BEAVER v. STATE, A-8970 (Alaska App. 11-15-2006)
Court of Appeals No. A-8970.Court of Appeals of Alaska.
November 15, 2006.
Appeal from the Superior Court, Third Judicial District, Dillingham, Fred Torrisi, Judge, Trial Court No. 3D1-03-59 CR.
David D. Reineke, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
John A. Scukanec, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
COATS, Chief Judge.
Vincent D. Beaver was charged with sexual assault in the first degree.[fn1] On the first day of his trial, Beaver entered into a plea agreement with the State to plead no contest to sexual assault in the second degree.[fn2] Superior Court Judge Fred Torrisi accepted the change of plea.
Slightly over a month later, Beaver wrote Judge Torrisi asking to withdraw his plea. In his motion to withdraw his plea, Beaver claimed he had received ineffective assistance of counsel, that there had been a breakdown in his attorney client relationship, and that he did not understand the plea agreement when he entered his plea. Following a three-day evidentiary hearing, Judge Torrisi denied Beaver’s motion to withdraw his plea. Beaver appeals from Judge Torrisi’s decision. We conclude that Judge Torrisi’s decision is supported by the record.
Beaver also raises two issues on appeal that he failed to present in the trial court. He argues that Judge Torrisi erred by accepting the plea without insuring that Beaver understood the nature of the charges against him. He further argues that Judge Torrisi never informed him of the requirement that he would have to register as a sex offender. We conclude that Beaver has not established plain error.
Factual and procedural background
On February 14, 2003, a grand jury indicted Beaver on one count of sexual assault in the first degree.[fn3] Twenty-year-old W.N. alleged Beaver had raped her while Beaver was sharing a hotel room in Dillingham with W.N. and her mother (who is Beaver’s cousin) on February 7.
Beaver was initially represented by the Public Defender Agency. A conflict required the Public Defender Agency to withdraw. The Office of Public Advocacy (OPA) was then appointed to represent Beaver and Assistant Public Advocate Darrell Gardner entered his appearance on February 19, 2003. Trial was originally scheduled for April 21, but Gardner, with Beaver’s permission, successfully moved to continue the trial until August 4. In June, an internal OPA reorganization reassigned the case to contract attorney Herman Walker. In late July, Walker, with Beaver’s permission, moved to continue the trial to September 8.
One week before the trial date, Walker informed the court that OPA had reassigned the case back to Gardner, Beaver’s original attorney. Judge Torrisi ordered OPA to justify the necessity of shuffling attorneys so close to the trial date. Both OPA Criminal Section Supervisor Leslie Hiebert and Gardner filed memoranda explaining the personnel changes which necessitated the internal reorganization.
Three days before trial, Gardner sought another continuance, stating he was neither “available nor prepared to commence trial.” Beaver, who remained in jail during the pretrial proceedings, objected because he felt the attorneys had had enough time to prepare for trial and he wanted to return home to his family. Judge Torrisi calculated that Beaver’s previous waiver of speedy trial rights was valid until November. Judge Torrisi approved the continuance and set trial for the week of October 6, 2003.
Jury selection began and was completed on October 7. The following morning, immediately before opening statements, Gardner informed the court that Beaver had agreed to accept a plea offer. Beaver would plead no contest to one count of sexual assault in the second degree, accept a 5-year sentence, and the State would dismiss a separate criminal trespass charge.
Beaver entered his plea to sexual assault in the second degree. Judge Torrisi accepted Beaver’s plea of no contest. He set sentencing for January 2004.
On November 17, 2003, Beaver wrote Judge Torrisi asking to withdraw his plea. Beaver’s new attorney, Joseph Faith, filed a formal motion to withdraw the plea on April 2, 2004. In the motion, Beaver argued that he had received ineffective assistance of counsel from OPA, that he had suffered from a complete breakdown in the attorney client relationship, and that he had misunderstood the plea agreement. Judge Torrisi held a three-day evidentiary hearing on the motion to withdraw the plea. Beaver, his previous attorneys (Gardner and Walker), and others testified at the hearing.
In an extensive written decision, Judge Torrisi denied Beaver’s motion to withdraw his plea. Judge Torrisi criticized OPA’s handling of the case and empathized with Beaver’s frustration. But he expressly found that Beaver had received effective assistance from his counsel, that there was no breakdown of the attorney client relationship, and that Beaver and Gardner had sufficient time to discuss Beaver’s legal options. He concluded that Beaver’s testimony that he did not understand the plea agreement was not credible. He rejected Beaver’s statements about why he entered his plea. He concluded that Beaver’s primary motivation for entering a plea was that Beaver was afraid of receiving a much longer sentence if he went to trial and was convicted of sexual assault in the first degree. He concluded that Beaver was represented by an experienced and prepared lawyer, and that Beaver had an adequate opportunity to consider his decision and chose to enter a plea to the lesser offense. He accordingly denied Beaver’s motion to withdraw his plea.
Judge Torrisi sentenced Beaver to 5 years imprisonment. Beaver now appeals Judge Torrisi’s denial of his motion to withdraw his plea.
Beaver’s claim of ineffective assistance of counsel
Beaver claims that his attorney was ineffective because the attorney never informed him about possible exculpatory evidence. Beaver claims that key witnesses testified before the grand jury and gave testimony contradicting their previous statements. Beaver asserts he would not have entered into the plea agreement if he knew this information. He argues that his counsel was ineffective for failing to inform him about this exculpatory information.
