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Lindoff v. Stae (2/12/2010) ap-2255

Lindoff v. Stae (2/12/2010) ap-2255

                             NOTICE
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     opinion  is published in the Pacific Reporter.  Readers
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             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878
       E-mail:  corrections@appellate.courts.state.ak.us

         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


NEWTON LINDOFF,                    
                                   
                    Appellant,       Court of Appeals No. A-10323
                                    Trial Court No. 1JU-08-092 Cr
               v.                  
                                   
STATE OF ALASKA,                         O  P  I  N  I  O  N
                                   
                    Appellee.      
End of Caption                      No. 2255    February 12, 2010
                                   
          Appeal  from the Superior Court,  First  Judi
          cial  District, Juneau, Philip M. Pallenberg,
          Judge.

          Appearances:   Doug Miller, Assistant  Public
          Advocate,   Appeals   &   Statewide   Defense
          Section,  and Rachel Levitt, Public Advocate,
          Anchorage,  for  the  Appellant.   Diane   L.
          Wendlandt, Assistant Attorney General, Office
          of    Special   Prosecutions   and   Appeals,
          Anchorage,  and Daniel S. Sullivan,  Attorney
          General, Juneau, for the Appellee.

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

          MANNHEIMER, Judge.

          
Alaska Criminal Rule 11(c) contains a list of warnings and advisements that a judge must give to a criminal defendant, as well as questions that the judge must pose to the defendant, before the judge accepts the defendants plea of guilty or no contest. This appeal requires us to examine and interpret the rules that apply when a defendant seeks to withdraw a plea of guilty or no contest based on the assertion that the judge who accepted their plea failed to comply with one or more of the provisions of Criminal Rule 11(c).
The defendant, Newton Lindoff, was indicted for attempted first-degree sexual assault, second-degree sexual assault, and two counts of first-degree burglary arising from an incident in Hoonah. Ultimately, Lindoff reached a plea bargain with the State; Lindoff agreed to plead guilty to attempted second-degree sexual assault, and the State agreed to drop the other charges.
Attempted second-degree sexual assault is a sex offense for purposes of Alaskas sex offender registration act. See AS 12.63.100(6)(C)(i). Criminal Rule 11(c)(4) states that when a defendant is offering a guilty plea to a sex offense, the judge taking the defendants plea must inform[] ... the defendant in writing of the [registration] requirements of AS 12.63.010 and, if it can be determined by the court, the period of registration required under AS 12.63.
During Lindoffs change-of-plea hearing, Superior Court Judge Philip M. Pallenberg mentioned to Lindoff that, because he was going to be convicted of a sex offense, he would have to register as a sex offender. However, Judge Pallenberg did not alert Lindoff that defendants convicted of two or more sex offenses must register for life (as opposed to the fifteen-year registration requirement that applies to first-time sex offenders).1 This omission was significant because Lindoff already had a prior conviction for a sex offense.
After Lindoff entered his guilty plea, but before he was sentenced, Lindoff filed a motion seeking to withdraw his plea on various grounds. For purposes of the present appeal, only one of these grounds is pertinent: Lindoffs assertion that Judge Pallenberg failed to comply with Rule 11(c) by neglecting to alert Lindoff that he would have to register as a sex offender for life.
At the evidentiary hearing on Lindoffs motion to withdraw his plea, the parties conceded and Judge Pallenberg acknowledged that the judge had not warned Lindoff about the lifetime registration requirement. The hearing then focused on two other issues: (1) whether Lindoff had had independent knowledge of the lifetime registration requirement when he entered his plea, and (2) if Lindoff had been ignorant of the lifetime registration requirement, whether this lack of knowledge affected his decision to plead guilty.
Based on the evidence presented at the hearing, Judge Pallenberg denied Lindoffs motion to withdraw his plea. Lindoff was then convicted based on his plea. He now appeals.
A   discussion   of   the    two
     different substantial compliance tests adopted  by  the
     Alaska  Supreme  Court in Lewis v.  State  and  Joe  v.
     State,  and  a  discussion of  which  party  bears  the
     ultimate  burden of persuasion when the superior  court
     has violated Criminal Rule 11(c)
     
