The text of this opinion can be corrected before the opinion is published in the
Following an investigation by the State of Alaska's Medicaid Fraud Control Unit, psychiatrist Shubhranjan Ghosh was indicted for 18 crimes: one count of medical assistance fraud, one count of scheme to defraud, one count of tampering with physical evidence, and 15 counts of controlled substance misconduct (writing drug prescriptions that were not medically justified).
Several months later, the State and Ghosh reached a plea agreement to resolve the case. Under this agreement, Ghosh would plead guilty to two charges (the medical assistance fraud count
Because Ghosh's act of fraud involved unlawful gain of $25,000 or more, his crime was a class B felony.
As part of his plea bargain, Ghosh stipulated that his criminal conduct was aggravated under AS 12.55.155(c)(16) — i.e., that his conduct was designed to obtain substantial pecuniary gain, and that the risk of prosecution and punishment for this conduct was slight. The existence of this aggravator gave the superior court the authority to sentence Ghosh to any term of imprisonment up to the 10-year maximum sentence for class B felonies.
One of the clauses of Ghosh's plea agreement was designed to restrict the superior court's sentencing authority within this 9-year range. The present appeal arises because the prosecutor and the defense attorney apparently had differing understandings of this clause of the plea agreement. Here is the pertinent clause of the agreement, with the contested wording in italics:
The prosecuting attorney stated that he understood the term "jail range" to mean Ghosh's active term of imprisonment — i.e., Ghosh's time to serve, apart from any suspended term of imprisonment. Thus, under the prosecutor's understanding of the agreement, Ghosh could receive as much as 3½ years to serve, plus additional suspended time — up to a total of 10 years.
The defense attorney, on the other hand, told the court that he understood the term "jail range" to mean Ghosh's total term of imprisonment — the combination of Ghosh's active term of imprisonment and any suspended term of imprisonment. According to the defense attorney, he thought that Ghosh's time to serve and his suspended jail time, taken together, could total no more than 3½ years.
Because of a series of procedural irregularities, this discrepancy in the two attorneys' interpretations of the plea agreement was not revealed until after the superior court sentenced Ghosh to a term of 7 years with 3½ years suspended — a sentence that would be proper under the prosecutor's interpretation of the agreement, but improper under the defense attorney's interpretation.
The question is what to do about this problem now.
A more detailed description of the proceedings in the superior court
On December 1, 2014, the parties assembled in court to sign the written plea agreement, and to have Ghosh formally offer his guilty pleas to the two counts specified in the agreement (medical assistance fraud and evidence tampering). Ghosh's case was assigned to Superior Court Judge Philip R. Volland, but Judge Volland was apparently unavailable to handle this change-of-plea hearing, so Judge Michael R. Spaan took Ghosh's pleas.
At this December 1st hearing, Judge Spaan accepted Ghosh's guilty pleas — that is, he ostensibly found that Ghosh's pleas were knowing and voluntary — but Judge Spaan failed to meaningfully question Ghosh about his understanding of the plea agreement before he accepted Ghosh's pleas.
The judge merely asked if Ghosh understood that he was entitled to persist in his pleas of "not guilty", and if Ghosh understood that he was giving up his right to a jury trial and "the [other] constitutional rights that [he had]." The judge never asked Ghosh if he understood what sentencing range his plea agreement called for. Nor did the judge ask the attorneys to clarify what the plea agreement meant when it stated that Ghosh's "jail range" would be from "1 year ... to a maximum of 3.5 years".
In addition, Judge Spaan did not make any decision as to whether the terms of the plea agreement were acceptable to the court. Under Alaska Criminal Rule 11(e), a court is required to affirmatively accept or reject a plea agreement, either at the time the terms of the agreement are disclosed to the court or later, after the court has read the pre-sentence report — but in any event, before the court sentences the defendant.
In Ghosh's case, Judge Spaan ordered a full pre-sentence report, and he expressly deferred any decision on whether to accept the plea agreement — apparently believing that it was better to have Judge Volland make this decision.
Ghosh's sentencing in front of Judge Volland did not take place until almost eight months later, on July 29, 2015.
In the State's pre-sentencing memorandum, the prosecutor asked the court to sentence Ghosh to 10 years' imprisonment with 6½ years suspended — in other words, 3½ years to serve plus a substantial amount of suspended jail time. Ghosh's attorney filed a responsive sentencing memorandum one week later, but the defense attorney never objected to the prosecutor's proposed sentence as being outside the sentencing range permitted by the plea agreement.
Similarly, during the sentencing hearing itself, the prosecutor explicitly asked Judge Volland to impose a sentence of 3½ years to serve plus suspended time. Ghosh's attorney did not object.
