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Anthony v. State (6/27/2014) ap-2418

Anthony v. State (6/27/2014) ap-2418


         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

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JERRY LEWIS ANTHONY,                                  )  

                                                      )              Court of Appeals No. A-11159 

                                      Appellant,      )            Trial Court No. 3AN-10-5939 CR  


                  v.                                  )                           O P I N I O N  


STATE OF ALASKA,                                      )  


                                      Appellee.       )                No. 2418  -  June 27, 2014  


                  Appeal   from   the    Superior   Court,   Third   Judicial   District,  

                  Anchorage, William F. Morse and Alex Swiderski, Judges.  

                  Appearances:  Hanley Robinson, Assistant Public Defender, and  

                  Quinlan Steiner, Public Defender, Anchorage, for the Appellant.  

                  Nancy R. Simel, Assistant  Attorney  General,  Office of Special  

                  Prosecutions       and    Appeals,      Anchorage,       and    Michael      C.  

                  Geraghty, Attorney General, Juneau, for the Appellee.  

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

                  Superior Court Judge.*  


                  Judge ALLARD.  

     *   Sitting  by  assignment  made  pursuant  to  article  IV,  section  16  of  the  Alaska  

Constitution and Administrative Rule 24(d).  

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

                   Jerry Lewis Anthony pleaded guilty to felony driving under the influence  

in exchange for a reduced sentence and admission into the State's Felony DUI Wellness  


Court, an alternative therapeutic sentencing court.  Under Anthony's plea agreement, the  


superior  court  was  required  to  discharge  Anthony  from  the  State  Wellness  Court  


program (thus subjecting him to a significantly harsher sentence) "upon a judicial finding  


of probable cause that [he] drove a motor vehicle."   

                   Anthony  was  subsequently  discharged  from  the  program  for  riding  a  

bicycle with an after-market detachable motor.  On appeal, Anthony argues that the term  


"motor vehicle" as used in the plea agreement  is ambiguous and that he reasonably  


understood the term to exclude a bicycle with an after-market motor, in part because  

participants in the Anchorage Municipal Wellness Court had been allowed to use such  



                   We conclude a remand is needed to determine the objective reasonableness  

of Anthony's interpretation of the plea agreement given the reasonable expectations of  


the parties.  We therefore remand this case to the superior court for further proceedings  


consistent with this opinion.  

          Factual background  

                   In  June  2010,  Anthony  was  charged  with  felony  driving  under  the  



                    Several  months  later,  he  pleaded  guilty  to  that  charge  in  exchange  for  

admission into the State's Felony DUI Wellness Court.  Under the terms of the plea  


agreement, if Anthony successfully completed the Wellness Court program, his sentence  

     1    AS 28.35.030(n).  

                                                              2                                                           2418  

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

and fine would be suspended.  If he did not complete the program, the court would order  


him to pay a $10,000 fine and would impose a 5-year sentence with 2 years suspended.  


                    Under the general terms of the plea agreement, the superior court had the  


discretion to sanction or potentially terminate Anthony from the program if he violated  


any of the terms of his agreement.  In most circumstances, the treatment team would  


meet to discuss the violation and make a recommendation to the court with regards to the  


appropriate sanction.  

                    However, the plea agreement also specified four circumstances under which  

the superior court had no discretion and was required to discharge Anthony from the  


program without input from the treatment team.  One of these circumstances was "upon  


a judicial finding of probable cause that [Anthony] drove a motor vehicle."  The term  


"motor vehicle" was not defined in the plea agreement.  

                    In August 2011, a Wellness Court probation officer saw Anthony riding  


down  a  city  avenue  on  a  motorized  bicycle.    The  State  filed  a  motion  to  discharge  

Anthony  from  the  Wellness  Court  program,  asserting  that  this  activity  constituted  

"driving a motor vehicle" in violation of the plea agreement.  The State then requested  


a judicial finding of probable cause that Anthony drove a motor vehicle, and mandatory  


discharge of Anthony from the program.  

                    Anthony opposed the State's motion.  Anthony admitted that he had been  


riding a bicycle with an after-market motor and that the motor had been running, but he  


argued that the modified bicycle did not qualify as a "motor vehicle" under the plea  


                    The superior court held an evidentiary hearing on the State's motion.  At  

the hearing, Allen Mingori, an auto mechanic and Wellness Court participant, testified  


that he had seen Anthony's bicycle and that it was a mountain bike with an after-market  

                                                               3                                                          2418

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

gas-powered engine attached to it.  He testified that the engine size was 49 cc, and that   

an engine of that size could power a bicycle to a speed of up to 32 to 35 miles per hour.     

