Nick A. Frankson v. State of Alaska

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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
NICK A. FRANKSON,
Appellant,
v.
STATE OF ALASKA,
Appellee.
Court of Appeals No. A-14160
Trial Court Nos. 2KB-18-00529 CR
& 2KB-19-00373 CR
O P I N I O N
No. 2830 — July 10, 2026
Appeal from the Superior Court, Second Judicial District,
Kotzebue, Paul A. Roetman, Judge.
Appearances: Brooke Berens, Assistant Public Advocate and
James Stinson, Public Advocate, Anchorage, for the Appellant.
Seneca Theno Freitag, Assistant Attorney General, Office of
Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney
General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Harbison,
Judges.
Judge ALLARD.
This case returns to us following a remand from this Court. In our prior
decision, Frankson v. State (Frankson I),1 we were asked to review a superior court’s
1 Frankson v. State (Frankson I), 518 P.3d 743 (Alaska App. 2022).

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rejection of a sentencing agreement in connection with Nick A. Frankson’s guilty pleas
to third-degree assault and fourth-degree assault. In particular, we were asked to address
the question of whether a trial court has the authority to consider sua sponte a non-
Blakely statutory aggravating factor when deciding whether to accept or reject a
sentencing agreement that did not include any agreed-upon aggravators.2 (A non-
Blakely statutory aggravating factor is an aggravating factor that can be decided by a
judge rather than a jury.3)
In Frankson I, we held that a trial court has the authority to consider
sua sponte a non-Blakely aggravator when deciding whether to accept or reject a
sentencing agreement that did not include aggravators.4 We also provided additional
guidance regarding the factors that a trial court should consider when evaluating
whether to accept or reject a sentencing agreement.5 We then remanded Frankson’s case
to the superior court so that the court could reconsider whether to accept or reject the
parties’ sentencing agreement.6 We noted that, pursuant to Alaska Criminal Rule 11(e),
if the court rejected the sentencing agreement as too lenient, Frankson should be given
the opportunity to decide whether to withdraw his guilty pleas or to maintain his guilty
pleas and proceed to open sentencing.7
On remand, Frankson advocated for acceptance of the sentencing
agreement, arguing, inter alia, that there were evidentiary problems with the State’s
case. But the State (which was represented by a different prosecutor than the one who
2 Id. at 752-53.
3 See id. at 751 (citing Blakely v. Washington, 542 U.S. 296, 301-04 (2004)).
4 Id. at 754.
5 Id. at 755-57.
6 Id. at 757-58.
7 Id. at 758.

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had extended the original plea offer and represented the State at the first sentencing
hearing) argued against the plea agreement, and now claimed that there were no
evidentiary issues in establishing the State’s case.
The superior court again rejected the sentencing agreement as too lenient.
Frankson’s attorney then informed the court that Frankson intended to maintain his
guilty pleas and proceed to open sentencing. However, the court did not personally
inquire of Frankson whether he reaffirmed his earlier guilty pleas, Frankson himself
expressed some confusion over whether the sentencing agreement still applied, and he
later requested to withdraw his pleas. (The court did not respond to this request.)
Ultimately, the superior court sentenced Frankson to 5 years to serve on
the third-degree assault conviction (the maximum sentence) and 8 months to serve on
the fourth-degree assault conviction to be run consecutively. In imposing this
aggravated sentence, the superior court relied on Frankson’s prior misdemeanor assault
convictions to find a non-Blakely statutory aggravating factor, AS 12.55.155(c)(8) —
that “the defendant’s criminal history includes conduct involving . . . repeated instances
of assaultive behavior.”8 Frankson appealed both his sentence and the superior court’s
rejection of the sentencing agreement to this Court.
Shortly before Frankson filed his opening brief in his direct appeal, the
United States Supreme Court issued Erlinger v. United States.9 In Erlinger, the Court
held that the Fifth and Sixth Amendments require a unanimous jury finding beyond a
reasonable doubt on the question of whether a defendant’s prior convictions for
burglary occurred on “separate occasions” for purposes of enhancing a defendant’s
8 Id. at 751 (citing Blakely, 542 U.S. at 301-04). We note that AS 12.55.155(c)(8) is
only a non-Blakely aggravator if the trial court relies on prior convictions to find the
aggravator; if the trial court relies on instances of assault that were not convictions, then
those instances must be proved to a jury beyond a reasonable doubt and cannot be found
by the trial court.
9 Erlinger v. United States, 602 U.S. 821 (2024).