After the prosecutor finished his sentencing remarks, the defense attorney delivered his own sentencing argument — an extensive presentation totaling almost 50 minutes. But during his sentencing argument, the defense attorney never objected to the prosecutor's proposed sentence as being outside the plea agreement.
After the attorneys had delivered their sentencing arguments, Judge Volland engaged in a lengthy analysis of the Chaney sentencing criteria,
Again, Ghosh's attorney did not object to this sentence as being outside the sentencing range specified in the plea agreement.
However, a few minutes later, while the parties were still in court, Ghosh's attorney asked Judge Volland if he had decided to accept the terms of the plea agreement between Ghosh and the State. Judge Volland was surprised by the defense attorney's question:
As can be seen from this exchange, Ghosh's attorney presented this issue as if it merely involved a technical requirement that had to be honored — a procedural act that the court had forgotten to perform.
But a few minutes after this colloquy — seemingly out of the blue — the defense attorney challenged Ghosh's sentence as being outside the range of sentences permitted by the plea agreement:
Mr. Peterson (from the Department of Law) informed Judge Volland that, when he drafted the plea agreement, he intended the phrase "jail range" to refer to Ghosh's active term of imprisonment (i.e., Ghosh's time to serve), as distinct from any additional suspended term of imprisonment that Ghosh might receive. Judge Volland then declared that he had interpreted the plea agreement in the same way:
In response to Judge Volland's remarks, Ghosh's attorney announced that he intended either to ask the court to "correct" (i.e., reduce) Ghosh's sentence, or ask the court to let Ghosh withdraw his guilty pleas.
One week later, the defense attorney filed a "Motion to Correct Sentence". This pleading was written in a disingenuous fashion, as if there were no dispute about the terms of the plea agreement, and as if Judge Volland had utterly ignored the sentencing provisions of the agreement.
The defense attorney quoted the provision of the agreement that spoke of Ghosh's "jail range" as being 1 to 3½ years. Then the defense attorney declared that the parties had "specifically agreed" that Ghosh's total sentence could not exceed 3½ years.
This assertion completely ignored (1) the fact that the State's sentencing memorandum expressly sought a sentence of 10 years' imprisonment with 6½ years suspended, (2) the fact that the prosecutor stated in open court that the 3½-year "jail range" referred only to Ghosh's time to serve, and (3) the fact that Judge Volland stated that he, too, interpreted the agreement as limiting only Ghosh's time to serve.
The defense attorney declared that, when Judge Volland sentenced Ghosh to 7 years with 3½ years suspended, the judge had either overlooked or consciously ignored the express terms of the plea agreement. Then, ignoring the chronology of events, the defense attorney accused Judge Volland of accepting a plea agreement that called for a particular maximum sentence, "only to double the jail time when [the] sentence [was] later pronounced."
(As we have explained, Ghosh's sentence was pronounced before the defense attorney called on Judge Volland to formally declare whether he accepted the plea agreement.)
The defense attorney argued that these events had undermined the voluntariness of Ghosh's guilty pleas:
However, in the concluding portion of his pleading, the defense attorney shifted course. Instead of demanding that Ghosh be allowed to withdraw his guilty pleas on the ground that they were involuntary, the defense attorney declared that Judge Volland was "bound to impose a sentence confined to the [plea] agreement's express terms", and that the judge was now required to "correct the sentence to reflect the Rule 11 agreement" — in other words, alter the sentence to reflect the defense attorney's interpretation of the plea agreement.
Judge Volland denied the defense attorney's motion, primarily on the ground that Ghosh had "waived any claim based on his current interpretation of the [plea] agreement". Based on the defense attorney's "silence in the weeks before sentencing, and during sentencing [itself]" — that is, the defense attorney's failure to object or take any other action until after Ghosh's sentence was pronounced — Judge Volland concluded that the attorney had waived any claim that Ghosh's sentence did not conform to the terms of the plea agreement.
Why we vacate Judge Volland's ruling that Ghosh has waived any objection to his sentence
As we have explained, Judge Volland denied the defense attorney's motion to "correct" Ghosh's sentence — i.e., reduce it — because the judge concluded that the defense attorney had waived the right to seek this remedy.
Judge Volland was certainly justified in his disapproval of the defense attorney's conduct in this case. The defense attorney asserted that he interpreted the plea agreement as placing a 3½-year limit on Ghosh's total sentence (i.e., Ghosh's combination of time to serve and suspended imprisonment). But as Judge Volland noted, the defense attorney took no action, and made no objection, when the prosecutor (both in his pre-sentence memorandum and at the sentencing hearing itself) asked the judge to impose a sentence of 3½ years to serve coupled with 6½ years of suspended imprisonment.
