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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 @ akcourts.us 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 ½ 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 ½ 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 ½ 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 ½ years suspended - in other words, 3 ½ 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 ½ 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 ½ years suspended - in other words, 3 ½ years to serve plus another 3 ½ 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 ½ 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 ½ suspended was within the
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