State v. Buckalew, 561 P.2d 289

State v. Buckalew

561 P.2d 289

Alaska

1977

Check Treatment

*1 Alaska, Petitioner, STATE

v. BUCKALEW, J.

The Honorable Seaborn Court,

Jr., Judge Superior and the Alaska,

Superior Court for the State of District, Respondents,

Third Judicial Schmid, Party Real

David James

in Interest. Alaska, Petitioner,

STATE SCHMID, Respondent. James

David

No. 3143.

Supreme of Alaska. Court

March Keenan, J. Lawner,

Michael Ivan Asst. Balfe, Attys., Joseph D. Dist. Dist. Atty., Anchorage, Gross, Avrum M. Atty. Gen., Juneau, petitioner. for Lindsley, G. Richard Anchorage, Schmid. spondent BOOCHEVER, J., Before C. and RABI- WITZ, CONNOR, BURKE, NO ERWIN and JJ.

BURKE, Justice.

OPINION Alaska, petitioner, seeks a writ of preventing the Honora- Buckalew, ble Seaborn J. Su- Court, perior from sentencing David James on a pending Schmid drug charge. In the petition event that the granted, the state assignment further seeks of another for an requiring and asks order that Schmid given to withdraw his charge. The state’s main contention is that Buckalew acted improperly by par negotiations ticipating leading to the en try of Schmid’s Since the significant question concerning raises proper judicial authority exercise of and the justice administration Alaska *2 that a year not Schmid was second review if considered law student might evade that prior record, to be with no time, Judge consider Bucka- this of review. he lew indicated defendant if method appropriate an 198, plea he changed probably expect his a 535 F.2d States v. United days of 90 maximum incarcera- 1976). (2d Cir. tion, so to be served as not to conflict 20,1976, arrest was Schmid February On classes, law school and that Schmid’s in Airport International Anchorage ed would consider a imposition deferred marijuana and a pounds 79of possession by sentence.2 Schmid was cautioned Subject to certain oil. hashish quantity Judge Buckalew favorable dis- to the instant applicable not exceptions dependent variety on a of fac- marijuana prohib is possession tors, if receiving and after presen- posses When such 17.12.010.1 by ited AS report any additional tence in- information sale, 17.12. purpose of AS for the is sion a more severe sentence was de- dicated is the offender 110(b)(1) provides manded, would advise he and Schmid felony, punishable the first “for guilty him an his afford withdraw not than offense, more by imprisonment plea. not than a fine of more by years, or Upon conclusion of 1976, the in-chambers con- April $20,000, by or both.” On ference, parties immediately removed jury returned an indict Anchorage grand to the courtroom themselves where possession Schmid ment Buckalew, court, open in restated his inten- purpose of sale. marijuana for regard advised and tions superior arraignment Following his rights the various he court, plea guilty. of not entered a Schmid up give by changing his 12,1976, changed Thereafter, October thereupon withdrew his not Schmid change plea guilty. The plea to a plea and entered plea immediately after an off occurred objected to the court’s involve- record, attended in-chambers conference court. open ment Buckalew, Schmid, Linds- Richard G. objectionable, Contending procedure this and Assistant Dis- attorney, ley, Schmid’s petitioned Alaska the State of this court for Michael J. Keenan. Attorney trict prohibition. a writ transcript aof verbatim The absence of the ability exactly gist state’s hampers argument to determine is out Judge Buckalew improperly cham- him place took Buckalew’s made what process However, following party commonly facts are known self bers. bargaining.” dispute: being “plea be serious after advised defense, mitigating fact including factors tween while a rec- certain provides: any plant; AS 17.12.010 part every of this com- , Except manufacture, mixture, provided chapter, salt, derivative, pound, as otherwise manufacture, person for a resin; is unlawful seeds, preparation plant, of this or or counterfeit, compound, possess, have under his 12.55.085(a)provides: 2. AS control, sell, administer, prescribe, dispense, barter, supply appears give, or distribute in man- If circumstances there ner, hallucinogenic depressant, mitigation punishment, or stimulant that the drug. served, may, justice will be ends of provides part: AS 17.12.150 discretion, suspend imposition in its chapter In this may suspension direct that the sentence and time, exceeding period for a continue hallucinogenic (3) ‘depressant, or stimulant term sentence which the maximum drug’ means: upon imposed, and the terms and condi- (A) cannabis determines, tions the court and shall probation, place person on under the parts (4) plant includes all ‘cannabis’ supervision probation offi- L., not; growing Sativa whether Cannabis during suspension. cer of the court plant; the resin extracted the seeds of accepted many practice ognized and The standard takes the position that States, contrary of the United parts judicial participation discussions is Department policies of the Alaska present undesirable. Compare Opinion Informal Law, Attorney as established Gen- No. ABA Professional Ethics Com- eral.3 ‘A mittee: should party arrangements advance for the determina- days On three after the October *3 sentence, tion of whether as a result aof change conference and described above guilty plea or a finding of guilty based on decision in v. we rendered out plea, 51 proof.’ A.B.A.J. (1965). 444 Carlson, (Alaska 1976). 555 P.2d 269 In case we held that the superior are a There number of valid reasons accept plea guilty a to a re- keeping judge the trial for out of plea objection discussions, duced over the state’s including the following: (1) charged where a murder judicial participation in the discussions sought plead the to to lesser included impression the can create mind manslaughter. applica- On the offense the defendant that he would not receive a state, we a prohi- issued writ of go were to to fair trial he trial before this ordering the to superior court not bition (2) judicial judge; participation in the accept plea. Our the decision was based discussions makes difficult for the part judge on the fact the trial objectively to judge determine the volun- engaged plea bargaining. We said: offered; plea tariness the when it is