               In  two  decisions issued on the same day  in
     1977  (June  20th), the Alaska Supreme Court  addressed
     situations  where  the  defendants  alleged  that   the
     superior  court judges who took their pleas  failed  to
     comply  with  one or more provisions of  Criminal  Rule
     11(c).
          The  lead  case was Lewis v. State, 565  P.2d
846   (Alaska  1977).   In  Lewis,  the  supreme  court
rejected the position that any violation of Rule  11(c)
should  automatically entitle the defendant to withdraw
their  previous plea of guilty or no contest.   Id.  at
851.   Instead,  the court adopted what it  called  the
substantial compliance approach to violations  of  Rule
11(c).   Id. at 852.   However, a close reading of  the
Lewis case reveals that the supreme court was not using
the phrase substantial compliance in its usual sense.
          Normally,  the phrase substantial  compliance
          refers to situations where an official may not have
followed the applicable statute or rule to the  letter,
but  the  officials actions sufficiently complied  with
the  spirit  or  intent of the law.   For  example,  in
Lockwood  v.  State,  591 P.2d 969 (Alaska  1979),  the
supreme  court held that a technical violation  of  the
knock  and  announce  statute, AS  12.25.100,  will  be
excused  if the police officers demonstrate substantial
compliance with the statute  that is (in the  words  of
the  supreme  court),  if  police  procedures  fail  to
conform  to  the  precise demands of  the  statute  but
nevertheless serve its policies.  Id. at 972  (internal
citation and quotation marks omitted).
          If,  for  instance,  a superior  court  judge
fully  advised the defendant of their duty to  register
as  a  sex offender, but failed to put this information
in  writing as required by Rule 11(c)(4), we might  say
that  the  judge substantially complied with the  rule,
even though the judge failed to follow the rule to  the
letter.
          But  the supreme courts analysis in Lewis was
different from this.  In Lewis, the court declared that
it  was  adopting a substantial compliance approach  to
violations of Rule 11(c) because we have determined  to
treat  violations of Criminal Rule 11(c)  in  the  same
manner   as   other   errors   [which   are]   not   of
constitutional  dimension   reversible  only  if   they
affect  substantial rights of the defendant.  565  P.2d
at 852.
          This  is  not a substantial compliance  test;
rather,  it  is a harmless error test  and the  supreme
court   applied  it  that  way  in  Lewis.   The  court
concluded  that Lewis was not entitled to withdraw  his
guilty  plea  because  Lewis  failed  to  present   any
evidence that he would have declined to enter the  plea
if  the  superior court had given him all the  warnings
and  advisements required by Rule 11(c).   Id. at  852-
53.    In  other  words, Lewis failed  to  present  any
evidence that he was prejudiced by the superior  courts
failure to comply with Rule 11(c).  Id.
          On the same day that the supreme court issued
its decision in Lewis, the court issued its decision in
Joe  v. State, 565 P.2d 508 (Alaska 1977).  In Joe, the
court  purported  to  apply the substantial  compliance
test that it had adopted in Lewis, but the facts of Joe
did  not  present  an  issue of substantial  compliance
either in the usual sense of imperfect but satisfactory
compliance or in the Lewis sense of harmless error.
          The   defendant  in  Joe  asserted  that  the
superior court failed to comply with various provisions
of  Rule  11(c) when the court accepted his no  contest
plea.   565 P.2d at 509-510.  The problem presented  in
Joe was that, because of a malfunction of the courtroom
audio recording equipment, no audio record was made  of
the defendants change-of-plea hearing.  Id. at 510.  To
solve  this  defect  in the record, a  second  superior
court  judge  held an evidentiary hearing to  determine
whether  the judge who accepted Joes plea had  actually
advised  him  of the things required by  Criminal  Rule
11(c).  Id. at 510-11.
          Based  on  the  testimony presented  at  this
evidentiary  hearing, the hearing judge concluded  that
the  judge who accepted Joes guilty plea had, in  fact,
advised  Joe  of everything required by  Criminal  Rule
11(c).   Id.  at 511.  (As an alternative holding,  the
hearing  judge  concluded that  even  if  the  superior
courts  Rule 11(c) advisement to Joe had been deficient
in  one or more ways, Joe was nevertheless aware of all
of  his rights, and thus Joe had not been prejudiced by
any  arguable deficiencies in the superior courts  Rule
11(c) advisement.  Id.)
          In  its  decision of Joes appeal, the supreme
court  upheld  the  hearing judges  primary  conclusion
that  is,  the  hearing  judges  conclusion  that   the
original superior court judge had fully advised Joe  of
the  information and warnings required by Criminal Rule
11(c).  Id. at 513-14.
          The  supreme court referred to this as  proof
of  the  original  judges substantial  compliance  with
Criminal Rule 11(c).  But, in fact, it was proof of the
judges actual compliance with the rule.
          The supreme court never reached the issue  of
substantial  compliance as that phrase  is  defined  in
Lewis;  that is, the supreme court never had to  decide
whether  Joes  rights were adversely  affected  by  the
superior  courts  failure to comply with  one  or  more
provisions of Rule 11(c).  The facts of Joe simply  did
not  raise that issue  because the supreme court upheld
the hearing judges finding that the judge who took Joes
plea fully complied with Rule 11(c).
          Even though the facts of Joe did not raise an
issue  of substantial compliance, the supreme court  in
Joe seemingly declared that it was the States burden to
show substantial compliance with Rule 11(c).  What  the
court actually said was this:
     
