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Ghosh v. State (6/16/2017) ap-2559

Ghosh v. State (6/16/2017) ap-2559

                                                               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
  

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                    IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



SHUBHRANJAN GHOSH,  

                                                                                 Court of Appeals No. A-12374  

                                           Appellant,                          Trial Court No. 3AN-14-3371 CR  



                                v.  

                                                                                            O  P  I  N  I  O  N 

STATE OF ALASKA,  



                                           Appellee.                                 No. 2559 - June 16, 2017  



                      Appeal  f                                                 

                                    rom  the  Superior  Court,   Third  Judicial  District,  

                      Anchorage, Philip R. Volland, Judge.  



                      Appearances:  Ronald A. Offret and J. E. Wiederholt, Aglietti,  

                      Offret  &  Woofter,  Anchorage,  for  the  Appellant.    Jonas  M.  

                      Walker,        Assistant        Attorney         General,        Office        of    Special  

                                                                                                          

                      Prosecutions,  Anchorage,  and  Craig  W.  Richards,  Attorney  

                      General, Juneau, for the Appellee.  



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

                                                                  

                      Superior Court Judge. *  

                                                           



                      Judge MANNHEIMER.  



                      Followinganinvestigation                  bytheStateofAlaska's Medicaid Fraud Control                      



Unit, psychiatrist Shubhranjan Ghosh was indicted for 18 crimes: one count of medical                                           



      *    Sitting  by   assignment  made  pursuant  to  Article  IV,  Section  16  of   the  Alaska  



Constitution and Administrative Rule 24(d).  


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

assistance fraud, one count of scheme to defraud, one count of tampering with physical                                                                                    



evidence, and 15 counts of controlled substance misconduct (writing drug prescriptions                                                                          



that were not medically justified).                                         



                             Several months later, the State and Ghosh reached a plea agreement to                                                            



resolve the case.  Under this agreement, Ghosh would plead guilty to two charges (the                                                                                              



                                                                  1                                                                         2 

medical assistancefraud                              count                                                                                                                     

                                                                    and the evidence tampering count  ), and theStatewould  



                                                                 

dismiss the other 16 charges.  



                                                                                                                                                                                

                             Because Ghosh's act of fraud involved unlawful gain of $25,000 or more,  



                                                                    3  

                                                                                                                                                                 

his crime was a class B felony.                                         As a first felony offender, Ghosh faced a presumptive  



                                                                                                                                           4  

                                                                                                                                               

sentencing range of 1 to 3 years' imprisonment for this offense.  



                                                                                                                                                                                    

                             As part of his plea bargain, Ghosh stipulated that his criminal conduct was  



                                                                                                                                                    

aggravated under AS 12.55.155(c)(16) - i.e., that his conduct was designed to obtain  



                                                                                                                                                                                    

substantial pecuniary gain, and that the risk of prosecution and punishment for this  



                                                                                                                                                                         

conduct was slight. The existence of this aggravator gave the superior court the authority  



                                                                                                                                                                                      

to sentence Ghosh to any term of imprisonment up to the 10-year maximum sentence for  



                                    5  

                 

class B felonies.                                                                                                                                                        

                                       And because Ghosh did not plead any mitigating factors, his effective  



                                                                                                                                                                                      

mandatory minimum sentence was the low end of the applicable presumptive range -  



                                                                                                                                                                                       

i.e., 1 year's imprisonment.  Thus, Ghosh ostensibly faced a sentencing range of 1 to 10  



                                                

years' imprisonment.  



