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Love v. State (12/28/2007) ap-2136

Love v. State (12/28/2007) ap-2136

                             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.

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                      Fax:  (907) 264-0878
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         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


CHESTER L. LOVE, )
) Court of Appeals No. A-9136
Appellant, ) Trial Court No. 3AN-02-6197 CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 2136 - December 28, 2007]
)
Appeal    from     the
          Superior   Court,  Third  Judicial  District,
          Anchorage, Larry D. Card, Judge.

          Appearances:   Dan S. Bair, Assistant  Public
          Advocate,  Chad W. Holt, Section  Supervising
          Attorney,   Anchorage  Adult   and   Juvenile
          Section, and Joshua P. Fink, Public Advocate,
          Anchorage,   for   the   Appellant.   Terisia
          Chleborad, Assistant Attorney General, Office
          of    Special   Prosecutions   and   Appeals,
          Anchorage,  and  Talis J.  Colberg,  Attorney
          General, Juneau, for the Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          COATS,  Chief Judge.
          STEWART, Judge, dissenting.

          On  February  2,  2002, while he was on parole  release
from  a prior felony, Chester L. Love was arrested for possession
of   heroin   (fourth-degree  controlled  substance  misconduct).
Because  Loves possession of the heroin was also a  violation  of
his  parole, he was taken into custody both for the new crime and
for the parole violation.
          Based  on  Loves possession of the heroin,  the  Alaska
Parole  Board  revoked his parole, and Love served  approximately
another  two years in prison. The new criminal charge (possession
of heroin) was still pending trial.
          In  March 2004, Love completed serving his time on  the
parole  revocation  and  was released  on  bail  for  the  heroin
possession  charge.  But while he was on bail release,  Love  was
charged with an assault and returned to custody.
          In  December  2004,  while Love was  still  in  custody
(awaiting  trial  on both the heroin possession  charge  and  the
assault  charge), Love reached a plea agreement with  the  State.
Under  this  plea  bargain, Love agreed to plead  guilty  to  the
heroin  possession charge, and it was further  agreed  that  Love
would  serve  a 2-year term of imprisonment on this charge.   The
agreement  provided that Love would receive credit for  all  time
served under this case.
          At Loves sentencing hearing, his defense attorney asked
Superior Court Judge Pro Tem Sigurd E. Murphy to include language
in  the  judgment that indicated Love was to receive  credit  for
time  served.  The attorney told the court that he was requesting
the  addition of this language to the judgment because he and his
client believed that Love had already done his time.
          One  week later, Love moved to withdraw his plea.    In
support of this motion, Love told the superior court that he  had
not received the benefit of his bargain    because the Department
of  Corrections  had told Love that he was not going  to  receive
credit  against his heroin possession sentence for the two  years
that he had earlier spent in custody on his parole revocation.
          Superior  Court  Judge  Larry  D.  Card  conducted   an
evidentiary hearing on Loves motion to withdraw his plea.   Loves
attorney  testified at this  hearing.  According to the attorney,
Love  agreed  to  the  2-year sentence on the  heroin  possession
charge  only because Love believed that he would be credited  for
the  two years that he had already spent in prison on the  parole
revocation.   Love assumed that, because he had been  taken  into
custody  on  both  the  parole  violation  and  the  new   heroin
possession charge, the two years that he served in prison between
February  2002 and March 2004 would be credited against both  the
parole  revocation and the new heroin possession charge  (in  the
event that Love was convicted of that charge).
          The  attorney acknowledged that he had questioned Loves
interpretation  of  his  legal  situation.   In  particular,  the
attorney  testified that he had spoken to Love  about  former  AS
12.55.025(e),  a statute that has been repealed,1 but  previously
provided that if [a] defendant has been convicted of two or  more
crimes, sentences of imprisonment shall run consecutively.    The
attorney  testified that he told Love that the sentences  may  be
consecutive,  but that Love was convinced and, as it  turns  out,
right  that  ...  they could [be] concurrent.  According  to  the
attorney,  Love was convinced (based on his prior  experience  in
these matters) that the Department of Corrections would give  him
double  credit  for  these two years     and,  thus,  the  2-year
          sentence for heroin possession would essentially be served as
soon as it was pronounced.
           The  defense  attorney and Love  decided  to  ask  the
superior  court  to put language in the judgment  that  Love  was
entitled to credit for all time served under this case  and  then
they would leave the actual calculation of Loves sentence to  the
Department of Corrections.  The defense attorney stated that Love
was  convinced, and again rightfully so, that he was going to get
credit  for time served and [that he] had done all his  time  and
would be out shortly.  Thats the only reason he took the deal.
          Love  himself also testified at the hearing.  According
to  Love, he told his attorney that he would be willing to accept
a  plea  bargain only if he received credit against his  sentence
for all the time that he had previously served in prison after he
was arrested in February 2002.  That is, Love would accept a plea
agreement  only  if  it  would make him  eligible  for  immediate
release.
          Love  conceded  that  his attorney  had  shown  him  AS
12.55.025(e).  But they also discussed other statutes  that  they
thought supported Loves position.  Love stated that, based on his
experience,  the  Department  of  Corrections  would  allow   the
sentence on the heroin possession charge to run concurrently with
the remainder of his prior felony sentence that he was forced  to
serve because of the parole revocation.  In other words, Love was
convinced  that he would receive a two-year credit  against  both
sentences  for the time he spent in prison between February  2002
and March 2004.
          Having  heard  this testimony, Judge Card denied  Loves
motion  to  withdraw his plea.  Judge Card found  that  Love  had
indeed  thought he would be given double credit for the  time  he
served  in  prison  following his parole  revocation.    However,
Judge  Card  further found that Loves belief was   mistaken,  and
that  neither Loves defense attorney nor the prosecuting attorney
had  told Love anything to foster or confirm this belief.   Judge
Card further found that the parties had negotiated in good faith,
that  they  fully intended to enter a legal agreement,  and  that
Love  should  not  have  been surprised when  the  Department  of
Corrections refused to give him double credit for the two  years.
Love now appeals the superior courts decision.

