NICK A. FRANKSON v. STATE OF ALASKA
Court of Appeals No. A-13690
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
September 16, 2022
Opinion No. 2732
Judge ALLARD
Trial Court Nos. 2KB-18-00529 CR, 2KB-19-00373 CR, & 2KB-19-00374 CR
NOTICE
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OPINION
Petition for Review from the Superior Court, Second Judicial District, Kotzebue, Paul A. Roetman, Judge.
Appearances: Renee McFarland (petition), and Claire F. DeWitte, (briefing and
Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges.
Judge ALLARD.
In this petition for review, we are asked to decide whether a trial court may sua sponte consider non-Blakely aggravating factors when evaluating whether to accept or reject a sentencing agreement under
For the reasons explained in this opinion, we conclude that, just as a trial court has the authority to consider a mitigating factor when evaluating whether to reject a sentencing agreement as too severe, a trial court has the authority to consider a non-Blakely aggravating factor when evaluating whether to reject a sentencing agreement as too lenient.3
We further conclude that, while the decision of whether to accept or reject a sentencing agreement rests in the sound discretion of the trial court after consideration of the Chaney criteria,4 there are additional factors that a trial court should consider if they are brought to the court‘s attention. These factors include, but are not limited to: (1) evidentiary and witness issues; (2) the victim‘s wishes; (3) resource limitations; and (4) relevant circumstances beyond the parties’ control (such as the COVID-19 pandemic).
Lastly, we hold that when a trial court rejects a sentencing agreement as either too severe or too lenient, the court is required to follow the procedures outlined in
Background facts
In July 2018, Officers Gary Moore and Aaron Grimes were dispatched to a residence in Point Hope after receiving a report that Nick A. Frankson was intoxicated and might have discharged a firearm. When the officers arrived on the scene, they observed Frankson holding a rifle inside the residence with the door open. The officers drew their guns as Frankson raised the rifle towards Officer Moore. Officer Moore fired one round at Frankson, who closed the door. A few minutes later, Frankson left the residence and fled on foot. Officer Grimes followed Frankson until he surrendered.
Once in the patrol car, Frankson began kicking the car door. Officer Grimes opened the doors to prevent damage, and Frankson kicked at Officer Grimes‘s face. A breath test revealed that Frankson had a blood alcohol content of 0.133 percent.
The officers later observed “two spent .223 shell casings near the front door” of the residence and received a report from a neighbor of shots being fired in the area prior to the officers’ arrival. The affidavit accompanying the complaint stated that “due to the layout of the neighborhood there is no position in which a gun could be fired without being in the direction of a building or dwelling.”
Frankson was ultimately indicted on one count of second-degree misconduct involving weapons (knowingly discharging a firearm at or in the direction of a dwelling)5 and two counts of third-degree assault (recklessly
The parties then entered into a plea agreement in which Frankson agreed to plead guilty to one count of third-degree assault in exchange for dismissal of the other counts. As part of the plea agreement, Frankson agreed to stipulate to three aggravating factors —
Although Frankson had an extensive prior history of misdemeanor assaults, Frankson qualified as a first felony offender and faced a presumptive sentence of 0 to 2 years if no aggravating factors applied.7 However, with the aggravators, Frankson could be sentenced up to a maximum of 5 years. The parties agreed upon a sentence of 5 years with 4 years suspended (1 year to serve) as part of their plea agreement.
In April 2019, the superior court accepted Frankson‘s plea of guilty and ordered a presentence report, deferring the question of whether it accepted the parties’ sentence agreement until sentencing.8
Prior to sentencing, while on bail release, Frankson was arrested for allegedly making homebrew, punching his nephew and another man, and threatening the two men with a whaling tool. Frankson was charged with five felonies and five misdemeanors: one count of trafficking in liquor without a license or permit in a local option area,9 four counts of third-degree assault,10 two counts of fourth-degree assault,11 and three counts of violating his conditions of release.12
Frankson was separately charged in a third case with violating conditions of release for contacting one of the witnesses from the original weapons misconduct case.13
The parties subsequently changed their plea agreement to resolve all three cases through a global plea agreement. Under the new agreement, Frankson‘s guilty plea to the third-degree assault charge in the first case would remain, and he would serve 600 days of imprisonment for that conviction. With regard to the second case, Frankson agreed to plead guilty to one count of fourth-degree assault and to serve 120 days of imprisonment consecutive to the term of imprisonment on the third-degree assault conviction, for a total composite sentence of 720 days. In exchange, the State agreed to dismiss the remaining counts from the second case and to dismiss the third case in its entirety.
