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Johnson v. State (9/12/2014) ap-2426

Johnson v. State (9/12/2014) ap-2426

                                                       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  



ROLAND JOHNSON,                                         )  

                                                        )            Court of Appeals No. A-11068 

                                      Appellant,        )            Trial Court No. 4BE-09-386 CI  

                                                        )                 t/w 4SM-08-173 CR  

                  v.                                    )  

                                                        )                         O P I N I O N  

STATE OF ALASKA,                                        )  

                                                        )  

                                      Appellee.         )           No. 2426 - September 12, 2014      

                                                        )  



                   Appeal  from  the  Superior  Court,  Fourth  Judicial  District,  

                   Fairbanks, Douglas Blankenship, Judge.  



                   Appearances: David K. Allen, Sechelt, British Columbia, for the  

                   Appellant.  Nancy Simel, Assistant Attorney General, Office of  

                                             

                   Special Prosecutions and Appeals, Anchorage, and Michael C.  

                                                      

                   Geraghty, Attorney General, Juneau, for the Appellee.  



                   Before:  Mannheimer,  Chief  Judge,  Allard,  Judge,  and  Coats,  

                   Senior Judge.*  

                                        



                   Judge ALLARD.
  

                   Senior Judge COATS, concurring.
  



     *    Sitting  by  assignment  made  pursuant  to  article  IV,  section  11  of  the  Alaska  



Constitution and Administrative Rule 23(a). 


----------------------- Page 2-----------------------

                           In April 2009, pursuant to a plea agreement, Roland Johnson pleaded guilty     



to one count of sexual assault in the third degree and was sentenced to an agreed-upon                                



term of 22 years with 10 years suspended, 12 years to serve.  In exchange for Johnson's       



plea, the State dismissed two counts of sexual abuse of a minor in the second degree and       



one count of sexual assault in the second degree.  



                           Johnson later filed an application for post-conviction relief, alleging that  



the court-appointed attorney who represented him in negotiating the plea agreement was  

                                                                                                                                                  



ineffective.  Among other claims, Johnson argued that his attorney was ineffective in  



failing to seek appellate review of his sentence, despite Johnson's request for such an  

                                                                                                                                                                



appeal.  



                           While Johnson's application was pending in the superior court, the Alaska  

                                                                                               

Supreme Court issued its decision in Stone v. State.1  

                                                                                                            Based on Stone, Johnson argued  



that his attorney had been required to file a petition for sentence review at his request,  



                                                              

even though the sentence was specifically bargained for as part of his plea agreement.  



                           The superior court dismissed Johnson's post-conviction relief application.  



The court concluded that Johnson's attorney was not ineffective in refusing to petition  



the supreme court for review of Johnson's sentence because Stone had not been decided  

                                      



at the time the attorney made that decision.  Johnson now appeals, asserting that this  

                                                                                                                                                              



decision was error and that Stone should apply retroactively to his case.  



                           We conclude that we need not resolve whether Stone is retroactive because  

                                                                                        



Stone does not govern Johnson's case.  More specifically, we conclude that Stone applies  

                                                                   



only to cases in which:  (1) the plea agreement gives the sentencing court some discretion  

                                                             



       1      255 P.3d 979 (Alaska 2011).  



                                                                                      2                                                                                    2426  


----------------------- Page 3-----------------------

regarding what sentence to impose and (2) the filing of the petition for sentence review     



will not constitute a breach of the plea agreement.    



                     These conditions are not met here.  Johnson bargained for, and received,  

                                                                                                                   



a specific, fixed sentence, and the sentencing court's discretion was limited to accepting  

                                                     



or rejecting the plea agreement as a whole.  Moreover, any modification of Johnson's  



sentence would have required rescission of the plea agreement.  Stone therefore did not  



require Johnson's attorney to file a petition for sentence review.  We accordingly affirm  

                                                                    



the superior court's dismissal of Johnson's application for post-conviction relief.   



         Why we conclude that Stone v. State did not require Johnson's attorney to  

         pursue appellate review of Johnson's bargained-for sentence  

                                                                                                           



                     In Stone, the Alaska Supreme Court addressed what it called the "narrow  

                                                      



question" of whether, under the Sixth Amendment to the United States Constitution, "a  

                                                                                



criminal defendant's court-appointed counsel must, upon the defendant's demand after  

                                                                                  



[a]  lawful  sentencing  pursuant  to  a  plea  agreement,  file  a  petition  for  discretionary  

                                                                   



sentence review by [the supreme court] when AS 12.55.120(a) precludes an appeal of  

                                                                                                    

right to the court of appeals."2  

                                                 



                                                                                                   

                     The supreme court concluded that the answer to this narrow question in  



                                      3  

Stone's case was "yes."                           