Mingori explained that the engine had to   be started by pedaling, but that it was not  

necessary to pedal to keep the engine running.  

                     Tiffany Thomas, an employee of the Division of Motor Vehicles, testified  

that,  as  a  general  matter,  an  M-2  motorcycle  license  is  needed  for  any  "motorized  


bicycle" with an engine under 50 cc.2  


                                                           However, Thomas also testified that a bicycle with  


an after-market motor that is used only to assist the rider's pedaling is not required to be  

registered, if the motor is removable.  


                     Duke Circle, a case manager with the Municipal Wellness Court, testified  


on Anthony's behalf. Circle explained that David Dunham, a Municipal Wellness Court  

participant, had sought his permission to use  a  bicycle with an after-market engine.  

Circle spoke to a city prosecutor who told Circle that Dunham would be allowed to drive  


the bicycle with the after-market motor and would not need a driver's license because  


the bicycle "was more like a Segway or a motorized skateboard."  Circle confirmed this  


position with the Anchorage Police Department and then gave Dunham permission to use  

the bicycle, provided Dunham did not drive in excess of 25 miles per hour.  Dunham  

later sold Anthony (and apparently other Wellness Court participants) after-market motor  

kits for their bicycles.  

                     On cross-examination, Circle acknowledged that Anthony was a participant  

in the State Wellness Court, not the Municipal Wellness Court, and that the two courts  


were different.  (The State court involves offenders who have been convicted of felony  


DUIs,  while  the  Municipal  court  involves  offenders  who  have  been  convicted  of  


     2     See AS 28.90.990(18); 2 AAC 90.210(b)(2)(C).  

                                                                    4                                                                 2418  

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

misdemeanor DUIs.)  Circle also acknowledged that he had never personally spoken to  


Anthony about motorized bicycles and had never given Anthony permission to use one.  


                    Anthony then testified that he had received his after-market bicycle motor  


kit  from  Dunham,  who  told  him  that  bicycles  with  after-market  motors  were  not  


prohibited in Wellness Court.  Anthony explained that the motor was attached to his  


bicycle with four locking pins; once the pins were removed, the motor would fall off and  


the  bicycle  would  revert  back  to  an  exclusively  human-powered  bicycle.    Anthony  

admitted  that  the  motor  was  running  when  the  probation  officer  saw  him.    He  also  


admitted that, once the engine was started, it was possible for the motor to function  

without the use of the pedals.   

                    After hearing this testimony, Superior Court Judge William A. Morse ruled  


on the State's motion.  The court noted that the term "motor vehicle" was not defined in  


the plea agreement, but concluded that the definition in Title 28, the motor vehicle code,  


was a "good starting point."  Alaska Statute 28.90.990(a)(16) defines a motor vehicle as  

"a vehicle that is self-propelled, except a vehicle moved by human or animal power."  

                    The court also concluded, however, that it did not need to actually resolve  


whether Anthony's modified bicycle qualified as a "motor vehicle" under this definition,  


because it only needed to determine whether there was "probable cause" to find that it  


might qualify:  

                    I think that you can have probable cause even if it turns out  

                    that the thing wasn't a motor vehicle. So, for example, if you  


                    had a definition of motor vehicle that said "an engine 50 or  


                    more cc's," and the police officer [said] "it sure looked like  

                    a 50-cc engine to me," and it turned out that it was [only] 49  


                    cc's, I think that the way that the [plea] agreement is written  


                    allows [Anthony's termination from the Wellness Court if]  


                                                                 5                                                            2418

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

                   you ... have probable cause to believe that the engine [was]  

                    over 50 cc's even though, as it turns out, it's only 49.  

Based on this reasoning, the court found that because reasonable people could believe  


that Anthony's modified bicycle fit within the statutory definition of "motor vehicle,"  


there  was  "probable  cause"  to  believe  that  Anthony  had  driven  a  motor  vehicle  in  


violation  of  the  plea  agreement  and  his  discharge  from  the  program  was  therefore  


          Why we vacate the superior court's decision and remand the case for further  


                   Under the terms of Anthony's Wellness Court plea agreement, the superior  


court was required to discharge Anthony from the program upon a "judicial finding of  


probable  cause  that  [Anthony]  drove  a  motor  vehicle."    As  we  just  explained,  the  

superior court interpreted this language to mean that Anthony had to be terminated from  

the program if the State showed that there was "probable cause" (i.e., good reason to  

believe) that Anthony's modified bicycle qualified as "a motor vehicle" - even if this  


turned out not to be true.  

