Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.

MEMORANDUM OPINION

MANNHEIMER, Judge.

In April 2009, Scott Lewis Hashemian was indicted for first-degree robbery, third-degree assault, second-degree theft, and third-degree weapons misconduct (felon in possession of a concealable firearm).1 Shortly before his trial was to begin, Hashemian reached a plea agreement with the State. Under the terms of this agreement, Hashemian pleaded guilty to a reduced charge of second-degree robbery, and the State dismissed the remaining charges.

The plea agreement also covered Hashemian's sentence, although Hashemian's exact term of imprisonment remained unresolved. The State agreed that Hashemian should receive a sentence at the bottom of the applicable presumptive sentencing range, but it was unclear which sentencing range applied to Hashemian — because there was a question as to whether Hashemian was a second felony offender or a third felony offender for presumptive sentencing purposes.

Hashemian had prior felony convictions from Florida, but he was sentenced for these felonies on the same day, so there was a potential argument that his prior felonies should be treated as a single prior felony conviction for presumptive sentencing purposes, pursuant to AS 12.55.145(a)(1)(C). This statute provides that two or more felony convictions will be treated as a single prior conviction (for purposes of presumptive sentencing) if the convictions "[arose] out of a single, continuous criminal episode[,] during which there was no substantial change in the nature of the criminal objective", and if the defendant did not receive consecutive sentences for these crimes.

Because Hashemian was pleading guilty to second-degree robbery, a class B felony,2 the applicable presumptive sentencing range was 4 to 7 years' imprisonment if the superior court concluded that Hashemian was a second felony offender, and the applicable range was 6 to 10 years' imprisonment if the superior court concluded that he was a third felony offender.3 As we explained earlier, the State agreed that Hashemian should receive the lowest permissible sentence of imprisonment within the applicable range. Accordingly, if the superior court found that Hashemian was a second felony offender — that is, if the court concluded that Hashemian's Florida felonies should be treated as a single prior felony for presumptive sentencing purposes — then Hashemian would be sentenced to serve 4 years. If, on the other hand, the court ruled against Hashemian on the question of whether his Florida felonies should be treated as one, then Hashemian would be a third felony offender, and he would be sentenced to serve 6 years.

All of this was explained in open court by Hashemian's defense attorney, in Hashemian's presence, at the change-of-plea hearing on June 22, 2009. Moreover, just after the defense attorney described the terms of the agreement, the prosecutor (again, in Hashemian's presence) announced that he had recently received copies of Hashemian's paperwork from Florida, and "it look[ed] like there [were] two prior felony judgements in it". In other words, the prosecutor openly took the position that Hashemian had at least two prior felonies, that Hashemian was therefore a third felony offender for presumptive sentencing purposes, and that (accordingly) Hashemian's sentence under the plea agreement should be 6 years' imprisonment.

After the terms of the agreement were recited, and after the prosecutor announced the State's position that Hashemian should be treated as a third felony offender and sentenced to 6 years' imprisonment, Hashemian assured the superior court that he understood the plea agreement, and that he agreed to its terms.

Later, the pre-sentence report prepared by the Department of Corrections showed that Hashemian had been convicted of six felony offenses in Florida. When the parties came to court for Hashemian's sentencing hearing, the sentencing judge observed that, based on the information in the pre-sentence report, it appeared that Hashemian was a third felony offender and that he would receive a sentence of 6 years' imprisonment. In response, Hashemian asked for a continuance to explore the possibility of withdrawing his plea. The court granted this request and delayed Hashemian's sentencing for a month.

Two weeks before the re-scheduled sentencing hearing, Hashemian filed a motion to withdraw his plea. In that motion, Hashemian acknowledged that the plea agreement expressly provided that the parties would litigate, prior to sentencing, whether Hashemian should be treated as a second or third felony offender for presumptive sentencing purposes. Nevertheless, Hashemian asserted that when he agreed to this arrangement, he "firmly understood" that his prior convictions would be treated as a single prior conviction, based on the fact that he was sentenced on the same day for these prior offenses and he received concurrent sentences. Hashemian argued that he should be allowed to withdraw his plea because it now appeared that he was wrong in thinking that his prior convictions would be treated as a single prior felony, and that he would be sentenced as a second felony offender rather than a third felony offender.

The superior court refused to allow Hashemian to withdraw his plea. The court found that Hashemian had merely changed his mind about whether the bargain was advantageous to him, and that such a change of mind was not a fair and just reason to allow Hashemian to withdraw from the agreement. Hashemian now challenges the superior court's decision.

Under Alaska law, a defendant's mere change of mind about the advantages or advisability of accepting the plea agreement, or a defendant's re-evaluation of their chances for a favorable verdict, are not sufficient (as a matter of law) to justify a plea withdrawal, even when the request for plea withdrawal comes before sentencing and the State would suffer no prejudice if the defendant were allowed to withdraw their plea. See Shetters v. State, 751 P.2d 31, 35 (Alaska App. 1988); McClain v. State, 742 P.2d 269, 271 (Alaska App. 1987). Hashemian's case is governed by this principle.

Hashemian does not assert that he misunderstood the portion of the agreement which (1) acknowledged that there was a dispute as to whether Hashemian should be sentenced as a second felony offender or a third felony offender, and which (2) recognized the State's right to pursue its claim that Hashemian should be treated as a third felony offender. Instead, Hashemian asserts that, when he accepted the plea agreement, he had high expectations of prevailing on this disputed issue, and that he should have been allowed to withdraw his plea when these expectations were defeated.

Hashemian's position is essentially the same one that this Court rejected in Shetters and McClain. Although Shetters and McClain speak of a defendant's re-evaluation of their chances for a favorable verdict at trial, this is simply one example of the general principle that defendants are not allowed to withdraw their plea merely because they have re-evaluated their chances for a favorable outcome in the criminal litigation.

Just as a defendant may agree to a plea bargain because of a pessimistic appraisal of their chances for a favorable verdict at their trial, a defendant may agree to a plea bargain because of an optimistic appraisal of their chances for favorable rulings during the sentencing proceedings. In either event, a defendant's mere re-appraisal of their chances for a favorable outcome does not constitute a sufficient justification for withdrawing their plea.

Accordingly, even viewing Hashemian's contentions in the light most favorable to him, Hashemian failed to offer a valid justification for withdrawing his plea, and the superior court properly denied the plea-withdrawal motion.

Hashemian raises one more contention on appeal. He notes that the State failed to file formal documentation of Hashemian's prior felony convictions from Florida. See AS 12.55.145(b), which declares that "prior convictions not expressly admitted by the defendant must be proved by authenticated copies of court records". Because of this lack of documentary proof, Hashemian contends that the superior court committed error when it sentenced Hashemian as a repeat felony offender.

But it is absolutely clear from the record that Hashemian and his defense attorney were aware of these Florida felony convictions, and that they took these prior felonies into account when they negotiated and agreed to the plea bargain.

Hashemian never gave notice that he intended to dispute these Florida felony convictions. See AS 12.55.145(c), which requires a defendant to provide "a concise statement of the grounds" for disputing the validity or applicability of a prior felony conviction. But perhaps more important, Hashemian affirmatively conceded the existence and applicability of these prior felony convictions. That was the whole basis for his plea-withdrawal motion.

Accordingly, we conclude that even if it was error for the superior court not to require the State to file formal documentation establishing the existence of these Florida felony convictions, the error was harmless.

The judgement of the superior court is AFFIRMED.