                                          The court reasoned that when defendants have no right to  



                                                                                                 

appeal their sentence to this Court under Alaska law, a petition for discretionary sentence  



                                                                                              

review to the Alaska Supreme Court is effectively the "first tier" of appellate review -  



         

thus  entitling  the  defendant  to  the  assistance  of  counsel,  at  public  expense  if  the  



     2    Id. at 980.  



     3    Id.   



                                                                   3                                                               2426  


----------------------- Page 4-----------------------

defendant is indigent, under the United States Supreme Court's decision in                                                                                   Halbert v.  

Michigan .4  



                            The supreme court therefore concluded that Stone had a right to demand  



that  his  court-appointed  attorney  pursue  a  petition  for  sentence  review.    The  court  



explained that if Stone's attorney believed that Stone's excessive sentence claim was  

                      



"wholly frivolous," the attorney had the option of filing an Anders brief and moving to  

                                                                                    

withdraw, but the attorney did not have the option of refusing to file anything.5  



                            In the present case, Johnson argues that he, like the defendant in Stone, had  



the right to demand that his attorney file a petition asking the supreme court to review  

                                                                                                          



his sentence for excessiveness, even though his sentence was part of a bargained-for plea  

                                                                                                                            



agreement.  But there is a material distinction between Johnson's case and the facts of  



Stone.  



                            (a)   Unlike  Stone,   Johnson's   plea   agreement   gave   the  

                                                                                                                                  

                           sentencing court no discretion regarding what sentence to  

                                                                                             

                            impose  

                                            



                            Both  Johnson  and  the  defendant  in  Stone  were  sentenced  under  a  plea  



agreement.  But unlike Johnson's plea agreement, the plea agreement in Stone did not  



call for a specific, fixed sentence.  Instead, Stone's plea agreement called for Stone to  

                                                                                                           



       4      See id. at 982-83; see also Halbert v. Michigan , 545 U.S. 605, 611 (2005). In Halbert ,  



the United States Supreme Court explained that "first-tier review" differs from subsequent  

appellate review because by the latter stages, claims have already been presented by appellate                                

counsel and passed upon by an appellate court.  Id .  



       5      Stone , 255 P.3d at 983;                       see also Anders v. California , 386 U.S. 738, 744 (1967) (if                              



court-appointed appellate counsel reviews trial record and finds no non-frivolous issue for  

appeal, counsel may request to withdraw, but withdrawal request must be accompanied by       

a brief that refers to anything in the record that might arguably support the appeal).   



                                                                                        4                                                                                2426
  


----------------------- Page 5-----------------------

receive a sentence within a specified range - 5 to 12 years to serve - at the discretion                          



                                        6  

of the sentencing judge.   



                       Thus, the sentence Stone received (9 years to serve) was the result of the  



judge's exercise of sentencing discretion - an exercise of discretion that theoretically  

                                                                                                                     

could have been "clearly mistaken" as that term is used in Alaska sentence review law.7  

                                                                                 



                       In contrast, Johnson's plea agreement specified the exact sentence he was  



                                                             

to receive:  22 years' imprisonment with 10 years suspended, 12 years to serve.  There  



                             

was nothing left to the judge's discretion other than the judge's option under Criminal  



Rule 11(e) to reject the plea agreement as a whole.  



                      We conclude that this difference between the sentencing process in Stone  



and the sentencing process in Johnson's case makes the holding in Stone inapplicable to  

                                                                                                                         



Johnson's case.  



                       (b)  Unlike Stone, Johnson's proposed petition for sentence  

                       review would clearly be a repudiation of his plea agreement  

                      - therefore, under Alaska law, Johnson must seek rescission  

                                                                                                   

                       of the entire agreement rather than attacking his sentence  

                      separately  



                      As noted above, the plea agreement in Stone called for Stone to receive a  



 sentence within a specified range of possible sentences.  Thus, Stone's appellate attack  

                                                                                               



on his sentence was not necessarily a repudiation of his plea agreement.  Indeed, it was  

                                         



arguably consistent with the plea agreement for Stone  to  contend that the particular  

                                                                                                    



      6    Stone, 255 P.3d at 980.  



      7    See  McClain v. State , 519 P.2d 811, 813 (Alaska 1974) (under "clearly mistaken"  



standard,  trial  court's  sentence  will  be  upheld  unless,   after  independently  reviewing  the  

record, the appellate court is convinced that the sentence is outside the permissible range of     

reasonable sentences).  