In January 2020, the superior court accepted Frankson‘s guilty pleas and set the matter for a sentencing hearing. The court held the sentencing hearing in March 2020. At the hearing, Officer Moore objected to the plea agreement as too lenient, asserting that Frankson was dangerous. The probation officer who authored the presentence report also objected to the plea agreement as too lenient.
Frankson and the State defended the plea agreement, explaining that all three cases
The court questioned the parties as to whether the global plea agreement included the stipulated aggravating factors that had been part of the original agreement. Frankson asserted that it did not; the State asserted that it did. The court continued the sentencing hearing to allow the parties to submit briefing.
The State then filed a notice that it was withdrawing its offer on the ground that there had been no meeting of the minds regarding whether the aggravating factors applied. Frankson moved to enforce the plea agreement. The superior court granted Frankson‘s motion to enforce the plea agreement, finding that the original stipulation to the aggravating factors was not part of the new global plea agreement. However, the superior court also ruled that it had the authority to sua sponte consider any non-Blakely aggravators established by the record in evaluating whether to accept or reject the sentencing agreement.
At the continued sentencing hearing, Frankson argued that the superior court had no authority to consider any non-Blakely aggravators and that the sentencing agreement should therefore be evaluated based on the assumption that the maximum sentence Frankson could receive on the third-degree assault charge was 2 years. The State disagreed. The State pointed out that there was a non-Blakely aggravator that could be found based on Frankson‘s prior misdemeanor assault convictions —
The superior court agreed with the State. The court further reasoned that, having found the non-Blakely aggravator based on Frankson‘s prior convictions, it could also consider the Blakely aggravator under
Frankson petitioned this Court for interlocutory review, arguing that it was error for the superior court to consider a non-Blakely aggravator when evaluating the reasonableness of the sentencing agreement given that there was no agreement between the parties regarding that aggravator.
We granted the petition and ordered briefing on two questions: (1) whether a sentencing court may sua sponte consider non-Blakely aggravating factors when evaluating a sentencing agreement under
Background information on Alaska‘s presumptive sentencing scheme
In order to address the legal questions raised by this case, we must first provide some background information about Alaska‘s presumptive sentencing scheme and the effect that the United States Supreme Court‘s 2004 case Blakely v. Washington had on that scheme.14
In 1978, the Alaska legislature enacted a presumptive sentencing scheme for most felony convictions, with the intended purpose of “eliminating disparity in the sentencing of similarly situated offenders and making criminal sentencing a predictable, internally consistent process.”15 Under this “relatively inflexible”
presumptive sentence than a defendant convicted of the same offense who did not have any prior felony convictions.
As originally enacted, Alaska‘s presumptive sentencing scheme used presumptive terms — i.e., a set term of imprisonment for each defendant based on the level of offense and the defendant‘s prior felony convictions.20 For the most part, the presumptive terms were “intended as appropriate for imposition in most cases, without significant upward or downward adjustment.”21 But the legislature also created statutory factors in aggravation and mitigation that gave the sentencing court the authority to impose additional active or suspended time over the presumptive term or to impose a sentence below the presumptive term, as appropriate.22 These statutory aggravating and
mitigating factors had to be proved by clear and convincing evidence and found by the judge.23
Trial courts were nevertheless cautioned to take a “measured and restrained approach” in adjusting sentences to accommodate aggravating and mitigating factors so as to ensure that the overall goal of eliminating disparity and achieving some measure of uniformity was maintained.24
mitigators.28 Notably, the rule grants trial courts the discretion not to enter any findings on a disputed aggravator or mitigator if the court “affirmatively determines that resolution of a disputed factor . . . is immaterial to the imposition of a just sentence.”29
In a 1982 case, Hartley v. State, this Court addressed the question of whether a trial court could sua sponte find a statutory aggravating factor that had not been raised or argued by the State.30 Hartley involved a defendant who was convicted, following a jury trial, of first-degree sexual assault and burglary.31 Hartley proposed three mitigating factors which were rejected by the trial court. The State opposed the mitigating factors but did not file notice of any aggravating factors. At sentencing, the prosecutor indicated that the State would be satisfied with the presumptive term. The trial court nevertheless sua sponte found an aggravating factor and sentenced Hartley to a sentence above the presumptive term.32
