Frankson v. State, A-13690

CourtCourt of Appeals of Alaska
Writing for the CourtALLARD, JUDGE
PartiesNICK A. FRANKSON, Petitioner, v. STATE OF ALASKA, Respondent.
Docket NumberA-13690
Decision Date16 September 2022

NICK A. FRANKSON, Petitioner,

STATE OF ALASKA, Respondent.

No. A-13690

Court of Appeals of Alaska

September 16, 2022

Petition for Review from the Superior Court, Second Judicial District, Trial Court Nos. 2KB-18-00529 CR, 2KB-19-00373 CR, & 2KB-19-00374 CR Kotzebue, Paul A. Roetman, Judge.

Renee McFarland (petition), and Claire F. DeWitte, (briefing and argument), Assistant Public Defenders, and Samantha Cherot, Public Defender, Anchorage, for the Petitioner.

Hazel C. Blum, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Respondent.

Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges.



In this petition for review, we are asked to decide whether a trial court may sua sponte consider non-Blakely aggravating factors when evaluating whether to accept


or reject a sentencing agreement under Alaska Criminal Rule ll.[1] (A non-5lately aggravating factor is a statutory aggravating factor based on a defendant's prior convictions that can be found by a judge and does not require a jury finding beyond a reasonable doubt.[2])

For the reasons explained in this opinion, we conclude that, just as a trial court has the authority to consider a mitigating factor when evaluating whether to reject a sentencing agreement as too severe, a trial court has the authority to consider a non-Blakely aggravating factor when evaluating whether to reject a sentencing agreement as too lenient.[3]

We further conclude that, while the decision of whether to accept or reject a sentencing agreement rests in the sound discretion of the trial court after consideration of the Chaney criteria,[4] there are additional factors that a trial court should consider if they are brought to the court's attention. These factors include, but are not limited to: (1) evidentiary and witness issues; (2) the victim's wishes; (3) resource limitations; and (4) relevant circumstances beyond the parties' control (such as the COVID-19 pandemic).

Lastly, we hold that when a trial court rejects a sentencing agreement as either too severe or too lenient, the court is required to follow the procedures outlined in Criminal Rule 11(e)(3) and to place its reasons for rejecting the sentencing agreement on the record for the benefit of the parties and any appellate review.


Background facts

In July 2018, Officers Gary Moore and Aaron Grimes were dispatched to a residence in Point Hope after receiving a report that Nick A. Frankson was intoxicated and may have discharged a firearm. When the officers arrived on the scene, they observed Frankson holding a rifle inside the residence with the door open. The officers drew their guns as Frankson raised the rifle towards Officer Moore. Officer Moore fired one round at Frankson, who closed the door. A few minutes later, Frankson left the residence and fled on foot. Officer Grimes followed Frankson until he surrendered.

Once in the patrol car, Frankson began kicking the car door. Officer Grimes opened the doors to prevent damage, and Frankson kicked at Officer Grimes's face. A breath test revealed that Frankson had a blood alcohol content of 0.133 percent.

The officers later observed "two spent .223 shell casings near the front door" of the residence and received a report from a neighbor of shots being fired in the area prior to the officers' arrival. The affidavit accompanying the complaint stated that "due to the layout of the neighborhood there is no position in which a gun could be fired without being in the direction of a building or dwelling."

Frankson was ultimately indicted on one count of second-degree misconduct involving weapons (knowingly discharging a firearm at or in the direction of a dwelling)[5] and two counts of third-degree assault (recklessly placing another person in fear of imminent serious physical injury by means of a dangerous instrument).[6]

The parties then entered into a plea agreement in which Frankson agreed to plead guilty to one count of third-degree assault in exchange for dismissal of the other counts. As part of the plea agreement, Frankson agreed to stipulate to three aggravating


factors - AS 12.55.155(c)(8) ("defendant's prior criminal history includes conduct involving . . . repeated instances of assaultive behavior"); AS 12.55.155(c)(13) ("defendant knowingly directed the conduct constituting the offense at . . . [a] law enforcement officer"); and AS 12.55.155(c)(19) ("defendant's prior criminal history includes an adjudication as a delinquent for conduct that would have been a felony if committed by an adult").

