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Ulak v. State (9/3/2010) ap-2275

Ulak v. State (9/3/2010) ap-2275

                             NOTICE
     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate
     Courts.

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878
       E-mail:  corrections@appellate.courts.state.ak.us

         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


HARRIETTA ULAK, )
) Court of Appeals No. A-10177
Appellant, ) Trial Court No. 4BE-07-681 CR
)
v. ) ) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) No. 2275 September 3, 2010
)
          Appeal  from the Superior Court, Fourth  Judi
          cial   District,  Bethel,  Marvin   Hamilton,
          Judge.

          Appearances:   Marjorie K. Allard,  Assistant
          Public  Defender, and Quinlan Steiner, Public
          Defender,   Anchorage,  for  the   Appellant.
          Terisia   K.  Chleborad,  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.

          BOLGER,  Judge.
          MANNHEIMER, Judge, concurring.
          COATS,  Chief Judge, concurring in part and  dissenting
in part.

          Harrietta  Ulak pleaded guilty to assault in the  third
degree  for  injuring C.S. on more than one  occasion,  and  Ulak
admitted  the  aggravating factors that C.S. was  a  particularly
vulnerable  victim,  and that her conduct  manifested  deliberate
cruelty.   At  her sentencing hearing, however, Ulak denied  that
she  had  ever injured C.S. deliberately, and she requested  that
the  superior  court  excise  from  the  presentence  report  her
grandchildrens  hearsay  statements  that  she  had  deliberately
abused C.S. on numerous occasions.  We remand the case and direct
the superior court to determine the factual basis for Ulaks plea.
If  the grandchildrens statements comprise the factual basis  for
Ulaks  plea  and  the  aggravating factors  she  admitted,  these
statements may remain in the presentence report.

     Background
          C.S.  was  a  three-year-old child that  Ulak  and  her
husband  took  into their home approximately nine  months  before
this  case  arose.   The State indicted Ulak on  four  counts  of
assault  for  repeatedly beating C.S.  Ulak entered into  a  plea
agreement  in  which she agreed to plead guilty to one  count  of
assault  in  the  third degree for recklessly caus[ing]  physical
injury  to  a  child  under 10 years of  age  on  more  than  one
occasion.1  Ulak  also  agreed to admit two aggravating  factors:
that  her conduct during the commission of the offense manifested
deliberate  cruelty  to  C.S., and that she  knew  or  reasonably
should  have known that C.S. was particularly vulnerable  due  to
her extreme youth.2
          Prior  to  the  sentencing hearing,  Ulak  objected  to
several  hearsay assertions made by her grandchildren  that  were
included  in  the  presentence report.  In  response,  the  State
argued that Ulak was not entitled to deletion of these statements
because  the statements formed the factual basis for  her  guilty
plea.
          All   of   the  disputed  statements  concerned   Ulaks
infliction  of  physical  injury upon  C.S.   Ulak  disputed  the
statements of her granddaughter, Kenny:  that Ulak tried to  kill
C.S.,  punched C.S. hard enough to give her two black eyes and  a
broken  nose,  pulled her hair, put a knife to  her  throat,  and
poked  her  in the stomach with a knife.  Ulak also disputed  the
statements of her granddaughter, Mary Jane:  that Ulak  hit  C.S.
with  a closed fist, kicked her, and frightened her with a knife.
All  of  these statements arguably underlie the charge that  Ulak
admitted:  that she recklessly caused physical injury to C.S.  on
more than one occasion.
          The   presentence  report  also  contained   additional
evidence related to Ulaks offense.  For example, when two  social
workers came to Ulaks house, they found that C.S. was moving very
slowly  and  appeared  to be in pain.  Her  face  was  completely
swollen with dark purple bruises, and she had bruises on her neck
and  arms, dried blood on her nose and mouth, bald spots  on  her
head,  sores all over her head, and a cut across the back of  her
head.   Her hair was singed on both sides of her head.   But  the
social  workers did not witness any of the abuse that had  caused
these injuries.
          At  the  sentencing hearing, Ulak testified and  denied
the  hearsay  reports by her grandchildren.  Ulak said  that  she
spanked C.S. to discipline her, but that she never hit C.S.  with
          a closed fist.  Ulak denied that she ever hit C.S. deliberately
for her personal satisfaction.
          Ulak  also called her husband, Paul Ulak, as a  witness
on  her  behalf.   He described his wife as a  good  mother.   He
testified  that he had seen Ulak hit C.S., but denied  that  Ulak
had ever used excessive force.
          Superior  Court  Judge  Marvin  Hamilton  denied  Ulaks
motion   to  strike  her  grandchildrens  statements   from   the
presentence  report.  Instead, he supplemented  the  record  with
Ulaks  affidavit setting forth her competing version  of  events.
Judge  Hamilton  imposed  a sentence  of  4  years  with  1  year
suspended, and Ulak now appeals.

