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Forrest J. Ahvakana v. State of Alaska (9/25/2020) ap-2679

Forrest J. Ahvakana v. State of Alaska (9/25/2020) ap-2679

                                                                  NOTICE
  

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                     IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



FORREST J. AHVAKANA,  

                                                                                     Court of Appeals No. A-12713  

                                             Appellant,                           Trial Court No. 2BA-13-00182 CI  



                                  v.  

                                                                                                   O P I N I O N  

STATE OF ALASKA,  



                                             Appellee.                             No. 2679 - September 25, 2020  



                      Appe                    

                               al  from  the  Superior  Court,  Second  Judicial  District,  

                      Utqiagvik, Paul A. Roetman, Judge.  



                      Appearances:  Michael Jude Pate (opening brief), and Laurence  

                                               

                      Blakely (reply brief), Assistant Public Defenders, and Quinlan  

                                               

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

                                                                                                                   

                      L. Wendlandt, Assistant Attorney General, Office of Criminal  

                                                                                                              

                      Appeals, Anchorage, and Jahna Lindemuth, Attorney General,  

                                                                                                              

                      Juneau, for the Appellee.  



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

                                                             

                       Senior Superior Court Judge.*  

                                                                         



                      Judge ALLARD, writing for the majority.
  

                      Judge SUDDOCK, concurring in part, and dissenting in part.
  



      *    Sitting  by   assignment  made  pursuant  to  Article  IV,  Section  11  of   the  Alaska  



Constitution and Administrative Rule 23(a).  


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

                              Forrest J. Ahvakana was convicted, following a jury trial, of first-degree                                                              



assault and was sentenced, pursuant to Alaska's three-strikes law, to a mandatory term                                                                                                



of 99 years without parole. Ahvakana later filed an application for post-conviction relief,                                                                                        



asserting that his attorney's ineffective assistance of counsel unfairly deprived him of a                                                                                                   



                                                   1                                                                                                              2  

                                                                                                                                                                              

                                                                                                                                                                     the superior  

favorable plea bargain.                                Relying on our prior decision in Mooney v. State, 



                                                                                                                                                                           

court dismissed the post-conviction relief application because it found that the requested  



                                                                                                                                                                              

relief  was  precluded  based  on  the  doctrine  of  "mutual  mistake."                                                                                   For  the  reasons  



                                                                                                                                                                    

explained here, we reverse that ruling and remand this case for further proceedings  



                                                                                                   

consistent with the guidance provided here.  



                                                                                                                   

               Relevant background and prior proceedings  



                                                                                                                                                                          

                              In 2008, Ahvakana was indicted on multiple felony charges - attempted  



                                                                                                                                                                                              3  

                                                                                                                                                                                                  

first-degree murder, first-, second-, and third-degree assault, and first-degree burglary. 



                                                                                                                                                                                             

These charges were based on an incident in which Ahvakana allegedly broke into a  



                                                                                                                                                                                           

house in Utqiagvik and repeatedly hit a man over the head with an empty bottle of  



                                                                                                                                                                            

whiskey. Ahvakana was also separately charged with fourth-degree assault for allegedly  



                                                                                     4  

                                                                                         

assaulting his girlfriend that same day. 



                                                                                                                                                                                     

                              Prior  to  trial,  the  prosecutor  sent  a  letter  offering  to  resolve  the  case  



                                                                                                                                                                                  

pursuant to a Rule 11 plea agreement. Under the proposed agreement, Ahvakana would  



                                                                                                                 

plead guilty to second-degree assault, first-degree burglary, and fourth-degree assault,  



        1      See Lafler v. Cooper, 566 U.S. 156 (2012); Missouri v. Frye , 566 U.S. 134 (2012).  



       2       Mooney v. State , 167 P.3d 81 (Alaska App. 2007).  



        3      AS         11.41.100(a)(1)(A)                          &        AS         11.31.100(a);                   AS         11.41.200(a)(1),                       (2),        (3);  



AS 11.41.210(a)(1), (2); AS 11.41.220(a)(1)(B); and AS 11.46. 300(a)(1), respectively.  



       4       AS 11.41.230(a)(1), (3).  



                                                                                           - 2 -                                                                                      2679
  


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

and he would receive a composite sentence of 21 years with 4 years suspended (17 years                                                                                                                                                                                                                                                    



to serve).  Ahvakana would also admit the petitions to revoke probation in two other                                                                                                                                                                                                                                                      



cases in which he had approximately 80 days left to serve.                                                                                                                                                                                  In exchange for these guilty                                                                



pleas, the State would dismiss the attempted murder charge and the first-degree assault                                                                                                                                                                                                                                             



charge, as well as the two counts of third-degree assault.                                                                                                                                                                              



                                                      In the letter, the prosecutor stated that the offer represented his "bottom                                                                                                                                                                                            



line" and that it was contingent both on Ahvakana withdrawing his outstanding request                                                                                                                                                                                                                                             



for a bail hearing and on Ahvakana foregoing the filing of any motions in the case.                                                                                                                                                                                                                                                           The  



prosecutor related that the offer was based, in part, on the "difficulty with expenses and                                                                                                                                                                                                                                                       



prosecutions in Barrow."                                                                                 



                                                       The   prosecutor   also   stated   what   he   believed   to   be   the   applicable  



presumptive sentences that Ahvakana faced in this case.  According to the prosecutor,   



if Ahvakana was convicted                                                                                                at trial, he faced                                                     a mandatory                                             99-year   sentence on                                                                    the  



attempted first-degree murder count and a discretionary 40 to 99-year sentence on the                                                                                                                                                                                                                                                              



first-degree assault count.                                                                                    (As we explain later, the prosecutor was mistaken as to                                                                                                                          