     Given   the   absence  of  a   record   which
     affirmatively demonstrates compliance by  the
     sentencing  court  with the  requirements  of
     Rule  11,  we  are  in agreement  with  [the]
     appellants argument that the burden  is  upon
     the  state to prove by a preponderance of the
     evidence    that   there   was    substantial
     compliance with the provisions of Rule 11  by
     the trial court.
     
     Joe, 565 P.2d at 513.
               In  light  of the problem  actually
     presented   in  Joe   that  is,  given   Joes
     allegations that the superior court failed to
     comply  with Rule 11(c), and in light of  the
     fact  that there was no audio record  of  the
     change-of-plea  hearing   it  makes   perfect
     sense for the supreme court to put the burden
     on the State of reconstructing the record and
     demonstrating   that   the   superior   court
     complied with Rule 11(c).
          But  the  task of reconstructing  a
missing  record  and demonstrating  that  the
superior court properly conducted the change-
of-plea  hearing is not the same  as  showing
substantial compliance under the test adopted
in  Lewis.   The Lewis test begins  with  the
premise that the superior court indeed failed
to  comply  with Rule 11(c) in  one  or  more
particulars; the question to be  answered  is
whether  this  error was harmless  under  the
circumstances  of  the case  or,  conversely,
whether the superior courts failure to comply
with   the   rule  adversely   affected   the
defendants rights.
          Despite  the fact that this  quoted
passage  from Joe appears to be  pure  dictum
under the facts of Joes case, this Court  has
issued  decisions in which we relied  on  Joe
for the proposition that, when a violation of
Rule 11(c) is proved, it is the States burden
to  demonstrate  substantial compliance  with
the  rule (as that phrase is defined  in  the
Lewis  decision).  In other words, we  relied
on  Joe  for the proposition that it  is  the
States  burden to show that the violation  of
Rule  11(c)  did not prejudice the defendant.
See  Fulton  v.  State, 630 P.2d  1004,  1007
(Alaska  App. 1981); Bratcher v.  State,  681
P.2d 358, 361 (Alaska App. 1984).
          But  in  this  Courts  more  recent
decisions involving violations of Rule 11(c),
we  have  declared that it is the  defendants
burden  to  demonstrate  that  they  suffered
prejudice  as  a  result of  the  Rule  11(c)
violation.  See Aiken v. State, 730 P.2d 821,
823  (Alaska App. 1987); Peterson  v.  State,
988  P.2d  109, 117 (Alaska App.  1999).   In
other  words,  we  followed  the  rule   that
normally  applies  to  appellants  who   seek
relief  based on claims of non-constitutional
error:   the appellant must demonstrate  both
that  an  error occurred and that  they  were
prejudiced by it.2
          In  sum,  the law on this point  is
confused  owing to the decisions of both  the
supreme court and this Court.
          However, as we explain in the  next
section  of this opinion, we do not  need  to
          resolve this point of law in order to decide
Lindoffs case.

Regardless of whether the State bears the burden of
proving  lack of prejudice or the defendant  bears
the   burden  of  proving  prejudice,  it  is  the
defendants  burden to come forward  with  evidence
that would support a finding of prejudice