     Discussion
          Upon  a  defendants  objection, a sentencing  judge  is
required  to determine the admissibility of assertions  contained
in  the presentence report.3  Ordinarily, verified assertions  of
prior  misconduct are admissible for sentencing.4  But  when  the
defendant  denies  hearsay assertions regarding prior  misconduct
under  oath,  the State is required to prove that the  declarants
are  unavailable  or to present live testimony to  support  their
assertions.5   The  sentencing judge  then  decides  whether  the
assertions are true.  If the assertions are not proven, then  the
judge must delete the assertions from the presentence report.6
          Special  rules apply to assertions that relate  to  the
charge under consideration at the sentencing hearing.  A plea  of
guilty  or  no contest constitutes an admission that  establishes
the  truth  of the charge for sentencing purposes.7  The  factual
assertions  that underlie the offense are considered to  be  true
even though the defendant might deny those assertions under oath.
Therefore, even when the defendant testifies that he is innocent,
the assertions underlying the offense should not be stricken from
the presentence report.8
          The  same  rule applies to the facts that underlie  any
conceded  aggravating factors.  The prosecution  is  required  to
give  notice  of  the  factual basis  for  each  factor  that  it
alleges.9   The  sentencing judge is required to  enter  specific
findings  on  aggravating  factors  as  part  of  the  sentencing
process.10   The  defendant may waive his right  to  a  trial  or
hearing  by  admitting  these  factors.11   But  even  when   the
defendant admits an aggravating factor, the judge has a  duty  to
ensure  that  there  is a reasonable basis for  the  admission.12
Accordingly,  when  the defendant makes such  an  admission,  the
facts  that support the aggravating factor are deemed to be  true
for sentencing purposes.
          We  have  not  previously resolved the process  that  a
judge   should  use  to  determine  whether  assertions  in   the
presentence  report underlie the offense to which  the  defendant
has  pleaded guilty or no contest, and therefore must  remain  in
the  report  even  if  the defendant objects to  the  assertions.
However,  the answer is already provided in Alaska Criminal  Rule
11(f) for defendants like Ulak, who enter a plea of guilty.
          Rule  11(f) requires that The court shall not  enter  a
judgment upon a plea of guilty without first being satisfied that
          there is a reasonable basis for the plea.  The court is required
to  explicitly  determine that a guilty plea is supported  by  an
adequate  factual  basis.  A guilty plea that lacks  an  adequate
factual  basis  is  not a valid plea.13  A similar  inquiry  also
applies to ensure that a defendant understands the basis for  his
plea, even when the plea is no contest.14
          The  court is not required to conduct a trial or follow
the  rules of evidence when it determines the basis for a  guilty
plea.15   But the courts inquiry should be sufficiently  definite
to establish that there is a factual basis for the plea:
          The  court should satisfy itself, by  inquiry
          of  the  defendant  or the attorney  for  the
          government,  or by examining the  presentence
          report, or otherwise, that the conduct  which
          the  defendant admits constitutes the offense
          charged  in the indictment or information  or
          an  offense  included therein  to  which  the
          defendant has pleaded guilty.[16]
