State v. Carlson

555 P.2d 269, 1976 Alas. LEXIS 409

• Court: Alaska Supreme Court
• Decided: October 15, 1976
• Docket: 2986
• Status: Published

Opinions

OPINION

CONNOR, Justice.

In this case the Superior Court has announced its intention to accept a guilty plea to the crime of manslaughter from defendant Vail in lieu of trying him for either first or second degree murder. The district attorney does not concur in this reduction of charge, and has applied to this court for a writ of prohibition on the ground that the trial judge has exceeded his authority.

Counsel for Vail and his co-defendant engaged in negotiations with the prosecutor pursuant to Criminal Rule 11(e). The prosecutor was willing to accept guilty pleas to manslaughter from both defendants, but not from only one, feeling that his chances of obtaining a conviction of Taylor, the co-defendant, would be substantially better in a joint trial than if Taylor were tried alone. The court, on the other hand, was willing to accept a manslaughter plea from Vail even though Taylor was not also pleading guilty. This the prosecutor was unwilling to accept.

Judge Carlson cited a number of reasons for accepting a manslaughter plea: the possibility that Vail was suffering from diminished capacity; Vail’s youth (age 20) ; complicated issues regarding bifurcation of trial, severance of defendants, and eviden-tiary problems under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L. Ed.2d 476 (1968), which would arise in a joint trial but would be mooted if either or both defendants pleaded guilty; saving the cost of a trial; avoiding the possibility that Vail might be acquitted; and his belief that the sentence for manslaughter would be sufficient to punish Vail.

Vail argues that Alaska Criminal Rule 43(c), which permits a court to dismiss a prosecution “in furtherance of justice,” vests the traditional nolle prosequi power jointly in the court and the prosecution.¹ See People v. Superior Court of Marin County, 69 Cal.2d 491, 72 Cal.Rptr. 330, 446 P.2d 138, 146 (1968). Since the nature of the nolle prosequi power is traditionally to dismiss a prosecution in whole or in part, People v. Sidener, 58 Cal.2d 645, 25 Cal.Rptr. 697, 375 P.2d 641, 643 (1962) (Traynor, J.), appeal dismissed and cert, denied, 374 U.S. 494, 83 S.Ct. 1912, 10 L. Ed.2d 1048 (1963), overruled on other grounds in People v. Tenorio, 3 Cal.3d 89, 89 Cal.Rptr. 249, 473 P.2d 993 (1970), the court also has the power to dismiss or strike out a part. People v. Burke, 47 Cal.2d 45, 301 P.2d 241, 244 (1956). Since manslaughter is a lesser offense included in a charge of murder, Vail reasons that the court may reduce the charge by “striking out a part” of the charge. He further reasons that the Alaska Constitution contains, implied in its terms, the doctrine of separation of powers. Public Defender Agency v. Superior Court, 534 P.2d 947, 950 (Alaska 1975). This principle, he argues, prevents the exercise of the nolle prosequi power from being conditional on the approval of another branch. Esteybar v. Municipal Court, 5 Cal.3d 119, 95 Cal. Rptr. 524, 485 P.2d 1140 (1971); People v. Tenorio, 3 Cal.3d 89, 89 Cal.Rptr. 249, 473 P.2d 993, 996 (1970); see generally O’Donoghue v. United States, 289 U.S. 516, 530, 53 S.Ct. 740, 77 L.Ed. 1356 (1932).

Vail’s reliance on California precedent is misplaced. The “part” of a charge referred to in Burke and Sidener was an allegation that the defendant was a prior offender, which under the statutes subjected him to increased punishment. Dismissal was sought either because the prior conviction had not been sufficiently proven or because the facts showed that “in the interest of justice” the defendant should not suffer the increased penalty which the repeat-offender provisions would warrant. People v. Burke, supra. Neither case, and apparently no other California case, speaks to a lesser included offense. The facts of this case have not yet been presented at trial; nor do we perceive, from the statement of the facts by the district attorney, that this would be a case of the nature envisioned by the Burke and Si-dener courts.

