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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
FORREST J. AHVAKANA,
Court of Appeals No. A-13926
Appellant, Trial Court No. 2BA-08-00519 CR
v.
O P I N I O N
STATE OF ALASKA,
Appellee. No. 2782 - June 28, 2024
Appeal from the Superior Court, Second Judicial District,
Utqiagvik, Paul A. Roetman, Judge.
Appearances: Michael A. Stepovich, Stepovich Law Office,
Fairbanks, for the Appellant. Diane L. Wendlandt, Assistant
Attorney General, Office of Criminal Appeals, Anchorage, and
Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
Judge ALLARD.
This case comes to us under unique circumstances: Forrest J. Ahvakana
was originally convicted, following a jury trial, of first-degree assault, burglary, and
other related offenses. He received a composite sentence of 100 years to serve. But
before going to trial, Ahvakana (relying on the incompetent advice of his attorney about
the sentence he could receive if convicted of first-degree assault) rejected an offer to
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plead guilty to second-degree assault, first-degree burglary, and-fourth degree assault,
and to be sentenced to a composite term of 21 years with 4 years suspended - i.e., 17
years to serve. After his conviction, Ahvakana filed a successful application for post-
conviction relief, alleging ineffective assistance of counsel under Lafler v. Cooper.1 To
remedy the ineffective assistance of counsel, the superior court required the State to
reoffer the original plea and sentencing agreement. The State later requested that it be
allowed to argue against the original proposed sentence, and when Ahvakana did not
object, the superior court agreed that the State could do so.
Ahvakana subsequently entered pleas to second-degree assault, first-
degree burglary, and fourth-degree assault, and the case proceeded to sentencing.2 At
sentencing, the prosecutor argued that 17 years to serve was too lenient. The superior
court agreed that 17 years to serve was too lenient in light of Ahvakana's criminal
history and the seriousness of the conduct in this case. The court therefore sentenced
Ahvakana to 21 years to serve, the highest possible composite sentence for the crimes
of conviction. Ahvakana now appeals his sentence.
On appeal, Ahvakana argues (for the first time) that it was error for the
superior court to allow the prosecutor to argue against imposition of the sentence set
out in the State's original offer. According to Ahvakana, the prosecutor's actions
constituted a breach of the plea agreement and thus his sentence should be vacated and
his case remanded for resentencing.
Because Ahvakana did not object to the superior court's order allowing
the State to argue against the sentence set out in the State's original offer, he must show
plain error on appeal.
1 Ahvakana v. State, 475 P.3d 1118, 1119-20 (Alaska App. 2020); see also Lafler v.
Cooper, 566 U.S. 156 (2012).
2 AS 11.41.210(a)(1), AS 11.46.300(a)(1), and AS 11.41.230(a)(1), respectively.
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Although we agree with Ahvakana that, as a general matter, the State
cannot argue against a sentencing agreement to which it is a party, we conclude that
this rule does not apply to the unique facts presented here - where the State was
ordered to reoffer a plea agreement, that the defendant had rejected, as a remedy for
defense counsel's ineffective assistance of counsel. Because we conclude that the court
was within its discretion to craft a remedy that allowed Ahvakana to receive the
potential benefit of the original plea agreement, while still allowing the State to argue
against the sentencing component, we find no plain error.
Ahvakana also argues that his sentence is excessive. Having
independently reviewed the record, we conclude that the sentence is well-supported and
not clearly mistaken.
Background facts
This is the third time Ahvakana's case has come before this Court. In
Ahvakana's first appeal - his direct appeal from his criminal trial - we affirmed his
convictions for first-degree assault, second-degree assault, first-degree burglary, third-
degree assault, and fourth-degree assault.3 Ahvakana did not challenge his 100-year
sentence in his direct appeal.