This  inquiry  may be achieved by statements and stipulations  of
counsel,  including  references to  the  grand  jury  transcript,
complaint affidavit, or police report.17
          In  the  present  case,  the  superior  court  did  not
determine the basis for Ulaks guilty plea before the judgment was
entered.   This  omission  prevented the  court  from  making  an
accurate   determination  about  whether  the  acts  that   Ulaks
grandchildren   described  were  the  conduct  underlying   Ulaks
conviction.   On  remand, the superior court must  determine  the
factual basis for Ulaks plea using the methods described above.
          The  superior  court  also  erred  when  it  failed  to
determine whether the assertions to which Ulak objected had  been
proven.   Assertions that are included in the factual  basis  for
the  plea need no further proof; the defendants plea proves those
assertions.18   But other hearsay assertions that  the  defendant
has  denied under oath must be deleted, unless the State  submits
evidence showing that those assertions are true.19
          It  is not sufficient for the court to merely note  the
disputed  assertions,  or attach the defendants  version  of  the
events  to  the  presentence report.  The court must  delete  the
unproven  assertions from the presentence report by marking  them
out  so  that they cannot be used for improper reference  in  the
future.   The courts corrected copy must be labeled the  approved
version  of  the  presentence  report,  and  delivered   to   the
Department  of Corrections within seven days after the sentencing
hearing.20
          Judge Coatss dissenting opinion suggests that it is now
unfair  for  the sentencing judge to determine the factual  basis
for  Ulaks plea.  Judge Coats would apparently require the  judge
to delete the hearsay statements from the presentence report even
if  the  deletion  would leave a sentencing  record  without  any
description  of  the  circumstances of Ulaks  offense.   But  the
circumstances of Ulaks offense are part of the statutory  factors
the sentencing judge is required to consider.21  Thus Ulak has no
right  to  have the facts that underlie her guilty plea  and  the
aggravating  factors she admitted stricken from  the  presentence
          report.  Even if Ulak now denies these facts, they have been
established,  for  purposes  of the presentence  report  and  the
sentencing proceeding, based on Ulaks decision to enter a  guilty
plea.22
          We  realize  that Rule 11(f) only requires a  judge  to
ensure  that there is a reasonable basis for a guilty plea before
issuing  the  judgment.  We note, however, that the trial  courts
failure  to  explicitly  determine the factual  basis  for  Ulaks
guilty  plea has resulted in a great deal of litigation  on  this
issue.   If trial judges determine the factual basis for a guilty
or  no contest plea at the time the plea is entered and accepted,
this will avoid unnecessary disputes.
          We therefore REMAND this case to the superior court for
further  proceedings.  The court shall explicitly  determine  the
factual  basis for Ulaks guilty plea and the aggravating  factors
she  admitted.   The court shall then focus on the assertions  in
the  presentence report that Ulak has disputed in her testimonial
denials.  The court may allow the State an opportunity to present
testimony  to  corroborate  the grandchildrens  statements.   The
disputed  assertions that are not proven either  by  Ulaks  plea,
admission,  or other evidence shall be deleted from  the  report.
We do not retain jurisdiction of this matter.
MANNHEIMER, Judge, concurring.