     As  we  have explained, Alaska law is unclear
as  to whether, when a violation of Rule 11(c)  is
proved, the State bears the burden of showing that
the  defendant was not prejudiced by the violation
or, conversely, the defendant bears the burden  of
showing  that  he or she was indeed prejudiced  by
the  violation.  But wherever the burden lies, two
other things are clear.
     First,  when we speak of prejudice  in  cases
involving  a  judges violation of Rule  11(c),  we
mean  (1)  that  the defendant was  not  otherwise
aware of the information that the judge forgot  or
neglected to say, and (2) that the defendant would
not have entered the guilty plea or the no contest
plea  if  the  defendant had been  aware  of  this
information.  Peterson v. State, 988 P.2d 109, 119-
120 (Alaska App. 1999).
     Second,  regardless of which party bears  the
ultimate  burden of proof, the defendant  bears  a
burden  of production  a burden of coming  forward
with   evidence  which,  if  believed,  would   be
sufficient to establish the two prongs of the test
for prejudice set forth in Peterson.
          In   Lewis,  the  supreme  court  upheld  the
defendants guilty plea because the defendant failed  to
present a prima facie case for relief  i.e., failed  to
come  forward with affirmative evidence that  he  would
not  have entered his guilty plea if the superior court
had  informed  him of all the information  required  by
Criminal Rule 11(c).  565 P.2d at 852-53.
          Similarly,  in Aiken v. State, 730  P.2d  821
(Alaska  App. 1987), this Court held that, despite  the
superior  courts violation of Rule 11(c), the defendant
was  not  entitled  to withdraw his  plea  because  the
defendant  failed to assert, much less prove,  that  he
would not have pleaded guilty if the superior court had
given  him the proper advice under Rule 11(c).  Id.  at
823.
          Compare Morgan v. State, 582 P.2d 1017,  1020
(Alaska  1978),  where the defendant asserted  that  he
should  be  allowed to withdraw his  plea  because  his
attorney failed to adequately advise him concerning his
rights  and the consequences of the plea.  The  supreme
court  rejected  this claim because the defendant  fell
short of meeting his burden of proof:  he presented  no
evidence   by   way  of  affidavits,  testimony[,]   or
otherwise  in support of his contention that his  trial
counsel did not advise him on these subjects.   Id.  at
1023.
          Turning  to  the  facts  of  Lindoffs   case,
Lindoff  took the stand at the evidentiary hearing  and
his attorney asked him the following crucial questions:
     
          Defense  Attorney:  Would you have  pled
     [guilty under] this [plea agreement] had  you
     known, at the change of plea [hearing],  that
     you  were going to have to register [as a sex
     offender] for the rest of your life?
     
          Lindoff:   I  do not know that  I  would
     have.
     
          Defense Attorney:  [Its] [h]ard to  know
     a hypothetical [sic] under this ...
     
          Lindoff:  Yeah; yes.
     
          Lindoffs equivocal response was not
sufficient to support a prima facie  case  of
prejudice  under Peterson.   If  a  defendant
wishes  to withdraw a previous plea of guilty
or  no contest because of the superior courts
violation   of  Criminal  Rule   11(c),   the
defendant  must,  at a minimum,  assert  that
they would not have entered their plea if the
judge had advised them of all the information
required by the rule.
          Because Lindoff failed to make such
an  assertion,  his request to  withdraw  his
plea was insufficient as a matter of law, and
the  superior court therefore properly denied
Lindoffs request.
          We  acknowledge that  the  superior
court   denied  Lindoffs  request  for  other
reasons.  We express no opinion regarding the
sufficiency  of  the superior courts  grounds
for  denying Lindoffs motion to withdraw  his
plea.   Rather,  we invoke our  authority  to
affirm  the  superior  courts  action  on  an
independent ground revealed by the record.3

Conclusion

     The  judgement  of  the  superior  court   is
AFFIRMED.

_______________________________
  1 Compare AS 12.63.020(a)(1)(B) with 020(a)(2).

2Civil cases:  See, e.g., Audrey H. v. Office of Childrens
Services,  188 P.3d 668, 677 (Alaska 2008); Bennett  v.
Hedglin,  995 P.2d 668, 674 (Alaska 2000); Uchitel  Co.
v.  Telephone  Co.,  646 P.2d 229, 238  (Alaska  1982).
Criminal cases:  See, e.g., Hammock v. State,  52  P.3d
746,  750 (Alaska App. 2002); Steffensen v. State,  900
P.2d  735,  739 (Alaska App. 1995); Hurn v. State,  872
P.2d  189, 193 (Alaska App. 1994); Jonas v. State,  773
P.2d 960, 968-69 (Alaska App. 1989).

3See, e.g., Torrey v. Hamilton, 872 P.2d 186, 188 (Alaska
1994); Demoski v. New, 737 P.2d 780, 786 (Alaska 1987);
Millman v. State, 841 P.2d 190, 195 (Alaska App. 1992);
Russell  v. Anchorage, 626 P.2d 586, 588 n.  4  (Alaska
App. 1981).

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