CHUNAK v. STATE, A-10415 (Alaska App. 8-18-2010)

PETER JASON CHUNAK, Appellant, v. STATE OF ALASKA, Appellee.

Court of Appeals No. A-10415.Court of Appeals of Alaska.
August 18, 2010.

Appeal from the Superior Court, Third Judicial District, Dillingham, Donald D. Hopwood, Judge, Trial Court No. 3DI-07-38 CR.

Margi Mock, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.

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

MEMORANDUM OPINION AND JUDGMENT
COATS, Chief Judge.

Peter Jason Chunak was indicted for murder in the second degree, arson in the first degree, and burglary in the first degree. On the fifth day of his trial, Chunak entered a plea of guilty to murder in the second degree. Before sentencing, Chunak filedPage 2
a motion to withdraw his plea. Superior Court Judge Donald D. Hopwood denied the motion, concluding that Chunak had not established a fair and just reason to withdraw his plea. Chunak appeals. We affirm.

Factual and procedural background

On November 19, 2006, a fire consumed Bobby Chocknok’s home in New Stuyahok. Chocknok was in the house and died in the fire. A grand jury charged Peter Yukluk and Chunak with setting the fire and killing Chocknok. The grand jury indicted them for murder in the second degree,[fn1] arson in the first degree, [fn2] and burglary in the first degree.[fn3]

Chunak’s trial began on August 18, 2008. On August 22, after the State had presented ten witnesses, the parties informed Judge Hopwood that they had entered into a plea agreement. Under the agreement, Chunak would plead guilty to one count of murder in the second degree on the theory that he had caused Chocknok’s death by acting with extreme indifference to the value of human life.[fn4] The remaining charges would be dismissed. The parties agreed that Chunak’s sentence would be 30 years with 15 years suspended, followed by 10 years of probation.

Judge Hopwood extensively questioned Chunak about his decision to forgo trial and enter a guilty plea to murder in the second degree. He asked Chunak if he understood that his plea would be final. Chunak responded, “Yes.” Judge HopwoodPage 3
asked if Chunak had been able to discuss the agreement with his attorney, and Chunak replied, “Yes.” Judge Hopwood gave Chunak the opportunity to step outside and discuss the plea with his attorney again. After Chunak returned, Judge Hopwood asked Chunak the following questions:

THE COURT: Have you had any alcohol, drugs or medications in the last 24 hours?

MR. CHUNAK: No.

THE COURT: And are you feeling well today?

MR. CHUNAK: Yes.

THE COURT: Have you been sick? Or are you sick now?

MR. CHUNAK: No. I’m just tired.

THE COURT: Just tired. Okay. Are you able to understand all of what we’re saying and doing here?

MR. CHUNAK: Yes.

THE COURT: Do you think you’re clear-headed so that you can think clearly?

MR. CHUNAK: Yes.

THE COURT: Okay. You hesitated just a bit. Do you think you might not be clear-headed?

MR. CHUNAK: I’m just thinking about fighting the case or taking the deal.

THE COURT: It’s a big decision.

MR. CHUNAK: Yes, it is. And I just want to, I guess, take the deal because I don’t want to take that risk to do so . . . much time.Page 4

THE COURT: Okay. All right. And so you haven’t . . . taken anything that might make you sick or might make your thinking fuzzy?

MR. CHUNAK: No.

Judge Hopwood then asked if Chunak wished to talk to his attorney again, to which Chunak replied, “No.” After verifying once again that Chunak understood that the plea would be final, Judge Hopwood accepted the plea as “knowing, voluntary, and intelligent.” Sentencing was scheduled for December 19, 2008 (approximately four months later).

On September 9, 2008 (approximately two weeks after the change of plea hearing), Chunak notified his attorney that he wished to withdraw his plea. Chunak’s attorney, however, did not file the change of plea motion until December 9, 2008. The attorney explained that she delayed filing the motion because she wanted to make sure that Chunak truly wanted to pursue the motion and because of her workload. In the meantime, Chunak’s co-defendant, Yukluk, had been acquitted by a jury. In his motion to withdraw his plea, Chunak’s attorney argued that Chunak “was tired, sleep-deprived, overwhelmed, and depressed at the time he made his decision to change his plea.” However, Chunak did not submit an affidavit to support these assertions.

Judge Hopwood entered an order denying Chunak’s motion to withdraw his plea. Judge Hopwood pointed out that “[s]eventeen months elapsed from the return of the indictment until [the] change of plea.” He pointed out that during that time, Chunak had an opportunity to work with his attorney on pretrial motions, jury selection, and trial. He pointed out that plea negotiations between the parties had occurred over an extensive period of time. During his trial, Chunak had been able to observe the State’s case against him. Judge Hopwood found that there was “no competent evidence thatPage 5
[Chunak] was sleep-deprived, overwhelmed, or depressed during the change of plea. . . .” He observed that “[t]rials are very demanding for everyone, including litigants.” And he reasoned that Chunak likely did experience “a feeling of helplessness [caused] by the weight of the State’s evidence presented in the two days preceding his change of plea. It was the State’s case, and most of the evidence, unsurprisingly, was favorable to the State. Most defendants would experience some feelings of helplessness at this point, and in the defendant’s case, his feelings are not unusual or unexpected.” He concluded that Chunak was fully aware of the case against him and had an extensive opportunity to discuss the case with his attorney. He concluded that the feelings of stress and tiredness that Chunak experienced were nothing more than the usual experience of going through trial. He concluded that Chunak’s plea was “knowing, intelligent, and voluntary. [Chunak] was not impaired in any way.” He concluded that Chunak had simply changed his mind about entering his plea, in all probability influenced by the acquittal of his co-defendant.

The burden is upon the defendant to establish a “fair and just” reason to withdraw his plea.[fn5] In his findings, Judge Hopwood concluded that Chunak had simply changed his mind and had not shown any “fair and just” reason to withdraw his plea. The record supports Judge Hopwood’s findings. We accordingly affirm his decision denying Chunak’s motion to withdraw his plea.

Conclusion

The judgment of the superior court is AFFIRMED.

[fn1] AS 11.41.110(a).

[fn2] AS 11.46.400.

[fn3] AS 11.46.300(a)(1).

[fn4] AS 11.41.110(a)(2).

[fn5] Perry v. State, 928 P.2d 1227, 1228 (Alaska App. 1996) (quotingMunroe v. State, 752 P.2d 1017, 1019 (Alaska App. 1988)); Wahl v. State,691 P.2d 1048, 1051 (Alaska App. 1984).Page 1