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State v. Henry (10/8/2010) ap-2280

State v. Henry (10/8/2010) ap-2280

        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: 

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                                                    Court of Appeals Nos. A-10552 & A-10578 
                                Appellant,               Trial Court Nos. 3HO-08-458 Cr & 
                                                                    3KN-04-2938 Cr 
                                                                    O   P  I  N  I  O  N 
                                                            No. 2280    -    October 8, 2010 

                Appeals     from   the  Superior    Court,  Third   Judicial   District, 
                Homer,     Carl  Bauman,     Judge   (State  v.  Henry),   and   Kenai, 
                Charles T. Huguelet, Judge (State v. Fulton). 

                Appearances:     Eric A. Ringsmuth, Assistant Attorney General, 
                Office   of   Special   Prosecutions   and   Appeals,   Anchorage,   and 
                Daniel S. Sullivan, Attorney General, Juneau, for the Appellant. 
                Julia D. Moudy, Assistant Public Defender, and Quinlan Steiner, 
                Public Defender, Anchorage, for Appellee Lee Henry.  Sarah T. 
                White, Assistant Public Defender, and Quinlan Steiner, Public 
                Defender, Anchorage, for Appellee Matthew Fulton. 

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

                MANNHEIMER, Judge.
                COATS, Chief Judge, concurring. 

                Both   of   the   defendants   in   these   consolidated   appeals   entered   into   plea 

agreements with the State to resolve the criminal charges pending against them.  In each 

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

case, the plea agreement called for the defendant to receive a sentence that included a 

partially    suspended     term   of  imprisonment   and       a  concomitant   period      of  probation 
(following the defendant's service of the non-suspended portion of their sentence). 1 

                 In   each    case,    the   defendant     served    their   non-suspended        term    of 

imprisonment   and   was   released   on   probation.        Later,   each   defendant   violated   their 

probation and was brought before the court on a petition to revoke their probation.  At 

this   juncture   in   the   proceedings,   each   defendant   told   the   sentencing   judge   that   they 

no longer wished to be on probation: they asked the judge to terminate the probation and 

simply sentence them to an active (i.e., unsuspended) term of imprisonment. 

                 The two sentencing judges granted the defendants' requests and sentenced 

the defendants to imprisonment - but, in each case, the sentencing judge determined, 
based on the  Chaney sentencing criteria, 2 that the proper term of imprisonment was 

something less than the full amount of imprisonment that had previously been suspended. 

In  State    v.  Henry,    the  superior    court   imposed     only   15  months     of  the  previously 

suspended 19 months.  In State v. Fulton, the superior court imposed only 1 year of the 

approximately 16 months of remaining suspended jail time.  (Approximately 8 months 

of Fulton's original 2-year suspended term of imprisonment had already been imposed 

for earlier violations of probation.) 

                 The   State   now   appeals.     The   State   contends   that   the   superior   court's 

decision to impose something less than the full amount of the previously suspended jail 

    1   The plea agreement in Lee Henry's case called for him to receive a sentence of 24 

months' imprisonment with 19 months suspended, and a 3-year term of probation.  The plea 
agreement      in  Matthew    Fulton's    case  called  for  him   to  receive  a  sentence    of  3  years' 
imprisonment with 2 years suspended, and a 5-year term of probation. 

    2   See State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970).               The Chaney sentencing 

criteria are now codified in AS 12.55.005. 

                                                   - 2 -                                              2280

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

time amounted to an illegal, after-the-fact amendment of the plea bargain without the 

State's consent.  In other words, the State asserts that, when the defendants agreed to the 

plea bargains in these two cases, they contractually bound themselves either to complete 

the entire period of their probation or, alternatively, to serve the full amount of their 

suspended jail time. 

                To answer the State's contention, we must recapitulate certain aspects of 

the law governing probation in Alaska. 