          Under Alaska law, when a defendant pleads guilty or  no
contest  to  a  criminal charge, that plea limits the  defendants
ability  to  contest issues of fact at sentencing.   We  held  in
Ashenfelter  v.  State,  988 P.2d 120 (Alaska  App.  1999),  that
defendants  are not entitled to deny their factual guilt  of  the
charges to which they have pleaded guilty or no contest.  Id.  at
123.1   Thus,  a  sentencing  judge  can  properly  disregard   a
defendants claim of innocence regarding the charge to which  they
have  pleaded  guilty  or no contest, even  when  that  claim  of
innocence is made under oath.  Evans v. State, 23 P.3d  650,  652
(Alaska App. 2001).
          As  explained in Judge Bolgers lead opinion,  Ulak  and
the  State chose to resolve the various criminal charges  against
Ulak  by  having  Ulak plead guilty to a single count  of  third-
degree   assault  under  AS  11.41.220(a)(1)(C)(ii)   (recklessly
caus[ing]  physical injury to a child under 10 years  of  age  on
more  than  one occasion), and by having Ulak concede aggravating
factor   AS  12.55.155(c)(2)  (that  [her]  conduct  during   the
commission  of  the  offense  manifested  deliberate  cruelty  to
another  person).  The problem in this case arises from the  fact
that  the parties and the superior court went into the sentencing
hearing  without  any  clear understanding  of  what  facts  Ulak
conceded when she entered this plea and admitted this aggravating
factor.
          Ulak   took  the  stand  and  essentially  denied   any
misconduct:  she admitted that she had struck the child, but  she
contended  that  this  had been normal  discipline.   She  denied
physically abusing the child, or injuring the child deliberately,
or  treating  the  child  with  cruelty.   Then,  based  on  this
testimony, she demanded that the superior court redact  the  pre-
          sentence report by excising the statements attributed to her
grandchildren,  who told the authorities that  Ulak  deliberately
abused the victim on numerous occasions.2
          The  State responded that, because Ulak pleaded  guilty
to  recklessly injuring the victim on more than one occasion, and
because Ulak conceded that she acted with manifest cruelty toward
the  victim, she was barred from disputing any of the information
in the pre-sentence report.
          The  sentencing  judge   Superior  Court  Judge  Marvin
Hamilton  decided to circumvent this legal problem by leaving the
grandchildrens inculpatory assertions in the pre-sentence report,
but  supplementing the pre-sentence report with Ulaks exculpatory
statements.  All three members of this Court agree that this  was
error.   Under Criminal Rule 32.1(f), Judge Hamilton was required
to resolve the disputed factual issues.
          Technically,   Criminal  Rule  32.1(f)  offered   Judge
Hamilton  another  option:   he  could  have  declared  that  the
disputed   factual  issues  were  irrelevant  to  his  sentencing
decision,  and then deleted the inculpatory assertions  from  the
pre-sentence  report.   However,  in  Ulaks  case,  the  disputed
accusations  of child abuse go to the very heart  of  the  States
case  against  Ulak.   Because there was no trial  (and  thus  no
evidentiary  record to support Ulaks assault conviction  and  her
concession of the deliberate cruelty aggravating factor), the pre-
sentence report is the only source for determining the underlying
factual  basis  for  Ulaks conviction and the underlying  factual
support for the superior courts sentencing decision.
          At  first blush, the answer to this legal problem might
appear  to be simple.  Under this Courts decision in Ashenfelter,
because Ulak pleaded guilty to recklessly causing physical injury
to  the  victim  on  more  than one occasion,  and  because  Ulak
conceded that her conduct toward the victim manifested deliberate
cruelty,  the sentencing judge apparently should have disregarded
Ulaks  denials  of  the  facts underlying this  charge  and  this
aggravating  factor.   In other words, Ulak would  be  foreclosed
from  asserting that she never physically abused the victim,  and
never  struck the victim except for normal discipline, and  never
treated   the  victim  cruelly   because  these  assertions   are
seemingly  inconsistent with Ulaks admission of the  elements  of
third-degree assault as defined in AS 11.41.220(a)(1)(C)(ii)  and
Ulaks concession of the deliberate cruelty aggravator.
          The  matter is more complicated, however, because Ulaks
crime is not defined in terms of a single assault, but rather  as
repeated  conduct  reckless infliction of injury to the child  on
more  than one occasion.  The grandchildrens statements recounted
in  the  pre-sentence report describe several incidents of abuse;
but, technically, the State needed to prove only two incidents of
abuse  to  establish the charged crime.  Arguably, Ulak might  be
able   to  object  to  assertions  in  the  pre-sentence   report
describing  more  than two incidents of her violence  toward  the
victim.   But  even then, it is not clear which  of  the  various
incidents  described  in the pre-sentence report  Ulak  might  be
allowed to challenge.
          Judge  Bolgers  lead opinion resolves this  problem  by
          relying on the rule that governs the acceptance of a guilty plea
under  Alaska  Criminal Rule 11(f) and the corresponding  federal
law.   Basically, Criminal Rule 11(f) states that a court  should
not  enter a criminal judgement based on a defendants guilty plea
without hearing an offer of proof as to the factual basis of that
plea   i.e., a description of the facts which the State would  be
prepared  to prove at trial to justify the defendants  conviction
for  the specified crime.  I agree that this is the correct  rule
under Alaska law, and I further agree that we should remand Ulaks
case  to  the superior court so that Judge Hamilton can determine
the  factual basis of Ulaks plea.  This, in turn, will  determine
the extent to which Ulak is barred from attacking the inculpatory
assertions in the pre-sentence report.
          However,  a  related  and  potentially  more  difficult
problem  exists when a defendant pleads no contest  (rather  than
guilty).   In Alaska, defendants may plead no contest  by  right,
and  the court is not allowed to demand that the defendant  admit
that there is a factual basis for the plea.  See Miller v. State,
617  P.2d 516, 518 (Alaska 1980); Jones v. State, 215 P.3d  1091,
1095-96 (Alaska App. 2009).  More specifically, our supreme court
held  in  Miller that Criminal Rule 11(f) does not apply  when  a
defendant pleads no contest:
          