After we affirmed his convictions, Ahvakana filed an application for post-
conviction relief.4 In his application, Ahvakana explained that prior to trial, the
prosecutor had sent a letter offering to resolve the case pursuant to an Alaska Criminal
Rule 11 plea agreement. Under the agreement, Ahvakana would plead guilty to second-
degree assault, first-degree burglary, and fourth-degree assault, and he would receive a
3 Ahvakana v. State, 283 P.3d 1284, 1289 (Alaska App. 2012).
4 Ahvakana , 475 P.3d at 1119-20.
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composite sentence of 21 years with 4 years suspended (17 years to serve). Ahvakana
5
rejected the deal pursuant to his attorney's advice.
As it turned out, however, both the prosecutor and the defense attorney
were mistaken about Ahvakana's potential exposure on the first-degree assault count:
the prosecutor believed Ahvakana faced a discretionary 40 to 99-year sentence;
Ahvakana 's attorney believed he would likely receive 15 to 20 years. But under
Alaska's three-strike law, Ahvakana actually faced a mandatory 99-year sentence
without parole if convicted of first-degree assault - i.e., the sentence he ultimately
6
received on that count after trial.
In his application for post-conviction relief, Ahvakana argued that his
attorney's incompetent advice had led him to reject the plea deal.7 He asserted that if
he had understood his true exposure of a mandatory 99 years without parole, he would
have accepted the State's offer, and he argued that the proper remedy was specific
performance of the State's plea offer. The superior court initially rejected this argument,
holding that because both parties had been operating under a "mutual mistake" as to
Ahvakana's true sentencing exposure, Ahvakana was not entitled to specific
8
performance of the plea agreement.
On appeal (i.e., Ahvakana's second appeal before this Court), we reversed
and remanded for further proceedings.9 We explained that although both the prosecutor
and the defense attorney made mistakes, there was no "mutual mistake" that went to
5 Id. at 1120-21.
6 Id. at 1121.
7 Id.
8 Id. at 1122.
9 Id. at 1126.
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the basic premise of the pretrial negotiations. 10 Instead, the parties were mistaken in
11
different ways, and the prosecutor's mistake did not affect the viability of the offer.
We remanded for further litigation on two questions. First, had Ahvakana
shown a "reasonable possibility" that the outcome of the case would have been different
but for his attorney's incompetence - i.e., had Ahvakana shown a reasonable
possibility that he would have accepted the State's original plea offer if he had received
competent advice?12 Second, if Ahvakana had shown a reasonable possibility he would
have accepted the State's original offer, what was the appropriate remedy under Alaska
13
law?
On remand, the superior court resolved both questions in Ahvakana's
favor - that is, the court found that Ahvakana had shown a "reasonable possibility"
that he would have accepted the offer, and it determined that the appropriate remedy
was to require the State to reoffer the original plea and sentencing agreement.
Initially, it appears that the court's intent was to order strict specific
performance from the State. But the State moved to reconsider, requesting that it be
allowed to argue against the sentencing agreement. During the subsequent hearing on
the motion for reconsideration, the superior court asked the parties whether, despite
being required to reoffer the original plea agreement, the State could nevertheless ask
the court to reject the sentencing portion of the agreement.
In response to this question, the prosecutor asserted that the State could
ask the superior court to reject the sentencing agreement, and the defense attorney
agreed. The court then announced that it agreed with both parties that the State could
10 Id. at 1123.
11 Id. at 1123-24.
12 Id. at 1125.
13 Id.
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ask the court to reject the parties' sentencing agreement. With this understanding,
Ahvakana entered guilty pleas to the second-degree assault, first-degree burglary, and
fourth-degree assault charges as required by the Rule 11 agreement.
At the sentencing hearing, the State asked the court to reject the sentencing
agreement, arguing that it was too lenient and endangered public safety. By contrast,
Ahvakana 's attorney argued that the sentencing agreement was appropriate and that the
court should adopt it. Ahvakana's attorney did not argue that the prosecutor had
breached the terms of the plea agreement by asking the court to reject the sentencing
agreement.