                Under Alaska law, whenever a sentence includes suspended jail time and 

a concomitant term of probation, the sentence is inherently mutable: the sentencing court 

retains   the   authority   to   alter   the   conditions   of   probation,   to   shorten   or   lengthen   the 

probationary term, and to impose some or all of the previously suspended jail time.  See 

Surrells v. State, 151 P.3d 483, 489-490 (Alaska App. 2006); Reyes v. State, 978 P.2d 

635, 639 (Alaska App. 1999).          See also Ralston v. Robinson, 454 U.S. 201, 217 n. 10; 

102 S.Ct. 233, 244 n. 10; 70 L.Ed.2d 345 (1981) (declaring that the rule prohibiting a 

post-sentencing increase in a defendant's sentence "simply does not apply when [the 

legislature] has provided a court with the power to modify a sentence in light of changed 


                Thus, when a sentencing court suspends a portion of a defendant's term of 

imprisonment       and   places   the   defendant    on   probation,    it  is  understood   that  if  the 

defendant violates the conditions of probation, or if the defendant engages in any other 

post-sentencing       conduct    that   establishes   a  substantial   reason   to  conclude     that   the 

defendant's current conditions of probation are not adequately ensuring the defendant's 

rehabilitation or adequately protecting the public, the sentencing court has the authority 

to make the conditions of probation more onerous, or to extend the period of probation, 

or to order the defendant to serve some or all of the previously suspended jail time. 

Surrells, 151 P.3d at 489; Edwards v. State, 34 P.3d 962, 969 (Alaska App. 2001).  See 

                                                  - 3 -                                             2280

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

AS   12.55.090(b):      "The   [sentencing]   court   may   revoke   or   modify   any   condition   of 

probation, or may change the period of probation." 

                By the same token, as we recognized in Marunich v. State, 151 P.3d 510, 

517 (Alaska App.         2006), a sentencing court has the authority to alter the probation in 

the defendant's favor - for example, by revoking a previously imposed condition of 

probation,   or   by   shortening   the   defendant's   term   of   probation.    See  AS   33.05.050: 

"When directed by the [sentencing] court, the probation officer shall report to the court 

[concerning] the conduct of the probationer while on probation.                   The court may then 

discharge the probationer from further supervision and may terminate the proceedings 

against the probationer, or may extend the probation, as shall seem advisable." 

                In addition, just as Alaska law   gives the sentencing court a continuing 

authority     to  alter  a  sentence   of   probation,   Alaska   law    also   gives   the   defendant   a 

continuing right to alter a sentence of probation.             A defendant who concludes that the 

conditions of probation are too onerous has the right to terminate the probation and ask 

the   sentencing   judge   to   impose   an   active   term   of   imprisonment   in   lieu   of   further 
probation. 3     If   the   defendant   exercises   this   option,   the   sentencing   judge   must   not 

automatically sentence the defendant to all of the remaining suspended jail time; rather, 

the judge must apply the Chaney sentencing criteria to determine an appropriate term of 
imprisonment. 4 

    3   See Brown v. State, 559 P.2d 107, 111 n. 13 (Alaska 1977); Sweezey v. State, 167 P.3d 

79, 80-81 (Alaska App. 2007); Hurd v. State, 107 P.3d 314, 333 (Alaska App. 2005); State 
v. Auliye , 57 P.3d 711, 717 (Alaska App. 2002) ("probation is a contract, and because this 
contract allows a judge to control a defendant's life in ways that the defendant may deem 
more burdensome than normal criminal penalties, a defendant is free to refuse probation and 
to insist on a normal sentence."). 

    4   See DeMario v. State, 933 P.2d 558, 562 (Alaska App. 1997) (holding that, when a 


                                                  - 4 -                                              2280

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

                 In   the  present   combined       appeals,   the   State   does   not   dispute   that   the 

foregoing paragraphs contain an accurate description of the law that applies when, in the 

absence of a plea bargain, a court imposes a sentence that includes probation. However, 

the State argues that the law is different when the defendant's sentence stems from a plea 


                 In such instances, the State contends, the defendant's term of probation and 

the defendant's concomitant suspended term of imprisonment are material elements of 

the bargain.     According to the State, if a defendant agrees to a sentence that includes 

probation and suspended jail time, the defendant necessarily relinquishes the right to later 

terminate their probation and ask the sentencing court to impose an active sentence of 

imprisonment based on the Chaney sentencing criteria.  Rather, if the defendant violates 

the conditions of their probation, the sentencing court must impose the entire amount of 

the previously suspended jail time (regardless of whether the court believes that such a 

sentence comports with the Chaney criteria) - or, alternatively, the court must allow the 

State to rescind the plea bargain and return the parties to the status quo ante (a rescission 

of   the   defendant's   conviction   and   sentence   under   the   plea   bargain,   a   return   of   that 

criminal charge to a pre-trial posture, and a reinstatement of any other charges that were 

dismissed as part of the plea bargain). 

