Love v. State

OPINION

On February 2, 2002, while he was on parole release from a prior felony, Chester L. Love was arrested for possession of heroin (fourth-degree controlled substance misconduct). Because Love's possession of the heroin was also a violation of his parole, he was taken into custody both for the new crime and for the parole violation.

Based on Love's possession of the heroin, the Alaska Parole Board revoked his parole, and Love served approximately another two years in prison. The new criminal charge (possession of heroin) was still pending trial.

In March 2004, Love completed serving his time on the parole revocation and was released on bail for the heroin possession charge. But while he was on bail release, Love was charged with an assault and returned to custody.

In December 2004, while Love was still in custody (awaiting trial on both the heroin possession charge and the assault charge), Love reached a plea agreement with the State. Under this plea bargain, Love agreed to plead guilty to the heroin possession charge, and it was further agreed that Love would serve a 2-year term of imprisonment on this charge. The agreement provided that Love would "receive eredit for all time served under this case."

At Love's sentencing hearing, his defense attorney asked Superior Court Judge Pro Tem Sigurd E. Murphy to include language in the judgment that indicated Love was to receive credit for time served. The attorney told the court that he was requesting the addition of this language to the judgment because he and his client believed that Love had "already done his time."

One week later, Love moved to withdraw his plea. In support of this motion, Love told the superior court that he had not received the benefit of his bargain-because the Department of Corrections had told Love that he was not going to receive eredit against his heroin possession sentence for the two years that he had earlier spent in custody on his parole revocation.

Superior Court Judge Larry D. Card conducted an evidentiary hearing on Love's motion to withdraw his plea. Love's attorney testified at this hearing. According to the attorney, Love agreed to the 2-year sentence on the heroin possession charge only because Love believed that he would be credited for the two years that he had already spent in prison on the parole revocation. Love assumed that, because he had been taken into custody on both the parole violation and the new heroin possession charge, the two years that he served in prison between February 2002 and March 2004 would be credited against both the parole revocation and the new heroin possession charge (in the event that Love was convicted of that charge).

*435The attorney acknowledged that he had questioned Love's interpretation of his legal situation. In particular, the attorney testified that he had spoken to Love about former AS 12.55.025(e), a statute that has been repealed,1 but previously provided that "if [al defendant has been convicted of two or more crimes, sentences of imprisonment shall run consecutively." The attorney testified that he told Love "that the sentences may be consecutive," but that Love was convinced "and, as it turns out, right that ... they could [be] concurrent." According to the attorney, Love was convinced (based on his prior experience in these matters) that the Department of Corrections would give him double credit for these two years-and, thus, the 2-year sentence for heroin possession would essentially be served as soon as it was pronounced.

The defense attorney and Love decided to ask the superior court to put language in the judgment that Love was entitled to credit for all time served under this case-and then they would leave the actual calculation of Love's sentence to the Department of Corrections. The defense attorney stated that Love "was convinced, and again rightfully so, that he was going to get credit for time served and [that hel had done all his time and would be out shortly. That's the only reason he took the deal."

Love himself also testified at the hearing. According to Love, he told his attorney that he would be willing to accept a plea bargain only if he received credit against his sentence for all the time that he had previously served in prison after he was arrested in February 2002. That is, Love would accept a plea agreement only if it would make him eligible for immediate release.

Love conceded that his attorney had shown him AS 12.55.025(e). But they also discussed other statutes that they thought supported Love's position. Love stated that, based on his experience, the Department of Corrections would allow the sentence on the heroin possession charge to run concurrently with the remainder of his prior felony sentence that he was forced to serve because of the parole revocation. In other words, Love was convinced that he would receive a two-year credit against both sentences for the time he spent in prison between February 2002 and March 2004.

Having heard this testimony, Judge Card denied Love's motion to withdraw his plea. Judge Card found that Love had indeed thought he would be given double credit for the time he served in prison following his parole revocation. However, Judge Card further found that Love's belief was mistaken, and that neither Love's defense attorney nor the prosecuting attorney had told Love anything to foster or confirm this belief. Judge Card further found that the parties had negotiated in good faith, that they fully intended to enter a legal agreement, and that Love should not have been surprised when the Department of Corrections refused to give him double credit for the two years. Love now appeals the superior court's decision.

Why we conclude that Love is entitled to withdraw his plea

Under Alaska law, it is clear that Love could not receive double credit for the two years he spent in prison following his parole revocation. These two years had already been credited against the remainder of Love's sentence on his prior felony-the sentence he was forced to serve after his parole from that prior felony was revoked. After receiving that credit, Love could not receive another two-year credit against his new sentence for heroin possession.