We are a judge’s (3) judicial also concerned that participation to the extent of plea negotiator involvement aas would a certain promising sentence is inconsist- judge’s detract from the neutrality, and ent theory with the behind use the present danger would a of unintentional investigation presentence (4)' report; and coercion of only defendants who could going along the risk with the dis- view with concern the participa- position apparently desired by the agent tion as a state in the negotiating great to seem the defendant process, (citation omitted)4 he will be induced to guilty even if innocent, (citation omitted)5 The American Bar Association Standards Relating Guilty 3.3(a), to Pleas of pro- § persuaded reasoning Such the United vides: Appeals, Circuit, Court of to States Second Responsibilities judge. of the trial requiring issue a writ a mandamus feder- (a) partici- The trial should not al district court to refrain from com- pate plea discussions. municating, directly indirectly, to a crim- commentary defendant, prior the to inal to entry plea that section we find following language: guilty, sentence that he would im- pose plea subsequently if such a

Although sub- it is no prevail- means the ing mitted. In that United v. practice, it States uncommon for trial judges participate (2d F.2d 198 plea Cir. discussions promise and to or predict express certain rested its pro- conces- cohrt decision on an sions in the event pleads the defendant in Rule 11(e), Fed.R.Crim.P., vision found . . . judicial participation plea prohibiting (Alas 3.State P.2d but, n.4 parties, instead, reached involves a k (concurring 1976) opinion): directly engaged where the court situation has August Attorney Since of 1975 the General leading discussions the defense policy purports, has instituted a entry of a outlines, general prohibit prosecu- all state 4. 555 P.2d at 272. also, tors from sentence part, charge bargaining. the most Guilty Relating ABA Standards to Pleas important It is to note that in this issue Commentary 3.3(a), propriety 72-73 § case is not the trial court approving disapproving agreement Rather, ter. even in the he seems to clear that becomes or be- but made bargaining, advocate for would come an provision result resolution of such absence suggested same, to the saying: has defendant.8 been have the mandate of Rule from apart Even agree. supervisory duty exercise a our foregoing per considerations of criminal the administration power over to now grant us suade enjoin impels this circuit us