Ahvakana's exposureon                                                                               thefirst-degreeassaultcount. BecauseofAlaska's                                                                                                                                                           three-strikes  



law, Ahvakana actually faced a                                                                                            mandatory  99-year sentence without parole if convicted                                                                                                                                       

on that count.                                          5)  



                                                                                                                                                                                                                                                                                                                                             

                                                      Ahvakanawasrepresented byaprivateattorney in Utqiagvik who had been  



                                                                                                                                                                                                                                                                                                                                                    

practicing law for two years, initially with the District Attorney's Office.   Based on  



                                                                                                                                                                                                                                                                                                                                                 

outdated materials fromhis time as a prosecutor, the attorney erroneously concluded that  



                                                                                                                                                                                                                                                                                                                                    

Ahvakana only faced a sentence of 15 to 20 years if convicted of the first-degree assault  



              5            AS 12.55.125(l)(3) (specifying that a defendant convicted of an unclassified or class   



A  felony "shall                                                 be   sentenced  to  a  definite  term of                                                                                                      imprisonment  of   99  years  when  the  

defendant has been previously convicted of two or more most serious felonies" and that                                                                                          

imprisonment for the prescribed definite term may not be suspended or reduced).  



                                                                                                                                                                       -  3 -                                                                                                                                                                 2679
  


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

count at trial.  The attorney advised Ahvakana that he believed that Ahvakana had a  

                                                                                                                                 



"very low, low chance" of being convicted on the attempted murder count, and that  

                                                                                                                             



therefore Ahvakana's primary exposure was the 15 to 20 years he would face on the  

                                                                                                                              



first-degree assault count - advice he later admitted was "wildly incorrect."  

                                                                                                     



                    TheattorneyneverthelessadvisedAhvakanato accept theState's pleaoffer.  

                                                                                                                                    



But this advice was conveyed in a way that the attorney later characterized as a "soft  

                                                                                                                            



suggestion," in contrast to the far more robust "hard suggestion" he would have given  

                                                                                                                           



Ahvakana if he had  understood that Ahvakana actually faced a mandatory 99-year  

                                                                                                                       



sentence if convicted of first-degree assault at trial.  

                                                                               



                    According to the attorney's deposition testimony in the post-conviction  

                                                                                                           



relief case, Ahvakana was unwilling to accept the prosecutor's offer.   The attorney  

                                                                                                                      



testified that Ahvakana was steadfast that he was innocent and that he did not want to go  

                                                                                                                                



to jail "for 7 or 10 years" for something he did not do.  Ahvakana also wanted to file  

                                                                                                                          



various suppression motions based on what he believed was police misconduct, and  

                                                                                                                             



Ahvakana understood that the prosecutor's offer would be withdrawn if these motions  

                                                                                                                       



were filed.  

         



                    In accordance with these wishes, the attorney filed various motions to  

                                                                                                                                



suppress, thereby rejecting the prosecutor's offer.  No further plea offers were made by  

                                                                                                                               



either party.  The superior court later denied the motions to suppress, and Ahvakana's  

                                                                                                                 



case proceeded to trial. The jury ultimately acquitted Ahvakana of the attempted murder  

                                                                                                                         



count but convicted him of the remaining charges, including the first-degree assault  

                                                                                                                         



count.  



                    Whilepreparingfor thesentencing hearing, both theprosecutor anddefense  

                                                                                                                        



counsel independently realized that Ahvakana was subject to a mandatory 99-year term  

                                                                                                                            



without parole for his first-degree assault conviction.  However, Ahvakana's attorney  

                                                                                                                       



apparently did not inform Ahvakana of this fact until the day of the sentencing hearing.  

                                                                                                                                    



                                                              - 4 -                                                         2679
  


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

                             At the hearing, the superior court sentenced Ahvakana to the required 99                                                   



years without parole on the first-degree assault conviction.                                                                         The court also sentenced            



Ahvakana to a consecutive year to serve on the fourth-degree assault conviction, for a   



composite sentence of 100 years to serve.                                      



                             Ahvakana appealed his convictions to this Court, primarily arguing that the                                                                                 



superior court erred when it denied one of his motions to suppress.                                                                               This Court affirmed       



                                                                                                                                                                                             6  

the trial court's denial of the motion to suppress and affirmed Ahvakana's convictions.                                                                                                          



                                                                         

               The post-conviction relief proceedings  



                                                                                                                                                                                         

                             Following resolution of his direct appeal, Ahvakana filed an application for  



                                                                                                                                                                                     

post-conviction  relief.                                In  his  affidavit,  Ahvakana  asserted  that  his  attorney  had  



                                                                                                                                                                                

incompetently advised him that he faced only 15 to 20 years on the first-degree assault  



                                                                                                                                                                                

count. He claimed that if he had understood his true exposure of 99 years without parole,  



                                                                                                        

he would have accepted the State's plea offer.  



                                                                                                                                                                                

                             Pursuant to Alaska Criminal Rule 35.1(g), the parties stipulated to submit  



                                                                                                                                                                        

deposition testimony in lieu of an evidentiary hearing.   In his deposition, Ahvakana  



                                                                                                                                                                                         

testified that he was innocent of the crimes for which he was convicted, and that he  



                                                                                                                                                                                 

wanted to file his suppression motion and go to trial.  But he also testified that he would  



                                                                                                                                                                          

have taken the Rule 11 plea offer "in a heartbeat" had he known that he was facing 99  



                                                                                                                                                                                        

years in jail. Ahvakana acknowledged that he had never pleaded guilty to a crime he did  



                                                                                    

not commit "just to make the case go away."  