        1     AS 47.05.210(a)(2).  



       2      AS 11.56.610(a)(2).  



       3      AS 47.05.210(b)(1).  



       4      AS 12.55.125(d)(1) (pre-2016 version).  



       5      AS 12.55.125(d); AS 12.55.155(a)(1).  



                                                                                         - 2 -                                                                                    2559
  


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

                    One of the clauses of Ghosh's plea agreement was designed to restrict the  

                                                                                                                                 



superior court's sentencing authority within this 9-year range. The present appeal arises  

                                                                                                                             



because the prosecutor and the defense attorney apparently had differing understandings  

                                                                                                              



of this clause of the plea agreement.  Here is the pertinent clause of the agreement, with  

                                                                                                                              



the contested wording in italics:  

                                                   



                      

                               Sentencing will be open to the court with the following  

                                                                                                  

                    exceptions:  jail range  will be from the 1 year statutorily  

                                                                                                 

                    mandated minimum to a maximumof 3.5 years (time for both  

                                                                                                          

                    counts to run concurrent)[.]  

                                                                  



                    The prosecuting attorney stated that he understood the term "jail range" to  

                                                                                                                                  



mean Ghosh's active term of imprisonment - i.e., Ghosh's time to serve, apart fromany  

                                                                                                                                



suspended term of imprisonment.  Thus, under the prosecutor's understanding of the  

                                                                                                                                



agreement, Ghosh could receive as much as 3  years to serve, plus additional suspended  

                                                                                                                     



time - up to a total of 10 years.  

                                                    



                    The defense attorney, on the other hand, told the court that he understood  

                                                                                                                    



the term "jail range" to mean Ghosh's total term of imprisonment - the combination of  

                                                                                                                                  



Ghosh's  active  term  of  imprisonment  and  any  suspended  term  of  imprisonment.  

                                                                                                                                      



According  to  the  defense  attorney,  he  thought  that  Ghosh's  time  to  serve  and  his  

                                                                                                                                



suspended jail time, taken together, could total no more than 3  years.  

                                                                                                               



                    Because of a series of procedural irregularities, this discrepancy in the two  

                                                                                                                                



attorneys' interpretations of the plea agreement was not revealed until after the superior  

                                                                                                                         



court sentenced Ghosh to a term of 7 years with 3  years suspended - a sentence that  

                                                                                                                                



would be proper under the prosecutor's interpretation of the agreement, but improper  

                                                                                                                       



under the defense attorney's interpretation.  

                                                                     



                    The question is what to do about this problem now.  

                                                                                                     



                                                               -  3 -                                                         2559
  


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

                                  A more detailed description of the proceedings in the superior court                                                                                                                                                                                                                                                            



                                                                     On December 1, 2014, the parties assembled in court to sign the written                                                                                                                                                                                                                                                                       



 plea agreement, and to have Ghosh formally offer his guilty pleas to the two counts                                                                                                                                                                                                                                                                                                                                 



  specified in the agreement (medical assistance fraud and evidence tampering). Ghosh's                                                                                                                                                                                                                                                                                                                     



 case was assigned to Superior Court Judge Philip R. Volland, but Judge Volland was                                                                                                                                                                                                                                                                                                                                                



 apparently unavailable to handlethis change-of-plea                                                                                                                                                                                                                   hearing, so Judge Michael R. Spaan                                                                                                                



 took Ghosh's pleas.                                                                                     



                                                                     At this December 1st hearing, Judge Spaan accepted Ghosh's guilty pleas                                                                                                                                                                                                                                                                                 



 - that is, he ostensibly found that Ghosh's pleas were knowing and voluntary - but                                                                                                                                                                                                                                                                                                                                                    



 Judge Spaan failed to meaningfully question Ghosh about his understanding of the plea                                                                                                                                                                                                                                                                                                                                            



 agreement before he accepted Ghosh's pleas.                                                                                                                                                                                              



                                                                     The judge merely asked if Ghosh understood that he was entitled to persist                                                                                                                                                                                                                                                                        



 in his pleas of "not guilty", and if Ghosh understood that he was giving up his right to                                                                                                                                                                                                                                                   



 a jury trial and "the [other] constitutional rights that [he had]."                                                                                                                                                                                                                                                             The judge never asked                                                                    



 Ghosh if he understood what sentencing range his plea agreement called for. Nor did the                                                                                                                                                                                                                                                                                                                                                 



judge ask the attorneys to clarify what the plea agreement meant when it stated that                                                                                                                                                                                                                                                                                                                                               