                 (We note that the State's reasoning seemingly leads to the conclusion that 

if the sentencing court later decides to shorten the length of the defendant's probation or 

alter the conditions of the defendant's probation in the defendant's favor (pursuant to the 

authority   granted   by   AS   12.55.090(b)   or   by   AS   33.05.050),   this   would   constitute   a 

    4   (...continued) 

defendant refuses probation, the sentencing judge "[must] not automatically impose all [of 
the defendant's] previously suspended time" but must carefully evaluate the case under the 
Chaney criteria and then impose a sentence based on the totality of circumstances). 

                                                   - 5 -                                                 2280 

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

judicial act that defeats a material element of the plea bargain, thus entitling the State to 

demand rescission of the bargain.) 

                 We reject the State's position because it conflicts with the legal principle 

that the parties to a contract retain their legal rights relating to the transaction covered by 

the contract unless either (1) the contract specifically states that a party is relinquishing 

a legal right as part of the bargain or (2) the terms of the contract are clearly premised on 

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

clearly inconsistent with the provisions of the contract). 

                 See Wright v. Universal Maritime Service Corp., 525 U.S. 70, 80; 119 S.Ct. 

391,   396;   142   L.Ed.2d   361   (1998)   ("we   will   not   infer   from   a   general   contractual 

provision   that   the   parties   intended   to   waive   a   statutorily   protected   right   unless   the 

undertaking is explicitly stated"); Metropolitan Edison Co. v. National Labor Relations 

Board, 460 U.S. 693, 708; 103 S.Ct. 1467, 1477; 75 L.Ed.2d 387 (1983) ("[courts] will 

not infer from a general contract provision that the parties intended to waive a statutorily 

protected right unless the undertaking is 'explicitly stated.'                ... [T]he waiver must be 

clear and unmistakable.").          See also Hammond v. Alaska Dept. of Transportation & 

Public Facilities, 107 P.3d 871, 876-77 (Alaska 2005) ("[A]n employee's exercise of the 

right   to   arbitrate   under   a   [collective   bargaining   agreement]   does   not   preclude   [the 

employee's] subsequent litigation of related statutory claims in state court unless the 

employee   clearly   and   unmistakably   submits   the   statutory   claims   to   arbitration.          An 

employee       is  not   required   to  choose    between     the   rights   provided     by  a  [collective 

bargaining       agreement]      and   the   rights   provided     by   statutes    such   as   the  Alaska 

Whistleblower Act ... absent a clear and unmistakable waiver ... .") 

                 This same principle applies to the construction of plea bargains in criminal 

cases when the government claims that, under the plea agreement, the defendant waived 

rights other than those that are normally relinquished when a defendant offers a guilty 

                                                    - 6 -                                               2280

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

plea under court rules such as Alaska Criminal Rule 11(c). See, e.g., Creech v. State, 887 

N.E.2d 73, 74-76 (Ind. 2008); Clay v. State, 882 N.E.2d 773, 775-76 (Ind. App. 2008); 

State v. Copes, 224 P.3d 571, 577-78 (Kan. 2010);Kozak v. Commonwealth, 279 S.W.3d 

129, 133-34 (Ky. 2008); State v. Thompson, 735 N.W.2d 818, 827 (Neb. App. 2007); 

People v. Anderson, 879 N.Y.S.2d 849, 851 (N.Y. App. 2009). 

                 We applied this principle in Simon v. State, 121 P.3d 815 (Alaska App. 


                 The defendant in Simon agreed to plead guilty to a class C felony, and he 

further   agreed   that   he   would   not   contest   three   aggravating   factors   for   purposes   of 

sentencing.   The relevant portion of the plea agreement then concluded with the words: 

"[Sentencing] open with a range of 3-5 [years] to serve."  Id. at 817. 

                 The   superior court sentenced Simon to 5 years' imprisonment (i.e., the 

upper limit of this range), and Simon appealed the severity of his sentence.  Id. at 821. 

The State responded that Simon, by agreeing to the above-quoted language, had given 

up his right to appeal the sentence.          In other words, the State asserted that Simon had 

agreed that he could receive any sentence up to (and including) 5 years' imprisonment. 