          [T]he  only inquiry permitted the trial court
          by  Criminal  Rule 11 is that of  determining
          whether  the plea [of no contest] is  knowing
          and  voluntary.  ...  [O]nce the trial  court
          determines that a plea of nolo contendere  is
          knowing  and voluntary, [the court] is  bound
          to accept that plea.  ...  Subsection (f) [of
          Criminal  Rule  11], by its terms[,]  applies
          only  to  guilty pleas.  ...  [T]o require  a
          defendant  to show that there is a reasonable
          basis for a plea of nolo contendere puts  the
          defendant  in the awkward position of  having
          to  demonstrate  his guilt  in  order  to  be
          allowed  to  plead nolo contendere.   Such  a
          practice destroys the unique purpose  of  the
          nolo  [contendere] plea, which  is  that  the
          issue of guilt shall not be contested.
          
          Miller,  617 P.2d at 518 (internal  citations
          omitted).
          But  even  though a court  may  not
demand that a defendant who offers a plea  of
no   contest  concomitantly  acknowledge  the
factual  truth of the States case, the  court
still   needs   to   identify   the   factual
assertions  that will be taken as proved  for
purposes  of the sentencing proceedings.   If
these  factual  assertions are  unidentified,
the  court  will be unable to  ascertain  the
scope  of  the  facts that the defendant  has
conceded (for purposes  the Ashenfelter rule)
when resolving questions involving the proper
content   of  the  pre-sentence  report   and
whether the State is required to present live
testimony at the sentencing hearing.
          Because of this, I would expand the
rule  that  we  are now adopting  for  guilty
pleas, so that it covers no contest pleas  as
well.   Even  though a defendant  who  pleads
no contest need not concede the factual truth
of  the  States allegations, the legal effect
of  the plea is that the sentencing court  is
entitled to treat each element of the offense
as    proved    (despite    the    defendants
protestations  of factual innocence).   Scott
v.  State,  928 P.2d 1234, 1238 (Alaska  App.
1996).   I  therefore believe that,  even  in
cases  where defendants plead no  contest,  a
court  can  still  require  the  parties   to
describe  or identify the factual  assertions
that will be taken as proved for purposes  of
sentencing.
          Judge   Coats  contends   (in   his
separate opinion) that it is too late for the
superior  court to go back and  identify  the
factual  basis of Ulaks plea and the  factual
basis  of  Ulaks concession of the deliberate
cruelty aggravator.  Judge Coats explains his
conclusion by noting that the superior  court
long   ago  accepted  Ulaks  plea   and   ...
sentenced her, and thus Ulak would be  unable
to  walk away from the plea agreement without
prejudice.
          Judge Coatss statement implies that
he believes that Ulaks double jeopardy or due
process  rights  would  be  violated  if  the
superior  court  were  to  inquire  into  the
factual  basis  of Ulaks plea at  this  time.
But  there  is  no  double jeopardy  problem,
because  Ulak has not appealed her  sentence.
In other words, Ulak has not challenged Judge
Hamiltons   reliance  on  the  grandchildrens
factual   assertions   when   he   made   the
sentencing  decision in this case.   Instead,
Ulaks sole contention on appeal is that those
factual assertions should not remain part  of
her pre-sentence report.
          With  regard  to  the  due  process
aspects  of  this  case, Judge  Coats  argues
that,  because the parties failed to  specify
the  factual  basis of Ulaks plea  to  third-
degree  assault and the factual basis of  her
concession  of  the aggravating  factor,  the
only fair thing to do is to have the superior
court  offer the State the choice  of  either
(1)  producing  the  live  testimony  of  the
grandchildren  or  else  (2)  suffering   the
deletion  of all the incriminatory assertions
from  the  pre-sentence  report.   But  Judge
Coatss approach to the situation ignores  the
rule  of  Ashenfelter and Evans.   Defendants
are  not  allowed  to plead guilty  and  then
demand  that  the  State affirmatively  prove
their    guilt    during    the    sentencing
proceedings.
          In  effect, Judge Coats is  arguing
that,  at this point, Ulak must be deemed  to
have conceded nothing when she pleaded guilty
to  assaulting the child and when she  agreed
to the deliberate cruelty aggravating factor.
To  my  mind, this suggestion is  unfair  and
fundamentally  inconsistent with  Ashenfelter
and  Evans.  It requires everyone to  pretend
that  Ulaks  guilty plea and Ulaks concession
of  the deliberate cruelty aggravating factor
had  no  ascertainable  factual  basis   thus
leaving  the State the task of proving  Ulaks
guilt   from   scratch   for   purposes    of
sentencing.
          The  problem  in this  case  arises
from  the  fact  that the parties  failed  to
specify the factual basis of Ulaks plea.  The
solution  is either to identify the basis  of
the  plea or, failing that, to have Ulak  ask
the  superior  court to let her withdraw  the
plea.   It  would be unfair and  improper  to
allow  Ulak to maintain her guilty plea  but,
at  the  same  time, demand  that  the  State
affirmatively  prove  Ulaks  guilt   at   the
sentencing  hearing.  For  these  reasons,  I
concur with Judge Bolgers resolution of  this
appeal.






















COATS,  Chief Judge, concurring in  part  and
dissenting in part.