                                                                                                                                                                                                                                                                                                                                                                                                    6  

 Ghosh's "jail range" would be from "1 year ... to a maximum of 3.5 years".                                                                                                                                                                                                                                                                                                                               



                                                                                                                                                                                                                                                                                                                                                                                                                            

                                                                     In addition, Judge Spaan did not make any decision as to whether the terms  



                                                                                                                                                                                                                                                                                                                                                                                                                         

 of the plea agreement were acceptable to the court.  Under Alaska Criminal Rule 11(e),  



                                                                                                                                                                                                                                                                                                     

 a court is required to affirmatively accept or reject a plea agreement, either at the time  



                  6                See United States v. Kerdachi                                                                                                                    , 756 F.2d 349, 352 (5th Cir. 1985) ("When it became  



 apparent that a plea agreement was involved in [the defendant's] entry of a guilty plea, the   

 trial court was obliged to become informed as to all of the material terms of the agreement,                                                                                                                                                                                                                                                                                    

 after which the court was required to determine on the record that [the defendant] had an  

 adequate understanding of those terms.                                                                                                                                                                   A guilty plea is not voluntary if it is based on a                                                                                                               

 misapprehension of a significant term of a plea agreement.").  



                                                                                                                                                                                                                 - 4 -                                                                                                                                                                                                             2559
  


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

the terms of the agreement are disclosed to the court or later, after the court has read the                                                                                                                                                                                                                                                                                                                                                        



pre-sentence report - but in any event, before the court sentences the defendant.                                                                                                                                                                                                                                                                                                                                                           



                                                                      In Ghosh's case, Judge Spaan ordered a full pre-sentence report, and he                                                                                                                                                                                                                                                                                                         



 expressly deferred any decision on whether to accept the plea agreement - apparently                                                                                                                                                                                                                                                                                                                       



believing that it was better to have Judge Volland make this decision.                                                                                                                                                                                                                                                                                                         



                                                                      Ghosh's sentencing in front of Judge Volland did not take place until                                                                                                                                                                                                                                                                                              



 almost eight months later, on July 29, 2015.                                                                                                                                                                                            



                                                                      In the State's pre-sentencing memorandum, the prosecutor asked the court                                                                                                                                                                                                                                                                                           



to sentence Ghosh to 10 years' imprisonment with 6  years suspended - in other                                                                                                                                                                                                                                                                                                                                         



words, 3  years to serve plus a substantial amount of suspended jail time.                                                                                                                                                                                                                                                                                                                                        Ghosh's  



 attorney filed a responsive sentencing memorandum one week later, but the defense                                                                                                                                                                                                                                                                                                                                        



 attorney never objected to the prosecutor's proposed                                                                                                                                                                                                                                                sentence as being outside the                                                                                                               



 sentencing range permitted by the plea agreement.                                                                                                                                                                                                                         



                                                                       Similarly, during the sentencing hearing itself, the prosecutor explicitly                                                                                                                                                                                                    



 asked Judge Volland to impose a sentence of 3  years to serve plus suspended time.                                                                                                                                                                                                                                                                                                                                                                                   



 Ghosh's attorney did not object.                                                                                                                                          



                                                                      After the prosecutor finished his sentencing remarks, the defense attorney                                                                                                                                                                                                                                                                         



delivered his own sentencing argument - an extensive presentation totaling almost 50                                                                                                                                                                                                                                                                                                                                                                  



minutes. But during his sentencing argument, the defense attorney never objected to the                                                                                                                                                                                                                                                                                                                                                             



prosecutor's proposed sentence as being outside the plea agreement.                                                                                                                                                                                                                                                                                                      



                                                                      After theattorneys                                                                              had deliveredtheirsentencingarguments,JudgeVolland                                                                                                                                                                                                  



                                                                                                                                                                                                                                                                                                                                              7  

 engaged in a lengthy analysis of the                                                                                                                                                      Chaney  sentencing criteria,                                                                                                                                                                                         

                                                                                                                                                                                                                                                                                                                                                     and he also examined  



                                                                                                                                                                                                                                                                                                                                                                                                                                               

 a number of this Court's prior cases dealing with sentencing for white-collar crimes. The  



                  7                That  is,   the   sentencing  criteria  now  codified  in  AS  12.55.005,  but  originally  



announced in State v. Chaney, 477 P.2d 441 (Alaska 1970).  