          Why  we conclude that Love is entitled to withdraw  his
plea

          Under  Alaska  law,  it is clear that  Love  could  not
receive  double  credit  for the two years  he  spent  in  prison
following  his  parole revocation.  These two years  had  already
been  credited  against the remainder of Loves  sentence  on  his
prior  felony    the sentence he was forced to  serve  after  his
parole from that prior felony was revoked.  After receiving  that
credit,  Love  could not receive another two-year credit  against
his new sentence for heroin possession.
          We  explained the law on this point twelve years ago in
Smith v. State, 892 P.2d 202 (Alaska App. 1995):
          
               Smiths   present  appeal  concerns   the
          calculation of [his] sentence.  At  the  time
          he was sentenced, Smith had spent 266 days in
          jail.   [The sentencing judge] declared  that
          Smith  should  receive  credit  against   his
          sentence  for  these  266  days.   The  State
          objected,  pointing out that  Smith  had  not
          been  arrested for his present offenses,  but
          rather  for  violating his  parole  from  [a]
          prior  felony.  The State argued that,  since
          Smith was going to be credited with these 266
          days  in  his  prior felony,  he  should  not
          receive another 266-day credit in his present
          case.   [The   sentencing  judge]  disagreed,
          ruling  that Smith should receive the 266-day
          credit in both cases.
          
               This  ruling  was  incorrect.   By  law,
          Smiths  sentence in the present case  had  to
          run  consecutively to his sentence  from  his
          previous  felony.  AS 12.55.025(e);  Jennings
          v.  State, 713 P.2d 1222 (Alaska App.  1986).
          This  being so, Smiths 266 days in jail could
          be   applied  against  only  one   of   these
          sentences.  Endell v. Johnson, 738  P.2d  769
          (Alaska App. 1987).
          