Hartley appealed, arguing that the trial court had no authority to find a statutory aggravating factor that the State had not raised or argued. According to Hartley, an aggravating factor was akin to a criminal charge, and therefore only the State had the power to decide whether an aggravating factor should apply to a given case.33
This Court disagreed that statutory aggravating factors fell within the State‘s charging authority. Instead, we held that statutory aggravating factors fell within the court‘s sentencing authority.34 We noted that the Alaska legislature had enacted a presumptive sentencing scheme with the stated intention of increasing uniformity in sentencing and eliminating unjustified disparities.35 And we reasoned that to allow the parties to ignore aggravating and mitigating factors suggested by the evidence at trial or disclosed in a presentence report would be contrary to that legislative intent. We therefore held that the trial court had the authority to sua sponte alert the parties to possible aggravating and mitigating factors present in the record as long as the parties were given an adequate opportunity to argue for or against those factors.36 Because the parties had not been given an opportunity to respond to the trial court‘s sua sponte application of a statutory aggravating factor in Hartley‘s case, we remanded the case to the trial court to provide them with that opportunity.37
The Hartley rule that a trial court has the authority to sua sponte consider statutory aggravating and mitigating factors that were
In response to Blakely, the 2005 Alaska legislature revised Alaska‘s presumptive sentencing laws in two substantive ways.40 First, the legislature replaced the previous presumptive terms with presumptive ranges, with the former presumptive term serving as the low-end of the new range.41 In doing so, the legislature made clear that its intent was to restore judicial sentencing discretion that had been “unduly constrain[ed]” by Blakely; it was “not . . . to bring about an overall increase in the amount of active imprisonment for felony sentences.”42
Second, the legislature created two classes of aggravating factors: (1) aggravating factors that could be proved to a judge, sitting without a jury, by clear and convincing evidence,43 and (2) aggravating factors that had to be proved to a jury beyond a reasonable doubt.44 The first set of aggravating factors — those that can be proved to a judge and found by clear and convincing evidence — are those aggravators that are based on a defendant‘s prior convictions and are referred to as “non-Blakely aggravators” because they do not implicate the Sixth Amendment jury trial right recognized in Blakely.45 The second set of aggravating factors — those that must be
proved to a jury beyond a reasonable doubt — are referred to as ”Blakely aggravators” because they do implicate a defendant‘s Sixth Amendment right to a jury trial.46
As this Court subsequently recognized in Alexiadis v. State, the distinction between Blakely and non-Blakely aggravators has significant repercussions for a trial court‘s sentencing authority.47
Alexiadis involved a trial court‘s rejection of a sentencing agreement in which the parties agreed that no aggravating factors would be argued.48 The defendant in Alexiadis pleaded guilty, pursuant to a partial plea agreement, to a consolidated count of second-degree assault for injuring his infant son. As part of the partial plea agreement, the defendant agreed not to argue any mitigating factors or to seek referral to the three-judge sentencing panel. The State also agreed not to pursue any aggravating factors. Sentencing was otherwise left open to the court. Because the parties agreed that no aggravators would apply, the defendant faced a presumptive range of 1 to 3 years.49
The superior court rejected the parties’ agreement as too lenient because it found that there were two Blakely aggravators —
defendant filed a petition for review in this Court, challenging the rejection of their agreement and arguing that whether to pursue a Blakely aggravator was a charging decision entrusted to the sole discretion of the prosecuting authority.50 The State agreed.
We reversed the superior court‘s decision.51 In our decision, we noted the difference between a “sentencing agreement” — i.e., an agreement that “limits the court‘s sentencing authority for a particular charge or set of charges” — and a “charge agreement” — i.e., an agreement that “specifies the charges to which the defendant will plead guilty” often in exchange for the dismissal of other charges.52 And we noted that
We then reasoned that because prosecutors were now required to prove the underlying facts of a Blakely aggravator to a jury beyond a reasonable doubt, the decision of whether to pursue a Blakely aggravator was akin to a charging decision over which the court had no authority.54 We therefore concluded that, just as the trial court had no authority to reject the parties’ charge agreement and force the State to go to trial on the dismissed charges, the trial court also had no authority to reject the parties’ agreement that the State would not litigate the Blakely aggravators and force the prosecutor to litigate those Blakely aggravators.55 In other words, there was no basis for rejecting the agreement as too lenient because the court had no authority to sentence the defendant above the 1 to 3 years sentencing range that otherwise applied to the agreement.