Likewise, the defense attorney made no immediate objection when Judge Volland actually imposed a sentence — 3½ years to serve plus another 3½ years suspended — that exceeded the defense attorney's purported understanding of the plea agreement.
Instead, the defense attorney waited for several minutes. Then, without disclosing that he thought there was any problem with the sentence, the defense attorney asked Judge Volland if he was going to accept the plea agreement. After expressing surprise that this had not already been done, Judge Volland said that he would accept the plea agreement. Again, the defense attorney made no immediate objection. But then, a few minutes later, the defense attorney attacked Ghosh's sentence as being inconsistent with the terms of the plea agreement.
On this record, Judge Volland might justifiably conclude that the defense attorney's handling of this matter was either incompetent or the product of a tactical gamble. On the one hand, the defense attorney might have acted incompetently by allowing the entire sentencing process to take place without knowing whether Judge Volland had accepted the plea agreement, and by failing to respond in any pertinent way to the State's sentencing memorandum — in which the prosecutor expressly asked for a sentence of 3½ years to serve plus 6½ years of suspended jail time. On the other hand, the defense attorney may have engaged in a calculated maneuver, waiting to see what sentence Judge Volland would impose, and then objecting when that sentence exceeded a total of 3½ years.
Nevertheless, we can not uphold Judge Volland's ruling that the defense attorney waived any right to assert that Ghosh's sentence exceeded the terms of the plea agreement. Regardless of whether Judge Volland might properly censure the defense attorney's conduct in this matter, the ultimate question is whether Ghosh can be held to his guilty pleas.
Right now, the record contains no evidence of Ghosh's understanding of the plea agreement. We have only the defense attorney's assertion that he (i.e., the attorney) interpreted the plea agreement as limiting Ghosh's total sentence to 3½ years.
As of yet, there is no judicial finding (one way or the other) as to whether the defense attorney was accurately describing his own understanding of the plea agreement during his colloquy with Judge Volland. But more importantly, there is no judicial finding regarding Ghosh's understanding of the plea agreement — and that is the crucial issue.
If Ghosh offered his guilty pleas thinking that his total sentence could not exceed 3½ years, then he has not received the benefit of the bargain as he understood it, and he is entitled to raise this issue despite his attorney's handling of this matter. We say "if" because there is currently no testimony, and no judicial finding, regarding Ghosh's personal understanding of the plea agreement. (As we noted earlier in this opinion, Judge Spaan failed to ascertain Ghosh's understanding of the plea agreement when he accepted Ghosh's guilty pleas.)
Why we reject Ghosh's claim that he is entitled to receive a sentence that conforms to his defense attorney's understanding of the plea agreement
Because we have rejected Judge Volland's ruling that Ghosh's attorney waived any potential relief that his client might claim, we must now turn to Ghosh's argument on appeal regarding the type of relief to which he is entitled. In his brief to this Court, Ghosh's attorney argues:
In other words, Ghosh's attorney claims that Judge Volland is required to reduce Ghosh's sentence to a total term of imprisonment of between 1 and 3½ years.
As we have already explained, there is currently no evidence regarding Ghosh's personal understanding of the plea agreement, much less a judicial finding on this issue. Nevertheless, in the interest of advancing the resolution of this case, we will address the question of what should happen if Ghosh establishes that he personally interpreted the plea agreement as setting a 3½-year limit on his total sentence (as opposed to setting a 3½-year limit on his time to serve).
Generally, when a party claims that a provision of a contract is ambiguous and reasonably susceptible of differing interpretations, a court will resolve the issue by taking testimony concerning the parties' understanding of the provision at the time the contract was made, by examining the case law interpreting similar language, and by receiving extrinsic evidence concerning the interpretation of the disputed language within the relevant community of contracting parties.
But in our past cases dealing with plea bargains, this Court has analogized them to contracts where one of the contracting parties — the government — has disproportionate bargaining power. Thus, when the government has drafted a plea agreement that contains an ambiguous clause, and the parties have differing interpretations of that ambiguous clause, and when each party's interpretation is objectively reasonable, the ambiguous clause will be construed against the government.
Here, Ghosh argues that his plea agreement with the State is objectively ambiguous because the agreement uses the term "jail range" without expressly defining it. Ghosh contends that, even if the prosecutor who drafted this agreement intended "jail range" to mean Ghosh's active term of imprisonment, Ghosh and his attorney reasonably interpreted "jail range" to mean Ghosh's total sentence.