          Introduction
          This  case involves a dispute  over
what   information  may  be  included  in   a
presentence report.  In brief, Ulak entered a
plea of guilty to one count of assault in the
third  degree.   Later, at  sentencing,  Ulak
offered   testimony  in  which   she   denied
statements  by  her grandchildren  describing
her  treatment  of C.S., the victim  in  this
case.  Ulaks grandchildren did not testify at
the  sentencing hearing and the State did not
provide   any   evidence   that   they   were
unavailable to testify.  Ulak moved to strike
the   grandchildrens  statements   from   the
presentence  report.  Judge  Hamilton  denied
the  motion  but  agreed  to  supplement  the
record with Ulaks affidavit setting forth her
version  of the offense.            This  was
error.   Criminal Rule 32.1(f)  requires  the
trial   court   to   resolve   all   disputed
allegations  in  the presentence  report,  or
else  declare  that they do not  need  to  be
resolved and strike them from the record.   I
therefore would remand the case to allow  the
trial court to do this.
          However, I have concerns about this
courts  opinion, which appears to  allow  the
State  to  establish  contested  facts  under
Criminal  Rule  11(f)  facts that  the  State
might not be able to establish under Criminal
Rule 32.1.  Because Ulak has entered her plea
and  has  been sentenced, she is not  in  the
same  position she would have been in if  the
court had established the basis for her  plea
before  accepting the plea.   Therefore,  the
State  should be bound by the procedures  for
establishing facts under Rule 32.1(f).




          Discussion
          The  State indicted Harrietta  Ulak
on  four  counts  of assault  in  the  first,
second,  and  third degree  for  abusing  her
three-year-old adopted daughter, C.S.1   Ulak
          entered into a plea agreement with the State
in  which she pleaded guilty to one count  of
assault   in  the  third  degree   under   AS
11.41.220(a)(1)(C)(ii), a class C felony, for
recklessly  [causing] physical  injury  to  a
child under 10 years of age on more than  one
occasion.   Ulak  also agreed  to  admit  two
aggravating factors  that her conduct  during
the  commission  of  the  offense  manifested
deliberate cruelty to C.S., and that she knew
or reasonably should have known that C.S. was
particularly   vulnerable  or  incapable   of
resistance due to her extreme youth.2
          In  preparation for  sentencing,  a
probation   officer  prepared  a  presentence
report.   Ulak  filed  a  notice  of  several
objections  to assertions in the  presentence
report.   In  particular,  Ulak  objected  to
several  hearsay reports by her grandchildren
which  purported to describe Ulaks  abuse  of
C.S.
          Sentencing was held before Superior
Court  Judge Marvin Hamilton.  Ulak testified
at  the sentencing hearing and denied many of
the  allegations  in the presentence  report.
In  particular,  she denied the  accuracy  of
most   of   the   hearsay  reports   by   her
grandchildren.  The State cross-examined Ulak
about prior admissions that she had made to a
state trooper.  Ulak also called her husband,
Paul  Ulak,  as a witness on her behalf.   He
described  his  wife as a good  mother.   The
State   cross-examined  Paul  Ulak  on  prior
statements  he  had  made  in  which  he  had
accused his wife of physically abusing C.S.
          Ulaks  grandchildren, who made  the
hearsay  statements to which  Ulak  objected,
did  not  testify at the sentencing  hearing,
and  the  State did not provide any  evidence
that  they were unavailable to testify.  Ulak
then moved to strike the childrens statements
from  the presentence report.  Judge Hamilton
denied   this  motion,  but  he   agreed   to
supplement  the  record with Ulaks  affidavit
setting  forth  her version of  the  offense.
Judge  Hamilton imposed a sentence of 4 years
with  1  year  suspended and placed  Ulak  on
probation for 5 years.
          Under Alaska Criminal Rule 32.1(f),
in  sentencing proceedings, the  trial  court
must resolve all disputed allegations in  the
presentence report or else declare that  they
do  not  need to be resolved and strike  them
from the record:
          [T]he  State can normally
          rely      on      hearsay
          allegations     of      a
          defendants          other
          misconduct   but  not  if
          the  defendant takes  the
          stand,     denies     the
          allegation,  and  submits
          to      cross-examination
          regarding the matter.  In
          that case, the State must
          either    support     its
          allegation   with    live
          testimony             or,
          alternatively, prove that
          the hearsay declarant  is
          not  available to testify
          and  furnish  information
          to  support  the  hearsay
          declarants
          credibility.[3]
          
