Frankson v. State
| Docket Number | A-13563,7088 |
| Decision Date | 24 January 2024 |
| Parties | RAYMOND FRANKSON JR., Appellant, v. STATE OF ALASKA, Appellee. |
| Court | Alaska Court of Appeals |
1
RAYMOND FRANKSON JR., Appellant,
v.
STATE OF ALASKA, Appellee.
No. A-13563
No. 7088
Court of Appeals of Alaska
January 24, 2024
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Second Judicial District, Kotzebue, Romano D. DiBenedetto, Judge. Trial Court No. 2KB-16-00008 CR
Michael Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage (opening brief), and Mike A. Stepovich, Stepovich Law Office, Fairbanks (reply brief, supplemental brief and oral argument), for the Appellant.
Hazel C. Blum (initial brief) and Seneca Theno Freitag (supplemental brief and oral argument), Assistant Attorneys General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
MEMORANDUM OPINION
ALLARD Judge.
Raymond Frankson Jr. was convicted, following a jury trial, of second-degree sexual abuse of a minor for sexually penetrating V.W., a fourteen-year-old girl.[1]Prior to trial, Frankson pleaded guilty (without a plea agreement) to furnishing alcohol to a minor in a local option area[2] and third-degree controlled substances misconduct for delivering marijuana to a minor.[3] At sentencing, the superior court imposed a composite sentence of 29 years with 10 years suspended (19 years to serve) and 15 years' probation. Frankson appeals his second-degree sexual abuse of a minor conviction and his composite sentence, raising six claims of error.
First, Frankson argues that the superior court erred in rejecting a proposed plea agreement on the morning of trial that would have allowed Frankson to plead guilty to third-degree sexual abuse of a minor. A limited remand to the superior court has clarified that the court rejected the plea agreement because it considered the probationary term too lenient. We conclude that the court acted within its discretion in rejecting the agreement.
Second, Frankson argues that because the superior court had no authority to reject the charge bargain component of the plea agreement under Alaska law, the court should have followed the procedures under Alaska Criminal Rule 11(e), and allowed Frankson the opportunity to plead to the reduced charge of third-degree sexual abuse of minor with open sentencing. For the reasons explained here, we conclude that by failing to communicate any desire to plead guilty to the charge bargain without the
sentencing component, Frankson forfeited his right to plead to the charge bargain under Alaska Criminal Rule 11.
Third, Frankson argues that the superior court erred when it denied his motion to suppress evidence based on various misstatements and omissions in the search warrant application. For the reasons explained here, we reject this claim of error.
Fourth, Frankson argues that the superior court erred when it found a statutory aggravating factor that can only be found by a jury, and the State concedes that this was error. We find the State's concession well-founded,[4] and we remand this case for resentencing.
Fifth, Frankson argues that the superior court failed to consider Frankson's potential for rehabilitation at sentencing. The State acknowledges that the record does not reflect that the court specifically considered this sentencing factor and that the court must do so on remand. We agree.[5]
Lastly, Frankson argues that the written judgment in his case mistakenly states that Count V was dismissed under Alaska Criminal Rule 43(c) when the jury actually acquitted Frankson on that count. The State agrees that the written judgment should be corrected.[6]
Accordingly, although we affirm Frankson's conviction for second-degree sexual abuse of a minor, we vacate his sentence and remand this case to the superior court for resentencing and correction of the written judgment.
Background facts and prior proceedings
In 2015, V.W. was fourteen years old and in the ninth grade. She lived with her grandmother in Point Hope. Through spending time with her aunt, V.W. met thirty-nine-year-old Raymond Frankson Jr., a friend of her aunt's.
On December 30, 2015, V.W. called Frankson to ask whether he had any alcohol. Frankson picked her up and brought her to his place, where the two drank alcohol and smoked marijuana. At trial, V.W. also claimed that she and Frankson "did a line of coke," which she identified because it was a "white, powdery substance." V.W. became very intoxicated and passed out. At trial, she testified that she woke up to Frankson having sexual intercourse with her; she was naked from the waist down. V.W. pushed Frankson off and left.