Because, according to Ghosh, the plea agreement is reasonably susceptible of two interpretations, Ghosh argues that the ambiguity in the plea agreement must be construed in his favor, and that the superior court must sentence him to a term of imprisonment whose total — active and suspended time — does not exceed 3½ years.
But even though plea agreements are, in many ways, analogous to contracts between the government and the defendant, plea agreements are crucially different from normal contracts because the court is a necessary third party to any proposed plea agreement. As explained in Wright and Leipold's treatise, Federal Practice and Procedure:
Charles Alan Wright and Andrew D. Leipold, Federal Practice and Procedure: Criminal (4th ed. 2008), § 180, Vol. 1A, pp. 317-18.
Under Alaska Criminal Rule 11(e), the parties to a criminal case can not force a court to accept their proposed plea bargain. Rather, the court is required to independently evaluate the proposed bargain and then either accept it or reject it.
Rule 11(e) also codifies the principle that the court must affirmatively approve a plea agreement before the agreement takes effect and the parties are bound. This is why Rule 11(e)(3) declares that when the court rejects a proposed plea agreement as being unduly favorable to one of the parties, that party — either the government or the defendant — must be given the opportunity to withdraw from the agreement.
In his argument to this Court, Ghosh repeatedly emphasizes the fact that, after Judge Volland imposed Ghosh's sentence, Ghosh's defense attorney asked the judge if he accepted the plea agreement, and Judge Volland declared that he did accept the plea agreement. Ghosh essentially takes the position that Judge Volland uttered magic words when the judge declared that he accepted the plea agreement — words that retroactively bound Judge Volland to Ghosh's interpretation of the plea agreement, thus invalidating the sentence that Judge Volland had just pronounced, and obligating the judge to impose a new, lesser sentence.
But it is clear from the record that, when Judge Volland declared that he accepted the plea agreement, the judge said so because he thought that the plea agreement authorized the sentence he had just imposed: 7 years' imprisonment with 3½ years suspended.
As shown by Judge Volland's contemporaneous statements on the record, the judge believed that the phrase "jail range" referred to the time-to-serve component of Ghosh's sentence — and that a sentence of 7 years with 3½ suspended was within the boundaries of the plea agreement. Thus, Judge Volland's understanding of the plea agreement was materially different from the interpretation that Ghosh now proposes.
As we explained earlier in this opinion, if the dispute in interpreting the plea agreement were purely between Ghosh and the State, and if both parties had objectively reasonable (but differing) interpretations of the agreement, then Ghosh would be able to invoke the presumption that the agreement should be interpreted against the State. But this presumption does not apply to Judge Volland's interpretation of the agreement.
Judge Volland was not — in fact, he could not be — a party to the plea negotiations.
Several federal circuits recognize the authority of a trial court to rescind its earlier acceptance of a plea agreement if, before the parties act in reliance on the court's adoption of the agreement, the court changes its mind about whether the plea agreement is acceptable.
In this situation, assuming that Ghosh is able to establish that he offered his guilty pleas under an objectively reasonable but differing interpretation of the plea agreement, Judge Volland's acceptance of the agreement must be rescinded.
In that event, the parties must either (1) re-negotiate the agreement, or (2) attempt to convince the superior court that the agreement as interpreted by Ghosh is still acceptable, or (3) abandon their efforts to settle the case, and go to trial.
Of course, if Ghosh fails to establish that he offered his pleas under the objectively reasonable belief that the plea agreement limited his total sentence to 3½ years, then Ghosh is not entitled to any relief, and Judge Volland's sentencing decision will stand.
At this point, we can not tell what the proper resolution of Ghosh's case should ultimately be. However, we vacate Judge Volland's ruling that Ghosh has waived any right to relief, and we also reject Ghosh's argument that he is entitled to specific performance of the plea agreement under the interpretation proposed by his attorney.
This case is REMANDED to the superior court for further proceedings consistent with this opinion.
Accord: United States v. Moure-Ortiz, 184 F.3d 1, 3 (1st Cir. 1999); United States v. Bernard, 373 F.3d 339, 345 (3rd Cir. 2004); United States v. Cervantes-Valencia, 322 F.3d 1060, 1062 (9th Cir. 2003); United States v. Schuman, 127 F.3d 815, 817-18 (9th Cir. 1997).
But cf. United States v. Blackwell, 694 F.2d 1325, 1338-39 (D.C. Cir. 1982) (holding that judges have no authority to withdraw their acceptance of a plea bargain after the defendant has detrimentally relied on the judge's earlier acceptance of the bargain).