MacALPINE v. STATE, A-9664 (Alaska App. 6-24-2009)

NORMAN D. MacALPINE, Appellant v. STATE OF ALASKA, Appellee.

Court of Appeals No. A-9664.Court of Appeals of Alaska.
June 24, 2009.Page 1

Appeal from the Superior Court, Fourth Judicial District, Bethel, Peter G. Ashman, Judge, Trial Court No. 4BE-03-1766 Cr.

Norman D. MacAlpine, in propria persona, Bethel, for the Appellant.

Timothy W. Terrell, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.

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

MEMORANDUM OPINION
MANNHEIMER, Judge.

In December 2003, Norman D. MacAlpine was charged with felony driving under the influence and felony refusal to submit to a breath test.[fn1]
At the same time, the State also filed petitions to revoke MacAlpine’s probation from two previousPage 2
misdemeanor DUI convictions. In April 2004, the State and MacAlpine reached a plea agreement to resolve these charges; the agreement called for MacAlpine’s case to be diverted to the Bethel therapeutic court.

Pursuant to the plea agreement, MacAlpine pleaded guilty to one of the felony counts (felony breath-test refusal), and he also admitted that he had violated his probation in the two misdemeanor cases. MacAlpine further agreed that, if he failed to satisfactorily complete the treatment program required by the therapeutic court, he would receive a sentence of 3 years’ imprisonment with 2 years suspended (1 year to serve) for the felony breath-test refusal, and he would be sentenced to serve all of his remaining suspended jail time from the two misdemeanors (approximately 19 months). For its part, the State agreed that if MacAlpine successfully completed the treatment program, he would receive a totally suspended sentence of 3 years’ imprisonment for the felony (on condition of his good behavior during 4 years’ probation), and that his penalty for the two misdemeanor DUIs would be an extension of his probation for 2 years.

MacAlpine began the required treatment program in May 2004, but he did not make successful progress. In the fall of 2005, following MacAlpine’s sixth relapse, he was terminated from the program. According to MacAlpine, his treatment team informed him “that he had not remained sober long enough to graduate”.

Following MacAlpine’s termination from the program, the superior court scheduled MacAlpine’s case for sentencing. This prompted MacAlpine to ask the superior court for permission to withdraw his guilty plea in the felony case and to withdraw his admissions in the two probation revocation proceedings — in other words, to grant him a rescission of the plea agreement.

In his motion, MacAlpine contended (1) that he had not understood the agreement when he signed it, (2) that the attorney who represented him throughout the plea negotiations had given him incompetent representation by failing to explain thePage 3
agreement to him, and (3) that the State had materially breached the agreement by failing to supply a therapist and a probation officer to participate as members of MacAlpine’s treatment team.

Superior Court Judge pro tempore Peter G. Ashman held a hearing on MacAlpine’s motion. Both MacAlpine and his former attorney, Brian Kay, testified at this hearing. Their testimony concerned the negotiation process leading up to the plea agreement, Kay’s advice to MacAlpine concerning his case and the particular terms of the plea agreement, and MacAlpine’s understanding (or lack of understanding) of the agreement’s various provisions.

After hearing this evidence, and after reviewing the audio record of MacAlpine’s change-of-plea hearing in April 2004, Judge Ashman rejected the arguments that MacAlpine had failed to understand the terms of the agreement, or that Brian Kay had failed to represent MacAlpine competently. Judge Ashman concluded that the evidence demonstrated that MacAlpine had “a clear understanding of the agreement and [of] the consequences of his entry of a plea under its terms”. Judge Ashman noted that, at the change-of-plea hearing, MacAlpine “exhibited a ready grasp of technical issues and insisted on correction of factual mistakes [in the presentation of the plea agreement].” Judge Ashman also concluded, based on Brian Kay’s testimony, that MacAlpine “was more than well-advised [by counsel]” — that MacAlpine “made exhaustive use of his access to [Kay] well into his participation in the [Bethel therapeutic court] process.”

With regard to MacAlpine’s contention that the State breached the agreement by failing to provide a therapist to be a member of his treatment team, Judge Ashman conceded that “there were staffing issues at the treatment center early in the term of [MacAlpine’s] participation”. Here, Judge Ashman was apparently referring to the testimony that, approximately one month after MacAlpine entered the treatmentPage 4
program, the program lost its therapist and was unable to fill the therapist position for two and a half months.

But Judge Ashman found that this was not a material breach for two reasons. First, the judge concluded that “at all times the [Bethel therapeutic court] provided [MacAlpine] appropriate access to treatment”. Here, Judge Ashman was apparently referring to the testimony that, even though there was no therapist for two and a half months, counselors remained available to assist MacAlpine and the other program participants. Second, Judge Ashman noted that “[MacAlpine’s] relapses primarily postdate those problems”. In other words, MacAlpine’s treatment failures primarily occurred after the treatment program obtained another therapist. Because of this, Judge Ashman concluded that the absence of a therapist for two and a half months was not material — that “[MacAlpine’s] relapses are his own responsibility and cannot be attributed to any failure of the [Bethel therapeutic court].”

Judge Ashman did not specifically address MacAlpine’s related contention that the State breached the plea agreement by failing to provide a probation officer to be a member of his treatment team. However, we note that MacAlpine never offered any evidence to support the assertion that the lack of an assigned probation officer was an impediment to his treatment.

Moreover, Judge Ashman found that MacAlpine’s complaints about the staffing of the program were a manipulative attempt to offer an after-the-fact rationalization for his own failures at treatment.

