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             IN THE COURT OF APPEALS OF THE STATE OF ALASKA


SHUBHRANJAN GHOSH,
                                                      Court of Appeals No. A-12374
                            Appellant,               Trial Court No. 3AN-14-3371 CR

                     v.
                                                             O P I N I O N
STATE OF ALASKA,

                            Appellee.                    No. 2559 — June 16, 2017


              Appeal from the Superior Court, Third Judicial District,
              Anchorage, Philip R. Volland, Judge.

              Appearances: Ronald A. Offret and J. E. Wiederholt, Aglietti,
              Offret & Woofter, Anchorage, for the Appellant. Jonas 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. *

              Judge MANNHEIMER.


              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


   *
       Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska
Constitution and Administrative Rule 24(d).
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 1 and the evidence tampering count 2 ), and the State would
dismiss the other 16 charges.
             Because Ghosh’s act of fraud involved unlawful gain of $25,000 or more,
his crime was a class B felony. 3 As a first felony offender, Ghosh faced a presumptive
sentencing range of 1 to 3 years’ imprisonment for this offense. 4
             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. 5 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
years’ imprisonment.



   1
       AS 47.05.210(a)(2).
   2
       AS 11.56.610(a)(2).
   3
       AS 47.05.210(b)(1).
   4
       AS 12.55.125(d)(1) (pre-2016 version).
   5
       AS 12.55.125(d); AS 12.55.155(a)(1).

                                          –2–                                        2559

             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:

                   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)[.]

             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.



                                          –3–                                        2559

       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”. 6
              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


   6
        See United States v. Kerdachi, 756 F.2d 349, 352 (5th Cir. 1985) (“When it became
apparent that a plea agreement was involved in [the defendant’s] entry of a guilty plea, the
trial court was obliged to become informed as to all of the material terms of the agreement,
after which the court was required to determine on the record that [the defendant] had an
adequate understanding of those terms. A guilty plea is not voluntary if it is based on a
misapprehension of a significant term of a plea agreement.”).

                                           –4–                                         2559

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, 7 and he also examined
a number of this Court’s prior cases dealing with sentencing for white-collar crimes. The



   7
      That is, the sentencing criteria now codified in AS 12.55.005, but originally
announced in State v. Chaney, 477 P.2d 441 (Alaska 1970).

                                           –5–                                         2559

judge ultimately sentenced Ghosh to 7 years’ imprisonment with 3½ years suspended —
in other words, 3½ years to serve plus another 3½ years suspended.
             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:

                    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 or not.

                   The Court: I assumed ... Judge Spaan [accepted the
             terms of the plea agreement] when he accepted Dr. Ghosh’s
             plea on December 1st. 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 done,
             I thought that’s why we were proceeding, so —

                    Defense Attorney: I — I understand.


                                           –6–                                      2559

                    The Court: I do accept [the plea agreement].

             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:

                    Defense Attorney: The last thing, Your Honor, is
             paragraph 4 [of the plea agreement, which states]:
             “Sentencing will be open to the court with the following
             exceptions: Jail range will be from [the] 1 year mandatory
             minimum to [a] maximum [of] 3.5 years.” When you
             sentenced Dr. Ghosh to 7 years to serve with 3½ suspended,
             I believe that goes outside of our agreement, the plea
             agreement. And so, therefore, I would request that you
             redefine that particular part of your sentence and just
             sentence him to [a] flat 3½ years to serve — no suspended
             time, because that’s ... additional time over and above the
             agreed-upon 3½ years.

                   The Court: Well, then we have an issue here —
             because I understood “jail range” to mean ... active jail time.

                   Defense Attorney: Well, that puts him at risk because
             if — let’s say he served three years and three months [sic],
             [and he] is then released and violates his probation. [If his
             probation is revoked], the other 3½ suspended years could be
             reimposed [sic]. And I don’t think that that’s what this
             agreement means.




                                          –7–                                    2559

      The Court: That is certainly what I intended by my
sentence.

      Defense Attorney: Right.

       The Court: ... I read this to mean that the active jail
time could be between 1 year and 3½ years. That’s how I
read that.

       Defense Attorney: I don’t disagree with your reading
of that. But when you have [another] 3½ years of suspended
time hanging over your head, that’s additional. So I think
that that suspended time goes outside the agreement that we
have. I would request that you correct that part of your
sentence, or that [this] matter remain open for further
consideration.

       The Court: If that was your understanding of the plea
agreement, why did you not raise that issue before right now,
... when the State was proposing a sentence of 10 years with
3½ to serve and 6½ suspended?

      Defense Attorney: I didn’t see that as a reality.

      The Court: Well, ... it [was] a proposal in direct
contravention of what you understood the agreement to be.

      Defense Attorney: My alternative would be to
withdraw [from] the plea agreement if I really thought that
they were going for 10 years as a sentence.

      The Court: Well, ... that’s what they were really going
for — 10 years.