                                                                                                                                                                             

                             The  defense  attorney  acknowledged  that  he  had  incorrectly  advised  



                                                                                                                                                                                       

Ahvakana that he was only facing 15 to 20 years on the first-degree assault count.  But  



                                                                                                                                                                              

he testified that he was "unsure if it would change anything" if he had correctly advised  



       6      Ahvakana v. State , 283 P.3d 1284 (Alaska App. 2012).  



                                                                                          -  5 -                                                                                     2679
  


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

Ahvakana as to his true exposure on that count. He noted that Ahvakana was "steadfast"  

                                                                                                                     



in maintaining his innocence and was very invested in filing the motion work. However,  

                                                                                                                       



when asked directlywhether Ahvakanawould havechangedhis mind about the offer had  

                                                                                                                                



he understood the mandatory sentence he was facing, the attorney stated, "Well, I think  

                                                                                                                             



it's very possible that he could have changed it.  Is it probable?  I don't know."  

                                                                                                               



                    The prosecutor in the case testified that, when he made the plea offer, he  

                                                                                                           



had  also consulted a "cheat sheet" for the applicable sentencing range, and he had  

                                                                                                                               



forgotten  that  the  recently  enacted  three-strikes  law  had  changed  what  was  a  

                                                                                                                                  



discretionary 40 to 99-year term to a mandatory 99-year term without parole. He did not  

                                                                                                                                



realize that Ahvakana was subject to the three-strikes' 99-year term without parole until  

                                                                                                                              



he began preparing for sentencing.  

                                                        



                    The  prosecutor   further   testified  that  he  never   received  a  defense  

                                                                                                                        



counteroffer, nor did he make another offer before Ahvakana filed his motion work. He  

                                                                                                                                 



confirmed that he did not engage in any negotiations or discussions with the defense after  

                                                                                                                               



the motions were filed and he had traveled to Utqiagvik to work on the case.   The  

                                                                                                                              



prosecutor stated that it was clear from talking to the defense attorney that the case  

                                                                                                                              



"wasn't going to resolve" and that "Mr. Ahvakana . . . wanted a trial, wanted his day in  

                                                                                                                                  



court."  



                    After reviewing the deposition testimony and the parties' briefing, the  

                                                                                                                                



superior court denied Ahvakana's application for post-conviction relief under both the  

                                                                                                                                



state and federal constitutions.  In its written order, the court relied heavily on our prior  

                                                                                                                              



case Mooney v. State and viewed Mooney as dispositive of Ahvakana's claim under the  

                                                                                                                                 



Alaska  Constitution.              The  court  found  that  the  parties  had  been  operating  under  a  

                                                                                                                                   



"mutual mistake" as to Ahvakana's true sentencing exposure when the prosecutor's plea  

                                                                                                                               



offer  was  made  and  rejected.                   The  court  therefore  concluded  that,  as  in  Mooney,  

                                                                                                                       



Ahvakana was not entitled to specific performance of the State's plea offer, even if he  

                                                                                                     



                                                               -  6 -                                                         2679
  


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

established   that   he   had   received   ineffective   assistance   of   counsel.    The   court   also  



concluded that Ahvakana had failed to prove a "reasonable probability" that he would                                                                                                           



have taken the plea offer if he had received competent advice, and that Ahvakana was                                                



therefore not entitled to any remedy under the federal constitution either.                                                                                    



                 Why we conclude that the doctrine of mutual mistake does not bar relief in                                                                                               

                this case   



                                To   prove   an   ineffective   assistance   of   counsel   claim under                                                                            the   Alaska  



Constitution, Ahvakana was required to show (1) that his attorney performed below the                                                                                                                 



competency level required of criminal law                                                          practitioners; and (2) that there is a reasonable                               



                                                                                                                                                                                                           7  

possibility that the attorney's deficient performance affected the outcome of the case.                                                                                                                         



                                                                                                                                                                                                         

                                In the current case, there is no dispute that Ahvakana met the first prong of  



                                                                                                                                                                                                         

this test.  That is, there is no dispute that it was incompetent for the defense attorney to  



                                                                                                                                                                                                  

advise Ahvakana that he would face 15 to 20 years to serve if he was convicted of first- 



                                                                                                                                                                                               

degree assault when, in reality, he faced a mandatory sentence of 99 years without parole  



                                                                                                                                                                                     

to serve if convicted of that charge.  What is disputed, however, is whether Ahvakana  



                                                                                                                                                                       

can show that he was actually prejudiced by this incompetent advice.  



                                                                                                                                                                                    

                                In  the trial court proceedings, the State made two  separate arguments  



                                                                                                                                                                                                     

regarding the prejudice prong. First, the State argued that Ahvakana had not proven that  



                                                                                                                                                                                                       

he would have accepted the plea offer if he had received competent advice.  Second, the  



                                                                                                                                                                                    

State argued that, in any case, the plea offer was unenforceable based on the contractual  



                                                                           

doctrine of "mutual mistake."  



        7       Risher v. State, 523 P.2d 421, 424-25 (Alaska 1974); Garay v. State, 53 P.3d 626, 628  



(Alaska App. 2002).  



                                                                                                 -  7 -                                                                                            2679
  


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

                     TheStatederivedits mutualmistakeargument                                 fromour decision in             Mooney  



             8  

v.  State.                                                                                                                         

                Mooney was charged with first-degree sexual assault.  Prior to trial, the State  



                                                                                                                                

extended two successive plea offers, both of which were based on the parties' shared  



                                                                                                                                 9  

                                                                                                                                    The  

mistaken belief that Mooney was only a second rather than a third felony offender. 



                                                                                                                                    

first offer permitted Mooney to plead guilty to attempted first-degree sexual assault with  



                                                                                                                                

a  10-year  presumptive  term  (which  was  the  presumptive  term  for  second  felony  



                                                                                                                                

offenders).   The second offer permitted him to plead guilty to second-degree sexual  



                                                                                                                                      

assault with a 4-year presumptive term (which, again, was the presumptive term for  



                                         10  

                                              

second felony offenders). 