Further, the California Supreme Court has explicitly held that, except in unusual circumstances, the trial judge may not use his nolle prosequi powers to engage in plea, charge, or sentence bargaining without the participation of the prosecution. If the “bargain” is in fact opposed by the state, there cannot be said to have been a real plea bargain, and such use of the court’s power has been held an abuse of discretion since it is not “in furtherance of justice” under the language of California Penal Code § 1385, which is similar to Alaska Rule 43(c). People v. Orin, 13 Cal.3d 937, 120 Cal.Rptr. 65, 533 P.2d 193, 197, 201 (1975) (alternative holding).² Vail’s constitutional argument, including his reliance on Tenorio and Esteybar, has also been considered and rejected by the California courts. People v. Smith, 53 Cal. App.3d 655, 126 Cal.Rptr. 195, 197-98 (1975).³ While the reduced charge in Smith was a related but not a lesser included offense as it is in the case at bar, the policy considerations of the Smith court are persuasive. It reasoned that the executive branch and the grand jury have exclusive authority for charging a criminal defendant. The court then concluded that the trial court could not charge a non-included offense. 126 Cal.Rptr. at 198. We must go further, and hold that although the court may judicially determine the disposition of a charge based on the evidence, the law and its sentencing power, it may not, in effect, usurp the executive function of choosing which charge to initiate based on defendant’s willingness to plead guilty to a lesser offense. In Public Defender Agency v. Superior Court, 534 P.2d 947, 950-51 (Alaska 1975), we set aside a trial court order directing the Attorney General to prosecute a case. Such an order, we held, violated the separation of powers because the decision whether to prosecute a case was committed to the discretion of the executive branch, and therefore was not subject to judicial control or review. Here the trial judge, with the defendant’s agreement, was in effect ordering the district attorney not to prosecute the murder charge against Vail.

We are also concerned that a judge’s involvement as 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. See People v. Smith, supra 53 Cal.App.3d 655, 126 Cal.Rptr. at 197.⁴ In connection with these policies, we note that Fed.R.Crim.P. 11(e)(1) now prohibits a trial judge from participating in plea negotiation discussions.⁵

Even though Judge Carlson has not yet issued an order reducing the charge in this case, we note that he fully stated his reasons as required for such an order by Criminal Rule 43(c). We therefore see no reason, given the seriousness of the legal issue involved, to postpone exercise of our supervisory power. The writ of prohibition shall issue. AS 22.05.010(a); Alaska App.R. 25(a).

RABINOWITZ, Justice, with whom

1 . Alaska Criminal Rulé 43(c) provides:

“(c) In Furtherance of Justice. The court may, either on its own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action, after indictment or waiver of indictment, to be dismissed. The reasons for the dismissal must be set forth in the order.”

2 . Orin recognized that the .trial court may, in the exercise of its sentencing discretion, have occasion to dismiss charges in furtherance of justice. It also left open the possibility of the court using the dismissal power without the participation or consent of the prosecution if the prosecution has a “rigid” and “obstructionist” position opposed to all bargaining in all cases. 533 P.2d at 201-02.

3 . The California cases addressed in Smith, including Tenorio and Esteybar, struck down a number of California statutes which conditioned various sentencing alternatives on the consent of the prosecutor. The statutes were held to violate the separation of powers,

since they shared with the executive branch the judicial function of disposing of cases. As People v. Smith, points out, none of these cases dealt with the charging function, which is “the heart of the prosecution ■ function.” 126 Cal.Rptr. at 197-98, quoting ABA Criminal Justice Standards, The Prosecution Function, § 3.9(a) Commentary (1971). Nor did any of them deal with plea — or charge— bargaining simplioiter, as the instant case does.

For the same reasons, our decision today does not call into question the constitutionality of Rule 43(c) in any context other than this one. By its terms, the rule deals with the judicial function of disposition.

4 . The Smith and Orin courts relied in part on a series of guilty plea statutes, Cal.Penal Code §§ 1192.1 et seq. Even absent these express statutory considerations, we are persuaded by the policies enunciated in arriving at their decisions.

5 . We recognize that the only substantial difference between Alaska Criminal Rule 11(e) (1) and the Federal criminal rule of the same number is that the federal rule contains the explicit prohibition against judicial participation in bargaining while the Alaska rule does not. The policies we have discussed persuade us that this difference should not be dispositive.

Federal Rule 11(e)(1) and its underlying policies are discussed in XJnited States v.

Werlcer, 535 F.2d 198 (2d Cir. 1976). See also the comment to the rule, reprinted in 8 Moore’s Federal Practice ¶ 11.01 [4], at 11-14 to 11-15 (2d ed., rev. 1975). In accord with the federal rule are the ABA Criminal Justice Standards, Pleas of Guilty, § 3.8(a) (Approved Draft, 1968), and Uniform Rule of Criminal Procedure 441 (1974).