                 (See   AS   12.55.120(a),   which   declares   that   a   defendant   has   no   right   to 

appeal a sentence if "the sentence was imposed in accordance with a plea agreement ... 

that ... provided for imposition of ... a sentence equal to or less than a specified maximum 


                 As we noted in Simon, the quoted portion of the plea agreement could be 

interpreted   in   two   different   ways.      On   the   one   hand,   the   clause   could   be   viewed 

"as   merely   an   acknowledgement   that,   given   Simon's   intention   to   plead   guilty   to   a 

class   C   felony,   his   status   as   a   third   felony   offender,   and   his   intention   to   concede 

aggravating factors, the applicable sentencing range would (by law) be 3 to 5 years' 

                                                   - 7 -                                              2280

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

imprisonment."       Ibid.   On the other hand, the quoted language could be interpreted as 

"Simon's express acquiescence in a sentence of 3 to 5 years, and his implicit promise not 

to contest whatever sentence the superior court imposed [within that range]".  Ibid. 

                 We concluded that, as a matter of law, this ambiguity had to be resolved in 

Simon's favor.   Quoting the Indiana Court of Appeals's decision in Wilkie v. State, 813 

N.E.2d 794, 804 (Ind. App. 2004), we "reject[ed] the idea that a defendant can 'agree' 

to be sentenced in accordance with the statutory range applicable to his offense and, as 

a result of that agreement, be barred from [challenging] the trial court's decision to 

impose the maximum sentence".             Simon, 121 P.3d at 821.        We explained: 

                         We   would   view   the   matter   differently   if   the   record 
                 showed      that  Simon     and   the   State   had   bargained     for   a 
                 sentencing      range    narrower     than    the   range   that   would 
                 otherwise apply to Simon's case, or if Simon had expressly 
                 waived   his   right   to   appeal   his   sentence.  But   here,   as   in 
                 Wilkie, the only thing that lends any credence to the State's 
                 argument      is  the   fact  that   the   plea   agreement     contains 
                 language describing the sentencing range anticipated by the 
                 parties.  This sentencing range was simply the legal conse­ 
                 quence of Simon's decision to plead guilty to third-degree 
                 sexual assault (given the fact that Simon was a third felony 
                 offender,     and    given    the   fact   that   he   was    conceding 
                 aggravating factors). 

                         In other words, the record in Simon's case gives no 
                 indication   that   the   disputed   clause   of   the   plea   agreement 
                 constituted anything more than an acknowledgement of the 
                 sentencing      range   provided     by  law   for   any   defendant    in 
                 Simon's situation.       In these circumstances, we hold that this 
                 language   must   not   be   interpreted   as   a   waiver   of   Simon's 
                 appeal rights. 

Simon, 121 P.3d at 821-22. 

                                                   - 8 -                                              2280

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

                 See also Judge Bryner's concurrence in Betzner v. State, 768 P.2d 1150, 

1157-58 (Alaska App. 1989), where he rejected the State's contention that the defendant 

had agreed, as part of his plea bargain, to automatic imposition of the full amount of 

suspended jail time if he violated the provision of his plea agreement which required him 

to testify for the State.     Judge Bryner declared: 

                         I   find   it   unnecessary   to   decide   whether   such   a   plea 
                 agreement       might    ever    properly     provide     for  automatic 
                 imposition      of  a  suspended      sentence    upon    a  defendant's 
                 failure   to   testify. It   is   sufficient   to   note   that   no   express 
                 provision      to  this   effect   was    made     in   Betzner's     plea 
                 agreement.       ...  No    express    provision    was    made    for  the 
                 automatic reinstatement of suspended time upon [Betzner's] 
                 failure to comply with the agreement to testify. 


                 Turning to the plea agreements in the two cases before us, we note that 

these plea agreements contain no express provision requiring the defendants to relinquish 

their right under Alaska law to reject further probation.                Nor do the plea agreements 

contain any express provision requiring the defendants to relinquish their accompanying 

right (if their probation were terminated) to have the superior court assess their sentences 

of imprisonment under the Chaney criteria, rather than automatically imposing the full 

amount of the defendants' remaining suspended jail time. 

                 Moreover, we conclude that the plea agreements do not implicitly require 

the defendants to relinquish these rights.   In other words, there is no clear inconsistency 

between   the   defendants'   assertion   of   these   rights   and   the   stated   terms   of   the   plea 


                 Accordingly, we hold that the defendants' decision to accept these plea 

bargains did not constitute a relinquishment or waiver of the normal rights accompanying 

                                                   - 9 -                                               2280

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

a sentence of probation and suspended imprisonment - in particular, the right to reject 

further probation at some future time, and the right to demand (in that event) that the 

superior court assess their sentence of imprisonment based on the Chaney criteria, rather 

than automatically imposing all of their remaining suspended jail time.        And, for this 

reason, the superior court did not commit error when it allowed the defendants to reject 

further probation, and when it sentenced the defendants to less than the full amount of 

their suspended jail time. 

