Anthony v. State

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IN THE COURT OF APPEALS OF THE STATE OF ALASKA

JERRY LEWIS ANTHONY, )

) Court of Appeals No. A-11159

Appellant, ) Trial Court No. 3AN-10-5939 CR

)

v. ) OPINION

)

STATE OF ALASKA, )

)

Appellee. ) No. 2418 — June 27, 2014

)

Appeal from the Superior Court, Third Judicial District,

Anchorage, William F. Morse and Alex Swiderski, Judges.

Appearances: Hanley Robinson, Assistant Public Defender, and

Quinlan Steiner, Public Defender, Anchorage, for the Appellant.

Nancy R. Simel, Assistant Attorney General, Office of Special

Prosecutions and Appeals, Anchorage, and Michael C.

Geraghty, Attorney General, Juneau, for the Appellee.

Before: Mannheimer, Chief Judge, Allard, Judge, and Smith,

Superior Court Judge.*

Judge ALLARD.

*

Sitting by assignment made pursuant to article IV, section 16 of the Alaska

Constitution and Administrative Rule 24(d).

Jerry Lewis Anthony pleaded guilty to felony driving under the influence

in exchange for a reduced sentence and admission into the State’s Felony DUI Wellness

Court, an alternative therapeutic sentencing court. Under Anthony’s plea agreement, the

superior court was required to discharge Anthony from the State Wellness Court

program (thus subjecting him to a significantly harsher sentence) “upon a judicial finding

of probable cause that [he] drove a motor vehicle.”

Anthony was subsequently discharged from the program for riding a

bicycle with an after-market detachable motor. On appeal, Anthony argues that the term

“motor vehicle” as used in the plea agreement is ambiguous and that he reasonably

understood the term to exclude a bicycle with an after-market motor, in part because

participants in the Anchorage Municipal Wellness Court had been allowed to use such

bicycles.

We conclude a remand is needed to determine the objective reasonableness

of Anthony’s interpretation of the plea agreement given the reasonable expectations of

the parties. We therefore remand this case to the superior court for further proceedings

consistent with this opinion.

Factual background

In June 2010, Anthony was charged with felony driving under the

influence.1 Several months later, he pleaded guilty to that charge in exchange for

admission into the State’s Felony DUI Wellness Court. Under the terms of the plea

agreement, if Anthony successfully completed the Wellness Court program, his sentence

1

AS 28.35.030(n).

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and fine would be suspended. If he did not complete the program, the court would order

him to pay a $10,000 fine and would impose a 5-year sentence with 2 years suspended.

Under the general terms of the plea agreement, the superior court had the

discretion to sanction or potentially terminate Anthony from the program if he violated

any of the terms of his agreement. In most circumstances, the treatment team would

meet to discuss the violation and make a recommendation to the court with regards to the

appropriate sanction.

However, the plea agreement also specified four circumstances under which

the superior court had no discretion and was required to discharge Anthony from the

program without input from the treatment team. One of these circumstances was “upon

a judicial finding of probable cause that [Anthony] drove a motor vehicle.” The term

“motor vehicle” was not defined in the plea agreement.

In August 2011, a Wellness Court probation officer saw Anthony riding

down a city avenue on a motorized bicycle. The State filed a motion to discharge

Anthony from the Wellness Court program, asserting that this activity constituted

“driving a motor vehicle” in violation of the plea agreement. The State then requested

a judicial finding of probable cause that Anthony drove a motor vehicle, and mandatory

discharge of Anthony from the program.

Anthony opposed the State’s motion. Anthony admitted that he had been

riding a bicycle with an after-market motor and that the motor had been running, but he

argued that the modified bicycle did not qualify as a “motor vehicle” under the plea

agreement.

The superior court held an evidentiary hearing on the State’s motion. At

the hearing, Allen Mingori, an auto mechanic and Wellness Court participant, testified

that he had seen Anthony’s bicycle and that it was a mountain bike with an after-market

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gas-powered engine attached to it. He testified that the engine size was 49 cc, and that

an engine of that size could power a bicycle to a speed of up to 32 to 35 miles per hour.

