COOPER v. STATE, A-10434 (Alaska App. 5-25-2011)

GLENN H. COOPER, Appellant, v. STATE OF ALASKA, Appellee.

Court of Appeals No. A-10434.Court of Appeals of Alaska.
May 25, 2011.

Appeal from the Superior Court, Third Judicial District, Anchorage, Michael Wolverton, Judge, Trial Court No. 3AN-07-9788 CI.

Jane B. Martinez, Contract Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Nancy R. Simel, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.

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

COATS, Chief Judge.

This case arises from a shoplifting incident. Glenn H. Cooper shoplifted a fishing reel worth $109 from a Fred Meyer store. A Fred Meyer loss prevention specialist pursued Cooper once he left the store. Cooper tried to flee and resistedPage 2
apprehension. Cooper had a folding knife in his hand but the loss prevention specialist took him to the ground and, with the help of another Fred Meyer employee, made sure that Cooper could not open the knife. They placed Cooper in handcuffs and grabbed the knife. They searched Cooper and found a baggie in Cooper’s pocket which apparently contained drugs.

The police were summoned, and Cooper was arrested. The police found other baggies on Cooper which tested positive for methamphetamine.

As a result of this incident, the State charged Cooper with robbery in the second degree, a class B felony, on the theory that Cooper, “in the course of taking or attempting to take property from the immediate presence and control of another, used or threatened the immediate use of force upon another with intent to prevent or overcome resistance to the taking of property, or retention of the property after the taking.”[fn1]
The State also charged Cooper with misconduct involving a controlled substance in the fourth degree, a class C felony, based upon his possession of the methamphetamine.[fn2]

Cooper entered into a Rule 11 plea agreement with the State to plead no contest to theft in the second degree, a class C felony.[fn3] The State agreed to dismiss the robbery and drug charges. Accordingly, the State filed an information charging Cooper with committing a theft of property valued at $500 or more under AS 11.46.130(a)(1). Superior Court Judge Michael Wolverton accepted Cooper’s plea and sentenced him on July 21, 2006.Page 3

On August 24, 2007, Cooper filed an application for post-conviction relief. On January 22, 2008, Cooper amended his application and asked the court to allow him to withdraw his no contest plea. Cooper filed an affidavit in which he averred that he did not steal property worth $500 or more. He stated that, had he known that he was entering a plea to stealing property worth $500 or more, he would never have agreed to the plea bargain.

Cooper also supported his application with an affidavit from the attorney who represented him during the plea negotiations. The attorney stated that Cooper agreed to plead no contest to theft in the second degree. The attorney stated that he did not notice that Cooper was entering a plea to the section of the theft statute that applied to thefts of property worth $500 or more and therefore he did not discuss this with Cooper. The attorney indicated that another section of the theft “statute would have been more appropriate to the facts of Mr. Cooper’s case.” Apparently the attorney was referring to AS11.46.130(a)(3), which applies to thefts where “the property is taken from the person of another.”

The State opposed Cooper’s application and pointed out that, under Alaska Criminal Rule 11(h)(3), after sentencing, a defendant must establish manifest injustice in order to withdraw his plea. The plea agreement was for the State to dismiss the more serious robbery charge. Cooper was allowed to enter a no contest plea to the less serious charge of theft in the second degree. The State agreed that it would have been more accurate for the State to have charged Cooper with theft in the second degree under the section that criminalizes theft from a person rather than charging Cooper with theft of property worth $500 or more. But the State argued that Cooper received the benefit of his bargain and the citation of the wrong section of the theft statute was merely a “drafting error.”Page 4

Neither Cooper nor the State asserted any factual dispute. Judge Wolverton concluded, based upon the pleadings and the affidavits from Cooper and his attorney, that Cooper had entered into a plea agreement to plead to theft in the second degree, a class C felony, rather than face conviction for robbery, a class B felony. He concluded that Cooper had received the benefit of his bargain. He reasoned that the fact that Cooper might have entered his plea to a section of the theft statute that did not most accurately describe his offense did not provide a basis for a withdrawal of the plea. Cooper appeals.

Having reviewed the record, we conclude that Judge Wolverton erred when he granted summary judgment to the State. Under Criminal Rule 11(c)(1), when a court accepts a plea of guilty or no contest from a defendant, the court must assure itself that the defendant understands the nature of the charge. And Criminal Rule 11(h)(4)(C) declares that a defendant is entitled to withdraw a plea of guilty or no contest if the defendant establishes that he entered the plea without knowledge of the charge.

Here, Cooper’s act of theft involved a fishing reel valued at slightly over $100. Cooper’s attorney asserted in his affidavit that he was unaware that the State’s information (the amended charging document that was filed after the parties reached their plea agreement) listed the charge as second-degree theft under subsection (a)(1) of the statute — the subsection that covers theft of property valued at $500 or more. And Cooper asserted, in his affidavit, that he did not understand that he was charged with the theft of property worth $500 or more and that he would not have entered his no contest plea if he had understood this element of the charge.

In post-conviction relief litigation, “[s]ummary disposition may be granted when no genuine issues of material fact are in dispute and when, under the undisputedPage 5
facts, the moving party is entitled to judgment as a matter of law.”[fn4]
We review this type of order de novo, viewing the evidence and all reasonable inferences in the light most favorable to the non-moving party.[fn5]

In this case, Cooper has raised a genuine issue of fact about whether he understood the nature of the charge when he entered his plea of no contest. If Cooper proves his assertions, then he may be entitled to withdraw his plea.[fn6] Thus, it was improper for Judge Wolverton to enter summary judgment against him.

The judgment entered by the superior court is REVERSED, and this case is remanded to the superior court for further proceedings on Cooper’s application for post-conviction relief.

[fn1] AS 11.41.510(a)(1).

[fn2] AS 11.71.040(a)(3)(A); AS 11.71.150(e)(2).

[fn3] AS 11.46.130.

[fn4] State v. Jones, 759 P.2d 558, 566 (Alaska App. 1988).

[fn5] Lindeman v. State, 244 P.3d 1151, 1154 (Alaska App. 2011).

[fn6] See Else v. State, 555 P.2d 1210, 1214-15 (Alaska 1976) (granting motion to withdraw no contest plea based on evidence that defendant did not understand the elements of the charge); Bratcher v. State,681 P.2d 358, 363-64 (Alaska App. 1984).Page 1