                   As  an  initial  matter,  we  note  that  we  have  serious  concerns  about  the  

superior court's interpretation of the "probable cause" clause of the plea agreement given  


the constitutional liberty interests at stake.  Under this reading of the plea agreement, the  


court would be required to discharge a participant from the Wellness Court program if  


there  was  "probable  cause"  to  believe  that  a  violation  of  the  plea  agreement  had  

occurred, even if the participant could later prove, as a factual matter, that there was no  



                                                              6                                                         2418

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


                   Thus, under the superior court's interpretation, if the State had petitioned  


the court to discharge Anthony based on a probation officer's report that he saw Anthony  

driving an automobile, the court would have to terminate Anthony from the program  

(and greatly increase his sentence), even if the court later found that the car was actually  


being driven by someone else who bore a striking physical resemblance to Anthony, but  

was not Anthony. All that would matter was if the probation officer reasonably believed  


(however mistakenly) that Anthony was the person driving the car.  While it is perhaps  


conceivable that Anthony and the State both reasonably understood and intended the plea  

agreement to call for such a result, this seems unlikely - particularly in light of the due  


process concerns such an interpretation would create.  

                   But there is also a second, more immediate, problem with the superior  


court's "probable cause" analysis in this case.  Here, there was no suggestion that the  

probation officer reasonably (albeit mistakenly) misperceived the facts of the situation.  


Indeed,  there  was  no factual   dispute  at  all  -  Anthony  readily  admitted  driving  his  

bicycle with the after-market motor running, and he did not particularly contest the  

State's description of the after-market motor and its capabilities.  Instead, the dispute  

centered on a question of law:  what did the term "motor vehicle" mean in the context  

of the plea agreement, and did Anthony's modified bicycle fit (or not fit) within that  



                   This type of legal determination is not susceptible to a "probable cause"  

analysis.  It was not enough for the court to conclude that some people might reasonably  

(even  if  mistakenly)  believe  that  the  legal  definition  of  "motor  vehicle"  was  broad  


enough to encompass the modified bicycle that Anthony used.  Rather, the court needed  

to address the parties' differing interpretations of the term and to directly decide whether  

                                                              7                                                        2418

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

Anthony's bicycle constituted a "motor vehicle" under the correct legal interpretation of   

that term.  

                   Answering  this  question  is  not  a  simple  matter  of  deciding  whether  


Anthony's modified bicycle falls within the statutory definition of "motor vehicle" found  


in AS 28.90.990(a)(16).  Anthony was not charged with violating a provision of the  

motor vehicle code; he was charged with violating the terms of his plea agreement.  

Because of this, the superior court's task of interpreting the phrase "motor vehicle" is  

governed by the principles of contract interpretation, not statutory construction.3  



                   Under the principles of contract interpretation, when a dispute arises about  

the meaning of an undefined term in a contract, the court must look to the reasonable  

expectations of the parties at the time they entered the agreement:  "When a provision  


of a contract is ambiguous and reasonably susceptible of two differing interpretations,  

a  court  will  normally  seek  testimony  concerning  the  parties'  understanding  of  the  

provision at the time the contract was made, and will examine both case law interpreting  


similar language and relevant extrinsic evidence concerning the interpretation of the  


disputed  language  within  the  relevant  community  of  contracting  parties."4  

                                                                                                                    If,  after  

engaging in this analysis, the meaning of the term still remains ambiguous - that is, if  


the  parties'  differing  interpretations  are  both  objectively  reasonable,  given  all  the  

available evidence regarding the circumstances and purposes of the agreement - the  

court must normally determine which party's interpretation is the more reasonable under  

the circumstances.5  


     3    See Simon v. State, 121 P.3d 815, 821 (Alaska App. 2005).  

     4    Id. at 821.  

     5    See Norton v. Herron , 677 P.2d 877, 880-82 (Alaska 1984).  

                                                              8                                                           2418  

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

                     But where the parties' bargaining power is unequal, as in criminal plea  

agreements, the analysis is different:  If an undefined term in a plea agreement remains  


ambiguous - that is, if the State and the defendant each have differing but objectively  


reasonable interpretations of the term - the court is required to construe the ambiguity  


against the State, because the State is the party with the greater bargaining power.6  


                     In the present case, the superior court made no findings on the genuineness  

or objective reasonableness of Anthony's proposed interpretation of the term "motor  


vehicle."    Nor  did  the  superior  court  attempt  to  ascertain  what  the  reasonable  

expectations of the parties were with regard to that term.  A remand is therefore needed  

for the superior court to address these issues.  

