Made available by Touch N' Go Systems, Inc. and
This was Gottstein but needs to change to what?
406 G Street, Suite 210, Anchorage, AK 99501
(907) 274-7686 fax 274-9493

You can of the Alaska Court of Appeals opinions.

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website to see how.

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

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


              The text of this opinion can be corrected before the opinion is published in the   

              Pacific  Reporter.    Readers  are  encouraged  to  bring  typographical  or  other  

             formal errors to the attention of the Clerk of the Appellate Courts:  

                                           303 K Street, Anchorage, Alaska  99501

                                                         Fax:  (907) 264-0878

                                              E-mail:  corrections @



                                                                                     Court of Appeals No. A-12713  

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


                                                                                                   O P I N I O N  


                                             Appellee.                             No. 2679 - September 25, 2020  


                               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  



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  



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  



                    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       


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  



                    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                               


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  


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  



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  



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  



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-                                                             


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  



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  



                        . . . . 


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  



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-----------------------


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                                                                                              



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  



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  


        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                                   


                                                                                          -  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                                                       


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                        


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  



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,  


                                                                -  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  



                      were imposed. 


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



sufficient to undermine confidence in the outcome."                                                                          

                                                                                        It does not require the defendant  



                                                                                                   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  


                                                                 -  13 -                                                             2679

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

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



                       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  



                    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).  



            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                                                 



                      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  



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  



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  



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  



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                                                                                                           




                                 Since Lafler, stateandlowerfederalcourts havetaken different approaches,  


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



                   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  



                                                                                                  -  16 -                                                                                               2679

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

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






                     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  



      35   (...continued)  

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



      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                                                                                                                                                                             


 [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,  



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  



                                                                                                                                                   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  



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

Case Law
Statutes, Regs & Rules

IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights