242 P.3d 1042
Alaska Ct. App.2010Background
- Ferguson was indicted in 2004 for manufacturing/substance offenses and first-degree sexual assault; the charges were resolved by a plea: a reduced third-degree sexual assault (a class C felony) with an agreed seven-year aggravated sentence and a stipulation that no contest would be entered to the reduced charge.
- Under the 2003 AS 12.55.125(i) scheme, Ferguson faced a three-year presumptive term as a third felony offender; the trial court later imposed seven years with no good-time credit for the sexual felony, referencing AS 33.20.010(a)(3) for credit eligibility.
- In January 2005, Ferguson was sentenced to seven years but was told he would not be eligible for good time credit against the sentence because of a prior sexual-felony conviction.
- In March 2005, Ferguson filed pro se post-conviction relief alleging ineffective assistance of counsel, asserting his attorney misrepresented two critical aspects of the plea: (1) that four years of the seven-year term would be suspended, and (2) that he would be eligible for good time credit against the three-year active portion.
- An evidentiary hearing in June 2007 resolved conflicting affidavits about what the attorney told Ferguson; Judge Esch denied post-conviction relief, concluding the attorney correctly described the sentence and that there was no obligation to discuss parole chances.
- The superior court later reversed, and Ferguson appealed, arguing his attorney gave incompetent advice that misled him about the real sentence and the odds of discretionary parole.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial attorney’s description of the sentence misled Ferguson | Ferguson (Ferguson) | Esch held description accurate | No; description misled and amounted to ineffective assistance |
| Whether the attorney’s discussion of discretionary parole required realistic odds disclosure | Ferguson argued attorney failed to warn about low chances | Cole allows no duty to discuss parole eligibility in plea advice | Attorney must not affirmatively mislead about parole chances; misrepresentation prejudices |
| Whether Ferguson was prejudiced enough to withdraw the plea | Yes, because misrepresentation affected decision | Yes; reasonable possibility of different outcome; plea withdrawn warranted | |
| Whether the standard from Cole governs whether parole discussion requires disclosure | Cole forecloses duty to discuss parole in open sentencing | Cole supports no duty to discuss parole; not required | Cole clarified but does not immunize misrepresentation from ineffective assistance |
Key Cases Cited
- Love v. State, 173 P.3d 433 (Alaska App.2007) (ineffective assistance when incompetent plea advice affects decision to plead)
- Knox v. State, 130 P.3d 971 (Alaska App.2006) (withdraw plea if incompetent advice on sentencing)
- Cole v. State, 72 P.3d 322 (Alaska App.2003) (parole eligibility not required to be advised when plea bargain open on sentencing)
- Morgan v. State, 582 P.2d 1017 (Alaska 1978) (parole discussions not required in every plea context)
- Risher v. State, 523 P.2d 421 (Alaska 1974) (reasonable possibility standard for ineffective assistance in post-conviction relief)
- Garay v. State, 53 P.3d 626 (Alaska App.2002) (parole eligibility and advice considerations in plea negotiations)
- Moore v. State, 207 S.W.3d 725 (Mo.App.2006) (misinformation about parole can support ineffective assistance)