          Ulak took the stand and denied  the
substance   of  the  grandchildrens   hearsay
statements.  The State never presented  Ulaks
grandchildren  as witnesses or  attempted  to
show  that they were unavailable to  testify.
But  rather than resolve the disputed factual
issues,  Judge Hamilton simply augmented  the
presentence  report so that it contained  the
conflicting   accounts.    Therefore,   Judge
Hamilton   did   not  follow  the   procedure
mandated by Criminal Rule 32.1(f).  The State
agrees  that Judge Hamilton erred in  failing
to follow the rule.
          The  State contends, however,  that
Ulak   was   not   entitled   to   deny   her
grandchildrens   statements   because   Ulaks
testimonial denial was inconsistent with  her
plea of guilty to assault in the third degree
and   her   concession  of  the   aggravating
factors, particularly the aggravating  factor
that   Ulaks  conduct  manifested  deliberate
cruelty  to C.S.  [Ae. Br. 11-12]  The  State
relies on Evans v. State.4
          In  Evans, the defendant pleaded no
contest  to  one count of sexual abuse  of  a
minor   in   the  first  degree.5    At   the
sentencing  hearing,  Evans  testified  under
oath  and denied any sexual misconduct.   The
trial  judge denied Evanss motion  to  strike
the  allegations  in the presentence  report.
The  judge simply noted that Evans had denied
the  allegations under oath, and stated  that
          the evidence supported many of Evanss
denials.6
          Evans  appealed, arguing  that  the
trial  judge erred in failing to  redact  the
portions  of the presentence report  that  he
had  challenged with his testimonial denial.7
We   concluded  that  the  trial  judge   had
violated  the  provisions  of  Criminal  Rule
32.1,  and  we  stated  that  the  judge  was
obliged  to  resolve the disputed allegations
or  expressly declare that he did not need to
resolve  them  (and then order  them  removed
from the pre-sentence report).8
          We    observed,    however,    that
defendants  are not entitled  to  deny  their
factual  guilt of the charges to  which  they
have  pled  guilty  or no contest.9   Because
Evans had entered a plea of no contest to one
count of sexual abuse of a minor in the first
degree,  the  judge could properly  disregard
Evanss  claim  of  innocence  regarding  this
count,  even though the claim was made  under
oath.10  In addition, we noted that in Evanss
testimony,  he  had admitted making  arguably
incriminatory statements.11  We  stated  that
the   trial   judge  could   consider   these
statements   in   determining   the   factual
background of Evanss offense.12
          Thus,  under Evans, Judge  Hamilton
could  rely on the fact that Ulak  entered  a
plea of guilty to assault in the third degree
and  conceded  two  aggravating  factors   to
reject Ulaks testimonial denial of the  facts
that  formed the basis of the charge and  the
aggravating  factors to which she  pleaded.13
The  court could also rely on the allegations
in  the  presentence report, as long as  they
were   sufficiently  verified.14   But  under
Criminal  Rule  32.1(f), Judge  Hamilton  was
required  to resolve all disputed allegations
in  the  presentence report, or else  declare
that  they  did not need to be  resolved  and
strike  them  from the record.  Because  Ulak
made  a  testimonial denial and submitted  to
cross-examination,  the  State  was  required
toeither  support its allegations  with  live
testimony or, alternatively, prove  that  the
[grandchildren were] not available to testify
and  furnish  information to support  [their]
credibility.15
          The  State  did not do  this.   And
going back and revisiting Criminal Rule 11(f)
at  this  time appears to me to raise serious
problems.  The trial court long ago  accepted
          Ulaks plea and sentenced her.  The parties
are simply not in the same position they were
in  when  Ulak entered her plea, when  either
side  could walk away from the plea agreement
without  prejudice.  If the State had  wanted
Ulak  to concede certain facts as a condition
of  her  plea agreement, the time to do  that
was  before  the court accepted  Ulaks  plea.
Now  that Ulak has entered her plea  and  has
been sentenced, the fairest way to proceed is
under  the  long-established  procedures  set
forth  in Criminal Rule 32.1(f) for resolving
disputed issues in presentence reports.
          This   procedure  is  set  out   in
Evans.16   Because I see this courts decision
as  potentially a major departure  from  this
established  procedure, I am  concerned  that
the   effect   of   the  decision   will   be
unpredictable  in  any  case  in  which   the
defendant  enters a plea without agreeing  to
the  facts that constitute the offense.   And
the courts decision could certainly be unfair
to  Ulak,  who  could not have foreseen  this
change in procedure.
          I  therefore agree with this courts
decision  that the case must be  remanded  to
Judge Hamilton to resolve the disputed issues
in the presentence report under Criminal Rule
32.1(f).   But to the extent that the  courts
decision    would   allow   the   State    to
retroactively revisit Criminal Rule 11(f)  to
establish facts that it would not be able  to
establish  under  Criminal  Rule  32.1(f),  I
disagree with this courts decision.
_______________________________
     1 AS 11.41.220(a)(1)(C)(ii).