                                                                       5                                                                 2426
  


----------------------- Page 6-----------------------

sentence he received was excessive, and that he should receive a lesser sentence, as long   



as this requested lesser sentence was still within the agreed-upon range.   



                       In footnote 23 of Stone, the Alaska Supreme Court noted that, earlier in the  

                                                                                                              



case, the State had expressly taken the position that Stone's attack on his sentence would  

                                                                                                                                           



constitute a repudiation of his plea agreement with the State - apparently under the  



theory  that,  by  agreeing  to  be  sentenced  within  the  specified  range,  Stone  had  also  

                            



implicitly agreed not to challenge the sentence he ultimately received, as long as that  

                                           

sentence was within the agreed-upon range.8                                                                   

                                                                               But the supreme court declared that the  



                                                                                      9  

State's contention was "not before us at this time."                                                                   

                                                                                           In other words, the supreme court  



declared that it was deciding Stone's case under the working assumption that Stone's  



                                                                                                                                       

intended petition for sentence review was at least plausibly consistent with the terms of  

his plea agreement.10  



                                                                       

                       This reasoning is consistent with the general 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  



      8     See  Stone, 255 P.3d at 983 n.23.   



      9  

                  

           Id.  



      10    This is where we part ways with Senior Judge Coats's concurring opinion.  Judge  



Coats concludes that the supreme court took no account of the procedural posture of Stone's     

case when it ruled that a petition for sentence review is "first tier" appellate review under   

Halbert .    In  Judge  Coats's  view,  even  Stone  would  have  no  right  under  Stone  to  file  a  

petition  for  review  of  his  sentence,  because  the  sentence   was  imposed  as  part  of  a  plea  

agreement.  



                                                                         6                                                                   2426
  


----------------------- Page 7-----------------------

relinquishment of this right (i.e., the party's exercise of the legal right would be clearly   



                                                                         11  

inconsistent with the provisions of the contract)."                          



                                                                              

                    In Stone's case, the parties were not in agreement about whether filing a  

petition  for  sentence  review  constituted  a  breach  of  the  plea  agreement. 12  

                                                                                                                     Further  



                                                                    

litigation on this issue was therefore needed.  Notably, there is nothing in the record in  



Stone to suggest that Stone wanted to rescind any part of the plea agreement.  Instead,  



it appears that Stone just wanted a lower sentence, presumably one more in line with the  



lower end of the range he had agreed to.  



                    In contrast, in Johnson's case, the record is clear that Johnson wanted to  



repudiate the terms of his plea agreement, as the other claims raised in his application for  

                                                                                         

post-conviction  relief  demonstrate. 13                                                                    

                                                           Moreover,  unlike  in  Stone,  any  reduction  in  



Johnson's  fixed,  agreed-upon  sentence  of  22  years'  imprisonment  with  10  years  



suspended would necessarily require rescission of a specific bargained-for term of his  



plea agreement.   



     11   State v. Henry , 240 P.3d 846, 849 (Alaska App. 2010); see also Simon v. State , 121  



P.3d 815, 821-22 (Alaska App. 2005) (where the plea agreement did not include an express  

                                                                                                      

waiver of appellate rights, ambiguity in the agreement was interpreted in the defendant's  

favor, so that the right to appeal the severity of the sentence was preserved).      



     12   Stone, 255 P.3d at 983 n.23.  



     13   Johnson claimed, among other things, that his attorney was ineffective in negotiating  



the plea, that the trial judge failed to comply with the requirements of Criminal Rule 11 in  

                         

accepting the plea, and that he should be allowed to withdraw the plea.  



                                                              7                                                         2426
  


----------------------- Page 8-----------------------

                     Alaska law does not permit this type of piecemeal attack on the terms of a     



                         14                                                                         15 

                             

plea agreement.              As this Court explained in Woodbury v. State,                             "[w]hen ... a defendant  



wishes to challenge an already consummated plea agreement as being unlawful, the  



defendant must seek rescission of the agreement - not selective enforcement of only  

those provisions favorable to the defendant."16  

                                                                              We articulated a similar principle in  



                          17 

Grasser v. State                                                                                                  

                            :  "Because Grasser negotiated a plea agreement with the government,  



                                                                                                                       

and because he was sentenced under the terms of that agreement, Grasser can not now  



                                                                                                                

claim the benefit of the portions of the agreement that he likes while, at the same time,  

mounting an appellate attack on the portions that he does not like." 18  



                                

                     Thus,  under  both  Grasser  and  Woodbury,  if  Johnson  believed  that  his  



bargained-for sentence was excessive, he was required to seek rescission of the entire  



plea agreement, rather than attacking one term of his plea agreement on appeal.  