We explained the law on this point twelve years ago in Smith v. State, 892 P.2d 202 (Alaska App.1995):

Smith's present appeal concerns the calculation of [his] sentence. At the time he was sentenced, Smith had spent 266 days in jail. [The sentencing judge] declared that Smith should receive credit against his sentence for these 266 days. The State objected, pointing out that Smith had not been arrested for his present offenses, but rather for violating his parole from [al] prior felony. The State argued that, since *436Smith was going to be credited with these 266 days in his prior felony, he should not receive another 266-day credit in his present case. [The sentencing judge] disagreed, ruling that Smith should receive the 266-day credit in both cases.

This ruling was incorrect. By law, Smith's sentence in the present case had to run consecutively to his sentence from his previous felony. AS 12.55.025(e), Jennings v. State, 713 P.2d 1222 (Alaska App.1986). This being so, Smith's 266 days in jail could be applied against only one of these sentences. Endell v. Johnson, 738 P.2d 769 (Alaska App.1987).

Smith, 892 P.2d at 203.

It is uncontested that Love's mistaken belief that he would receive double credit for the two years he served in jail between February 2002 and March 2004 was a critical factor in Love's decision to accept the plea bargain offered by the State. Love accepted the proposed 2-year sentence for heroin possession because he believed that, with the double credit, he would be released from jail immediately after the sentence was imposed. And as soon as Love discovered that the Department of Corrections disagreed with his interpretation of the law, he promptly moved to withdraw his plea.

The defense attorney warned Love that his interpretation of sentencing law might be wrong. The record reflects that Love's attorney talked to him about former AS 12.55.025(e), the statute that required Love to serve the heroin possession sentence consecutively to the remainder of his sentence from his previous felony.

But it seems to us that the crucial fact here is that Love's attorney did not flatly tell Love that his understanding of the law was wrong. Rather, the defense attorney left open the possibility that Love's understanding of the law might be correct. Moreover, the attorney encouraged Love to think that it might make a difference if the judgment included wording that Love "shall receive credit for all time served under this case." Indeed, the defense attorney stated at the sentencing hearing, "[Wle think that [Love has] already done his time."

Judge Card appears to have believed the testimony given by Love and his attorney on these matters. Nevertheless, Judge Card denied Love's motion to withdraw his plea on the theory that it was sufficient for the defense attorney to inform Love of the risk that the Department of Corrections might disagree with Love's interpretation of the law-the risk that the Department would not give Love the double credit he expected.

We disagree. We issued our decision in Smith long before the plea negotiations in this case. Thus, when Love and his attorney were discussing the proposed plea agreement, Alaska law was already absolutely clear that Love could not receive double credit for the two years of imprisonment. These two years had already been credited against the remainder of Love's sentence from his prior felony-the remainder that Love was forced to serve after his parole was revoked. Alaska law flatly stated that these same two years could not additionally count against the new sentence that Love was about to receive on the heroin possession charge.

Love was entitled to competent legal advice when he assessed the proposed plea agreement and decided whether to accept it. The record demonstrates that he did not receive competent advice. The defense attorney did not tell Love that his understanding of Alaska sentencing law was wrong, and that Love would have to serve another two years in prison if he accepted the proposed plea agreement. Instead, the attorney told Love that his understanding of the law might be correct, and that Love would be in a better position if they asked the sentencing judge to insert language about "credit for time served" in the judgment.

The record shows that the defense attorney had questions on this point. But if the attorney performed legal research to resolve his questions, he failed to find our decision in Smith. (We note that the Smith decision is listed in the annotations to AS 12.55.025 in the 2004 edition of the Alaska Statutes, Titles 10 to 12, page 622.2 Nor is there any *437indication that the defense attorney contacted the Department of Corrections to obtain their view on how Love's sentence would be calculated.

Because Love did not receive competent legal advice on this issue, and because this issue was crucial to Love's decision to accept the plea bargain, we conclude that Love is entitled to withdraw his plea. Alaska Criminal Rule 11(h)(8) declares that, even after sentencing, defendants are entitled to withdraw their plea if they "prove that withdrawal is necessary to correct a manifest injustice"-a term that is defined to include ineffective assistance of counsel.3

The decision of the superior court is REVERSED. Love must be allowed to withdraw his plea.