Judge Torrisi rejected Beaver’s claims. We are to overturn Judge Torrisi’s findings on factual issues only if we find those findings are clearly erroneous.[fn4] Judge Torrisi found that Gardner provided effective assistance of counsel. Judge Torrisi found Gardner was a reliable witness and Gardner stated that he had shared all of the relevant evidence with Beaver. He found that Beaver’s testimony was unreliable regarding what information he possessed before entering his plea. Judge Torrisi’s findings are supported by the record.
Beaver’s claim that the attorney client relationship hadbroken down
Judge Torrisi recognized Beaver’s understandable frustration with his fluctuating representation. But he concluded that Beaver was adequately represented at all times. Judge Torrisi repeatedly referred to Gardner as a skilled trial attorney who was prepared to take Beaver’s case to trial. He found that Beaver’s relationship with Gardner was functional and that Beaver had sufficient time to consider the plea offer. He concluded that Beaver accepted the plea offer to avoid the risk of a much longer sentence. Judge Torrisi rejected Beaver’s contention on a factual basis. Judge Torrisi’s findings are supported by the record.
Beaver’s contention that he did not understand the terms of the plea agreement
Beaver asserts that he was entitled to withdraw his plea because he did not understand the plea agreement. Beaver argues that, during the hearing on his change of plea, he expressed confusion regarding the length of the sentence that he faced and about his eligibility for parole. But Judge Torrisi, after considering Beaver’s testimony and the testimony of his former attorneys, found that Beaver’s testimony about any confusion regarding the plea deal lacked credibility. Judge Torrisi’s findings are supported by the record. The transcript of the hearing in which Beaver entered his plea supports Judge Torrisi’s conclusion that Beaver understood the sentence that he faced. The fact that Beaver faced “5 years flat time” was mentioned at least three times. Both Beaver and his attorney stated that they understood the 5-year flat time sentence.
Beaver’s new claims that Judge Torrisi violated Criminal Rule 11 when he accepted Beaver’s plea without ensuring Beaver understood all the consequences
Criminal Rule 11(c) lays out five requirements for accepting a no contest plea. The judge must: (1) determine the defendant understands the nature of the charge; (2) inform the defendant that he waives the right to jury trial and the right to confront witnesses; (3) inform the defendant of minimum and maximum ranges for punishment; (4) inform the defendant in writing of the sex offender registration requirements of AS 12.63.010; and (5) inform the defendant that he loses the right to appeal most issues.[fn5]
A trial court’s failure to comply with the requirements of Rule 11 may entitle the defendant to withdraw his plea.[fn6] When Rule 11 is violated, the state then bears the burden to demonstrate, by a preponderance of the evidence, that the trial court substantially complied with the rule.[fn7]
Beaver first alleges the court violated Rule 11(c)(1) because it failed to determine that he understood the nature of the charge against him. Second, Beaver asserts the court violated Rule 11(c)(4) by failing to inform him of the sex offender registration requirements.
Beaver never raised these issues in the trial court. Normally, we do not review claims that have not been raised in the trial court except to review for plain error.[fn8] “A plain error is one that is (1) so obvious that it must have been apparent to a competent judge and a competent lawyer even without an objection and (2) so substantially prejudicial that failing to correct it on appeal would perpetuate a miscarriage of justice.”[fn9]
Beaver points to the trial court’s failure to discuss the elements of the offense of sexual assault in the second degree in the plea colloquy as evidence that Judge Torrisi did not determine if Beaver understood the nature of the charge. In addition, Beaver notes that, during the change of plea hearing, Judge Torrisi never informed Beaver that he must comply with sex offender registration requirements.[fn10]
If a defendant is not informed of the nature of the offense to which he is pleading, or if the defendant is not warned that he must register as a sex offender, he has potentially established “manifest injustice” which would allow him to withdraw his plea.[fn11] But these failures, standing alone, do not necessarily establish manifest injustice. For example, a defendant has not established manifest injustice if the defendant was otherwise aware of the sex offender registration requirements.[fn12] Furthermore, there would be no manifest injustice if the defendant would have entered his plea anyway.[fn13] Because the record is unclear on these issues — which would prove or disprove the required claim of manifest injustice — we do not find plain error.
Conclusion
We accordingly conclude that Judge Torrisi did not err in denying Beaver’s motion to withdraw his plea.
AFFIRMED.
[fn1] AS 11.41.410(a)(1). [fn2] AS 11.41.420(a)(1). [fn3] AS 11.41.410(a)(1). [fn4] Bobby v. State, 950 P.2d 135, 138 (Alaska App. 1997). [fn5] Alaska R. Crim. P. 11(c)(1)-(5). [fn6] Bratcher v. State, 681 P.2d 358, 361 (Alaska App. 1984). [fn7] Id. (citing Joe v. State, 565 P.2d 508, 513 (Alaska 1977)). [fn8] Winkler v. State, 580 P.2d 1167, 1173 (Alaska 1978) (citing Alaska R. Crim. P. 47(b)). [fn9] Potts v. State, 712 P.2d 385, 390 (Alaska App. 1985),superseded by statute on other grounds as recognized in Braun v.State, 911 P.2d 1075, 1078 (Alaska App. 1996). [fn10] AS 12.63.010. [fn11] Peterson v. State, 988 P.2d 109, 119 (Alaska App. 1999). [fn12] Id. [fn13] Id.