                     We note that after Johnson's trial attorney refused to file a sentence petition  

                                                                                                               



on his behalf, this is precisely what Johnson did:  he sought rescission of the entire plea  

                       



agreement through an application for post-conviction relief in which he was represented  



by court-appointed counsel.  The superior court ruled against Johnson on these claims,  

                                                                                       



and Johnson has not appealed any of these rulings - except the ruling that Johnson's  

                                                                                                   



attorney was not ineffective when she declined to file a petition for sentence review.  



      14   See, e.g., Woodbury v. State              , 151 P.3d 528, 532 (Alaska App. 2007); Grasser v. State,  



119 P.3d 1016, 1018 (Alaska App. 2005).  



      15   151 P.3d 528 (Alaska App. 2007).  



      16   Id. at 532.  



      17   119 P.3d 1016 (Alaska App. 2005).  



      18   Id.  at 1018.  



                                                                    8                                                              2426
  


----------------------- Page 9-----------------------

                      By not appealing these rulings Johnson is, in effect, conceding that he has                           



no ground to seek rescission of the plea agreement as a whole, and that he simply wants                     



an appellate court to reduce his bargained-for sentence while leaving the remainder of  



the plea agreement intact.  Under Alaska law, Johnson is not entitled to do this.  



                      (c) Because Johnson bargained for a specific fixed sentence,  

                      there is an inadequate record from which an appellate court  

                      could conduct an excessive sentence review  



                      There is an additional factor that influences our decision in this case.  As  

                                                                                                                                       



the concurrence points out, the record of a change of plea and sentencing normally will  

                                       



not  reveal  all  of  the  circumstances  that  factored  into  the  plea  agreement.    This  is  

                                                                                                                               



particularly true in cases such as Johnson's, where the parties have agreed to a specific,  

                                                                                                    



fixed sentence and the sentencing court's discretion is limited to accepting or rejecting  

                                                                                         



the plea agreement as a whole.  In this type of situation, the superior court may proceed  

                                                                                           



to  sentencing  without  ordering  a  pre-sentence  report,  without  holding  a  separate  

                                                                                 



sentencing hearing, and without giving  a full explanation under  Chaney of why the  

                                                                                                                          

agreed-upon sentence is reasonable.19  



                      The situation is different in cases like Stone, where the plea agreement  



                                                             

leaves critical terms of the sentence up to the sentencing court's discretion.  In those  



                                      

cases,  the  sentencing  court  may  need  to  conduct  an  inquiry  into  the  defendant's  



background and the facts of the offense in order to exercise its sentencing authority in  



                                                                

a meaningful way.  The court  is  also  required to explain and justify the sentence it  



                                                                                

imposes under the Chaney criteria.  Those cases are therefore more likely to provide a  



      19   See Alaska R. Crim. P. 11(e)(1) and Alaska R. Crim. P. 32.1(a)(2);                                      see also State v.  



Chaney, 477 P.2d 441, 443-44 (Alaska 1970)                             (providing the sentencing goals a court must  

normally consider before imposing sentence, now codified in AS 12.55.005).  



                                                                     9                                                                  2426  


----------------------- Page 10-----------------------

sentencing  record  from  which  an  appellate  court  can  review  whether  the  sentence  



imposed by the judge is excessive.  



                    Here, in contrast, there is essentially no sentencing record from which an  

                                                         



appellate  court  could  meaningfully  review  Johnson's  sentence.    Moreover,  Johnson  



received significant benefits from the plea agreement:  the dismissal of three felony-level  

                                                                                 



sexual abuse and sexual assault charges.   Without knowing the details of Johnson's  

                                                                 



background, the facts of his offense, and the facts pertaining to the dismissed charges,  

                                                                                                 



it would be all but impossible for an appellate court to review the agreed-upon sentence.  