Our decision in Alexiadis did not directly address the status of non-Blakely aggravators because the defendant in that case did not have any prior convictions, and there were accordingly no non-Blakely aggravators that could have applied. However, in dicta, we suggested that our reasoning in Hartley remained sound as to non-Blakely aggravators and that a trial court consequently retained the authority to sua sponte consider a non-Blakely aggravator when deciding whether to accept or reject a sentencing agreement as too lenient.56
The arguments in the current case
On appeal, Frankson agrees that trial courts have the authority to sua sponte consider a non-Blakely aggravator when sentencing a defendant after trial or pursuant to a plea agreement that allows open sentencing. But he argues that trial courts have no authority to consider non-Blakely aggravators when evaluating a “complete” or “closed”
But Frankson‘s position is contrary to principles of separation of powers and the history of plea bargaining under Alaska law. As we explained in Alexiadis, the distinction between sentencing agreements and charge agreements is grounded in the constitutional separation of powers doctrine.57 As a general matter, the executive branch has the sole authority to decide whether to bring criminal charges and what criminal charges to bring.58 In contrast, sentencing is primarily considered a judicial function, subject to the parameters and guidelines created by the legislature.59
Under Alaska law, prosecutors additionally have full authority to dismiss charges that have already been filed and they are not required to seek court approval.60
Thus, as already discussed, courts in Alaska have no authority to reject charge agreements.61 And the criminal rule that governs the acceptance or rejection of plea agreements,
presentence report.”62 If the court accepts the sentencing agreement, then “the court shall impose sentence in accordance with the terms of that agreement.”63 If the court rejects the sentencing agreement, then the following procedures apply:
[T]he court shall inform the parties of this fact and advise the prosecuting attorney
and the defendant personally in open court that the court is not bound by the agreement. If the court rejects the agreement as too lenient, the court shall then afford the defendant the opportunity to withdraw the plea. If the court rejects the agreement as too severe, the court shall then afford the prosecuting attorney the opportunity to withdraw from the agreement.64
In other words, a trial court‘s rejection of a sentencing agreement as too lenient does not mean that the other parts of the plea agreement — i.e., the charge agreement and any agreement about Blakely aggravators — automatically go away. Instead, the defendant must be given the choice to either withdraw their plea or to move forward with open sentencing under the remaining terms of the plea agreement. Likewise, the prosecutor must be given the opportunity to withdraw from the sentencing agreement if the trial court rejects the agreement as too severe.65
But in order to properly evaluate the severity or leniency of a sentencing agreement, the trial court must know the breadth of its sentencing authority in light of the other parts of the agreement that it has no authority to reject — i.e., in light of the charge agreement and any agreement about Blakely aggravators. In other words, the trial court must know what sentencing range would apply if the agreed-upon sentence was rejected and the parties nevertheless proceeded to open sentencing under the remaining terms of the agreement. (The parties also need to know what that sentencing range would be so that they can make an informed decision about whether to withdraw from the plea or proceed to open sentencing if the sentencing agreement is rejected as either too severe or too lenient.)
Prior to Blakely, it was clear that the trial court had the authority to sua sponte consider any aggravating factors that might apply when evaluating whether to reject a sentencing agreement as too lenient. But post-Blakely, the trial court no longer has the authority to consider those Blakely aggravators that must be tried to a jury and found beyond a reasonable doubt. Instead, as Alexiadis explained, those Blakely aggravators are now akin to charging decisions over which the trial court has no authority under Alaska law.66
Frankson argues that non-Blakely aggravators should be treated the same as Blakely aggravators, and a court should therefore not be allowed to consider non-Blakely aggravators when evaluating a sentencing agreement in which the parties have
agreed to a non-aggravated sentence. But Blakely did not affect the trial court‘s authority to find aggravators that are based on prior convictions, and we perceive no reason why the court‘s traditional sentencing authority should be curtailed in this manner. Aggravating and mitigating factors have historically been treated as sentencing matters, and the fact that Blakely aggravators are now more akin to charging decisions does not mean that non-Blakely aggravators should be treated differently than they have been treated in the past.
We therefore hold that a trial court may consider a non-Blakely aggravator when evaluating whether to accept or reject a sentencing agreement as too lenient even if the parties have specifically agreed to a sentence within the presumptive range and no aggravators have been raised or argued.67
We now turn to the second question raised by this petition, which is what factors a trial court should consider when deciding whether to accept or reject a sentencing agreement and whether a trial court should use a “clearly mistaken” standard of review when evaluating the reasonableness of an agreed-upon sentence.
