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Dow v. State (4/6/2007) ap-2093

Dow v. State (4/6/2007) ap-2093

     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

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) Court of Appeals No. A-9212
Appellant, ) Trial Court No. 4FA-04-890 Cr
v. )
) O P I N I O N
Appellee. ) No. 2093 April 6, 2007
          Appeal  from the Superior Court, Fourth  Judi
          cial   District,  Fairbanks,  Mark  I.  Wood,

          Appearances:   Robert  John,  Law  Office  of
          Robert  John,  Fairbanks, for the  Appellant.
          W.   H.   Hawley,  Jr.,  Assistant   Attorney
          General,  Office of Special Prosecutions  and
          Appeals,  Anchorage, and  David  W.  M rquez,
          Attorney General, Juneau, for the Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          MANNHEIMER, Judge.

          This  case  presents one more instance of  a  recurring
problem.   The criminal charges against Ross L. Dow were resolved
when  Dow  entered  a Cooksey plea  i.e., a plea  of  no  contest
which,  with the consent of the State, incorporated the right  to
litigate  a dispositive issue on appeal.  See Cooksey  v.  State,
524  P.2d  1251,  1255-57 (Alaska 1974).  But  when  the  parties
appeared  in court to present this negotiated settlement  of  the
case,  neither the lawyers nor the judge carefully described  the
issue or issues that were being reserved for appeal.
          Most  of  the evidence against Dow was found  during  a
police  search  of his basement.  There was no warrant  for  this
search,  but  the  State  contended that Dows  domestic  partner,
Starla Noyes-Norris, consented to the initial police entry of the
residence, and that Dow himself later consented to the search  of
the basement.
          Dows  attorney filed a suppression motion in  which  he
challenged the entry and the search.  In his motion, and  in  the
later  hearing  on that motion, Dows attorney mentioned  numerous
factual  and legal theories that could potentially undermine  the
propriety of the entry and the search.
          After  Superior  Court Judge Mark I.  Wood  denied  the
suppression  motion, Dow decided to enter a  Cooksey  plea.   But
when  the parties assembled in court to have Dow formally express
his  agreement to this negotiated plea, there was little talk  of
the  issue preserved for appeal.  This matter was addressed  only
briefly,  and  the reserved issue was described only  vaguely  as
whether  Norris and Dow consented to let [the police]  in  there.
Here is the pertinent portion of the transcript:
               The  Court:   And  the State  stipulates
          that  [the  issue  reserved  under  the  plea
          agreement] qualifies under Cooksey  ...  [as]
               Prosecutor:  Correct, Judge.   ...   It,
          the consent issue, starts the case, so ...
               The  Court:  Right; yeah.  I mean,  [the
          police]  dont  get to find [the evidence]  if
          ...  I  didnt  find  that  you  consented  to
          letting  them in there.  Right.  So  ...  you
          have the right to appeal that; ... youre  not
          losing your right to appeal that issue.

     Dow:  Right.

          Now,   on  appeal,  Dows  appellate
attorney (a different attorney from  the  one
who  represented  Dow in the superior  court)
has  filed a brief that challenges the  entry
and  the  search on at least seven  different
grounds.  The State, in its responding brief,
contends  that most of these legal  arguments
were not preserved when Dow entered his plea,
and  that this Court should therefore  refuse
to decide these unpreserved claims.
          The  dilemma facing this  Court  is
that,  if we ultimately agree with the  State
that  one  or  more of Dows claims  were  not
preserved  when he entered his Cooksey  plea,
Dow would seemingly be entitled to return  to
the  superior  court and ask to withdraw  his
plea  on the basis that he thought that these
claims  were preserved, and that his decision
to enter his Cooksey plea was premised on his
right  to  raise these claims and  have  them
resolved on appeal.
          (When  a  defendant is  denied  the
opportunity  to  litigate an issue  that  was
purportedly reserved for appeal as part of  a
Cooksey  plea,  the remedy is  to  allow  the
defendant to withdraw the plea.)1
          In  other  words, this Court  could
devote   substantial  time  and   effort   to
deciding  Dows  appeal,  only  to  have   our
decision become moot because there never  was
a  meeting of the minds between Dow  and  the
State  concerning  the issues  preserved  for
          Under these circumstances, we  must
stay  our  consideration of this  appeal  and
remand  Dows case to the superior  court,  so
that the precise contours of the Cooksey plea
can  be  clarified.  We direct  the  superior
court  to  ask  the parties to explain  their
understanding  of  the  plea  agreement    in
particular,  the issues that they anticipated
would be reserved for appeal.
          If  the parties can reach agreement
regarding the claims that were preserved  for
appeal   when  Dow  entered  his  plea,   the
superior court shall notify this Court of the
agreed-upon  claims.   Assuming  that   these
claims are dispositive as defined in Miles v.
State,  825 P.2d 904, 906 (Alaska App. 1992),
this  Court  will resume work on Dows  appeal
ignoring any claims presented in Dows current
brief   that   fall   outside   the   parties
          If,  on the other hand, the parties
can  not reach agreement regarding the claims
preserved  for  appeal,  the  superior  court
shall  notify  this Court of this  fact.   We
will  then  dismiss Dows appeal on the  basis
that Dows Cooksey plea was not valid, and Dow
will be given the opportunity to withdraw his
          In   this  latter  event,  Dow  has
several  options.   He may negotiate  another
plea  bargain  with  the  State,  or  he  may
withdraw his no contest plea and go to  trial
on the original charges.  If Dow elects to go
to trial, but if he believes that it would be
pointless  to dispute his factual guilt,  Dow
may choose to be tried on stipulated facts or
on  the  grand jury record.  As we  noted  in

