                                             NOTICE
       The text of this opinion can be corrected before the opinion is published in the
       Pacific Reporter. Readers are encouraged to bring typographical or other formal
       errors to the attention of the Clerk of the Appellate Courts.
                           303 K Street, Anchorage, Alaska 99501

                                    Fax: (907) 264-0878

                       E-mail: corrections @ appellate.courts.state.ak.us


             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).

                                            2                                        2418
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


                                           3                                       2418

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).

                                             4                                         2418
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]



                                            5                                        2418

              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.




                                             6                                         2418

              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



                                             7                                         2418

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).

                                            8                                         2418
              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).

                                             9                                         2418

                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.




                                             10                                          2418

