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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA,
Court of Appeals Nos. A-10552 & A-10578
Appellant, Trial Court Nos. 3HO-08-458 Cr &
3KN-04-2938 Cr
v.
O P I N I O N
LEE J. HENRY and
MATTHEW L. FULTON,
No. 2280 - October 8, 2010
Appellees.
Appeals from the Superior Court, Third Judicial District,
Homer, Carl Bauman, Judge (State v. Henry), and Kenai,
Charles T. Huguelet, Judge (State v. Fulton).
Appearances: Eric A. Ringsmuth, Assistant Attorney General,
Office of Special Prosecutions and Appeals, Anchorage, and
Daniel S. Sullivan, Attorney General, Juneau, for the Appellant.
Julia D. Moudy, Assistant Public Defender, and Quinlan Steiner,
Public Defender, Anchorage, for Appellee Lee Henry. Sarah T.
White, Assistant Public Defender, and Quinlan Steiner, Public
Defender, Anchorage, for Appellee Matthew Fulton.
Before: Coats, Chief Judge, and Mannheimer and Bolger,
Judges.
MANNHEIMER, Judge.
COATS, Chief Judge, concurring.
Both of the defendants in these consolidated appeals entered into plea
agreements with the State to resolve the criminal charges pending against them. In each
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case, the plea agreement called for the defendant to receive a sentence that included a
partially suspended term of imprisonment and a concomitant period of probation
(following the defendant's service of the non-suspended portion of their sentence). 1
In each case, the defendant served their non-suspended term of
imprisonment and was released on probation. Later, each defendant violated their
probation and was brought before the court on a petition to revoke their probation. At
this juncture in the proceedings, each defendant told the sentencing judge that they
no longer wished to be on probation: they asked the judge to terminate the probation and
simply sentence them to an active (i.e., unsuspended) term of imprisonment.
The two sentencing judges granted the defendants' requests and sentenced
the defendants to imprisonment - but, in each case, the sentencing judge determined,
based on the Chaney sentencing criteria, 2 that the proper term of imprisonment was
something less than the full amount of imprisonment that had previously been suspended.
In State v. Henry, the superior court imposed only 15 months of the previously
suspended 19 months. In State v. Fulton, the superior court imposed only 1 year of the
approximately 16 months of remaining suspended jail time. (Approximately 8 months
of Fulton's original 2-year suspended term of imprisonment had already been imposed
for earlier violations of probation.)
The State now appeals. The State contends that the superior court's
decision to impose something less than the full amount of the previously suspended jail
1 The plea agreement in Lee Henry's case called for him to receive a sentence of 24
months' imprisonment with 19 months suspended, and a 3-year term of probation. The plea
agreement in Matthew Fulton's case called for him to receive a sentence of 3 years'
imprisonment with 2 years suspended, and a 5-year term of probation.
2 See State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970). The Chaney sentencing
criteria are now codified in AS 12.55.005.
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time amounted to an illegal, after-the-fact amendment of the plea bargain without the
State's consent. In other words, the State asserts that, when the defendants agreed to the
plea bargains in these two cases, they contractually bound themselves either to complete
the entire period of their probation or, alternatively, to serve the full amount of their
suspended jail time.
To answer the State's contention, we must recapitulate certain aspects of
the law governing probation in Alaska.
Under Alaska law, whenever a sentence includes suspended jail time and
a concomitant term of probation, the sentence is inherently mutable: the sentencing court
retains the authority to alter the conditions of probation, to shorten or lengthen the
probationary term, and to impose some or all of the previously suspended jail time. See
Surrells v. State, 151 P.3d 483, 489-490 (Alaska App. 2006); Reyes v. State, 978 P.2d
635, 639 (Alaska App. 1999). See also Ralston v. Robinson, 454 U.S. 201, 217 n. 10;
102 S.Ct. 233, 244 n. 10; 70 L.Ed.2d 345 (1981) (declaring that the rule prohibiting a
post-sentencing increase in a defendant's sentence "simply does not apply when [the
legislature] has provided a court with the power to modify a sentence in light of changed
circumstances").