                             



         Conclusion  



                    For  the  reasons  explained  here,  we  conclude  that  the  Alaska  Supreme  



Court's decision in Stone v. State does not govern Johnson's case.  Johnson bargained  

                                                                  



for and received a specific, fixed sentence.  Under Alaska law, Johnson is not allowed  

                                                                                                 



to  seek  a  reduction  of  that  sentence  while  leaving  the  other  provisions  of  his  plea  

             



agreement intact.  Instead,  his  remedy is to seek rescission of the entire agreement.  

                                                 



Accordingly, Johnson was not deprived of the effective assistance of counsel when his  

                                                                                     



attorney declined to file a petition for sentence review.   



                    We AFFIRM the superior court's judgment.    



                                                                10                                                          2426
  


----------------------- Page 11-----------------------

COATS, Senior Judge, concurring.  



                                                

                    This case requires us to interpret the Alaska Supreme Court's decision in  



                     1  

Stone v. State .                                                                

                      Stone was charged with manslaughter, two counts of assault, and driving  

under the influence.2  

                                 He also faced several petitions to revoke his probation.  Stone  



entered into a plea agreement in which the  State agreed to reduce the manslaughter  



charge to the less serious offense of criminally negligent homicide.  Represented by an  

                                                      



attorney from the Public Defender Agency, Stone agreed to enter a plea of no contest to  

                                                                                                 



that  offense  and  to  the  other  offenses  and  petitions  to  revoke.    The  plea  agreement  



specified that Stone would receive a composite sentence of 5 to 12 years to serve.  The  

                                                                                         



superior court accepted the plea agreement and sentenced Stone to 13 years with 4 years  

                                                                



suspended, 9 years to serve on the four charges, and to an additional 350 days on the  

petitions to revoke probation, for a total sentence of 9 years and 350 days to serve.3  



                    After his sentencing, another attorney from the Public Defender Agency  



                                                                                                         

consulted with Stone to find out if he wished to appeal his conviction or sentence.  Stone  



                                     

told the attorney that he believed his sentence was illegal, and he asked the attorney to  



file an appeal.  After reviewing the file and consulting with Stone's trial attorney, the  



attorney advised Stone that he had no ground for appellate review of his sentence.  The  

                                              

attorney took no further action.4  



     1    255 P.3d 979 (Alaska 2011).
  



     2    Id. at 980.
  



     3    Id.
  



     4    Id. 
 



                                                              11                                                         2426
  


----------------------- Page 12-----------------------

                       Stone then filed an application for post-conviction relief. Another attorney                   



was appointed to represent him.   In that application, Stone claimed, among other issues,   



that he was entitled to attack his sentence as excessive in the appellate courts, and that   

his attorney provided ineffective assistance of counsel by advising him otherwise.5  



                               

                      The superior court concluded that Stone's claim that he was entitled to  



                                   

appellate review of his sentence was meritless and that his attorney therefore had not  



provided ineffective assistance of counsel.  The court observed that attorneys have an  



                                                                            6  

"ethical duty not to file frivolous pleadings."  

                                                                                                                         

                                                                               The court dismissed the application for  



                                     7  

post-conviction relief.   



                                                                        

                       Stone appealed that decision to this Court.  The State took the position that  



                      

Stone could have petitioned the Alaska Supreme Court for discretionary review of his  



                                                                                

sentence on the ground of excessiveness, but that it was up to Stone's attorney, not  



                                                                                8  

Stone, to decide whether to pursue that remedy.   



                                                                                         

                      This  Court  concluded  that  Stone  had  not  shown  that  his  attorney  was  



                                                                                                   

ineffective because it was not clear that the attorney had a duty to file a petition for  



                                                                                                                                     9  

hearing asking the supreme court to review Stone's sentence for excessiveness.    



                                                                         

                       Stone then filed a petition for hearing in the supreme court.  The supreme  



                                                                                       

court reviewed the petition on the "narrow issue" of whether "a petition for discretionary  



                                                                                                                             

sentence  review  by  this  court  is  first-tier  appellate  review  invoking  the  federal  



      5    Id. at 981.
  



      6    Id.
  



      7    Id.
  



      8    Id.
   



      9    Id. at 982.  
 



                                                                       12                                                                 2426
  


----------------------- Page 13-----------------------

constitutional right to appointed counsel and the related right to require counsel to seek  

appellate review."10  

                                The court concluded that a petition for discretionary review of a   



sentence by the supreme court  is  "first-tier appellate review," and that attorneys are  

therefore required to pursue this remedy, if a defendant asks for it.11  



                    During  litigation  of  this  issue,  the  State  argued  that  if  Stone  pursued  



appellate review of his sentence he would be in breach of his plea agreement with the  