                                                                                                                                                                                                                      -  5 -                                                                                                                                                                                                                  2559
  


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

judge ultimately sentenced Ghosh to 7 years' imprisonment with 3  years suspended -  

                                                                                                                                          



in other words, 3  years to serve plus another 3  years suspended.  

                                                                                                                 



                      Again, Ghosh's attorney did not object to this sentence as being outside the  

                                                                                                                                         



 sentencing range specified in the plea agreement.  

                                                                                  



                      However, a few minutes later, while the parties were still in court, Ghosh's  

                                                                                                                                



attorney asked Judge Volland if he had decided to accept the terms of the plea agreement  

                                                                                                                             



between Ghosh and the State.  Judge Volland was surprised by the defense attorney's  

                                                                                                                             



question:  

                 



                        

                                 Defense Attorney :  Your Honor, I need to ask:  Did  

                                                                                                                 

                      you accept the terms of ... the Rule 11 plea agreement?  It  

                                                                                                                     

                      says, "This plea agreement, if accept[ed] by the Court, ... "  

                                                                                                                         

                      I never did hear you say [whether] you accepted it or not.  

                                                                                                                     



                                 The Court 

                                                                                                                   

                                                                                                           

                                                                         



                                                                                                                

                                                                                                                  

                                                                        



                                                                 



                                                                                          



                                                                                                                   

                                                                                                                  

                                                                                                                 

                                                                                                                

                                                                                                      



                                                                                                


----------------------- Page 17-----------------------

                                                          In his argument to this Court, Ghosh repeatedly emphasizes the fact that,                                                                                                                                                                                                                                                   



 after Judge Volland imposed Ghosh's sentence, Ghosh's defense attorney asked the                                                                                                                                                                                                                                                       



judge if he accepted the plea agreement, and Judge Volland declared that he                                                                                                                                                                                                                                                           did  accept  



 the plea agreement.                                                                     Ghosh essentially takes the position that Judge Volland uttered                                                                                                                                                                                           



 magic words when the judge declared that he accepted the plea agreement - words that                                                                                                                                                                                                                                                                              



 retroactively bound Judge Volland to                                                                                                                          Ghosh's  interpretation of the plea agreement, thus                                                                                                                                               



 invalidating the sentence that Judge Volland had just pronounced, and obligating the                                                                                                                                                                                                                                                                                



judge to impose a new, lesser sentence.                                                                                                                                      



                                                          But it is clear from the record that, when Judge Volland declared that he                                                                                                                                                                                                                                      



 accepted   the   plea   agreement,   the   judge   said   so   because   he   thought   that   the   plea  



 agreement authorized the sentence he had just imposed:                                                                                                                                                                                                7 years' imprisonment with                                                                              



 3  years suspended.                                                                         



                                                          As shown by Judge Volland's contemporaneous statements on the record,                                                                                                                                                                                                                      



 the judge believed that the phrase "jail range" referred to the time-to-serve component                                                                                                                                                                                                                                           



 of Ghosh's sentence - and that a sentence of 7 years with 3  suspended was within the                                                                                                                                                                                                                                                                                 



                                                                                                                                                                                                                                                                                                                                                                



                                                                                                                                                                                                                                                                                                                                                                               



                                                                                                                                                                                                                                                                                                                                                                  



                                                                                                                                                                                                                                                                                                                                   



                                                                                                                                                                                                                                                                                                                                                                           



                                                                                                                                                                                                                                                                                                                                                                  



                                                                                                                                                                                                                                                                                                                                                                           



                                                                                                                                                                                                                                                                                                                                                                 



                                                                                                                                                                                                                                                                                                                                                        



                                              

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