Thus, when a sentencing court suspends a portion of a defendant's term of
imprisonment and places the defendant on probation, it is understood that if the
defendant violates the conditions of probation, or if the defendant engages in any other
post-sentencing conduct that establishes a substantial reason to conclude that the
defendant's current conditions of probation are not adequately ensuring the defendant's
rehabilitation or adequately protecting the public, the sentencing court has the authority
to make the conditions of probation more onerous, or to extend the period of probation,
or to order the defendant to serve some or all of the previously suspended jail time.
Surrells, 151 P.3d at 489; Edwards v. State, 34 P.3d 962, 969 (Alaska App. 2001). See
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----------------------- Page 4-----------------------
AS 12.55.090(b): "The [sentencing] court may revoke or modify any condition of
probation, or may change the period of probation."
By the same token, as we recognized in Marunich v. State, 151 P.3d 510,
517 (Alaska App. 2006), a sentencing court has the authority to alter the probation in
the defendant's favor - for example, by revoking a previously imposed condition of
probation, or by shortening the defendant's term of probation. See AS 33.05.050:
"When directed by the [sentencing] court, the probation officer shall report to the court
[concerning] the conduct of the probationer while on probation. The court may then
discharge the probationer from further supervision and may terminate the proceedings
against the probationer, or may extend the probation, as shall seem advisable."
In addition, just as Alaska law gives the sentencing court a continuing
authority to alter a sentence of probation, Alaska law also gives the defendant a
continuing right to alter a sentence of probation. A defendant who concludes that the
conditions of probation are too onerous has the right to terminate the probation and ask
the sentencing judge to impose an active term of imprisonment in lieu of further
probation. 3 If the defendant exercises this option, the sentencing judge must not
automatically sentence the defendant to all of the remaining suspended jail time; rather,
the judge must apply the Chaney sentencing criteria to determine an appropriate term of
imprisonment. 4
3 See Brown v. State, 559 P.2d 107, 111 n. 13 (Alaska 1977); Sweezey v. State, 167 P.3d
79, 80-81 (Alaska App. 2007); Hurd v. State, 107 P.3d 314, 333 (Alaska App. 2005); State
v. Auliye , 57 P.3d 711, 717 (Alaska App. 2002) ("probation is a contract, and because this
contract allows a judge to control a defendant's life in ways that the defendant may deem
more burdensome than normal criminal penalties, a defendant is free to refuse probation and
to insist on a normal sentence.").
4 See DeMario v. State, 933 P.2d 558, 562 (Alaska App. 1997) (holding that, when a
(continued...)
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----------------------- Page 5-----------------------
In the present combined appeals, the State does not dispute that the
foregoing paragraphs contain an accurate description of the law that applies when, in the
absence of a plea bargain, a court imposes a sentence that includes probation. However,
the State argues that the law is different when the defendant's sentence stems from a plea
bargain.
In such instances, the State contends, the defendant's term of probation and
the defendant's concomitant suspended term of imprisonment are material elements of
the bargain. According to the State, if a defendant agrees to a sentence that includes
probation and suspended jail time, the defendant necessarily relinquishes the right to later
terminate their probation and ask the sentencing court to impose an active sentence of
imprisonment based on the Chaney sentencing criteria. Rather, if the defendant violates
the conditions of their probation, the sentencing court must impose the entire amount of
the previously suspended jail time (regardless of whether the court believes that such a
sentence comports with the Chaney criteria) - or, alternatively, the court must allow the
State to rescind the plea bargain and return the parties to the status quo ante (a rescission
of the defendant's conviction and sentence under the plea bargain, a return of that
criminal charge to a pre-trial posture, and a reinstatement of any other charges that were
dismissed as part of the plea bargain).