The police were contacted the next day, and North Slope Borough Police Officer Brandon Clemmons interviewed V.W. and her grandmother. At one point, V.W. said that Raymond Stone had raped her, but her grandmother told the officer that V.W. had previously said that it was Raymond Frankson. In subsequent interviews with V.W., she provided a description of a man that matched Frankson, not Stone, and identified the location of a residence that was near where Frankson lived. Officer Clemmons took V.W. to see Frankson's home and she confirmed that she had been there the previous night.
Officer Clemmons obtained search warrants to search Frankson's house and person. Frankson later waived his Miranda rights, and spoke to Clemmons. Frankson admitted having sexual intercourse with V.W., but he claimed it was consensual. He also claimed he did not know V.W.'s age. Frankson gave Officer Clemmons V.W.'s underwear that she had left behind.
A grand jury indicted Frankson on second-degree sexual assault; second-degree sexual abuse of a minor; furnishing alcohol to a minor; and two counts of third-
degree misconduct involving controlled substances for delivering controlled substances to a minor (for allegedly furnishing marijuana and cocaine to V.W.).
Frankson moved to suppress evidence obtained by both warrants, arguing that Officer Clemmons's affidavit contained material misstatements and omissions that had been made with a "deliberate attempt to mislead the magistrate" because Officer Clemmons did not mention the initial confusion over whether the man was Raymond Stone or Raymond Frankson. The superior court denied the motion to suppress, finding that the officer did not act intentionally or with reckless disregard for the truth.
In the week before his trial, Frankson pleaded guilty (without a plea agreement) to two of his felony charges: furnishing alcohol to a minor under former AS 04.16.051(d)(3) and third-degree controlled substances misconduct under AS 11.71.030(a)(2) (delivering marijuana to a minor). The superior court accepted these pleas and deferred sentencing until trial on the remaining counts had occurred.
On the morning of trial, the parties announced that they had reached a plea agreement. Under the plea agreement, Frankson would plead guilty to a reduced charge of third-degree sexual abuse of a minor[7] and the State would dismiss the remaining charges. Frankson would also stipulate that the "most serious" statutory aggravating factor would apply to all three of his convictions (the third-degree sexual abuse of a minor conviction as well as the furnishing alcohol conviction and third-degree controlled substances misconduct conviction to which Frankson had previously pleaded guilty).[8] Sentencing would be open with two exceptions: Frankson would be required to serve a minimum of at least 8 years and probation would be capped at 5 years (out
of a maximum of 15 years that could be imposed).[9] Because of the stipulated aggravator, the superior court would have the authority to impose the maximum sentence for each of the three convictions.[10]
V.W.'s mother and father, who were present in the courtroom, expressed unhappiness that they had received no prior notice of this plea offer, and were only hearing about the proposed plea agreement minutes before trial was to begin. (When the parties presented the plea agreement, the jurors had been selected but not yet sworn.) V.W.'s father stated that he thought the plea agreement was too lenient, and both parents suggested that they were opposed to the plea.
The superior court indicated that it was rejecting the plea agreement. Someone in the courtroom then interrupted to point out that the victim's position had not been heard.
Initially, V.W. stated that she was in favor of the plea. But after further discussion off the record, V.W. indicated that she was also opposed to the plea and wanted to move forward with the trial.
The superior court reaffirmed that it was rejecting the plea agreement. The court then asked the parties if they were "ready to go" and announced that the jury would be brought in and sworn. No further discussion of the plea agreement occurred, and the court was not asked to take any further action.
At trial, Frankson conceded that he had sex with V.W. but he argued that the sex had been consensual and that he was reasonably mistaken about V.W.'s age.
The jury rejected these defenses and found Frankson guilty of second-degree sexual assault and second-degree sexual abuse of a minor.[11]
At sentencing, the parties agreed that the second-degree sexual assault and sexual abuse of a minor counts merged into a single conviction for second-degree sexual abuse of a minor. The prosecutor argued that the "vulnerable victim" statutory aggravating factor applied to the sexual abuse of a minor conviction based on the jury's determination that V.W. was "incapacitated" for purposes of finding Frankson guilty of the second-degree sexual assault offense.[12] The court merged the two counts and also found the aggravating factor. The court imposed 25 years with 10 years suspended (15 years to serve) on the merged sexual...
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