          Smith, 892 P.2d at 203.
                    It   is   uncontested  that   Loves
          mistaken belief that he would receive  double
          credit  for the two years he served  in  jail
          between  February 2002 and March 2004  was  a
          critical  factor in Loves decision to  accept
          the  plea bargain offered by the State.  Love
          accepted  the  proposed 2-year  sentence  for
          heroin  possession because he believed  that,
          with  the double credit, he would be released
          from jail immediately after the sentence  was
          imposed. And as soon as Love discovered  that
          the  Department of Corrections disagreed with
          his  interpretation of the law,  he  promptly
          moved to withdraw his plea.
          The  defense  attorney warned  Love
that  his  interpretation of  sentencing  law
might  be  wrong.  The record  reflects  that
Loves  attorney  talked to him  about  former
AS  12.55.025(e), the statute  that  required
Love  to serve the heroin possession sentence
consecutively   to  the  remainder   of   his
sentence from his previous felony.
          But it seems to us that the crucial
fact  here  is  that Loves attorney  did  not
flatly  tell  Love that his understanding  of
the  law  was  wrong.   Rather,  the  defense
attorney left open the possibility that Loves
understanding  of the law might  be  correct.
Moreover,  the  attorney encouraged  Love  to
think that it might make a difference if  the
judgment  included wording  that  Love  shall
receive credit for all time served under this
case.  Indeed, the defense attorney stated at
the sentencing hearing, [W]e think that [Love
has] already done his time.
          Judge Card appears to have believed
the  testimony given by Love and his attorney
on  these matters.  Nevertheless, Judge  Card
denied  Loves motion to withdraw his plea  on
the  theory  that it was sufficient  for  the
defense  attorney to inform Love of the  risk
that  the  Department  of  Corrections  might
disagree with Loves interpretation of the law
the  risk that the Department would not  give
Love the double credit he expected.
          We disagree. We issued our decision
in Smith long before the plea negotiations in
this  case.  Thus, when Love and his attorney
were  discussing the proposed plea agreement,
Alaska law was already absolutely clear  that
Love could not receive double credit for  the
two  years of imprisonment.  These two  years
had   already   been  credited  against   the
remainder  of Loves sentence from  his  prior
felony     the remainder that Love was forced
to   serve  after  his  parole  was  revoked.
Alaska law flatly stated that these same  two
years  could  not additionally count  against
the  new  sentence  that Love  was  about  to
receive on the heroin possession charge.
          Love   was  entitled  to  competent
legal  advice  when he assessed the  proposed
plea  agreement and decided whether to accept
it.   The record demonstrates that he did not
receive   competent  advice.    The   defense
attorney  did  not tell Love that  his  under
standing of Alaska sentencing law was  wrong,
and that Love would have to serve another two
years  in  prison if he accepted the proposed
plea  agreement.  Instead, the attorney  told
Love  that his understanding of the law might
be  correct,  and that Love  would  be  in  a
better  position if they asked the sentencing
judge  to  insert language about  credit  for
time served in the judgment.
          The  record shows that the  defense
attorney  had questions on this point.    But
if  the attorney performed legal research  to
resolve his questions, he failed to find  our
decision  in Smith.  (We note that the  Smith
decision  is  listed  in the  annotations  to
AS  12.55.025  in  the 2004  edition  of  the
Alaska Statutes, Titles 10 to 12, page 622.)2
          Nor is there any indication that the defense
attorney   contacted   the   Department    of
Corrections to obtain their view on how Loves
sentence would be calculated.
          Because   Love  did   not   receive
competent  legal  advice on this  issue,  and
because  this  issue  was  crucial  to  Loves
decision  to  accept  the  plea  bargain,  we
conclude  that Love is entitled  to  withdraw
his  plea.    Alaska Criminal  Rule  11(h)(3)
declares   that,   even   after   sentencing,
defendants  are  entitled to  withdraw  their
plea   if  they  prove  that  withdrawal   is
necessary to correct a manifest injustice   a
term  that  is defined to include ineffective
assistance of counsel.3
          The  decision of the superior court
is   REVERSED.   Love  must  be  allowed   to
withdraw his plea.
Stewart, Judge, dissenting:

