from the Superior Court, Third Judicial District, Trial Court
No. 3AN-14-3371 CR Anchorage, Philip R. Volland, Judge.
Appearances: Ronald A. Offret and J. E. Wiederholt, Aglietti,
Offret & Woofter, Anchorage, for the Appellant.
M. Walker, Assistant Attorney General, Office of Special
Prosecutions, Anchorage, and Craig W. Richards, Attorney
General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,
Superior Court Judge. [*]
MANNHEIMER JUDGE .
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
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 and the evidence tampering
count), and the State would dismiss the other 16
Ghosh's act of fraud involved unlawful gain of $25, 000
or more, his crime was a class B felony. As a first felony
offender, Ghosh faced a presumptive sentencing range of 1 to
3 years' imprisonment for this offense.
of his plea bargain, Ghosh stipulated that his criminal
conduct was aggravated under AS 12.55. l55(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. And because Ghosh
did not plead any mitigating factors, his effective mandatory
minimum sentence was the low end of the applicable
presumptive range - i.e., 1 year's imprisonment.
Thus, Ghosh ostensibly faced a sentencing range of 1 to 10
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:
Sentencing will be open to the court with the following
exceptions: jail range will be from the 1 year
statutorily mandated minimum to a maximum of 3.5 years (time
for both counts to run concurrent)[.]
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.
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
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.
question is what to do about this problem now.
more detailed description of the proceedings in the superior
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.
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.
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
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
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.
sentencing in front of Judge Volland did not take place until
almost eight months later, on July 29, 2015.
State's pre-sentencing memorandum, the prosecutor asked
the court to sentence Ghosh to 10 years' imprisonment
with 6½ years suspended - in other words, 3% 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.
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.
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
the attorneys had delivered their sentencing arguments, Judge
Volland engaged in a lengthy analysis of the Chaney
sentencing criteria,  and he also examined a number of this
Court's prior cases dealing with sentencing for
white-collar crimes. The judge ultimately sentenced Ghosh to
7 years' imprisonment with 3 ½years
suspended- in other words, 3½ years to serve
plus another 3½ years suspended.
Ghosh's attorney did not obj ect to this sentence as
being outside the sentencing range specified in the plea
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
Defense Attorney: Your Honor, I need to ask: Did you
accept the terms of... the Rule 11 plea agreement? It says,
"This plea agreement, if accept[ed] by the Court,
..." I never did hear you say [whether] you accepted it
The Court: I assumed ... Judge Spaan [accepted the
terms of the plea agreement] when he accepted Dr. Ghosh's
plea on December 1 st. Did he not?
Defense Attorney: I think [it is] often typical [to]
leave that for the sentencing judge to make that decision. So
I just need to know if you accept it.
The Court: Okay.
Defense Attorney: Do you accept it?
The Court: Yes. I did not realize that [this had not
already been done]. I would have addressed that [issue] first
today, before proceeding with [sentencing]. I wouldn't
have proceeded... without accepting it. I thought it had been