     [I]f  the parties concur that ...  there
are  no  material  factual  disputes  to   be
litigated, the parties may agree  to  hold  a
trial  on stipulated facts or upon the  grand
jury  record,  thus obtaining  an  appealable

Miles, 825 P.2d at 907.
          The  superior  court  shall  notify
this  Court  of  the  result  of  the  remand
proceedings within 90 days of the issuance of
this opinion.
          We now address one further issue.
          Over  the  years,  this  Court  has
repeatedly been presented with flawed Cooksey
pleas    flawed  either  because  the   issue
reserved  for appeal was not dispositive,  or
because   the  parties  never  reached   true
agreement  regarding the issues reserved  for
appeal.   In  Miles,  we  responded  to  this
problem  by  laying out the procedural  steps
that  must be taken when the parties  present
the trial court with a proposed Cooksey plea:

[T]he prosecuting attorney, as an officer  of
the  court, must certify that the issue which
the   defendant   proposes   to   appeal   is
dispositive, either because a ruling  in  the
defendants favor would, as a matter  of  law,
bar   continuation  of  the  prosecution   or
because  a  ruling  in the  defendants  favor
would  leave the government with insufficient
evidence  to withstand a motion for judgement
of   acquittal  at  the  conclusion  of   the
governments case.  Both the defense  attorney
and  the judge must concur in the prosecutors

Miles, 825 P.2d at 906-07.
          Our  opinion  in Miles  was  issued
fifteen years ago, but we continue to receive
appeals in which the defendants Cooksey  plea
suffers  from these same flaws.  We now  take
the step of requiring the negotiated terms of
a  Cooksey plea to be presented to the  trial
court in writing.
          In  this writing, the parties  must
specify  precisely what issue or  issues  are
being reserved for appeal.  In addition,  the
parties  must  specify how the  issue(s)  are
dispositive  of  the  case  under  the   test
announced in Miles.
          If  more  than one issue  is  being
reserved for appeal, the parties must  either
explain  why they believe that each  separate
issue  is  independently dispositive  of  the
case,  or  the parties must explicitly  agree
that the separate issues are dispositive only
when  taken  in  combination   and  that  the
defendant will prevail on appeal only if  all
issues are resolved in the defendants favor.
          The  writing must be signed by both
the  prosecutor and the defense attorney, and
the  writing must be submitted to  the  trial
court   promptly,  so  that  the  court   has
sufficient  time to review and  evaluate  the
terms  of the proposed plea agreement  before
the  court  is asked to accept the defendants
plea.   As we pointed out in Miles, 825  P.2d
at   907,   all   three   participants    the
prosecutor,  the  defense attorney,  and  the
judge   must agree that the proposed  Cooksey
plea is proper.
          We caution both attorneys and trial
judges that we will not accept a writing that
describes  a reserved issue in generic  terms
or  in  boilerplate  language.   Rather,  the
writing  must describe the reserved issue  by
specifically  referring to the facts  of  the
defendants  case and the legal theories  that
the parties are relying on.
          We  harbor  no illusions that  this
new  procedural requirement will achieve  the
goal   of   eliminating  all   Cooksey   plea
problems.   However,  we  believe  that   the
requirement  of a writing will  significantly
advance this goal  by requiring attorneys and
judges to give focused attention to the terms
of all proposed Cooksey pleas.


     This  case is REMANDED to the superior  court
for  the  proceedings described in  this  opinion.
The  superior  court shall report  to  us  on  the
result of the remand proceedings within 90 days of
the  issuance  of  this opinion.   After  we  have
received  the  superior courts  report,  we  shall
renew our consideration of this appeal.

1See Miles v. State, 825 P.2d 904, 907 (Alaska App. 1992).
See also Ritter v. State, 16 P.3d 191, 196 (Alaska App.
2001); Clark v. Anchorage, 2 P.3d 639, 644 (Alaska App.
2000); Wells v. State, 945 P.2d 1248, 1250 (Alaska App.

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