     2 AS 12.55.155(c)(2) & (c)(5).

3 Alaska R. Crim. P. 32.1(d)(5), (f)(5).

     4 Nukapigak v. State, 562 P.2d 697, 701 (Alaska 1977).

     5  Hamilton  v. State, 771 P.2d 1358, 1362-63  (Alaska  App.
1989).

     6 Alaska R. Crim. P. 32.1(f)(5).

     7  Ashenfelter  v.  State, 988 P.2d 120,  123  (Alaska  App.
1999); Scott v. State, 928 P.2d 1234, 1238 (Alaska App. 1996).

     8 Evans v. State, 23 P.3d 650, 652 (Alaska App. 2001).

     9 Alaska R. Crim. P. 32.1(c)(1).

     10   AS 12.55.155(f)(1); Alaska R. Crim. P. 32.1(f)(2).

     11    Malutin  v.  State, 198 P.3d 1177, 1184  (Alaska  App.
2009).

     12   Id. at 1185.

13    See  Swensen  v.  Anchorage, 616 P.2d 874,  880-81  (Alaska
1980); Else v. State, 555 P.2d 1210, 1215 n.15 (Alaska 1976); see
generally  2  Charles  Alan Wright & Andrew D.  Leipold,  Federal
Practice and Procedure, 179 (4th ed. 2008).

     14    See  Lamb v. Anderson, 147 P.3d 736, 742 n.47  (Alaska
2006);  Johnson  v.  State, 739 P.2d 781, 784  n.3  (Alaska  App.
1987).

     15    See People v. Watts, 136 Cal. Rptr. 496, 500 (Cal. Ct.
App. 1977).

     16    Advisory Committees Note to the Amendment to Rule  11,
Federal  Rules of Criminal Procedure, 39 F.R.D. 69,  172  (1966);
see  Jones  v.  State,  215 P.3d 1091, 1095  (Alaska  App.  2009)
(noting  that  Alaska  Criminal Rule 11(f) was  prompted  by  the
amendment of the federal rule).

     17    See  People v. Holmes, 84 P.3d 366, 372  (Cal.  2004);
Watts, 136 Cal. Rptr. at 500.

     18   Evans, 23 P.3d at 652.

     19   Id.

     20   Alaska R. Crim. P. 32.1(f)(5).

     21   AS 12.55.005(1) & (4).

22    See  Evans,  23  P.3d  at  652; Ashenfelter,  988  P.2d  at
123.

     1  Citing  Scott v. State, 928 P.2d 1234, 1238 (Alaska  App.
1996).

2   See  Alaska  Criminal  Rule  32.1(f).   See  also  Evans   v.
State,  23  P.3d  650, 652 (Alaska App. 2001),  and  Hamilton  v.
State,  771 P.2d 1358, 1362-63 (Alaska App. 1989), both of  which
hold that a defendant has a conditional right of confrontation at
sentencing:   although a sentencing judge can  normally  rely  on
out-of-court statements described in the pre-sentence report  for
proof  of  the  matters  asserted, the  State  must  support  its
assertions  with  live  testimony  if  the  defendant  offers   a
testimonial   denial   of   those   matters   and   submits    to
cross-examination.

1 AS 11.41.200(a)(3); 11.41.210(a)(3); 11.41.220(a)(1)(A),
(C)(i).

2 AS 12.55.155(c)(2) & (c)(5).

3  Charliaga v. State, 157 P.3d 1053, 1054 (Alaska App.
2007)  (citing Evan v. State, 899 P.2d 926, 929 (Alaska
App.  1995); Hamilton v. State, 771 P.2d 1358,  1362-63
(Alaska App. 1989)).

4 23 P.3d 650 (Alaska App. 2001).

5 Id. at 651.

6 Id.

7 Id.

8 Id. at 652.

9 Id. (footnote omitted).

10Id. (footnote omitted).

11Id.

12Id.

13Id.

14Nukapigak v. State, 562 P.2d 697, 701 (Alaska 1977).

15Charliaga, 157 P.3d at 1054.

16Id. at 651-52.

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