Judge Ashman acknowledged that MacAlpine “may have expressed some ambivalence about his participation [in the treatment program] . . . at various points along the way”. However, the judge found that MacAlpine “did not express a desire to withdraw his plea until it was apparent that he was going to be terminated from thePage 5
program and face the [adverse] consequences [called for in] his plea agreement.” Judge Ashman then added:

It is obvious that [MacAlpine] was well aware of his rights. Had he sincerely believed that he was not receiving the benefit of his bargain[,] he could have moved to withdraw from the [Bethel therapeutic court] at any time. The fact that he did not do so until his termination [from treatment] was imminent suggests that [MacAlpine’s] present motion constitutes a patent attempt to manipulate the process to avoid the legal consequences of his own behavior.

In sum, Judge Ashman concluded that the evidence failed to support MacAlpine’s assertions (1) that he had not understood the terms of his plea agreement, (2) that his former attorney, Brian Kay, failed to represent him competently, or (3) that the State materially breached the plea agreement by failing to provide the promised treatment opportunities. We have reviewed the record of the proceedings in the superior court, and we conclude that the record supports Judge Ashman’s findings.

There was one additional issue that arose during the superior court proceedings — an issue pertaining to the length of MacAlpine’s obligation to remain in the treatment program. Section 3, paragraph (a) of MacAlpine’s plea agreement stated:

The defendant must be actively engaged in the Therapeutic Court for no less than twelve (12) months in order to graduate, and no more than the mandatory minimum or presumptive sentence required by statute [for the defendant’s crime]. The estimated time frame to complete the Program is twelve (12) to eighteen (18) months.

Judge Ashman interpreted this provision to mean, first, that MacAlpine was required to stay in treatment for a minimum of 12 months; and second, that if MacAlpine’s offense had carried a presumptive term or a mandatory minimum term exceeding 12 months,Page 6
then MacAlpine could have been required to stay in the treatment program for up to that applicable presumptive term or mandatory minimum term (assuming that MacAlpine did not successfully complete the program before then).

MacAlpine’s mandatory minimum term for felony breath-test refusal was 240 days — i.e., less than 12 months. Because of this, Judge Ashman concluded that MacAlpine could have demanded release from the treatment program at the end of 12 months. MacAlpine actually spent almost 18 months in the program — from May 2004 until the fall of 2005, when he was terminated for non-compliance. Because of this, Judge Ashman concluded that MacAlpine participated in the treatment program for approximately 6 months more than the plea agreement called for.

Judge Ashman also concluded that, because MacAlpine failed to successfully complete the treatment program, he was required to sentence MacAlpine to 3 years’ imprisonment with 2 years suspended for the felony breath-test refusal, plus all of the previously suspended jail time from the two misdemeanor DUIs — in other words, the sentences specified in the plea agreement that were to be imposed if MacAlpine did not successfully complete the therapeutic court program. At the same time, however, Judge Ashman concluded that MacAlpine had to receive at least some credit against this sentence for the extra months that he spent in the treatment program. Ultimately, Judge Ashman gave MacAlpine a total credit of approximately 8 months against the specified sentences; in other words, he gave MacAlpine better than a day-for-day credit.

On appeal, both MacAlpine and the State agree with Judge Ashman’s interpretation of this provision of the plea agreement, but both of them challenge the judge’s resolution of the problem — i.e., his decision about what to do, given the fact that MacAlpine spent 18 months (rather than 12 months) in the treatment program.

MacAlpine argues that the State materially breached the plea agreement by keeping him in treatment for 18 months, and he further argues that (because of thisPage 7
breach) he is entitled to rescission of the plea agreement. We disagree. As Judge Ashman pointed out in his decision, MacAlpine was not incarcerated in the treatment program; rather, he “could have moved to withdraw from the [program] at any time”. MacAlpine participated in treatment voluntarily, hoping that he would successfully complete the treatment program and thus earn the more lenient sentence provided in the plea agreement.

In this sense, MacAlpine obtained a benefit by staying in the program for an additional 6 months — because these extra 6 months gave MacAlpine an additional opportunity to successfully graduate from the treatment program. As it turned out, MacAlpine failed to take advantage of this opportunity: he continued to relapse, and he was finally terminated from the program. But as Judge Ashman found, “[MacAlpine’s] relapses [were] his own responsibility and cannot be attributed to any failure of the [Bethel therapeutic court].”

For these reasons, even though the plea agreement appears to say that MacAlpine’s participation in the treatment program should have ended after 12 months, we agree with Judge Ashman that MacAlpine’s extra 6 months in treatment do not entitle him to rescission of the plea bargain.

The State, for its part, challenges Judge Ashman’s decision to give MacAlpine an 8-month credit against his sentences for the extra time spent in the treatment program. The State argues that MacAlpine’s additional months of participation in the treatment program were not the equivalent of incarceration, and thus MacAlpine should not have received credit against his sentences.

This question is not properly before us: the State failed to appeal (or petition us to review) Judge Ashman’s decision.

To conclude: We uphold Judge Ashman’s decisions that MacAlpine understood the terms of the plea agreement, that MacAlpine received competentPage 8
representation from his attorney, and that the identified departures from the terms of the agreement were not material and, in any event, do not entitle MacAlpine to rescission of the bargain. The judgement of the superior court is AFFIRMED.

[fn1] AS 28.35.030(n) and 28.35.032(p), respectively.Page 1