(We note that the State's reasoning seemingly leads to the conclusion that
if the sentencing court later decides to shorten the length of the defendant's probation or
alter the conditions of the defendant's probation in the defendant's favor (pursuant to the
authority granted by AS 12.55.090(b) or by AS 33.05.050), this would constitute a
4 (...continued)
defendant refuses probation, the sentencing judge "[must] not automatically impose all [of
the defendant's] previously suspended time" but must carefully evaluate the case under the
Chaney criteria and then impose a sentence based on the totality of circumstances).
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----------------------- Page 6-----------------------
judicial act that defeats a material element of the plea bargain, thus entitling the State to
demand rescission of the bargain.)
We reject the State's position because it conflicts with the legal principle
that the parties to a contract retain their legal rights relating to the transaction covered by
the contract unless either (1) the contract specifically states that a party is relinquishing
a legal right as part of the bargain or (2) the terms of the contract are clearly premised on
the relinquishment of this right (i.e., the party's exercise of the legal right would be
clearly inconsistent with the provisions of the contract).
See Wright v. Universal Maritime Service Corp., 525 U.S. 70, 80; 119 S.Ct.
391, 396; 142 L.Ed.2d 361 (1998) ("we will not infer from a general contractual
provision that the parties intended to waive a statutorily protected right unless the
undertaking is explicitly stated"); Metropolitan Edison Co. v. National Labor Relations
Board, 460 U.S. 693, 708; 103 S.Ct. 1467, 1477; 75 L.Ed.2d 387 (1983) ("[courts] will
not infer from a general contract provision that the parties intended to waive a statutorily
protected right unless the undertaking is 'explicitly stated.' ... [T]he waiver must be
clear and unmistakable."). See also Hammond v. Alaska Dept. of Transportation &
Public Facilities, 107 P.3d 871, 876-77 (Alaska 2005) ("[A]n employee's exercise of the
right to arbitrate under a [collective bargaining agreement] does not preclude [the
employee's] subsequent litigation of related statutory claims in state court unless the
employee clearly and unmistakably submits the statutory claims to arbitration. An
employee is not required to choose between the rights provided by a [collective
bargaining agreement] and the rights provided by statutes such as the Alaska
Whistleblower Act ... absent a clear and unmistakable waiver ... .")
This same principle applies to the construction of plea bargains in criminal
cases when the government claims that, under the plea agreement, the defendant waived
rights other than those that are normally relinquished when a defendant offers a guilty
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----------------------- Page 7-----------------------
plea under court rules such as Alaska Criminal Rule 11(c). See, e.g., Creech v. State, 887
N.E.2d 73, 74-76 (Ind. 2008); Clay v. State, 882 N.E.2d 773, 775-76 (Ind. App. 2008);
State v. Copes, 224 P.3d 571, 577-78 (Kan. 2010);Kozak v. Commonwealth, 279 S.W.3d
129, 133-34 (Ky. 2008); State v. Thompson, 735 N.W.2d 818, 827 (Neb. App. 2007);
People v. Anderson, 879 N.Y.S.2d 849, 851 (N.Y. App. 2009).
We applied this principle in Simon v. State, 121 P.3d 815 (Alaska App.
2005).
The defendant in Simon agreed to plead guilty to a class C felony, and he
further agreed that he would not contest three aggravating factors for purposes of
sentencing. The relevant portion of the plea agreement then concluded with the words:
"[Sentencing] open with a range of 3-5 [years] to serve." Id. at 817.
The superior court sentenced Simon to 5 years' imprisonment (i.e., the
upper limit of this range), and Simon appealed the severity of his sentence. Id. at 821.
The State responded that Simon, by agreeing to the above-quoted language, had given
up his right to appeal the sentence. In other words, the State asserted that Simon had
agreed that he could receive any sentence up to (and including) 5 years' imprisonment.
Ibid.