The parties’ arguments regarding the factors that a trial court should consider and the standard that should be used when evaluating a sentencing agreement
Although
But acknowledging that the decision to accept or reject a sentencing agreement rests in the sound discretion of the trial court does not provide much guidance to trial courts regarding what factors they should consider when making such a decision or how much deference, if any, they should show to the parties’ reasons for the agreement. This absence of guidance is not unique to Alaska law. The equivalent rule in federal law,
In his treatise, Professor LaFave points to a decision from the D.C. Circuit, United States v. Ammidown, as one of the rare cases that does discuss this issue.73 In Ammidown, the court held that a trial judge should not reject a plea bargain unless the judge “can say that the action of the prosecuting attorney is such a departure from sound
prosecutorial principle as to mark it an abuse of prosecutorial discretion.”74 Frankson urges this Court to adopt a similar highly deferential standard. But Ammidown involved a trial judge‘s rejection of a charge agreement — a situation where judges must be particularly careful about not encroaching on the prosecutor‘s inherent charging authority — as opposed to a sentencing agreement.75 Ammidown is therefore of little value to Alaska law where trial courts are not authorized to reject a prosecutor‘s charge agreement.76 As Professor LaFave acknowledges, trial judges are in a “different position” when evaluating whether to accept or reject the parties’ sentencing agreement than when they are evaluating the prosecutor‘s decision to dismiss various charges as part of a plea agreement.77
Frankson also argues in favor of the adoption of a “clearly mistaken” standard of review for trial courts evaluating whether to accept or reject a sentencing agreement. (The State has previously advocated for such a standard, although it does not do so in Frankson‘s case.78)
The “clearly mistaken” standard is a deferential standard of review that appellate courts use when evaluating whether a sentence that a trial judge has imposed is excessive.79 The standard is founded on two concepts: that “reasonable judges, confronted with identical facts, can and will differ on what constitutes an appropriate sentence; [and] that society is willing to accept these sentencing discrepancies, so long as a judge‘s sentencing decision falls within a permissible range of reasonable sentences.”80
We agree with Frankson that the “clearly mistaken” standard may be helpful in that it reminds trial courts that the question is not necessarily what sentence the trial court would itself impose, but instead whether the sentence is within the permissible range of reasonable sentences that a trial court could impose. But we are hesitant to approve an appellate standard for use in the trial courts given the different functions of the courts. We are also not persuaded that the “clearly mistaken” standard is the best fit because it does not account for the other factors outside the Chaney criteria that can influence plea bargaining.
As the State points out, there are often a number of factors that can influence plea bargaining, many of which the trial court has only limited knowledge. These factors include, but are not limited to: (1) evidentiary and witness issues; (2) the victim‘s wishes; (3) resource limitations; and (4) relevant
should consider such additional factors, along with the Chaney sentencing criteria, when evaluating whether to accept or reject a sentencing agreement. We agree that courts should consider such additional factors when brought to their attention by the parties.82 Such an approach is consistent with the standard advocated by the American Bar Association: “As part of the plea process, appropriate consideration should be given to the views of the parties, the interests of the victims and the interest of the public in the effective administration of justice.”83
We emphasize, however, that the burden is on the parties to bring such considerations to the trial court‘s attention and to adequately explain the underlying reasons for a particular sentencing agreement, as appropriate.
Lastly, both parties argue that when a trial court rejects a sentencing agreement, it should put its reasons for doing so on the record. The majority of jurisdictions have adopted such a requirement, and we likewise adopt it here.84 As one
federal circuit court noted, “[R]equiring [trial] courts to articulate a sound reason for rejecting a plea is the surest way to foster the sound exercise of judicial discretion.”85 Such a requirement also facilitates any appellate review and provides important information to the parties who must decide how best to proceed if their sentencing agreement is rejected.86
Applying these principles to the current case
In the current case, the superior court rejected the sentencing agreement as too lenient. Given the record before us, we would affirm that decision as within the court‘s discretion.87 We nevertheless conclude that a remand for reconsideration of the parties’ sentencing agreement should occur. We reach this conclusion for two reasons.
First, neither the parties nor the superior court had the benefit of the guidance provided in this decision, and the record is consequently not as developed as
it could have
The second reason for the remand is more procedural. As previously explained, when a trial court rejects a sentencing agreement as too lenient,
Conclusion
For the reasons explained here, we VACATE the superior court‘s ruling and REMAND this case to the superior court for further proceedings consistent with this opinion.
ALLARD
CHIEF JUDGE
Notes
Alexiadis, 355 P.3d at 573 (citing Supreme Court Order No. 1194 (July 15, 1995) and quoting Memorandum to the Alaska Supreme Court from Court Rules Attorney Christine Johnson (Aug. 3, 1995)).[A] previous version of
Rule 11(e) granted courts the authority to reject charge agreements as well as sentencing agreements, but the rule was quickly amended to delete the reference to charge agreements. A memorandum written by the court rules attorney to the supreme court explained that the Criminal Rules Committee viewed this amendment as a “correction” — because under Alaska law, “a judge has no authority to disapprove a charge agreement.”