justice in that henceforth judges hold Alaska’s Ev- communication. premature totally barred engaging shall regarding proper ery consideration charge or bargaining.9 either disposition of criminal cases just Accordingly, prohi direct that writ of judge’s] intended teaches [trial enjoining the issue Honorable Sea- bition to counsel for communication [defendant] passing J. Buckalew from sentence on born event proposed below. The the defendant case is remanded pretrial stage guilty plea superior court instructions to *4 premature interference constitute presiding judge immediately assign the of case which the the normal judge. to another The the matter the would render probability in fair all defendant, any. further prior proceedings charges expeditious court, given shall -be superior an in the uncertain.6 more difficult and his plea to withdraw Carlson, supra, posi- took similar we In By holding any we do not intend our tion, noting express after the absence of his criticism Buckalew or actions in own our rules criminal in to our decision Carl- this case.10 Prior in saying: procedure, son, was the nothing pub- there in. supra, only the substantial recognize We that any of this court or of our opinions lished between Alaska difference Criminal Rule suggest procedure rules of rule 11(e)(1) and the Federal criminal by judge a trial would be conduct federal the same number is the rule noted, already As improper. our considered against explicit prohibition contains the was rendered until in Carlson decision judicial participation in while giving after the events rise to days three policies rule not. the Alaska does The instant case. persuade have discussed us that dif- acting was Buckalew confident be dispositive.7 should not ference genuine good faith and with entirely just expeditious resolu- concern court, supra, also ex- tion criminal cases. pressed public concern for interest involved, saying: compelled to discuss one further areWe opinion,

Rule 11 the Federal As noted earlier Rules of Crimi- issue. [of implicitly recognizes nal conference Buckalew’s chambers Procedure] participation plea bargaining proc- electronically in the was not recorded. ab- image problems depreciates presents grave ess of the trial of a sence record necessary necessary, in this public is becomes as did confi- when it case, objective that oc- impartial ad- to reconstruct the events dence justice. of criminal curred in the court below. We ministration As therefore participation, his is no to call to.the atten- opportúnity result of take this following or a neutral and bar longer a officer arbi- the trial bench Boochever, joined by 6. 535 F.2d at 203. in his con- Chief Justice opinion curring 555 P.2d at in that 274. 7. 555 P.2d at 272 n.5. way decision be 10.Nor should our con- 8. 535 F.2d commenting appropriateness as strued majority supported the trial court 9. This the sentence indicated Carlson, opinion impose. State v. 555 P.2d 272 and Rabinowitz, urged specifically Justice Carlson, Governing the Alaska Rules provisions (Alaska P.2d 269 of All requires Administration Courts. us to its holding extend significantly different facts of this case. provides: Rule practicable, judicial busi- So far as all the proposed disposition was involving the trial of ness causes and of two-party the result negotiations be- of the Bar or conferences members tween defendant and the trial judge, litigants open shall be transacted prosecutor after the accept refused to court, added) (emphasis the defendant’s offer. The proposed dispo- sition included a of guilty to a lesser 47(a) provides: Rule included in offense the one prose- which the recording equipment Electronic shall be charged. cutor had all the purpose installed in courts for recording proceedings required by all rule bargain We held that form impermissi- law recorded. First, Such electronic ble for two reasons. shall recordings constitute the official duction without the consent court record. It shall be the responsibili- constituted an invasion of ty magistrate require each prosecutorial function de- fendants, recording equipment the electronic and hence a violation of the con- operated only by qualified principle separation stitutional pow- in such manner personnel and under such Second, ers. 555 P.2d at 271-72 and n.3. production to insure the of a conditions we were concerned possible unintend- n all proceedings. readable record of ed coercion defendant when the *5 try who will him if he not plead does recognize is a practice common essentially acts surrogate of trial courts to conduct informal con- in the in the bargaining process. long parties ferences in chambers. So as all Id. at 272. adequately in attendance represent- are ed, improper parte as to avoid ex commu- The circumstances of instant case are nications, nothing wrong there is with this significantly “plea different.1 No bargain- has practice. advantage It of allowing ing” usual sense term took many of surrounding the routine matters place, prosecu- with either the or the disposed ease be to in a quickly go tor. The defendant did not to the setting, promotes relaxed the efficient prosecutor with an offer which the leaving use court facilities courtrooms Instead, accept. to refused Bucka- ongoing pro- available for trials and other type lew informed the defendant of the ceedings where formality more is required. expect if he decided to Nevertheless, in most cases a record should plead charged offense, to the contin- made of such conferences. presentence gent upon report re- vealing additional information