(See AS 12.55.120(a), which declares that a defendant has no right to
appeal a sentence if "the sentence was imposed in accordance with a plea agreement ...
that ... provided for imposition of ... a sentence equal to or less than a specified maximum
sentence.")
As we noted in Simon, the quoted portion of the plea agreement could be
interpreted in two different ways. On the one hand, the clause could be viewed
"as merely an acknowledgement that, given Simon's intention to plead guilty to a
class C felony, his status as a third felony offender, and his intention to concede
aggravating factors, the applicable sentencing range would (by law) be 3 to 5 years'
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----------------------- Page 8-----------------------
imprisonment." Ibid. On the other hand, the quoted language could be interpreted as
"Simon's express acquiescence in a sentence of 3 to 5 years, and his implicit promise not
to contest whatever sentence the superior court imposed [within that range]". Ibid.
We concluded that, as a matter of law, this ambiguity had to be resolved in
Simon's favor. Quoting the Indiana Court of Appeals's decision in Wilkie v. State, 813
N.E.2d 794, 804 (Ind. App. 2004), we "reject[ed] the idea that a defendant can 'agree'
to be sentenced in accordance with the statutory range applicable to his offense and, as
a result of that agreement, be barred from [challenging] the trial court's decision to
impose the maximum sentence". Simon, 121 P.3d at 821. We explained:
We would view the matter differently if the record
showed that Simon and the State had bargained for a
sentencing range narrower than the range that would
otherwise apply to Simon's case, or if Simon had expressly
waived his right to appeal his sentence. But here, as in
Wilkie, the only thing that lends any credence to the State's
argument is the fact that the plea agreement contains
language describing the sentencing range anticipated by the
parties. This sentencing range was simply the legal conse
quence of Simon's decision to plead guilty to third-degree
sexual assault (given the fact that Simon was a third felony
offender, and given the fact that he was conceding
aggravating factors).
In other words, the record in Simon's case gives no
indication that the disputed clause of the plea agreement
constituted anything more than an acknowledgement of the
sentencing range provided by law for any defendant in
Simon's situation. In these circumstances, we hold that this
language must not be interpreted as a waiver of Simon's
appeal rights.
Simon, 121 P.3d at 821-22.
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See also Judge Bryner's concurrence in Betzner v. State, 768 P.2d 1150,
1157-58 (Alaska App. 1989), where he rejected the State's contention that the defendant
had agreed, as part of his plea bargain, to automatic imposition of the full amount of
suspended jail time if he violated the provision of his plea agreement which required him
to testify for the State. Judge Bryner declared:
I find it unnecessary to decide whether such a plea
agreement might ever properly provide for automatic
imposition of a suspended sentence upon a defendant's
failure to testify. It is sufficient to note that no express
provision to this effect was made in Betzner's plea
agreement. ... No express provision was made for the
automatic reinstatement of suspended time upon [Betzner's]
failure to comply with the agreement to testify.
Ibid.
Turning to the plea agreements in the two cases before us, we note that
these plea agreements contain no express provision requiring the defendants to relinquish
their right under Alaska law to reject further probation. Nor do the plea agreements
contain any express provision requiring the defendants to relinquish their accompanying
right (if their probation were terminated) to have the superior court assess their sentences
of imprisonment under the Chaney criteria, rather than automatically imposing the full
amount of the defendants' remaining suspended jail time.
Moreover, we conclude that the plea agreements do not implicitly require
the defendants to relinquish these rights. In other words, there is no clear inconsistency
between the defendants' assertion of these rights and the stated terms of the plea
agreements.
Accordingly, we hold that the defendants' decision to accept these plea
bargains did not constitute a relinquishment or waiver of the normal rights accompanying
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----------------------- Page 10-----------------------
a sentence of probation and suspended imprisonment - in particular, the right to reject
further probation at some future time, and the right to demand (in that event) that the
superior court assess their sentence of imprisonment based on the Chaney criteria, rather
than automatically imposing all of their remaining suspended jail time. And, for this
reason, the superior court did not commit error when it allowed the defendants to reject
further probation, and when it sentenced the defendants to less than the full amount of
their suspended jail time.