          Because  I conclude that  Love  has
not  shown manifest injustice, I would affirm
the superior court.
          Love  was  acting as co-counsel  on
his   case  when  he  entered  into  a   plea
agreement  with the State.  Under the  Alaska
Rule  of Professional Conduct 1.2(a), it  was
Loves  choice whether to accept a  compromise
in his case and what plea to enter.  See also
Standard   4-5.2   of   the   American    Bar
Associations Standards for Criminal  Justice,
The Defense Function.
          All  essential terms  of  the  plea
agreement were in writing and filed with  the
court.   The  agreement called  for  Love  to
plead  no  contest  to one count  of  fourth-
degree   misconduct  involving  a  controlled
substance.1  The State agreed that  statutory
mitigating  factor  AS 12.55.155(d)(14)  (now
(d)(13) under the present code; Loves offense
involved   a  small  quantity  of  controlled
substances)  applied  and  agreed  that  Love
would  receive a mitigated presumptive 2-year
term.   (Love had prior felonies and faced  a
presumptive  3-year term to serve  under  the
pre-March  2005 sentencing law.)   The  State
agreed  that  the  other pending  count  Love
faced in this case  resisting arrest 2  would
be  dismissed along with another  misdemeanor
case,  State  v.  Love,  3AN-04-11604.   Love
agreed to waive the presentence report and be
sentenced at his change of plea.  The  Notice
of Agreement filed with the court included  a
provision  that  read:  The  defendant  shall
receive credit for all time served under this
case.
          At   the   change  of  plea  before
Superior  Court  Judge  pro  tem  Sigurd   E.
Murphy,  Loves attorney asked  the  court  to
include a provision in the judgment that Love
get  credit  for  time  served  because  Love
thought he had already done his time.   Judge
Murphy  understood  this  to  mean  that  the
Department   of   Corrections   (DOC)   would
calculate  the  time that  Love  had  accrued
rather  than  a  situation  where  Love   had
completed   serving  his  time   because   he
understood that he should endorse DOC to give
credit for time served rather than saying its
a  time served [case.]  Neither Love nor  his
attorney said anything to Judge Murphy  about
his  understanding  and neither  claimed  the
notice  of  plea  agreement  was  incomplete.
          Although Loves attorney told Judge Murphy
that  they  thought Love had served  all  his
time, they did not tell Judge Murphy that the
plea agreement guaranteed that Love would not
serve  any  additional  time.   Judge  Murphy
accepted  the  plea, and  Love  received  the
agreed  mitigated  presumptive  term.   Judge
Murphy  included a provision in the temporary
order  for DOC to give credit for time served
for the 2 years imposed.
          Shortly  after  sentencing,   Loves
attorney  moved  to withdraw,  informing  the
court that Love would attempt to withdraw his
plea   and  that  a  potential  reason  under
Criminal  Rule  11(h)  was  that  Love  might
assert  ineffective  assistance  of  counsel.
The  attorney  informed the court  that  Love
thought  that  the Department of  Corrections
erred  when it charged time he had previously
served  to his parole revocation case.   When
the   Department  of  Corrections  calculated
Loves  time served on this case, it  did  not
grant  Love  double credit for  the  time  he
served  on the parole violation and  for  the
time  he  was  subject to bail conditions  in
this  case.   Superior Court Judge  Larry  D.
Card  allowed Loves assistant public defender
to  withdraw  and  appointed  the  Office  of
Public Advocacy.
          Love,   as  co-counsel,  personally
filed  a  motion to withdraw his plea.   Love
contended  that plea withdrawal was necessary
to  correct manifest injustice under Criminal
Rule   11(h)(4)(D)(i)  because  he  did   not