At the conclusion of the hearing, the court rejected the original sentencing
agreement as too lenient. The court agreed with the author of the presentence report that
isolation and community condemnation were the primary goals of sentencing, and the
court found that there was "nothing to suggest that Mr. Ahvakana is going to be
successful on probation." After reviewing Ahvakana's underlying conduct, which the
court described as a "very serious assault," the court focused on Ahvakana's escalating
criminal behavior, agreeing with the presentence report that Ahvakana's long-standing
"criminal thinking and behavioral patterns" had "finally transgressed into a
manipulative and controlling matured man who continues to place women in extreme
fear by subduing them, to beating and threats, when they fail to gratify his expectations
and demands." The court noted that Ahvakana had broadened his victims to include
other men, police, and probation officers; that he had "shown remarkable consistency
in his criminal activities"; and that he was "undeterred" from continuing to engage in
those activities "despite the magnitude of rehabilitative opportunities offered to him by
the courts, by [Department of Health and Social Services], and the Alaska Parole Board
and Probation, as well as the extensive jail time he has already served." Given this
analysis, the court concluded that the original sentencing agreement of 17 years to serve
was too lenient under the Chaney criteria.
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Ahvakana was then given an opportunity to withdraw from the plea
agreement, which he declined.14 The parties proceeded to open sentencing.
At the final sentencing hearing, the court imposed 21 years to serve, the
maximum sentence permitted by the charge agreement. The court also restricted
Ahvakana's eligibility for discretionary parole for the duration of his sentence. In
explaining its sentence, the court repeated many of its earlier remarks and found that
Ahvakana was "a very dangerous person" with "a horrible criminal history." The court
stated that "whether it's committing sexual crimes or committing violent crimes, he's
someone that has just created a lot of havoc in his community." Based on his criminal
history, the seriousness of the conduct in this case, and Ahvakana's failed attempts at
rehabilitation, the court ultimately concluded that Ahvakana was "a very serious
criminal defendant that the court need[ed] to treat very seriously" and the court further
concluded that "the community can't be put at risk by allowing parole time."
Ahvakana now appeals.
Why we conclude that the court had the discretion to allow the State to
argue against the re-offered sentencing agreement
On appeal, Ahvakana argues that the State violated the original terms of
the plea agreement when it asked the superior court to reject the agreed-upon sentence.
As a general matter, a plea agreement may consist of two parts: a charge
agreement (i.e., an agreement that the defendant will plead guilty to particular charges);
and/or a sentencing agreement (i.e., an agreement that the defendant will receive a
14 See Frankson v. State, 518 P.3d 743, 753-54 (Alaska App. 2022) (explaining that a
defendant may withdraw from a plea agreement if the court rejects the sentence agreement
as too lenient); see also Alaska R. Crim. P. 11(e)(3).
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particular sentence). 15 Although courts in Alaska have no authority to reject charge
16
agreements, courts are not required to accept sentencing agreements.
The State argues that it did not violate a term of the original plea
agreement because the parties' written agreement stated only that Ahvakana would
"receive" a certain sentence; it did not provide that the prosecutor would recommend
the proposed sentence or would refrain from arguing against it. The State therefore
contends that the prosecutor did not breach the original plea agreement when it asked
the superior court to reject the agreed-upon sentence.
But, as we noted above, courts are required to accept charge agreements,
but they are not required to accept sentencing agreements. This means that when the
State offers a sentence as part of a plea agreement, it has no power to guarantee the
defendant will actually "receive" that sentence. Thus, when an agreement provides that
a defendant will receive a particular sentence, it must be interpreted to mean that an
implicit term of the agreement is that the parties will ask the court to impose that
sentence, or, at the very least, that neither party will actively petition the court to impose
a different sentence. The State's alternative interpretation would make sentencing
agreements almost meaningless, as both parties would be permitted to ask the court for
a sentence different than the one they ostensibly agreed to.
Accordingly, we conclude that had the superior court's intent been to
require both parties to comply with the original plea agreement, then it would have been
error for the court to allow the State to argue against the sentencing agreement.