                                     

                     Mooney rejected both plea offers and was later convicted at trial of first- 



                                                                                                                                

degree sexual assault.  At sentencing, the trial court ruled that he was a third felony  



offender and that he therefore faced a presumptive term of 25 years' imprisonment on  



                                                                                                                                    

the first-degree sexual assault charge.  Mooney was then sentenced in accordance with  



                                    11  

                                         

this presumptive term. 



                                                                                                                                      

                     Mooney filedan application for post-convictionrelief,assertingthat he had  



                                                                                                                                      

received ineffective assistance of counsel with regard to the two plea offers because his  



                                                                                                                                       

attorney had mistakenly told him that he only faced a presumptive term of 15 years on  



                                                                                                                                       

the first-degree sexual assault charge when, in reality, he faced a presumptive term of 25  



                                                                                                                               

years.  Mooney argued that the proper remedy for this ineffective assistance of counsel  



     8    Mooney v. State , 167 P.3d 81, 87-89 (Alaska App. 2007).  



     9    Id. at 87.  



      10  Id.  



      11  Id. at 84.  



                                                                 -  8 -                                                            2679
  


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

was to reverse his conviction, allow him to plead to one of the original offers, and to re-                                                             



                                                12  

sentence him accordingly.                            



                                                                                                                                          

                        This Court disagreed.  We concluded that Mooney's claim was "governed  



                                                                                                                                               

by the law of contracts that applies when the parties are laboring under a mutual mistake  



                                                   13 

                                                                                                                                                              

concerning a material fact."                           As explained in the Restatement (Second) of Contracts,  



                                                                                                                             

                        Where a mistake of both parties at the time a contract was  

                                                                                                             

                        made as to a basic assumption on which the contract was  

                                                                                                                                

                        made  has  a  material  effect  on  the  agreed  exchange  of  

                                                                                                                  

                        performances,  the  contract  is  voidable  by  the  adversely  

                                                                                                                       

                        affected party unless [that party] bears the risk of the mistake  



                                [14]  

                                      

                        . . . . 



                                                                                                                             

Thus, the party seeking to void the contract must prove:  (1) that the mistake relates to  



                                                                                                                                                  

a  "basic  assumption  on  which  the  contract  was  made";  (2)  that  the  mistake  has  a  



                                                                                                                                               

"material effect on the agreed exchange of performances"; and (3) that the party seeking  



                                                                             15  

                                                               

relief does not bear the risk of the mistake.                                     



                                                                                                                                              

                        In Mooney's case, we concluded that "the prosecutor's and the defense  



                                                                                                                                                      

attorney's mutual mistake concerning Mooney's presumptive sentencing status - i.e.,  



                                                                                                                                           

their mistaken mutual belief that Mooney was a second felony offender -was obviously  



      12    Id. at 87.  



      13    Id. at 88.  



      14    Restatement (Second) of Contracts  152(1) (Am. Law Inst. 1981).  



      15    Id.  at  152 cmt. a; see Stormont v. Astoria Ltd.                              , 889 P.2d 1059, 1061 (Alaska 1995);   



Mooney , 167 P.3d at 88; see also United States v. Frownfelter                                            , 626 F.3d 549, 556 (10th Cir.  

2010)  (reiterating  the  mutual  mistake  doctrine's  three-part  test  in  the  context  of   plea  

agreements);  United States v. Cieslowski, 410 F.3d 353, 362 (7th Cir. 2005) (noting that "the  

analysis of ordinary mutual mistake [in plea agreements] follows contract law").  



                                                                          -  9 -                                                                    2679
  


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

                                                                                                   16  

a basic premise of the pre-trial negotiations."                                                         The mutual mistake also had a "material                            



effect" on the prosecutor's plea offer because the sentences in the plea offer only applied                                                                                      



to a second felony offender and would have been illegal as applied to a third felony                                                                                              



                     17  

                                                                                                                                                                                      

offender.                 Moreover, because it was "simply impossible to say" what kind of plea offer  



                                                                                                                                                                                  

the prosecutor  might have made if he had  known  that  Mooney  was a third  felony  



                                                                

offender, we concluded that Mooney was not entitled to demand specific performance  



                                                                                                                                                                                          

of the prosecutor's offer, even if his attorney gave him incompetent advice regarding the  



                                                                 18  

                                                                      

applicable presumptive term. 



                                                                                                                                                                                                   

                              The facts of Mooney are distinguishable from the facts of the current case.  



                                                                                                                                                                                

Here, there was no "mutual" mistake that went to the basic premise of the pretrial  



                                                                                                                                                                            

negotiations.   Although both the prosecutor and the defense attorney were mistaken  



                                                                                                                                                                                        

regarding Ahvakana's sentencing exposure, they were mistaken in different ways.  The  



                                                                                                                                                                                

prosecutor's mistake was in thinking that Ahvakana faced a discretionary 40 to 99-year  



                                                                                                                          

sentence rather than a mandatory 99-year term on the first-degree assault charge.  But  



                                                                                                                                                                                           

the prosecutor was nevertheless aware that a 99-year term was a possibility when he  



                                                                                                                                                                              

made his offer for Ahvakana to plead to lesser charges and receive a composite sentence  



                                                                                                                                                                                    

of 17 years to serve - a sentence below the maximum authorized for those lesser  

charges.19  



        16     Mooney , 167 P.3d at 88.  



        17     Id.  



        18     Id. at 82, 88-89.  



        19     The prosecutor was also aware that he had only consulted a "cheat sheet" when he                        



issued the formal plea offer, and he knew that he had not actually reviewed the applicable                                                                         

sentencing statutes.  Under the Restatement, "[a] party bears the risk of a mistake when he  

is aware, at the time the contract is made, that he has only limited knowledge with respect                                   

                                                                                                                                                                    (continued...)  