                                                                           



State and that the State should therefore be allowed to repudiate the plea agreement and  

prosecute Stone on the original charges. 12  

                                                                 The supreme court did not reach this issue,  

stating that it was "not before us at this time."13  



                    As a general rule, if a defendant wishes to challenge one part of an already  

                                                                                                                 



consummated plea agreement as unlawful, the defendant must seek recision of the entire  



                 14  

agreement.           The supreme court limited its decision in Stone to one issue: whether "a  

                                                                    



petition  for  discretionary  sentence  review  by  this  court  is  first-tier  appellate  review  



invoking the constitutional right to appointed counsel and the related right to require  

                                                                                                            

counsel to seek appellate review."15  

                                                         The court declared that the question of whether  



Stone  would  be  in  breach  of  his  plea  agreement  by  seeking  appellate  review  of  his  



     10   Id.
  



     11   Id.  at 983.
  



     12   Id. at 983 n.23.  
 



     13   Id.
    



     14   Woodbury v. State, 151 P.3d 528, 532 (Alaska App. 2007);                            Grasser v. State, 119 P.3d
  



1016, 1018 (Alaska App. 2005).  



     15   Stone, 255  P.3d at 982.  



                                                                13                                                          2426
  


----------------------- Page 14-----------------------

sentence was "not before us at this time."                    16  The court thus expressly declined to address  



the  policy  question  of  whether  a  defendant  who  entered  into  a  plea  agreement  is  



considered to be attacking his plea agreement when he seeks appellate review of his  

                                                                                                 



sentence as excessive.  



                    That  question  is  before  us  now.    We  must  therefore  resolve  whether  a  



defendant may enter into a plea agreement and then, after sentencing, "claim the benefit  

                                                                        



of the portions of the agreement that he likes while, at  the same time, mounting an  

                                                                                    

appellate attack on the portions that he does not like."17  

                                                                                      



                                                                                                                    

                    This case is an excellent illustration of why it is unfair to allow a defendant  



to enter into a plea bargain, accept the benefits of that bargain, and then argue in an  



                                                                                                             

appellate court that his sentence is excessive.  Johnson pleaded guilty to one count of  



sexual assault in the third degree and was sentenced to an agreed-upon term of 22 years  



with 10 years suspended.  He received significant benefits from this agreement:  the State  



dismissed two counts of sexual abuse of a minor in the second degree and one count of  

                                                                                                                        



sexual assault in the second degree.  



                    The  record  of  a  criminal  case  will  normally  not  reveal  all  of  the  

                                                                                                 



circumstances that factor into a plea bargain - the strength of the State's case, the  



availability and willingness of the witnesses to testify, the trial pressures on the judge and  

                                                                    



the  parties.        Sentencing  courts  rely  on  the  competence  of  prosecutors  and  defense  

                                                                                                                 



attorneys to arrive at reasonable agreements in light of these circumstances.  Of course,  

                                                                                    



trial courts ultimately supervise these agreements, and they are in a much better position  

                                                          



than appellate courts to gauge the competence of the attorneys and the fairness of a plea  

                                                                                                                            



     16   Id. at 983 n.23.  



     17   Grasser, 119 P.3d at 1018.  



                                                                 14                                                             2426  


----------------------- Page 15-----------------------

bargain.  They are also in a better position to gather information in the event they have   



reservations about accepting a plea bargain.  



                     As a policy matter, it makes no difference whether a defendant agrees to a  

                                                                                                       



specific sentence as opposed to a limited sentencing range.  Either way, the defendant  



should  not  be  permitted  to  claim  the  benefit  of  a  plea  bargain  while  mounting  an  

appellate attack on the portions of the bargain he does not like.18  

                                                                                                       



                     I agree with the majority that if Johnson was dissatisfied with his sentence,  



his remedy was to seek recision of his plea agreement in the trial court.  I also agree that  

                                                                                    



the superior court properly dismissed Johnson's application for post-conviction relief  

                                                             



because Johnson cannot show that his attorney was ineffective for failing to pursue  



discretionary review of his sentence.  I do not agree that reaching this result requires us  

                                                           



to interpret Stone in a manner that is not supported by the text of that decision.   



     18   Id. ; see also Woodbury , 151 P.3d at 532.  



                                                                  15                                                              2426  

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