Mingori explained that the engine had to be started by pedaling, but that it was not

necessary to pedal to keep the engine running.

Tiffany Thomas, an employee of the Division of Motor Vehicles, testified

that, as a general matter, an M-2 motorcycle license is needed for any “motorized

bicycle” with an engine under 50 cc.2 However, Thomas also testified that a bicycle with

an after-market motor that is used only to assist the rider’s pedaling is not required to be

registered, if the motor is removable.

Duke Circle, a case manager with the Municipal Wellness Court, testified

on Anthony’s behalf. Circle explained that David Dunham, a Municipal Wellness Court

participant, had sought his permission to use a bicycle with an after-market engine.

Circle spoke to a city prosecutor who told Circle that Dunham would be allowed to drive

the bicycle with the after-market motor and would not need a driver’s license because

the bicycle “was more like a Segway or a motorized skateboard.” Circle confirmed this

position with the Anchorage Police Department and then gave Dunham permission to use

the bicycle, provided Dunham did not drive in excess of 25 miles per hour. Dunham

later sold Anthony (and apparently other Wellness Court participants) after-market motor

kits for their bicycles.

On cross-examination, Circle acknowledged that Anthony was a participant

in the State Wellness Court, not the Municipal Wellness Court, and that the two courts

were different. (The State court involves offenders who have been convicted of felony

DUIs, while the Municipal court involves offenders who have been convicted of

2

See AS 28.90.990(18); 2 AAC 90.210(b)(2)(C).

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misdemeanor DUIs.) Circle also acknowledged that he had never personally spoken to

Anthony about motorized bicycles and had never given Anthony permission to use one.

Anthony then testified that he had received his after-market bicycle motor

kit from Dunham, who told him that bicycles with after-market motors were not

prohibited in Wellness Court. Anthony explained that the motor was attached to his

bicycle with four locking pins; once the pins were removed, the motor would fall off and

the bicycle would revert back to an exclusively human-powered bicycle. Anthony

admitted that the motor was running when the probation officer saw him. He also

admitted that, once the engine was started, it was possible for the motor to function

without the use of the pedals.

After hearing this testimony, Superior Court Judge William A. Morse ruled

on the State’s motion. The court noted that the term “motor vehicle” was not defined in

the plea agreement, but concluded that the definition in Title 28, the motor vehicle code,

was a “good starting point.” Alaska Statute 28.90.990(a)(16) defines a motor vehicle as

“a vehicle that is self-propelled, except a vehicle moved by human or animal power.”

The court also concluded, however, that it did not need to actually resolve

whether Anthony’s modified bicycle qualified as a “motor vehicle” under this definition,

because it only needed to determine whether there was “probable cause” to find that it

might qualify:

I think that you can have probable cause even if it turns out

that the thing wasn’t a motor vehicle. So, for example, if you

had a definition of motor vehicle that said “an engine 50 or

more cc’s,” and the police officer [said] “it sure looked like

a 50-cc engine to me,” and it turned out that it was [only] 49

cc’s, I think that the way that the [plea] agreement is written

allows [Anthony’s termination from the Wellness Court if]

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you ... have probable cause to believe that the engine [was]

over 50 cc’s even though, as it turns out, it’s only 49.

Based on this reasoning, the court found that because reasonable people could believe

that Anthony’s modified bicycle fit within the statutory definition of “motor vehicle,”

there was “probable cause” to believe that Anthony had driven a motor vehicle in

violation of the plea agreement and his discharge from the program was therefore

mandatory.