                                                                                          -  10 -                                                                                      2679
  


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

                             The defense attorney's mistake was far more egregious.                                                                    He believed that            



Ahvakana only faced 15 to 20 years to serve if convicted of first-degree assault, and the                                                                                            



attorney persisted in this erroneous belief even after receiving the prosecutor's offer                                                                                         



letter stating that Ahvakana's exposure was far greater.                                                                 



                             Importantly, there is nothing in the record to suggest that the prosecutor's                                                       



                                                                                                                           20  

mistake had any material effect on the prosecutor's offer.                                                                                                 

                                                                                                                                 In his letter accompanying  



                                                                                                                                                                          

the offer, the prosecutor made clear that the offer was being extended primarily because  



                                                                                                                                                                                   

of the expense of going to trial in Utqiagvik.  And, as already noted, the prosecutor was  



                                                                                                                                                                              

willing to have Ahvakana plead to lesser charges and receive a sentence that was below  



                                                                                                                                                              

the   maximum  sentence  authorized   for   those   charges,   despite   the  prosecutor's  



                                                                                                                                                                           

understanding that Ahvakana faced a mandatory 99-year term on the attempted murder  



                                                                                                                                                        

charge and a possible 99-year term on the first-degree assault charge.  



        19     (...continued)  



to the facts to which the mistake relates but treats his limited knowledge as sufficient."  

                                                                                        

Restatement (Second) of Contracts  154(b) (Am. Law Inst. 1981).  Ahvakana argues that  

                                                                                                                                              

because the prosecutor was in a superior bargaining position and because the prosecutor was  

willing to extend an offer based only on his cheat sheet, the prosecutor should be viewed as  

                                                                             

having borne the risk of his mistake. We conclude that we need not decide this question here  

                                                                            

because the other requirements for mutual mistake are not met.  



       20     See Frownfelter, 626 F.3d at 555-57 (holding that an agreement where the defendant  



pleaded guilty to a misdemeanor in exchange for the dismissal of felony counts was not  

                                                                                                                                                                                    

voidable  on  the  basis  of  mutual  mistake  because  "nothing  in  the  language  of  the  plea  

                                                                                                                                                                         

agreement  indicates  that  the  distinction  between  misdemeanor  and  felony  was  a  basic  

                                                                                                                                                                 

assumption  of  the  plea  agreement"  and  the  "government  has  not  provided  any basis  to  

                                                                                                                                                                          

conclude that the felony/misdemeanor distinction was particularlymeaningful"); Cieslowski,  

                                                                                                                                                                    

410 F.3d at 362 (finding no mutual mistake when the parties' erroneous assumption that pre- 

amendment sentencing guidelines were still in force "did not go to a basic assumption of the  

                                                                                                                                                                                     

agreement or affect the agreed exchange of performances" because there was no indication  

                                                                                          

"that the parties intended the specified sentence to be contingent on a particular method of  

calculating the sentence").  



                                                                                       -  11 -                                                                                   2679
  


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

                     Most importantly, unlike in                  Mooney, there was nothing illegal about the                        



                                     21  

prosecutor's plea offer.                                                                                                              

                                         Whereas Mooney's plea agreement was unenforceable on its  



                                                                                                                               

face, the plea offer in this case had no such deficiencies.  In other words, the two factors  



                                                                                                                                   

that grounded our decision in Mooney - the illegal sentence that would not have been  



                                                                                                                           

offered but for the mistake, and the attendant uncertainty about what would otherwise  



                                                                                           

have been offered - are not present in the instant case.  



                                                                                                                               

                     Accordingly, weconcludethat theState'stheory that thedoctrineofmutual  



                                                                                                                               

mistake governs the plea offer made in this case is without merit, and the trial court's  



                                                                                                         

reliance on Mooney in its written order was therefore misplaced.  



                                                                                                    

           Why we conclude that a remand for further litigation is required  



                                                                                                                         

                     Thequestionstillremaining,however,is whether Ahvakanahas adequately  



                                                                                                                                  

shown that he was prejudiced by his attorney's incompetent advice.  The superior court  



                                                                                                                             

did not reach this issue under the Alaska Constitution because it reasoned that Mooney  



                                                                                                                                    

governed (and barred) Ahvakana's claim for relief under the Alaska Constitution.  



                                                                                                                        

                     The  court  nevertheless  proceeded  to  address  Ahvakana's  ineffective  



                                                                                                22  

                                                                                                                                   

assistance of counsel claim under the federal constitution.                                          In the context of plea  



     21    See Mooney, 167 P.3d at 88; see also State v. Barber, 248 P.3d 494, 503 (Wash. 2011)  



(en banc) (holding that the defendant was not entitled to specific performance of an illegal  

                                                                                      

plea agreement based on mutual mistake because "[b]y enforcing a sentence outside [the]  

bounds [of sentencing laws], the court would be invading the legislature's prerogative").  



     22    Typically,   courts   address   federal   constitutional   claims   first   because   a   state  



constitutional claim can be more protective than the federal constitutional claim, but it cannot  

                                                                                                                        

be less protective.  See, e.g., Galvan v. Alaska Dep't of Corr., 397 F.3d 1198, 1203 & n.14  

                                             

(9th Cir. 2005) (collecting cases that demonstrate that "Alaska law . . . is more protective of  

                                                                                                        

defendants' rights than the federal constitutional minimum"); Burnor v. State, 829 P.2d 837,  

                                                                                                                     (continued...)  