receive the sentence concessions contemplated
by the agreement, and the State had failed to
seek   the   concessions  promised   in   the
agreement.   Love did not contend  there  was
manifest   injustice  under   Criminal   Rule
11(h)(4)(A)  because he received  ineffective
assistance of counsel.  Later, the  assistant
public  advocate assigned to Loves case,  and
Love  as  co-counsel,  both  replied  to  the
States   opposition  consistent  with   Loves
original  claim  that  the  State   was   not
fulfilling  its  bargain.   Neither  pleading
filed  by  Love  or  Loves  assistant  public
advocate  claimed ineffective  assistance  of
counsel.
          Judge   Card  held  an  evidentiary
hearing  on  Loves  motion.   There  were  no
opening  statements  by  the  parties  before
Judge  Card heard testimony from Love,  Loves
trial  attorney,  and the assistant  district
attorney  involved in the plea  negotiations.
After  hearing the evidence presented,  Judge
Card  heard argument on the motion  from  the
State,  Loves  attorney,  and  Love  himself.
Neither Love nor his attorney argued that  he
had   received   ineffective  assistance   of
counsel.
          Under    Alaska    Criminal    Rule
11(h)(3),  a defendant moving to  withdraw  a
plea   after   sentencing  must  prove   that
withdrawal  of  the  plea  is  necessary   to
correct manifest injustice.
          Judge  Card  found that  Loves  co-
counsel  discussed  with Love   the  relevant
statutes  and  whether  concurrent  time  was
possible in Loves situation.  However,  Judge
Card  found  that  Love  relied  on  his  own
beliefs  and  concluded that he would  obtain
double   credit  even  though  he  had   been
informed of the contrary from his co-counsel.
          The  answer to the underlying legal
issue  is  clear.    Former  AS  12.55.025(e)
provided  in  pertinent  part  that  if   the
defendant has been convicted of two  or  more
crimes,  sentences of imprisonment shall  run
consecutively.     We    have    consistently
interpreted   that   provision   to   require
sentences  to  be  imposed  consecutively  in
circumstances that exist in Loves case  where
a  defendant is on parole and commits another
offense.   In Jennings v. State,3 this  court
held that under former AS 12.55.025(e), trial
judges  were required to impose a consecutive
sentence when a defendant is convicted for  a
crime which the defendant committed after the
defendant  had been imprisoned  on  a  former
offense.4  We followed that interpretation in
cases that followed.5
          Judge  Card reviewed the  potential
claims  of  manifest injustice  specified  in
Criminal  Rule 11(h)(4)(A)-(D).   Judge  Card
noted that Loves original trial attorney  had
identified   ineffective  assistance   as   a
potential  claim (in the motion to withdraw),
and although the issue had not been litigated
at  the hearing, Judge Card found that  Loves
attorney  had  been  effective  and  rejected
(4)(A)  as  a  potential basis  for  manifest
injustice.   Judge  Card  found  that   Loves
attorney  had discussed the impact of  former
AS  12.55.025(e)  with Love.   However,  Love
chose  to  follow  his own  analysis  of  the
situation.  As Judge Card found, Mr. Love has
his   own  thought  process[.]   Essentially,
Judge Card found that Love relied on his  own
legal analysis, not that of his co-counsel.
          Judge Card also concluded that Love
had not shown manifest injustice under (4)(B)
(the  plea  was entered by one not acting  on
the  defendants behalf) or (4)(C)  (the  plea
was entered involuntarily).
          Finally, Judge Card found that Love
received  the charge and sentence concessions
contemplated   by  the  plea  agreement   and
rejected  Loves claim that there was manifest
injustice under Rule 11(h)(4)(D).