But, at the State's request (and with Ahvakana's acquiescence), the
superior court modified the terms of the original plea agreement to allow the prosecutor
to argue against the original sentencing agreement. Therefore, the question before us is
15 Frankson, 518 P.3d at 753.
16 Id. ; Ghosh v. State, 400 P.3d 147, 154 (Alaska App. 2017); see also Alaska R. Crim.
P. 11(e).
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whether the court had the discretion to modify the agreement in this manner. Given the
unique circumstances of this case, we conclude that it did.
The circumstances of this case are unique because Ahvakana initially
rejected the original plea agreement and went to trial. As a result of Ahvakana's
rejection of the plea agreement, the State was deprived of the primary benefit of the
original plea agreement and was forced to expend the resources required to prosecute
Ahvakana through trial. Indeed, the State was deprived of some of the benefits of the
original plea agreement even before Ahvakana went to trial: the original plea agreement
was predicated on the requirement that Ahvakana neither seek bail nor file any pretrial
motions, but Ahvakana did both things after rejecting the plea agreement.
The original plea agreement was nevertheless made available to Ahvakana
for a second time as a remedy under Lafler v. Cooper for his attorney's ineffective
assistance of counsel.17 As we explained in our most recent decision in this case, the
remedy for ineffective assistance of counsel under Lafler v. Cooper "must 'neutralize
the taint' of a constitutional violation, while at the same time not grant a windfall to the
defendant or needlessly squander the considerable resources the State properly invested
in the criminal prosecution."18 We conclude that, here, the court acted within its
discretion when it required the State to reoffer the original plea agreement but allowed
the prosecutor to argue against the sentencing agreement. That is, we conclude that the
superior court could reasonably conclude that such an approach - which was not
objected to by Ahvakana's attorney - represented a fair balance between placing
Ahvakana back in the situation he would have been but for his attorney's ineffectiveness
while still acknowledging the reality that circumstances had changed since the original
plea offer was made. Accordingly, we find no plain error in the superior court's decision
17 See Lafler v. Cooper , 566 U.S. 156, 170-72 (2012).
18 Ahvakana , 475 P.3d at 1125 (quoting Lafler , 566 U.S. at 170).
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to allow the prosecutor to argue against the original sentencing agreement as part of a
19
modified Lafler remedy.
Why we conclude that the sentence Ahvakana received is not excessive
Ahvakana also argues (in a conclusory fashion) that the superior court
erred in rejecting the original plea agreement and he asserts (again, in a conclusory
fashion) that his sentence is excessive. We find no merit to these claims.
When we review an excessive sentence claim, we independently examine
the record to determine whether the sentence is clearly mistaken.20 The "clearly
mistaken" standard contemplates that different "reasonable judges, confronted with
identical facts, can and will differ on what constitutes an appropriate sentence," and that
a reviewing court will not modify a sentence that falls within a permissible range of
reasonable sentences.21 We have independently reviewed the sentencing record in this
case and we do not find the sentence imposed here clearly mistaken. The superior
court's findings regarding Ahvakana's dangerousness are well-supported by the record,
as is its decision to restrict Ahvakana's parole eligibility.
19 We note further that even if we were to conclude that the court did order strict
specific performance and that the State therefore breached the original plea agreement by
arguing against the original sentence agreement, the remedy would not automatically be a
new sentencing hearing. Ahvakana cites to Santobello v. New York, 404 U.S. 257 (1971),
for the proposition that when the government breaches a plea agreement, a defendant is
entitled to relief regardless of whether the court was actually influenced by the breach. See
id. at 262-63. But the defendant in Santobello objected to the government's breach at the
time it occurred. Id. at 259. As the United States Supreme Court later clarified in Puckett
v. United States, 556 U.S. 129, 135 (2009), when the defendant does not make a
contemporaneous objection to a breach, and instead raises the issue for the first time on
appeal, the defendant is required to show plain error, including prejudice.
20 McClain v. State , 519 P.2d 811, 813-14 (Alaska 1974).
21 Erickson v. State, 950 P.2d 580, 586 (Alaska App. 1997).
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Conclusion
The judgment of the superior court is AFFIRMED.
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