                                                                -  12 -                                                           2679
  


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

agreements where, as here, the defendant rejected a plea agreement due to ineffective                                       

advice, the seminal United States Supreme Court case is                                     Lafler v. Cooper .23  To prove  



                                                                                                     

prejudice under Lafler, Ahvakana was required to show that:  



                                                                                                                    

                      [B]ut  for  the  ineffective  advice  of  counsel  there  is  a  

                                                                                                                

                      reasonable probability that the plea offer would have been  

                                                                                                               

                      presented to the court (i.e., that the defendant would have  

                                                                                                               

                      accepted  the  plea  and  the  prosecution  would  not  have  

                                                             

                      withdrawn it in light of intervening circumstances), that the  

                                                                                                      

                      court would have accepted its terms, and that the conviction  

                                                                                                                

                      or sentence, or both, under the offer's terms would have been  

                                                                                                                  

                      less severe than under the judgment and sentence that in fact  



                                             [24]  

                               

                      were imposed. 



                                                                                                                           

The United States Supreme Court defines "a reasonable probability" as "a probability  



                                                                                    25  

                                                                    

sufficient to undermine confidence in the outcome."                                                                          

                                                                                        It does not require the defendant  



                                                                                               26  

                                                                                                                       

                                                                                                   The Alaska constitutional  

to show that a different outcome was "more likely than not." 



     22    (...continued)  



839 (Alaska App. 1992) ("Alaska's equal protection and due process clauses confer broader  

protection than do their federal counterparts.").  



     23    Lafler v. Cooper , 566 U.S. 156 (2012).  



     24    Id. at 164 (emphasis added); see also Missouri v. Frye, 566 U.S. 134, 148 (2012) ("In  



                                                                         

order  to  complete  a  showing  of  Strickland  prejudice,  defendants  who  have  shown  a  

                                            

reasonable probability they would have accepted the earlier plea offer must also show that,  

                                                                                      

if the prosecution had the discretion to cancel it or if the trial court had the discretion to  

                                                                               

refuse to accept it, there is a reasonable probability neither the prosecution nor the trial court  

would have prevented the offer from being accepted or implemented.").  



     25    Strickland v. Washington, 466 U.S. 668, 694 (1984).  



     26    Id.  at 693 ("[W]e believe that a defendant need not show that counsel's deficient  

                 

conduct more likely than not altered the outcome in the case."); see Lambert v. State, 435  

                                                           

P.3d  1011,  1020  (Alaska  App.  2018)  (recognizing  the  "specialized  legal  meaning"  of  

                                                                                                                        (continued...)  



                                                                 -  13 -                                                             2679
  


----------------------- Page 14-----------------------

standard of "reasonable possibility" is lower than the federal "reasonable probability"                                          

standard.27  



                                                                                                                                                  

                       Here, the superior court found that Ahvakana had failed to establish "a  



                                                                                                                                                

reasonable probability" of a different outcome if his attorney had acted competently. But  



                                                                                                                                  

the superior court never applied the more lenient standard of "a reasonable possibility"  



                                                       

under the Alaska Constitution.  



                                                                                                                                             

                       Toestablish prejudiceunder theAlaskaConstitution, Ahvakanamust show  



                                                                                                                                             

that there is a  reasonable possibility that the outcome of the case would have been  



                28  

different.                                                                                                                                      

                    In making this determination, the court should look to the circumstances that  



                                                                                                                                               

existed at the time the offer was made and the incompetent advice was given, rather than  



                                                                                               

the circumstances that existed after Ahvakana went to trial.  



                                                                                                                                 

                       Because the superior court failed to apply the "reasonable possibility"  



                                                                                                                                               

standard,  we  conclude  that  a  remand  for  consideration  of  whether  Ahvakana  has  



                                                                                               

established prejudice under the Alaska Constitution is required.  



                                                                                                                                  

                       If the superior court determines that Ahvakana has shown a reasonable  



                                                                                                                                              

possibility that, but for his attorney's deficient performance, the outcome of his case  



                                                                                                                                                  

would  have  been  different,  the  court  must  turn  to  the  question  of  what  remedy  is  



      26    (...continued)  



"reasonable probability").  



      27    See State v. Jones, 759 P.2d 558, 572 (Alaska App. 1988) (explaining that Alaska's   



prejudice  prong  of   the  ineffective  assistance  of   counsel  standard  is  "significantly   less  

demanding" than the federal standard).  



      28  

                                                                                                        

            Garay v. State, 53 P.3d 626, 629 (Alaska App. 2002) ("[T]he question is whether  

                                                          

there  is  a  reasonable  possibility  that  [certain]  new  information  would  have  affected  

                                                                                                                      

[counsel's] advice to [the defendant] or [the defendant's] evaluation of his situation and his  

decision to accept or reject the State's offer.").  



                                                                      -  14 -                                                                2679
  


----------------------- Page 15-----------------------

appropriate for this constitutional violation.                                     As the parties acknowledge, this remains                        



an open question under Alaska law.                                    



                         The   Lafler   Court   held   that   even   if   a   defendant   establishes   ineffective  



assistance of counsel, the trial court still must determine "what constitutes an appropriate                                                 



                 29  

remedy."                                                                                                                                               

                      The remedy "must 'neutralize the taint' of a constitutional violation, while  



                                                                                                                                                           

at  the  same  time  not  grant  a  windfall  to  the  defendant  or  needlessly  squander  the  



                                                                                                                                                    30  

                                                                                                                            

considerable resources the State properly invested in the criminal prosecution." 



                                                                                                                                                      

                         When a defendant's "sole advantage" under the foregone plea was a lesser  



                                                                                                                                               

sentence, then "the court may exercise discretion in determining whether the defendant  



                                                                                                                                                  

should receive the termof imprisonment the government offered in the plea, the sentence  



                                                                                             31  

                                                                          

he  received  at  trial,  or  something  in  between."                                                                                               

                                                                                                    There  are  other  cases  in  which  



                                                                                                                                              

"resentencing alone will not be full redress for the constitutional injury" - i.e., where  



                                                                                                                                                      

"an offer was for a guilty plea to a count or counts less serious than the ones for which  



                                                                                                                                                   

a defendant was convicted after trial, or if a mandatory sentence confines a judge's  



                                                            32  

                                                                                                                                               

sentencing discretion after trial."                              In these instances, "the proper exercise of discretion  



                                                                                                                                                          

to remedy the constitutional injury may be to require the prosecution to reoffer the plea  



                                                                                                                                                      

proposal," after which the judge can "exercise discretion in deciding whether to vacate  



                                                                                                                                                        33  

                                                                                                                                                              

the conviction from trial and accept the plea or leave the conviction undisturbed." 