              We express no opinion on the question of whether Alaska law allows plea 

bargains in which the defendant waives the right to reject further probation, or waives 

the right to demand a sentence that is formulated under the Chaney criteria.  We simply 

hold that, even if such waivers might conceivably be valid under Alaska law, no waivers 

of these rights occurred in the two cases before us. 

              The judgements of the superior court are AFFIRMED. 

                                            -  10 -                                      2280

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

COATS, Chief Judge, concurring. 

                 These cases   are   governed by prior decisions.            When a court revokes a 

defendant's probation and imposes a sentence, the sentencing court is required to apply 
the   Chaney      criteria.1    The     sentencing     court    is  to  consider    the   totality   of   the 

circumstances, including the defendant's original offense, the nature of his violation of 
probation, and his intervening conduct while on probation.2                 Furthermore, in Betzner v. 

State,3 we specifically rejected the argument that violating an important aspect of a plea 

agreement - in that case an agreement to testify for the State - "automatically justified 
imposition of the full suspended term."4 

                 In   a   related   line   of   cases,   we   have   held   that   a   defendant   may   refuse 
probation.5    In State v. Auliye,6 we stated that   "probation is a contract, and because this 

contract allows a judge to control a defendant's life in ways that the defendant may deem 

more burdensome than normal criminal penalties, a defendant is free to refuse probation 
and to insist on a normal sentence."7          When a defendant refuses probation he "does not 

    1   State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970); DeMario v. State, 933 P.2d 

558, 562 (Alaska App. 1997); Toney v. State, 785 P.2d 902, 903 (Alaska App. 1990); Betzner 
v. State, 768 P.2d 1150, 1155-56 (Alaska App. 1989) & 1157-58 (Bryner, C.J., concurring); 
Luepke v. State, 765 P.2d 988, 990-91 (Alaska App. 1988). 

    2   DeMario , 933 P.2d at 562. 

    3    768 P.2d 1150 (Alaska App. 1989). 

    4   Id. at 1155-56. 

    5   Sweezey v. State, 167 P.3d 79, 80 (Alaska App. 2007) (citing Brown v. State, 559 P.2d 

107, 111 n.13 (Alaska 1977) (citation omitted)). 

    6    57 P.3d 711 (Alaska App. 2002).

    7   Id. at 717.

                                                   -  11 -                                             2280

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

thereby     forfeit   the   right   to   a   sentence   that   is  reasonable   under   the   totality  of   the 
circumstances of the case."8        In sentencing a defendant who rejects probation, the court 

is required to impose a sentence that comports with the Chaney sentencing criteria.9 

                 Against the background of this case law, it is clear that Judges Bauman and 

Huguelet did exactly what the law required them to do: When Henry and Fulton rejected 

probation, the judges imposed a sentence based on the Chaney criteria.                    They properly 

concluded that the suspended sentences agreed to in the defendants' plea agreements 

were not controlling. 

                 The   State argues that the sentences are illegal because they violate the 

defendants' plea agreements.           But the parties entered into those agreements with an 

understanding of our prior case law.   And that case law has consistently held that when 

a defendant violates probation, the sentencing court imposes a sentence in accordance 

with the Chaney criteria. 

                 The State also argues that it made important concessions to the defendants 

in   return   for   their   plea   agreements, and   that the   sentencing   courts   therefore   had   no 

authority   to   eliminate   any   portion   of   the   agreed-upon   suspended   sentences.        But   at 

sentencing, the State had the opportunity to point out the seriousness of the defendants' 

conduct, including the conduct underlying any charges the State dismissed as part of the 

plea agreements.       And the sentencing courts were authorized to take this conduct fully 

into consideration in determining an appropriate sentence at the revocation hearing. 

                 The State has not argued that the judges imposed sentences which were not 

a reasonable application of the Chaney criteria.             Because I fail to see why a sentencing 

    8   Bland v. State, 846 P.2d 815, 818 (Alaska App. 1993). 

    9   Id. 

                                                  - 12 -                                                2280 

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

court should be required to impose a sentence greater than what the court concludes is 

necessary under the standard sentencing criteria, I concur in this court's decision. 

                                            -  13 -                                      2280
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