      Defense Attorney: Well, then they should be scolded
for going outside of the plea agreement, and [you] should

                            –8–                                  2559

             allow us to withdraw [from] the plea agreement. You can’t
             promise to bring us in on a plea agreement and then go
             outside of that plea agreement. That’s a violation of the plea
             agreement, and we have a right to withdraw the plea.
                   . . .
                      I think it’s a simple correction [of the sentence]. You
             just ... sentence him to 3½ years time to serve. Pretty easy to
             — for me.

                    The Court: Well, I’m sure you may see it as that. Let
             me hear from the State — and I should ask to hear from
             Mr. Peterson, who’s sitting back there, because he apparently
             drafted this.

             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:

                    The Court: Well, Mr. Offret, ... I’m not sure procedu­
             rally what the correct thing for you to do is. Whether at this
             point you [can] still move to withdraw [your client’s plea].
             I’ve clearly sentenced [your client]. I don’t know what
             procedurally you need to do. ... But I can tell you that I read
             that [clause of the plea agreement] to mean that [Ghosh’s]
             active jail time was 1 to 3½ years. Otherwise, I would not
             have considered sentencing him to 3½ years’ active jail time
             with [an additional] 3½ years suspended — which is my
             intent — for a total sentence of 7 years. And, as you can tell
             from the cases I [discussed in my sentencing remarks], ... I
             concluded that, given the amount of [the] theft, active jail
             time between 3 and 5 years fits squarely within the decisional



                                          –9–                                     2559

              law, and suspended time [of] up to 5 years fits squarely in
              [that] case law.

              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.)

                                          – 10 –                                       2559

             The defense attorney argued that these events had undermined the
voluntariness of Ghosh’s guilty pleas:

                     A defendant who pleads guilty or no contest pursuant
             to a plea agreement conditions that plea on the assumption
             that the terms of the agreement will be fulfilled; the
             voluntariness and intelligence of the plea depend upon
             fulfillment of the agreement. When the court first accepts the
             plea agreement, but then imposes a sentence beyond the
             agreement’s terms, its action necessarily vitiates the
             voluntariness and intelligence of the underlying plea,
             effectively rendering the plea a nullity.

             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.




                                         – 11 –                                    2559

       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.




                                          – 12 –                                      2559

                 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

                                             – 13 –                                     2559

“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:
       1.	 that Ghosh’s plea agreement is a contract between Ghosh and the State;
       2.	 that if the terms of the plea agreement are ambiguous, Ghosh is entitled to have
          the agreement interpreted in the light most favorable to himself; and
       3.	 that Ghosh is entitled to demand specific performance of the plea agreement
          (construed in the light most favorable to himself).
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).




                                           – 14 –	                                      2559

                  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. 8 If the meaning of the provision
remains ambiguous after the court engages in this analysis — that is, if the parties’
differing interpretations are still both objectively reasonable, given all the available
evidence regarding the circumstances and purposes of the agreement — then, normally,
the court will resolve the case by deciding which party’s interpretation is the more
reasonable under the circumstances. 9
                  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. 10
                  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




   8
        Anthony v. State, 329 P.3d 1027, 1032 (Alaska App. 2014).

   9
        Ibid.

   10
        Ibid. 


                                             – 15 –                                     2559

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:

             The contract analogy ... can be misleading in that it suggests
             that there are only two relevant parties, while in fact the trial
             court plays a critical role in the process. Thus, ordinarily
             neither party is justified in relying on the bargain until the
             trial court approves it.

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.


                                          – 16 –                                      2559

             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. 11 His role was to independently assess the proposed agreement and decide

   11
       See State v. Buckalew, 561 P.2d 289, 292 (Alaska 1977), holding that Alaska trial
judges are “totally barred from engaging in either charge or sentencing bargaining”.

                                          – 17 –                                        2559

whether it was unduly favorable to one side or the other. Although Judge Volland
ostensibly accepted the plea agreement, the record shows that he did so only because his
understanding of the agreement differed materially from Ghosh’s purported understand­
ing of the agreement — and only after the judge concluded that the proper sentence in
Ghosh’s case was 3½ years’ active imprisonment augmented by another 3½ years of
suspended imprisonment.
              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. 12 We do not have that kind of situation here. Rather, we have a situation
where a judge, acting in reasonable reliance on a particular interpretation of a plea
agreement, declared that he accepted the agreement — only to have the defense attorney
belatedly claim that the agreement did not mean what the judge reasonably thought.
              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.



   12
        See United States v. Mukai, 26 F.3d 953, 956 (9th Cir. 1994) (“[I]f the court later finds
the disposition in the plea agreement objectionable[,] it ... should withdraw its acceptance of
the plea agreement and permit the parties to renegotiate a more appropriate sentence or opt
for trial.”).

   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).

                                             – 18 –                                         2559

              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.


       Conclusion


              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.




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