed to a non-aggravated sentence. But Blakely did not affect the trial court's authority
to find aggravators that are based on prior convictions, and we perceive no reason why
the court's traditional sentencing authority should be curtailed in this manner.
Aggravating and mitigating factors have historically been treated as sentencing matters,
and the fact that Blakely aggravators are now more akin to charging decisions does not
mean that non- Blakely aggravators should be treated differently than they have been
treated in the past.
We therefore hold that a trial court may consider a non- Blakely aggravator
when evaluating whether to accept or reject a sentencing agreement as too lenient even
if the parties have specifically agreed to a sentence within the presumptive range and no
67
aggravators have been raised or argued.
Accordingly, we find no error in the superior
court's consideration of an applicable non-Blakely aggravator when evaluating whether
to accept or reject the agreed-upon sentence in this case. We additionally find no error
in the superior court's consideration of a Blakely aggravator once the non-Blakely
68
aggravator (and the enhanced sentencing range it would authorize) was established.
We now turn to the second question raised by this petition, which is what
factors a trial court should consider when deciding whether to accept or reject a
67 We note, however, that the mere existence of a non-Blakely aggravator does not
necessarily mean that a sentence within the presumptive range is too lenient. In order to
ensure the overall legislative goal of eliminating disparity and achieving some measure of
uniformity in felony sentencing, courts should continue to take a "measured and restrained
approach" in adjusting sentences to accommodate aggravating and mitigating factors. See
Juneby v. State , 641 P.2d 823, 833 (Alaska App. 1982), modified on other grounds, 665 P.2d
30 (Alaska App. 1983).
68 See Cleveland v. State, 143 P.3d 977, 988 (Alaska App. 2006) (holding that Blakely
aggravators could be considered once court had found a non-Blakely aggravator based on the
defendant's prior convictions because court's sentencing authority remained the same).
- 21 - 2732
----------------------- Page 22-----------------------
sentencing agreement and whether a trial court should use a "clearly mistaken" standard
of review when evaluating the reasonableness of an agreed-upon sentence.
The parties' arguments regarding the factors that a trial court should
consider and the standard that should be used when evaluating a
sentencing agreement
Although Alaska Criminal Rule 11(e) sets out procedures for accepting or
rejecting sentencing agreements, the rule does not provide any guidance regarding the
criteria a trial court should use when evaluating whether to accept or reject a sentencing
agreement. The language of Rule 11(e) indicates that the decision to accept or reject a
sentencing agreement rests in the sound discretion of the trial court: "Once the
[sentencing] agreement has been disclosed, the court may accept or reject the agreement,
or may defer that decision until receipt of a presentence report."69
Thus, for purposes of
our appellate review, the decision of whether to accept or reject a sentencing agreement
under Alaska law rests in the sound discretion of the trial court and, in the absence of
70
legal error, will only be reversed for an abuse of that discretion.
69 Alaska R. Crim. P. 11(e)(1) (emphasis added).
70 Other jurisdictions likewise review a trial court's rejection of a plea agreement for an
abuse of discretion. See, e.g., Santobello v. New York, 404 U.S. 257, 262 (1971) ("A court
may reject a plea in exercise of sound judicial discretion."); State v. Conger, 797 N.W.2d
341, 348 (Wis. 2010) ("[T]he rejection [of a plea agreement] is reviewed as an exercise of
discretion."); Hoskins v. Maricle, 150 S.W.3d 1, 24-25 (Ky. 2004) (reviewing trial court's
rejection of plea agreement for abuse of discretion); State v. Hunt, 485 A.2d 109, 113-14 (Vt.
1984) ("While respondent . . . has no right to insist on the acceptance of a plea of guilty, the
court, nevertheless, in the exercise of its discretion, has the power to accept such a plea, if
it deems it wise to do so. A tendered or offered plea should not be refused without good
reason but, if refused, must be shown that the court abused its discretion." (citation omitted)).
- 22 - 2732
----------------------- Page 23-----------------------
But acknowledging that the decision to accept or reject a sentencing
agreement rests in the sound discretion of the trial court does not provide much guidance
to trial courts regarding what factors they should consider when making such a decision
or how much deference, if any, they should show to the parties' reasons for the
agreement. This absence of guidance is not unique to Alaska law. The equivalent rule
in federal law, Federal Criminal Rule 11, likewise fails to provide any guidance
regarding the criteria that the trial court should use in accepting or rejecting plea
71
agreements.