REMANDED FOR FURTHER adverse PRO- the defendant. CEEDINGS CONSISTENT WITH THIS OPINION. participation way in no judicial This con- function. I view as cerned

CONNOR, Justice, dissenting. function of an exercise dis- respectfully I dissent. I do separation not believe of cases.2 posing pow- Hence the rationale of our recent support decision in ers do not considerations decision my colleagues’ prosecutor pending I concur comments con- to dismiss criminal cases. cerning practice holding hearings light support off the Read in of the authorities cited to it, support record. it does not extension holding, which Carlson relied Public Defend- er, the instant case. Agency 2. The dictum Public Defender v. Su- Court, (Alaska perior said, 534 P.2d Carlson itself disposition may “[A]lthough judicially is an cases executive the court deter- refers, most, function discretion based mine on the im- judge’s Bargaining, conduct here was in Pres. Comm. on that the trial Law Justice, & the proper. Enforcement Adm. Task The Report: Courts Force that the other basis do I believe Nor 110-12, 117-18Note, (1967); Restructuring the Plea decision, the fear of unintended the Carlson (1972). 82 Yale L.J. 286 Bargain, de defendant, supports judicial coercion more, much, feel as fendant coer in this case. the state’s during bargaining cion reason give the defendant Buckalew did judge. Note, as from supra, 82 Yale L.J. pros- surrogate he was the to believe Note, 305. See also The Unconstitu participate give-and- ecution. He did tionality of Plea Bargaining, 83 Harv.L. negotiating. take 1387, 1393 (1970). Rev. indication If Buckalew’s anything, of his judges tentative the defendant should agree I not en- the defendant and type enabled conduct we decision held gage improp- to make better-informed decision counsel but disagree with er in the conclu- plead guilty. One of the on whether that the trial sion conduct in this adopted by rule consequences prohibited. should be case Accordingly, I “paradoxically, deny the de- majority deny the writ and other relief important relevant informa- fendant by the state. quested might helpful choosing tion which a rule enforces the defendant’s Such plead right . in the dark.” Com-

ment, Guilty, Inducements to Plead Official

32 U.Chi.L.Rev. sentencing proclivities of tri general often well judges

al known to criminal No attorneys. suggests one

defense not or attorneys do should not use this minor, H., In the Matter D. advising information in their clients wheth Appellant, People Earegood, er to *6 Mich.App. N.W.2d Here, gave the Buckalew Alaska, Appellee. STATE and his counsel the benefit of his No. 2837. sentencing applied attitudes as to the cir of this cumstances defendant and Supreme Court Alaska. view, my crime. In has more in com March 1977. attorneys’ generalized knowledge mon with judges’ standards than with negotiated which we held improper in Carlson case. D. New See

man, Conviction: Determination of

Guilt or Innocence Without Trial 92-94 Note, Guilty

(1966); Bargaining, 865, 893 (1964).

U.Pa.L.Rev.

I doubts have serious whether it is a wise

response the much-maligned practice occur, required

“plea bargaining” that it all, away from ongoing

if scruti Enker,

ny. generally Perspectives on evidence, willingness sentencing power, law based on defendant’s guilty effect, not, usurp the executive func- to a lesser P.2d at offense.” 555 271- choosing initiate