          There was no evidence presented  at
the  hearing  that  the prosecuting  attorney
promised Love the result he hoped for.   Love
entered  into the plea agreement  relying  on
his  own analysis of the law and his personal
expectations  of  the  result.   Furthermore,
Love has not shown that the judge who handled
his   change  of  plea  and  his  sentencing,
Superior  Court  Judge  pro  tem  Sigurd   E.
Murphy,   was  informed  of  Loves   personal
interpretation of the law, nor has Love shown
that  Judge  Murphy  did anything  to  credit
Loves  unilateral interpretation of the  law.
Judge  Card found that Loves co-counsel  told
Love  about  the  policy for  crediting  time
served, explained the statutes, and discussed
the law with Love.
          Judge  Card found that the  parties
were  not attempting to enter an illegal plea
agreement.   He  found  that  Love  did   not
develop   a  misunderstanding  of  the   plea
agreement  from  his  co-counsel,  from   the
Department   of   Corrections,    from    the
prosecution, or from the judge at his  change
of plea and sentencing.
          Although   the  parties   did   not
litigate  the  issue in the  superior  court,
Judge  Card  addressed  the  point  when   he
rejected  all the listed grounds in  Criminal
Rule 11(h)(4).  After Judge Card ruled on the
motion, Loves assistant public advocate moved
to  withdraw  and reassign the  case  to  the
Public  Defender  Agency, pointing  out  that
Love  had not claimed that his original trial
attorney was ineffective.
          Even  though  the  issue  was   not
litigated in the superior court, the majority
finds  as a matter of plain error that  Loves
co-counsel    was   incompetent,   apparently
because  Loves attorney did not  flatly  tell
Love  that [Loves] understanding of  the  law
was   wrong.    And   the  court   implicitly
concludes  that the incompetence  contributed
to Loves actions.
          But  Judge  Card found  that  Loves
attorney  explained the statutes  and  talked
over  the law with Love.  He found that Loves
attorney  acted  as  any reasonable  attorney
would  have  in advising Love of his  rights,
obligations, and potential liability.  But as
Judge  Card  found, Love thought  he  had  an
answer.   Love  thought, based  on  anecdotal
information  in  other  prisoners  cases  and
based  on  his  own analysis, that  he  would
obtain  concurrent  time.   Judge  Card  also
found  that  Love  did not obtain  this  view
based on his lawyers advice, on anything  the
prosecutor  did, or on anything Judge  Murphy
did at the change of plea.
          In  my  view, Judge Cards  findings
show that Love decided to go forward with the
plea   agreement  contained  in  the  written
notice  to  the  court  no  matter  what  his
attorney  may  have advised  because  he  was
convinced that his own analysis was  correct.
I  also  do  not  conclude  that  the  record
establishes  as  a matter of law  that  Loves
trial  attorney  was incompetent,  especially
when  the  issue  was not litigated  and  the
State  was  not  on  notice  that  the  trial
attorneys competence was an issue.
_______________________________
     1 See SLA 2004, ch. 125,  7.

2 Following the repeal of AS 12.55.025(e) and the enactment
of  a new statute governing consecutive sentencing,  AS
12.55.127,  the  Smith decision is now  listed  in  the
annotations to AS 12.55.127.  See the 2006  edition  of
the Alaska Statutes, Titles 10 to 12, page 704.

3 Alaska R. Crim. P. 11(h)(4)(A).

1 AS 11.71.040(a)(3)(a) (possession of heroin).

2 AS 11.56.700(a)(1).

3 713 P.2d 1222 (Alaska App. 1986).

4 Id. at 1223.

5 See Griffin v. State, 9 P.3d 301, 308 (Alaska App. 2000),
Smith  v. State, 892 P.2d 202, 203 (Alaska App.  1995),
Sanders v. State, 718 P.2d 167, 168 (Alaska App. 1986).

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