Although Frankson had an extensive prior history of misdemeanor assaults, Frankson qualified as a first felony offender and faced a presumptive sentence of 0 to 2 years if no aggravating factors applied.[7] However, with the aggravators, Frankson could be sentenced up to a maximum of 5 years. The parties agreed upon a sentence of 5 years with 4 years suspended (1 year to serve) as part of their plea agreement.

In April 2019, the superior court accepted Frankson's plea of guilty and ordered a presentence report, deferring the question of whether it accepted the parties' sentence agreement until sentencing.[8]

Prior to sentencing, while on bail release, Frankson was arrested for allegedly making homebrew, punching his nephew and another man, and threatening the two men with a whaling tool. Frankson was charged with five felonies and five misdemeanors: one count of trafficking in liquor without a license or permit in a local


option area,[9] four counts of third-degree assault,[10] two counts of fourth-degree assault,[11]and three counts of violating his conditions of release.[12]

Frankson was separately charged in a third case with violating conditions of release for contacting one of the witnesses from the original weapons misconduct case.[13]

The parties subsequently changed their plea agreement to resolve all three cases through a global plea agreement. Under the new agreement, Frankson's guilty plea to the third-degree assault charge in the first case would remain, and he would serve 600 days of imprisonment for that conviction. With regard to the second case, Frankson agreed to plead guilty to one count of fourth-degree assault and to serve 120 days of imprisonment consecutive to the term of imprisonment on the third-degree assault conviction, for a total composite sentence of 720 days. In exchange, the State agreed to dismiss the remaining counts from the second case and to dismiss the third case in its entirety.

In January 2020, the superior court accepted Frankson's guilty pleas and set the matter for a sentencing hearing. The court held the sentencing hearing in March 2020. At the hearing, Officer Moore objected to the plea agreement as too lenient, asserting that Frankson was dangerous. The probation officer who authored the presentence report also objected to the plea agreement as too lenient.


Frankson and the State defended the plea agreement, explaining that all three cases had serious evidentiary issues. The parties also indicated that the grand jury indictment in the original weapons misconduct case had been difficult to obtain.

The court questioned the parties as to whether the global plea agreement included the stipulated aggravating factors that had been part of the original agreement. Frankson asserted that it did not; the State asserted that it did. The court continued the sentencing hearing to allow the parties to submit briefing.

The State then filed a notice that it was withdrawing its offer on the ground that there had been no meeting of the minds regarding whether the aggravating factors applied. Frankson moved to enforce the plea agreement. The superior court granted Frankson's motion to enforce the plea agreement, finding that the original stipulation to the aggravating factors was not part of the new global plea agreement. However, the superior court also ruled that it had the authority to sua sponte consider any non-Blakely aggravators established by the record in evaluating whether to accept or reject the sentencing agreement.

At the continued sentencing hearing, Frankson argued that the superior court had no authority to consider any non-Blakely aggravators and that the sentencing agreement should therefore be evaluated based on the assumption that the maximum sentence Frankson could receive on the third-degree assault charge was 2 years. The State disagreed. The State pointed out that there was a non-Blakely aggravator that could be found based on Frankson's prior misdemeanor assault convictions - AS 12.55.155(c)(8) ("defendant's prior criminal history includes conduct involving ... repeated instances of assaultive behavior"). And the State argued that the court should therefore evaluate the sentencing agreement based on the 5-year maximum that could theoretically be imposed given the existence of this aggravator.


The superior court agreed with the State. The court further reasoned that, having found the non-Blakely aggravator based on Frankson's prior convictions, it could also consider the Blakely aggravator under AS 12.55.155(c)(13) - "defendant knowingly directed the conduct constituting the offense at . . . [a] law enforcement officer." The court then announced that it was rejecting the sentencing agreement as too lenient in light of these aggravating factors.

Frankson petitioned this Court for interlocutory review, arguing that it was error for the superior court to consider a non-Blakely aggravator when evaluating the reasonableness of the sentencing agreement given that there was no agreement between the parties regarding that aggravator.

We granted the petition and ordered briefing on two questions: (1) whether a sentencing court may sua sponte consider non-Blakely aggravating factors when evaluating a sentencing agreement...

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