      29    Lafler , 566 U.S. at 170-71; 5 Wayne R. LaFave et al., Criminal Procedure   21.3(b),  



at 838 (4th ed. 2015).  



      30    Lafler , 566 U.S. at 170 (internal citation omitted).  



      31    Id. at 170-71; 5 Wayne R. LaFave et al., Criminal Procedure  21.3(b), at 838 (4th  

                                                                                                                               

ed. 2015).  



      32    Lafler , 566 U.S. at 171.  



      33    Id. ; 5 Wayne R. LaFave et al., Criminal Procedure  21.3(b), at 838 (4th ed. 2015).  



                                                                           -  15 -                                                                       2679
  


----------------------- Page 16-----------------------

                                 The   Lafler   Court   declined   to   define   the   boundaries   of   proper   judicial  



discretion in either situation and, instead, left this difficult task for lower courts to                                                                                                                    



consider in the first instance. According to the Court, "[p]rinciples elaborated over time                                                                                                              



in decisions of state and federal courts, and in statutes and rules, will serve to give more                                                                                                          



complete guidance as to the factors that should bear upon the exercise of the judge's                                                                                                           



                            34  

discretion."                      



                                                                                                                                                                                      

                                 Since Lafler, stateandlowerfederalcourts havetaken different approaches,  



                                                                                                                                                                                                      

including requiring specific performance of the original plea offer or ordering a new  



            35  

trial.                                                                                                                                                                                                   

                   In Ahvakana's case, the parties should have the opportunity to fully brief this  



        34      Id. at 171. The U.S. Supreme Court nevertheless noted two relevant factors for a trial   



court  to  consider  in  exercising  this  discretion:     (1)  "a  defendant's  earlier  expressed  

willingness, or unwillingness, to accept responsibility for his or her actions"; and (2) any   

information concerning the crime that was discovered after the plea offer was made in order  

to fashion a remedy that does not require the prosecution to incur the expense of conducting                                                                                             

a new trial.  Lafler , 566 U.S. at 171-72.  As Professor LaFave recognized,"lower courts will  

doubtless experience difficulty in working out the result in the more complicated scenarios."   

5 Wayne R. LaFave et al.,                                         Criminal Procedure    21.3(b), at 839 & n.68 (4th ed. 2015)   

(providing an illustration of such complications arising with the case                                                                                       Titlow v. Burt, 680 F.3d  

577 (6th Cir. 2012), rev'd, Burt v. Titlow, 571 U.S. 12 (2013)).  



        35      See, e.g.,  Wiggins v. United States, 900 F.3d 618 (8th Cir. 2018) (affirming district  



court's remedy of ordering the government to reoffer the defendant only one of two plea  

                                                                                                                                                                                              

bargains originally proposed); United States v. Merlino, 109 F. Supp. 3d 368 (D. Mass. 2015)  

                                                                       

(finding that counsel's deficient performance in failing to convey oral plea offer to defendant  

                                                                                                                                                      

constituted ineffective assistance of counsel and, as a remedy, ordering U.S. Attorney's  

                                                                                       

Office to extend plea offer to defendant on terms proposed fourteen years earlier); State v.  

Estrada, 2018 WL 2925776 (N.J. App. June 12, 2018) (unpublished) (concluding that the  

                                              

"interests of justice" warranted a reinstatement of the original negotiated plea); State v. Estes,  

                                                                                                                  

395 P.3d 1045 (Wash. 2017) (affirming lower court's decision to order a new trial as a  

                                                                       

remedy  for   ineffective   assistance   of   counsel   during   the   plea   bargaining   process);  

                                                                                              

 Commonwealth v. Steckley, 128 A.3d 826 (Pa. Super. 2015) (reversing post-conviction relief  

court's remedy of awarding defendant a new trial and ordering the court to resentence him  

                                           

                                                                                                                                                                                   (continued...)  



                                                                                                  -  16 -                                                                                               2679
  


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

issue   to   the   trial   court   given   our   conclusion   that   the   State's   Mooney   analysis   is  



                 36  

erroneous.           



                              

           Conclusion  



                                                                                                                                  

                     We VACATE the superior court's judgment and REMAND this case to the  



                                                                                                                             

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



                     

jurisdiction.  



      35   (...continued)  



according to the plea bargain that he had previously rejected due to his attorney's deficient  

                                                                              

performance).  



      36   The  dissent  would  decide  on  the  record  and  briefing  before  us  the  two  issues  

                                         

identified for remand.  But the superior court did not rule on these issues.  Although we may  

                                                                                                             

eventually come  to  agree  with  the  dissent  on  the  merits,  we  do  not  share  the  dissent's  

                  

confidence  in  the  Court's  ability to  resolve  these  issues  without  the  full  benefit  of  the  

                                                                                                                                 

adversarial process.  Cf. Pierce v. State, 261 P.3d 428, 433 (Alaska App. 2011).  