We express no opinion on the question of whether Alaska law allows plea
bargains in which the defendant waives the right to reject further probation, or waives
the right to demand a sentence that is formulated under the Chaney criteria. We simply
hold that, even if such waivers might conceivably be valid under Alaska law, no waivers
of these rights occurred in the two cases before us.
The judgements of the superior court are AFFIRMED.
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COATS, Chief Judge, concurring.
These cases are governed by prior decisions. When a court revokes a
defendant's probation and imposes a sentence, the sentencing court is required to apply
the Chaney criteria.1 The sentencing court is to consider the totality of the
circumstances, including the defendant's original offense, the nature of his violation of
probation, and his intervening conduct while on probation.2 Furthermore, in Betzner v.
State,3 we specifically rejected the argument that violating an important aspect of a plea
agreement - in that case an agreement to testify for the State - "automatically justified
imposition of the full suspended term."4
In a related line of cases, we have held that a defendant may refuse
probation.5 In State v. Auliye,6 we stated that "probation is a contract, and because this
contract allows a judge to control a defendant's life in ways that the defendant may deem
more burdensome than normal criminal penalties, a defendant is free to refuse probation
and to insist on a normal sentence."7 When a defendant refuses probation he "does not
1 State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970); DeMario v. State, 933 P.2d
558, 562 (Alaska App. 1997); Toney v. State, 785 P.2d 902, 903 (Alaska App. 1990); Betzner
v. State, 768 P.2d 1150, 1155-56 (Alaska App. 1989) & 1157-58 (Bryner, C.J., concurring);
Luepke v. State, 765 P.2d 988, 990-91 (Alaska App. 1988).
2 DeMario , 933 P.2d at 562.
3 768 P.2d 1150 (Alaska App. 1989).
4 Id. at 1155-56.
5 Sweezey v. State, 167 P.3d 79, 80 (Alaska App. 2007) (citing Brown v. State, 559 P.2d
107, 111 n.13 (Alaska 1977) (citation omitted)).
6 57 P.3d 711 (Alaska App. 2002).
7 Id. at 717.
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----------------------- Page 12-----------------------
thereby forfeit the right to a sentence that is reasonable under the totality of the
circumstances of the case."8 In sentencing a defendant who rejects probation, the court
is required to impose a sentence that comports with the Chaney sentencing criteria.9
Against the background of this case law, it is clear that Judges Bauman and
Huguelet did exactly what the law required them to do: When Henry and Fulton rejected
probation, the judges imposed a sentence based on the Chaney criteria. They properly
concluded that the suspended sentences agreed to in the defendants' plea agreements
were not controlling.
The State argues that the sentences are illegal because they violate the
defendants' plea agreements. But the parties entered into those agreements with an
understanding of our prior case law. And that case law has consistently held that when
a defendant violates probation, the sentencing court imposes a sentence in accordance
with the Chaney criteria.
The State also argues that it made important concessions to the defendants
in return for their plea agreements, and that the sentencing courts therefore had no
authority to eliminate any portion of the agreed-upon suspended sentences. But at
sentencing, the State had the opportunity to point out the seriousness of the defendants'
conduct, including the conduct underlying any charges the State dismissed as part of the
plea agreements. And the sentencing courts were authorized to take this conduct fully
into consideration in determining an appropriate sentence at the revocation hearing.
The State has not argued that the judges imposed sentences which were not
a reasonable application of the Chaney criteria. Because I fail to see why a sentencing
8 Bland v. State, 846 P.2d 815, 818 (Alaska App. 1993).
9 Id.
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court should be required to impose a sentence greater than what the court concludes is
necessary under the standard sentencing criteria, I concur in this court's decision.
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