Why we vacate the superior court’s decision and remand the case for further

proceedings

Under the terms of Anthony’s Wellness Court plea agreement, the superior

court was required to discharge Anthony from the program upon a “judicial finding of

probable cause that [Anthony] drove a motor vehicle.” As we just explained, the

superior court interpreted this language to mean that Anthony had to be terminated from

the program if the State showed that there was “probable cause” (i.e., good reason to

believe) that Anthony’s modified bicycle qualified as “a motor vehicle” — even if this

turned out not to be true.

As an initial matter, we note that we have serious concerns about the

superior court’s interpretation of the “probable cause” clause of the plea agreement given

the constitutional liberty interests at stake. Under this reading of the plea agreement, the

court would be required to discharge a participant from the Wellness Court program if

there was “probable cause” to believe that a violation of the plea agreement had

occurred, even if the participant could later prove, as a factual matter, that there was no

violation.

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Thus, under the superior court’s interpretation, if the State had petitioned

the court to discharge Anthony based on a probation officer’s report that he saw Anthony

driving an automobile, the court would have to terminate Anthony from the program

(and greatly increase his sentence), even if the court later found that the car was actually

being driven by someone else who bore a striking physical resemblance to Anthony, but

was not Anthony. All that would matter was if the probation officer reasonably believed

(however mistakenly) that Anthony was the person driving the car. While it is perhaps

conceivable that Anthony and the State both reasonably understood and intended the plea

agreement to call for such a result, this seems unlikely — particularly in light of the due

process concerns such an interpretation would create.

But there is also a second, more immediate, problem with the superior

court’s “probable cause” analysis in this case. Here, there was no suggestion that the

probation officer reasonably (albeit mistakenly) misperceived the facts of the situation.

Indeed, there was no factual dispute at all — Anthony readily admitted driving his

bicycle with the after-market motor running, and he did not particularly contest the

State’s description of the after-market motor and its capabilities. Instead, the dispute

centered on a question of law: what did the term “motor vehicle” mean in the context

of the plea agreement, and did Anthony’s modified bicycle fit (or not fit) within that

definition?

This type of legal determination is not susceptible to a “probable cause”

analysis. It was not enough for the court to conclude that some people might reasonably

(even if mistakenly) believe that the legal definition of “motor vehicle” was broad

enough to encompass the modified bicycle that Anthony used. Rather, the court needed

to address the parties’ differing interpretations of the term and to directly decide whether

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Anthony’s bicycle constituted a “motor vehicle” under the correct legal interpretation of

that term.

Answering this question is not a simple matter of deciding whether

Anthony’s modified bicycle falls within the statutory definition of “motor vehicle” found

in AS 28.90.990(a)(16). Anthony was not charged with violating a provision of the

motor vehicle code; he was charged with violating the terms of his plea agreement.

Because of this, the superior court’s task of interpreting the phrase “motor vehicle” is

governed by the principles of contract interpretation, not statutory construction.3

Under the principles of contract interpretation, when a dispute arises about

the meaning of an undefined term in a contract, the court must look to the reasonable

expectations of the parties at the time they entered the agreement: “When a provision

of a contract is ambiguous and reasonably susceptible of two differing interpretations,

a court will normally seek testimony concerning the parties’ understanding of the

provision at the time the contract was made, and will examine both case law interpreting

similar language and relevant extrinsic evidence concerning the interpretation of the

disputed language within the relevant community of contracting parties.”4 If, after

engaging in this analysis, the meaning of the term still remains ambiguous — that is, if

the parties’ differing interpretations are both objectively reasonable, given all the

available evidence regarding the circumstances and purposes of the agreement — the

court must normally determine which party’s interpretation is the more reasonable under

the circumstances.5

3

See Simon v. State, 121 P.3d 815, 821 (Alaska App. 2005).

4

Id. at 821.

5

See Norton v. Herron, 677 P.2d 877, 880-82 (Alaska 1984).

