State v. Buckalew

561 P.2d 289, 1977 Alas. LEXIS 469
CourtAlaska Supreme Court
DecidedMarch 14, 1977
Docket3143
StatusPublished
Cited by28 cases

This text of 561 P.2d 289 (State v. Buckalew) is published on Counsel Stack Legal Research, covering Alaska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Buckalew, 561 P.2d 289, 1977 Alas. LEXIS 469 (Ala. 1977).

Opinions

BURKE, Justice.

OPINION

The State of Alaska, petitioner, seeks a writ of prohibition preventing the Honorable Seaborn J. Buckalew, Judge of the Superior Court, from sentencing David James Schmid on a pending drug charge. In the event that the petition is granted, the state further seeks assignment of another judge and asks for an order requiring that Schmid be given an opportunity to withdraw his plea of guilty to the charge.

The state’s main contention is that Judge Buckalew acted improperly by participating in negotiations leading to the entry of Schmid’s plea. Since the petition raises a significant question concerning the proper exercise of judicial authority and the administration of criminal justice in Alaska [290]*290that might evade review if not considered at this time, we consider prohibition to be an appropriate method of review. See United States v. Werker, 535 F.2d 198, 200 (2d Cir. 1976).

On February 20,1976, Schmid was arrested at Anchorage International Airport in possession of 79 pounds of marijuana and a quantity of hashish oil. Subject to certain exceptions not applicable to the instant case, the possession of marijuana is prohibited by AS 17.12.010.1 When such possession is for the purpose of sale, AS 17.12.110(b)(1) provides that the offender is guilty of a felony, punishable “for the first offense, by imprisonment for not more than 25 years, or by a fine of not more than $20,000, or by both.” On April 5, 1976, an Anchorage grand jury returned an indictment charging Schmid with possession of marijuana for the purpose of sale.

Following his arraignment in superior court, Schmid entered a plea of not guilty. Thereafter, on October 12,1976, he changed his plea to guilty. The change of plea occurred immediately after an off the record, in-chambers conference attended by Judge Buckalew, Schmid, Richard G. Linds-ley, Schmid’s attorney, and Assistant District Attorney Michael J. Keenan.

The absence of a verbatim transcript hampers out ability to determine exactly what took place in Judge Buckalew’s chambers. However, the following facts are not in serious dispute: after being advised of certain mitigating factors including the fact that Schmid was a second year law student with no prior criminal record, Judge Bucka-lew indicated to the defendant that if he changed his plea he could probably expect a maximum sentence of 90 days incarceration, to be served so as not to conflict with Schmid’s law school classes, and that the judge would consider a deferred imposition of sentence.2 Schmid was cautioned by Judge Buckalew that such a favorable disposition was dependent on a variety of factors, and that if after receiving a presen-tence report any additional information indicated a more severe sentence was demanded, he would so advise Schmid and afford him an opportunity to withdraw his guilty plea.

Upon conclusion of the in-chambers conference, the parties immediately removed themselves to the courtroom where Judge Buckalew, in open court, restated his intentions with regard to sentencing and advised the defendant of the various rights he would give up by changing his plea. Schmid thereupon withdrew his not guilty plea and entered a plea of guilty. The prosecutor objected to the court’s involvement in open court.

Contending this procedure objectionable, the State of Alaska petitioned this court for a writ of prohibition.

The gist of the state’s argument is that Judge Buckalew improperly made himself a party to the process commonly known as “plea bargaining.” Plea bargaining between prosecution and defense, while a rec[291]*291ognized and accepted practice in many parts of the United States, is contrary to present policies of the Alaska Department of Law, as established by the Attorney General.3

On October 15, 1976, three days after the above described conference and change of plea, we rendered out decision in State v. Carlson, 555 P.2d 269 (Alaska 1976). In that case we held that the superior court could not accept a plea of guilty to a reduced charge over the state’s objection where a defendant charged with murder sought to plead guilty to the lesser included offense of manslaughter. On the application of the state, we issued a writ of prohibition ordering the superior court not to accept the plea. Our decision was based in part on the fact that the trial judge had engaged in plea bargaining. We said:

We are also concerned that a judge’s involvement as a plea negotiator would detract from the judge’s neutrality, and would present a danger of unintentional coercion of defendants who could only view with concern the judge’s participation as a state agent in the negotiating process, (citation omitted)4

The American Bar Association Standards Relating to Pleas of Guilty § 3.3(a), provides:

Responsibilities of the trial judge.
(a) The trial judge should not participate in plea discussions.

In the commentary to that section we find the following language:

Although it is by no means the prevailing practice, it is not uncommon for trial judges to participate in plea discussions and to promise or predict certain concessions in the event the defendant pleads guilty. . . .
The standard takes the position that judicial participation in plea discussions is undesirable. Compare Informal Opinion No. 779, ABA Professional Ethics Committee: ‘A judge should not be a party to advance arrangements for the determination of sentence, whether as a result of a guilty plea or a finding of guilty based on proof.’ 51 A.B.A.J. 444 (1965).
There are a number of valid reasons for keeping the trial judge out of plea discussions, including the following: (1) judicial participation in the discussions can create the impression in the mind of the defendant that he would not receive a fair trial were he to go to trial before this judge; (2) judicial participation in the discussions makes it difficult for the judge objectively to determine the volun-tariness of the plea when it is offered; (3) judicial participation to the extent of promising a certain sentence is inconsistent with the theory behind the use of the presentence investigation report; and (4)' the risk of not going along with the disposition apparently desired by the judge may seem so great to the defendant that he will be induced to plead guilty even if innocent, (citation omitted)5

Such reasoning persuaded the United States Court of Appeals, Second Circuit, to issue a writ of mandamus requiring a federal district court judge to refrain from communicating, directly or indirectly, to a criminal defendant, prior to the entry of a plea of guilty, the sentence that he would impose if such a plea was subsequently submitted. In that case, United States v. Werker, 535 F.2d 198 (2d Cir. 1976), the cohrt rested its decision on an express provision found in Rule 11(e), Fed.R.Crim.P., prohibiting judicial participation in plea [292]

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Bluebook (online)
561 P.2d 289, 1977 Alas. LEXIS 469, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-buckalew-alaska-1977.