Forrest J. Ahvakana v. State of Alaska ( 2020 )

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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
FORREST J. AHVAKANA,
Court of Appeals No. A-12713
Appellant, Trial Court No. 2BA-13-00182 CI
v.
OPINION
STATE OF ALASKA,
Appellee. No. 2679 — September 25, 2020
Appeal 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).
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
favorable plea bargain.1 Relying on our prior decision in Mooney v. State,2 the superior
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.3
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.4
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
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 exposure on the first-degree assault count. Because of Alaska’s three-strikes
law, Ahvakana actually faced a mandatory 99-year sentence without parole if convicted
on that count.5)
Ahvakana was represented by a private attorney in Utqiagvik who had been
practicing law for two years, initially with the District Attorney’s Office. Based on
outdated materials from his 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
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.”
The attorney nevertheless advised Ahvakana to accept the State’s plea offer.
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
count.
While preparing for the sentencing hearing, both the prosecutor and defense
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
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.6
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
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 directly whether Ahvakana would have changed his 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
court.”
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
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.7
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
The State derived its mutual mistake argument from our decision in Mooney
v. State.8 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.9 The
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).10
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.11
Mooney filed an application for post-conviction relief, asserting that 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
was to reverse his conviction, allow him to plead to one of the original offers, and to re-
sentence him accordingly.12
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.”13 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
. . . .[14]
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.15
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
a basic premise of the pre-trial negotiations.”16 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.17 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.18
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
charges.19
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
(continued...)
– 10 – 2679
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.20 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 particularly meaningful”); 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
Most importantly, unlike in Mooney, there was nothing illegal about the
prosecutor’s plea offer.21 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, we conclude that the State’s theory that the doctrine of mutual
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
The question still remaining, however, is whether Ahvakana has 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.22 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,
(continued...)
– 12 – 2679
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.[24]
The United States Supreme Court defines “a reasonable probability” as “a probability
sufficient to undermine confidence in the outcome.”25 It does not require the defendant
to show that a different outcome was “more likely than not.”26 The Alaska constitutional
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
(continued...)
– 13 – 2679
standard of “reasonable possibility” is lower than the federal “reasonable probability”
standard.27
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.
To establish prejudice under the Alaska Constitution, Ahvakana must show
that there is a reasonable possibility that the outcome of the case would have been
different.28 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).
28
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
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
remedy.”29 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.”30
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 term of imprisonment the government offered in the plea, the sentence
he received at trial, or something in between.”31 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.”32 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.”33
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
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
discretion.”34
Since Lafler, state and lower federal courts have taken different approaches,
including requiring specific performance of the original plea offer or ordering a new
trial.35 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
(continued...)
– 16 – 2679
issue to the trial court given our conclusion that the State’s Mooney analysis is
erroneous.36
Conclusion
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
jurisdiction.
35
(...continued)
according to the plea bargain that he had previously rejected due to his attorney’s deficient
performance).
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
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.”1 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.2
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
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
to the U.S. Supreme Court’s decision in Lafler v. Cooper4 as a starting place for
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
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,6 the State does not argue that
some particular circumstance renders specific 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