                                                              -  17 -                                                         2679
  


----------------------- Page 18-----------------------

Judge SUDDOCK, concurring in part, and dissenting in part.                                                                                                                       



                                          I concur with the majority's holding that the superior court erred in its legal                                                                                                                                       



conclusion that the doctrine of mutual mistake justified denial of Ahvakana's claim for                                                                                                                                                                              



relief under the Alaska Constitution.                                                                                  But rather than remanding the case for further                                                                                   



briefing, I would instead remand with instruction to the superior court to order the State                                                                                                                                                                     



to once again proffer the plea offer it made pretrial.                                                                                  



                                          The majority's remand order sets two tasks for the superior court. First, the                                                                                                                                              



court   is   to   determine   whether   Ahvakana   has   shown   prejudice.     In   order   to   show  



prejudice, under established Alaska law, Ahvakana must "create a reasonable doubt that                                                                                                                                                                             



                                                                                                                                                                                       1  

 [his attorney's] incompetence contributed to the outcome."                                                                                                                                                                                    

                                                                                                                                                                                            This means that Ahvakana  



must establish a reasonable possibility that, properly advised, he would have accepted  



                                                                                                                                                                                                                                                              

the offer, that the prosecutor would not have subsequently withdrawn the accepted offer,  



                                                                                                                                                                                                     2  

                                                                                                                                                                            

and that the judge would not have rejected the parties' bargain. 



                                                                                                                                                                                                                                                            

                                          If  the  superior  court  had  rejected  Ahvakana's  application  for  post- 



                                                                                                                                                                                                                                                                     

conviction relief due to a failure of proof on any of those requisites, I believe that, on the  



                                                                                                                                                                                                                                                                                 

current record, we would then have been compelled to find error in such a rejection.  



                                                                                                                                                                                                                

Even though Ahvakana claimed factual innocence at the time that the offer was made,  



                                                                                                                                                                                                                                               

it is quite simply absurd to profess that there was no reasonable possibility that Ahvakana  



                                                                                                                                                                                                                                                                    

would  have  accepted  the  prosecutor's  offer  had  he  been  properly  informed  of  his  



                                                                                                                                                                                                                                                                          

exposure to Alaska's heaviest criminal penalty - especially if he was informed by a  



                                                                                                                                                                                                  

defense attorney adamantly counseling him to accept the plea offer.  



           1         Risher v. State, 523 P.2d 421, 425 (Alaska 1974).
  



           2         See Lafler v. Cooper, 566 U.S. 156, 164 (2012). 
 



                                                                                                                              -  18 -                                                                                                                            2679
  


----------------------- Page 19-----------------------

                               And our conclusion today - that the prosecutor's mistake of law had no                                                                           



effect on his plea offer - establishes, at a minimum, a reasonable possibility that the                                                                                                           



prosecutor would not have withdrawn the offer even if he had discovered his mistake                                                                                                    



before Ahvakana entered a plea.  Finally, as a matter of law, a judge might reasonably                                                                                          

have accepted Ahvakana's plea entailing a sentence of 17 years.                                                                                       3  



                                                                                                                                                                                                   

                               For these reasons, there is simply no need to remand the case to have the  



                                                                                                        

superior court enter findings on the issue of prejudice.  



                                                                                                                                                                                                  

                               The second task that the majority assigns to the superior court is, if the  



                                                                                                                                                                                           

court finds prejudice, to order briefing on the appropriate remedy.  The majority points  



                                                                                                                                               4  

                                                                                                                                                                                                  

                                                                                                                                                   as  a  starting  place  for  

to  the  U.S.  Supreme  Court's  decision  in  Lafler  v.  Cooper 



                                                                                                                                                                                        

discussion.   But Lafler  suggests that the present situation - a rejected plea bargain  



                                                                                                                                                                                              

followed by the defendant's conviction on a greater charge, which would have been  



                                                                                                                                                                                      

dismissed pursuant to the plea bargain's terms, and an ensuing much lengthier sentence  



                                                                                                                                                                                                     

than the plea bargain proposed - is the situation most appropriate for the remedy of  



                                                                        

specific performance of a plea bargain:  



                                                                                                                                                                   

                               In some situations it may be that resentencing alone will not  

                                                                  

                               be full redress for the constitutional injury.  If, for example,  

                                                                                                                                                          

                               an offer was for a guilty plea to a count or counts less serious  

                                                                                                                                                                

                               than the ones for which a defendant was convicted after trial,  

                                                                                                                                                 

                               or  if a mandatory  sentence confines a judge's sentencing  

                                                                                

                               discretion after trial, a resentencing based on the conviction  

                                                                                                                                                           

                               at trial may not suffice.  In these circumstances, the proper  



        3       The prosecutor's offer included Ahvakana pleading guilty to second-degree assault   



with a corresponding sentence of 10 years flat, first-degree burglary with a corresponding                                                                

sentence of 10 years with 6 years to serve, and fourth-degree assault with a corresponding                                                

sentence of 1 year to serve. This composite sentence of 17 years to serve comported with the                              

applicable sentencing statutes.  See AS 12.55.125(d) and AS 12.55.135(a).  



        4      Lafler v. Cooper , 566 U.S. 156 (2012).  

                                                        



                                                                                              -  19 -                                                                                          2679
  


----------------------- Page 20-----------------------

                             exercise of discretion to remedy the constitutional injury may                                                              

                             be to require the prosecution to reoffer the plea proposal.                                                                   [5]  



                                                                                                                                                                          

And while Lafler gives a parting nod to a vague notion of overarching judicial discretion  



                                                                                                                            6  

                                                                                                                                                                                      

to formulate a lesser remedy than specific performance,                                                                        the State does not argue that  



                                                                                                                                                                                     

someparticular circumstancerendersspecific performance an unjust remedy in this case.  



                                                                                                                                                                                     

                             Accordingly, I conclude that we should fully resolve this case on the facts  



                                                                                                                                                                                        

and the legal arguments already before us, by directing the superior court to order the  



                                                      

State to reoffer the plea agreement.  



       5      Id. at 171 (internal citations omitted).  



       6      Id.  



                                                                                         - 20 -                                                                                      2679
  

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