As Professor LaFave has noted, "Just how much 'consideration' should
be given to the disposition agreed to by the prosecutor and just how 'independent' the
judge should be in these circumstances is a most difficult issue, seldom addressed in the
cases."72
In his treatise, Professor LaFave points to a decision from the D.C. Circuit,
73
United States v. Ammidown, as one of the rare cases that does discuss this issue. In
Ammidown , the court held that a trial judge should not reject a plea bargain unless the
judge "can say that the action of the prosecuting attorney is such a departure from sound
71 See In re Morgan , 506 F.3d 705, 710 (9th Cir. 2007) ("[N]owhere does [Federal
Criminal] Rule 11 define the criteria by which a district court should exercise the discretion
the rule confers, or explain how a district court should determine whether to accept a plea
agreement."); see also State v. Hager, 630 N.W.2d 828, 833-34 (Iowa 2001) ("[T]he
parameters [of a court's discretion to refuse or accept a plea bargain] have no clear lines, and
there are no established criteria or standards to consider in the exercise of discretion."); State
v. Brown, 689 N.W.2d 347, 351 (Neb. 2004) (noting that judicial discretion to reject plea
bargains "is not unlimited" but "declin[ing] to adopt specific limitations").
72 5 Wayne R. LaFave et al., Criminal Procedure § 21.3(e), at 913 (4th ed. 2015).
73 Id. (citing United States v. Ammidown, 497 F.2d 615 (D.C. Cir. 1973)).
- 23 - 2732
----------------------- Page 24-----------------------
74
prosecutorial principle as to mark it an abuse of prosecutorial discretion." Frankson
urges this Court to adopt a similar highly deferential standard. But Ammidown involved
a trial judge's rejection of a charge agreement - a situation where judges must be
particularly careful about not encroaching on the prosecutor's inherent charging
75
authority - as opposed to a sentencing agreement. Ammidown is therefore of little
value to Alaska law where trial courts are not authorized to reject a prosecutor's charge
76
agreement. As Professor LaFave acknowledges, trial judges are in a "different
position" when evaluating whether to accept or reject the parties' sentencing agreement
than when they are evaluating the prosecutor's decision to dismiss various charges as
77
part of a plea agreement.
Frankson also argues in favor of the adoption of a "clearly mistaken"
standard of review for trial courts evaluating whether to accept or reject a sentencing
agreement. (The State has previously advocated for such a standard, although it does not
78
)
do so in Frankson's case.
74 Ammidown , 497 F.2d at 622.
75 Id. at 618.
76 See Alexiadis v. State, 355 P.3d 570, 573 (Alaska App. 2015); Alaska R.
Crim. P. 11(e)(1) (providing procedures only for rejecting sentencing agreements); Alaska
R. Crim. P. 43(a) (providing prosecutors with authority to dismiss charges and not requiring
court's permission).
77 5 Wayne R. LaFave et al., Criminal Procedure § 21.3(e), at 916-17 (4th ed. 2015) ("If
the plea bargain agreed to by the prosecution and the defendant were to deal directly with
sentence concessions, rather than charge concessions as in Ammidown , it is beyond dispute
that the trial judge is in a quite different position.").
78 See Thomas v. State, 413 P.3d 1207, 1210-11 (Alaska App. 2018) (noting State's
argument that "a trial court's assessment of whether an agreed-upon sentence is too lenient
is akin to an appellate court's assessment of whether a sentence is 'clearly mistaken'").
- 24 - 2732
----------------------- Page 25-----------------------
The "clearly mistaken" standard is a deferential standard of review that
appellate courts use when evaluating whether a sentence that a trial judge has imposed
79
is excessive.
The standard is founded on two concepts: that "reasonable judges,
confronted with identical facts, can and will differ on what constitutes an appropriate
sentence; [and] that society is willing to accept these sentencing discrepancies, so long
as a judge's sentencing decision falls within a permissible range of reasonable
80
sentences."
We agree with Frankson that the "clearly mistaken" standard may be
helpful in that it reminds trial courts that the question is not necessarily what sentence
the trial court would itself impose, but instead whether the sentence is within the
permissible range of reasonable sentences that a trial court could impose. But we are
hesitant to approve an appellate standard for use in the trial courts given the different
functions of the courts. We are also not persuaded that the "clearly mistaken" standard
is the best fit because it does not account for the other factors outside the Chaney criteria
that can influence plea bargaining.
As the State points out, there are often a number of factors that can
influence plea bargaining, many of which the trial court has only limited knowledge.
These factors include, but are not limited to: (1) evidentiary and witness issues; (2) the
victim's wishes; (3) resource limitations; and (4) relevant circumstances beyond the
81
parties' control (such as the COVID-19 pandemic). The State argues that trial courts
79 McClain v. State , 519 P.2d 811, 813-14 (Alaska 1974).
80 Erickson v. State, 950 P.2d 580, 586 (Alaska App. 1997) (internal quotation marks
and citation omitted).
81 See, e.g., United States v. Miller, 722 F.2d 562, 565 (9th Cir. 1983) ("Courts do not
know which charges are best initiated at which time, . . . which allocation of prosecutorial
(continued...)
- 25 - 2732
----------------------- Page 26-----------------------
should consider such additional factors, along with the Chaney sentencing criteria, when
evaluating whether to accept or reject a sentencing agreement. We agree that courts
82
should consider such additional factors when brought to their attention by the parties.
Such an approach is consistent with the standard advocated by the American Bar
Association: "As part of the plea process, appropriate consideration should be given to
the views of the parties, the interests of the victims and the interest of the public in the
83
effective administration of justice."