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But where the parties’ bargaining power is unequal, as in criminal plea

agreements, the analysis is different: If an undefined term in a plea agreement remains

ambiguous — that is, if the State and the defendant each have differing but objectively

reasonable interpretations of the term — the court is required to construe the ambiguity

against the State, because the State is the party with the greater bargaining power.6

In the present case, the superior court made no findings on the genuineness

or objective reasonableness of Anthony’s proposed interpretation of the term “motor

vehicle.” Nor did the superior court attempt to ascertain what the reasonable

expectations of the parties were with regard to that term. A remand is therefore needed

for the superior court to address these issues.

6

The rule that objective ambiguities in plea agreements are construed against the

government is considered well-settled law in most jurisdictions. See, e.g., United States v.

Giorgi, 840 F.2d 1022, 1026 (1st Cir. 1988); United States v. Ready, 82 F.3d 551, 558–59

(2d Cir. 1996); United States v. Baird, 218 F.3d 221, 229 (3d Cir. 2000); United States v.

Harvey, 791 F.2d 294, 300 (4th Cir. 1986); United States v. Sibley, 448 F.3d 754, 759 (5th

Cir. 2006); Carnine v. United States, 974 F.2d 924, 928–29 (7th Cir. 1992); United States

v. Andis, 333 F.3d 886, 890 (8th Cir. 2003); United States v. De la Fuente, 8 F.3d 1333,

1337–38 n.7 & n.8 (9th Cir. 1993); United States v. Cachucha, 484 F.3d 1266, 1270 (10th

Cir. 2007); United States v. Jefferies, 908 F.2d 1520, 1523 (11th Cir. 1990); Humphrey v.

State, 686 So.2d 560, 562 (Ala. Crim. App. 1996); Keller v. People, 29 P.3d 290, 297 (Colo.

2000); State v. Adams, 982 A.2d 187, 191 (Conn. App. 2009); Stedman v. District of

Columbia, 12 A.3d 1156, 1158 (D.C. App. 2011); State v. Cole, 16 P.3d 945, 948 (Idaho

App. 2000); Valenzuela v. State, 898 N.E.2d 480, 482–83 (Ind. App. 2008); State v. Wills,

765 P.2d 1114, 1120 (Kan. 1988); Elmore v. Commonwealth, 236 S.W.3d 623, 627–28 (Ky.

App. 2007); State v. Mares, 888 P.2d 930, 933 (N.M. 1994); State v. Bethel, 854 N.E.2d 150,

167 (Ohio 2006); Commonwealth v. Kroh, 654 A.2d 1168, 1172 (Pa. Super. 1995); State ex

rel. Forbes v. Kaufman, 404 S.E.2d 763, 768 (W. Va. 1991). But see State v. Wesley, 772

N.W.2d 232, 238 n.5 (Wis. App. 2009) (noting that Wisconsin has rejected the rule that

ambiguities in a plea agreement must be construed against the government).

This issue was discussed at length in Judge Mannheimer’s concurring opinion in

Andrew A. v. State, 2011 WL 6347421, at *12 (Alaska App. Dec. 14, 2011)(unpublished).

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Although we remand this case to the superior court for future findings, we

note that the superior court was correct in treating Title 28’s definition of “motor

vehicle” as an appropriate starting point for its analysis. The parties entered into this plea

agreement because Anthony committed a violation of Title 28 — namely, felony driving

under the influence. Given this circumstance, and given the rehabilitative and deterrent

purposes of the plea agreement, the superior court could reasonably treat the statutory

definition found in Title 28 as relevant extrinsic evidence of what the parties likely

intended the term “motor vehicle” to mean when they included it in the plea agreement.

But, as we have explained, Anthony’s case is governed by the principles

of contract interpretation, so the answer ultimately lies in the reasonable expectations of

the parties. The superior court must use these principles when resolving any ambiguities

as to whether Anthony’s bicycle falls within the meaning of “motor vehicle” as that term

is used in the plea agreement.

Conclusion

The decision of the superior court is VACATED and this case is

REMANDED for further proceedings consistent with this opinion. We do not retain

jurisdiction.

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