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Lindoff v. State

Court of Appeals of Alaska

February 12, 2010

Newton LINDOFF, Appellant,
v.
STATE of Alaska, Appellee.

Page 153

Doug Miller, Assistant Public Advocate, Appeals & Statewide Defense Section, and Rachel Levitt, Public Advocate, Anchorage, for the Appellant.

Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.

Before COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.

OPINION

MANNHEIMER, Judge.

Alaska Criminal Rule 11(c) contains a list of warnings and advisements that a judge must give to a criminal defendant, as well as questions that the judge must pose to the defendant, before the judge accepts the defendant's plea of guilty or no contest. This appeal requires us to examine and interpret the rules that apply when a defendant seeks to withdraw a plea of guilty or no contest based on the assertion that the judge who accepted their plea failed to comply with one or more of the provisions of Criminal Rule 11(c).

The defendant, Newton Lindoff, was indicted for attempted first-degree sexual assault, second-degree sexual assault, and two counts of first-degree burglary arising from an incident in Hoonah. Ultimately, Lindoff reached a plea bargain with the State; Lindoff agreed to plead guilty to attempted second-degree sexual assault, and the State agreed to drop the other charges.

Attempted second-degree sexual assault is a " sex offense" for purposes of Alaska's sex offender registration act. See AS 12.63.100(6)(C)(i). Criminal Rule 11(c)(4) states that when a defendant is offering a guilty plea to a sex offense, the judge taking the defendant's plea must " inform [ ] ... the defendant in writing of the [registration] requirements of AS 12.63.010 and, if it can be determined by the court, the period of registration required under AS 12.63" .

During Lindoff's change-of-plea hearing, Superior Court Judge Philip M. Pallenberg mentioned to Lindoff that, because he was going to be convicted of a sex offense, he would have to register as a sex offender. However, Judge Pallenberg did not alert Lindoff that defendants convicted of two or more sex offenses must register for life (as opposed to the fifteen-year registration requirement that applies to first-time sex offenders).[1] This omission was significant because

Page 154

Lindoff already had a prior conviction for a sex offense.

After Lindoff entered his guilty plea, but before he was sentenced, Lindoff filed a motion seeking to withdraw his plea on various grounds. For purposes of the present appeal, only one of these grounds is pertinent: Lindoff's assertion that Judge Pallenberg failed to comply with Rule 11(c) by neglecting to alert Lindoff that he would have to register as a sex offender for life.

At the evidentiary hearing on Lindoff's motion to withdraw his plea, the parties conceded-and Judge Pallenberg acknowledged-that the judge had not warned Lindoff about the lifetime registration requirement. The hearing then focused on two other issues: (1) whether Lindoff had had independent knowledge of the lifetime registration requirement when he entered his plea, and (2) if Lindoff had been ignorant of the lifetime registration requirement, whether this lack of knowledge affected his decision to plead guilty.

Based on the evidence presented at the hearing, Judge Pallenberg denied Lindoff's motion to withdraw his plea. Lindoff was then convicted based on his plea. He now appeals.

A discussion of the two different " substantial compliance" tests adopted by the Alaska Supreme Court in Lewis v. State and Joe v. State, and a discussion of which party bears the ultimate burden of persuasion when the superior court has violated Criminal Rule 11(c)

In two decisions issued on the same day in 1977 (June 20th), the Alaska Supreme Court addressed situations where the defendants alleged that the superior court judges who took their pleas failed to comply with one or more provisions of Criminal Rule 11(c).

The lead case was Lewis v. State,565 P.2d 846 (Alaska 1977). In Lewis, the supreme court rejected the position that any violation of Rule 11(c) should automatically entitle the defendant to withdraw their previous plea of guilty or no contest. Id. at 851. Instead, the court adopted what it called the " substantial compliance" approach to violations of Rule 11(c). Id. at 852. However, a close reading of the Lewis ...


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