We emphasize, however, that the burden is on the parties to bring such
considerations to the trial court's attention and to adequately explain the underlying
reasons for a particular sentencing agreement, as appropriate.
Lastly, both parties argue that when a trial court rejects a sentencing
agreement, it should put its reasons for doing so on the record. The majority of
84
jurisdictions have adopted such a requirement, and we likewise adopt it here. As one
81 (...continued)
resources is most efficient, . . . or the relative strengths of various cases and charges."
(citations omitted)).
82 See, e.g., State v. Conger, 797 N.W.2d 341, 353 (Wis. 2010) ("[A] sensible - and
important - starting point for a [trial] court evaluating a plea is to consider the reasons
stated by the prosecutor and defense counsel for recommending the plea agreement.").
83 ABA Standards for Criminal Justice § 14-1.1(b) (3d. ed. 1999).
84 See State v. Montiel, 122 P.3d 571, 578 (Utah 2005) (observing that "the majority of
jurisdictions require that judges make their reasoning for rejecting a proposed plea agreement
a matter of record" and adopting such a requirement); see also In re Morgan, 506 F.3d 705,
711-12 (9th Cir. 2007) (holding that courts must provide individualized reasons for rejecting
a sentencing agreement based on the specific facts and circumstances presented); United
States v. Robertson, 45 F.3d 1423, 1438 (10th Cir. 1995) (requiring courts to articulate on
the record a sound reason for rejecting a plea agreement); United States v. Moore, 916 F.2d
1131, 1135-36 (6th Cir. 1990) (same); United States v. Delegal, 678 F.2d 47, 50 (7th Cir.
(continued...)
- 26 - 2732
----------------------- Page 27-----------------------
federal circuit court noted, "[R]equiring [trial] courts to articulate a sound reason for
85
rejecting a plea is the surest way to foster the sound exercise of judicial discretion."
Such a requirement also facilitates any appellate review and provides important
information to the parties who must decide how best to proceed if their sentencing
86
agreement is rejected.
Applying these principles to the current case
In the current case, the superior court rejected the sentencing agreement as
too lenient. Given the record before us, we would affirm that decision as within the
87
court's discretion.
We nevertheless conclude that a remand for reconsideration of the
parties' sentencing agreement should occur. We reach this conclusion for two reasons.
First, neither the parties nor the superior court had the benefit of the
guidance provided in this decision, and the record is consequently not as developed as
84 (...continued)
1982) (same); Yell v. Commonwealth, 242 S.W.3d 331, 341 (Ky. 2007) (same); State v. Hunt,
485 A.2d 109, 114-15 (Vt. 1984) (same).
85 Moore , 916 F.2d at 1136 (citing Delegal , 678 F.2d at 50).
86 United States v. Kraus, 137 F.3d 447, 453 (7th Cir. 1998) (requiring an on-the-record
explanation facilitates appellate review); Robertson, 45 F.3d at 1438 ("Requiring district
courts to articulate the reasons for rejecting a plea agreement not only helps insure the court
is aware of and gives adequate deference to prosecutorial discretion, it is the surest, indeed
the only way to facilitate appellate review of rejected plea bargains."); cf. Houston v. State,
648 P.2d 1024, 1027 (Alaska App. 1982) (observing that a full explanation of a sentence
"contributes to the rationality of the sentence, facilitates the reviewing court's evaluation of
the propriety of the sentence, and fosters public confidence in the criminal justice system").
87 Cf. Conger, 797 N.W.2d at 348 (explaining that the appellate court "will sustain a
court's exercise of discretion if the court: (1) examined the relevant facts; (2) applied a
proper standard of law; and (3) using a demonstrably rational process, reached a conclusion
that a reasonable judge could reach").
- 27 - 2732
----------------------- Page 28-----------------------
it could have been. We note, in particular, that the parties have provided more detail to
this Court than they did to the superior court regarding the factors that they considered
when reaching this sentencing agreement. We therefore conclude that a remand is
appropriate to give the parties an opportunity to more fully explain their reasons for
entering into the sentencing agreement and for the superior court to evaluate those
reasons within the framework described here.
The second reason for the remand is more procedural. As previously
explained, when a trial court rejects a sentencing agreement as too lenient, Criminal
Rule 11(e) requires the court to give the defendant the option to either withdraw his
guilty plea or go forward with open sentencing. This does not appear to have occurred
in this case. Instead, the parties appear to have treated the superior court's rejection of
the sentencing agreement as automatically nullifying the entire plea agreement. But
Frankson should have been given the choice to retain the benefits of the charge
agreement (over which the superior court had no authority) and proceed to open
sentencing on his guilty pleas. Thus, if, on remand, the superior court again rejects the
parties' sentencing agreement, the trial court should ensure that the procedures under
Rule 11(e) are properly followed.
Conclusion
For the reasons explained here, we VACATE the superior court's ruling
and REMAND this case to the superior court for further proceedings consistent with this
opinion.
- 28 - 2732
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