      6    The  rule  that  objective  ambiguities  in  plea  agreements  are  construed  against  the  

government is considered well-settled law in most jurisdictions.                                   See, e.g., United States v.     

Giorgi, 840 F.2d 1022, 1026 (1st Cir. 1988); United States v. Ready, 82 F.3d 551, 558-59  

(2d Cir. 1996);  United States v. Baird, 218 F.3d 221, 229 (3d Cir. 2000);  United States v.  


Harvey , 791 F.2d 294, 300 (4th Cir. 1986); United States v. Sibley, 448 F.3d 754, 759 (5th  

Cir. 2006); Carnine v. United States, 974 F.2d 924, 928-29 (7th Cir. 1992);  United States  


v. Andis, 333 F.3d 886, 890 (8th Cir. 2003);  United States v. De la Fuente, 8 F.3d 1333,  


 1337-38 n.7 & n.8 (9th Cir. 1993); United States v. Cachucha, 484 F.3d 1266, 1270 (10th  


Cir. 2007);  United States v. Jefferies, 908 F.2d 1520, 1523 (11th Cir. 1990); Humphrey v.  

State, 686 So.2d 560, 562 (Ala. Crim. App. 1996);                           Keller v. People , 29 P.3d 290, 297 (Colo.  


2000);  State  v.  Adams,  982  A.2d  187,  191  (Conn.  App.  2009);  Stedman  v.  District  of  

Columbia, 12 A.3d 1156, 1158 (D.C. App. 2011); State v. Cole, 16 P.3d 945, 948 (Idaho  


App. 2000);  Valenzuela v. State, 898 N.E.2d 480, 482-83 (Ind. App. 2008); State v. Wills,  


765 P.2d 1114, 1120 (Kan. 1988); Elmore v. Commonwealth , 236 S.W.3d 623, 627-28 (Ky.  

App. 2007); State v. Mares, 888 P.2d 930, 933 (N.M. 1994); State v. Bethel, 854 N.E.2d 150,  


 167 (Ohio 2006); Commonwealth v. Kroh, 654 A.2d 1168, 1172 (Pa. Super. 1995); State ex  

rel. Forbes v. Kaufman, 404 S.E.2d 763, 768 (W. Va. 1991).  But see State v. Wesley , 772  

N.W.2d 232, 238 n.5 (Wis. App. 2009) (noting that Wisconsin has rejected the rule that  

ambiguities in a plea agreement must be construed against the government).  


           This issue was discussed at length in Judge Mannheimer's concurring  opinion in  


Andrew A. v. State , 2011 WL 6347421, at *12 (Alaska App. Dec. 14, 2011)(unpublished).  

                                                                    9                                                             2418

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

                     Although we remand this case to the superior court for future findings, we  


note  that  the  superior  court  was  correct  in  treating  Title  28's  definition  of  "motor  


vehicle" as an appropriate starting point for its analysis. The parties entered into this plea  


agreement because Anthony committed a violation of Title 28 - namely, felony driving  


under the influence.  Given this circumstance, and given the rehabilitative and deterrent  


purposes of the plea agreement, the superior court could reasonably treat the statutory  


definition found in Title 28 as relevant extrinsic  evidence of what the parties likely  


intended the term "motor vehicle" to mean when they included it in the plea agreement.  


                     But, as we have explained, Anthony's case is governed by the principles  

of contract interpretation, so the answer ultimately lies in the reasonable expectations of  

the parties. The superior court must use these principles when resolving any ambiguities  


as to whether Anthony's bicycle falls within the meaning of "motor vehicle" as that term  

is used in the plea agreement.  


                     The  decision  of  the  superior  court  is  VACATED  and  this  case  is  


REMANDED for further proceedings consistent with this opinion.  We do not retain  



                                                                 10                                                           2418

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