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sentence under the Armed Career Criminal Act.10 Frankson requested supplemental
briefing addressing the impact of Erlinger on the sentencing in his case. The State did
not oppose and we granted the request for supplemental briefing.
In total, Frankson now raises six claims of error: He argues that (1) the
State breached the plea agreement by arguing against the sentencing agreement on
remand; (2) the superior court violated the Fifth and Sixth Amendments under Erlinger
in finding a non-Blakely aggravator based on Frankson’s prior misdemeanor assault
convictions; (3) the superior court erred in rejecting the sentencing agreement as too
lenient; (4) the superior court erred in failing to obtain Frankson’s personal
reaffirmation of his guilty pleas; (5) the superior court erred in disregarding Frankson’s
later request to withdraw his plea; and (6) the superior court imposed an excessive
sentence that required a worst offender finding and violated the Neal–Mutschler rule.11
For the reasons explained here, we conclude that the superior court erred
in failing to obtain Frankson’s personal reaffirmation of his guilty pleas. We also
conclude that the State breached the plea agreement by arguing against the sentencing
agreement on remand. Because these errors require a remand for further proceedings,
we do not reach any of the other claims of error on appeal, with the exception of the
Erlinger claim. With regard to that claim, we conclude that, because the record showed
that Frankson had multiple prior misdemeanor assault convictions from different years,
the superior court did not violate the Fifth and Sixth Amendments under Erlinger when
10 Id. at 835.
11 Under the Neal–Mutschler rule, a sentencing judge may not impose consecutive
sentences exceeding the maximum term for the most serious offense absent a finding that
the composite sentence is necessary to satisfy a statutory goal of sentencing. See Phelps v.
State, 236 P.3d 381, 382, 393 (Alaska App. 2010).

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it found the non-Blakely aggravator of “repeated instances of assaultive behavior” based
on those prior assault convictions.12
Factual and procedural background
In July 2018, North Slope Borough Police Officers Gary Moore and Aaron
Grimes were dispatched to a residence in Point Hope after receiving a report that
Frankson was intoxicated and “was making statements about getting a gun.” When the
officers arrived, they observed Frankson inside the residence through the open door.
Frankson was holding a rifle. The officers drew their guns as Frankson raised the rifle
toward them. Officer Moore fired one round at Frankson, who closed the door. When
Frankson left the residence a few minutes later, Officer Grimes followed him and he
surrendered.13
At the grand jury proceeding, there was contradictory testimony regarding
whether Frankson had fired his rifle prior to Officer Moore discharging his firearm.
Officer Moore testified that he did not hear Frankson fire any shots and he did not see
any muzzle fire from Frankson’s firearm. However, Isaiah Eves, who had been drinking
with Frankson earlier, testified that he heard Frankson fire one shot before Officer
Moore fired. Eves testified that he did not see anything because he turned to run for
cover when he saw Frankson with the rifle.14
As part of an initial plea agreement related to this incident, Frankson
agreed to plead guilty to one count of third-degree assault in exchange for dismissal of
other counts. Frankson also agreed to stipulate to three aggravating factors, including
AS 12.55.155(c)(8) — that the defendant’s criminal history includes “repeated
12 See AS 12.55.155(c)(8).
13 Frankson I, 518 P.3d at 746.
14 Id.

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instances of assaultive behavior.”15 Although Frankson had an extensive history of
misdemeanor assaults, he qualified as a first felony offender with a presumptive
sentencing range of 0 to 2 years.16 However, with the agreed-upon aggravators, he could
be sentenced up to a maximum of 5 years. As part of this initial plea agreement, the
parties agreed to a sentence of 5 years with 4 years suspended (1 year to serve).17
In April 2019, the superior court accepted Frankson’s guilty plea and
ordered a presentence report, deferring whether to accept the parties’ sentence
agreement until sentencing.18 Prior to sentencing (and 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 related to this incident. Frankson was also separately
charged in a third case with violating conditions of release.19
The parties then reached a global plea agreement to resolve all three of
these cases. Under this new agreement, Frankson’s guilty plea to third-degree assault
would remain, and he would serve 600 days for that conviction.20 Regarding the second
case, Frankson agreed to plead guilty to one count of fourth-degree assault and to serve
120 days consecutive to the term of imprisonment on the third-degree assault
15 Id. at 747.
16 Id.
17 Id.
18 Id.
19 Id.
20 Id.

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conviction, for a composite sentence of 720 days. The State agreed to dismiss the
remaining counts from the second case and to dismiss the third case in its entirety.21
In January 2020, the superior court accepted Frankson’s guilty pleas and
set the matter for a sentencing hearing. At this sentencing hearing, Officer Moore and
the probation officer who authored the presentence report both objected to the plea
agreement as too lenient.22 The State and Frankson defended the plea agreement,
explaining that there were serious evidentiary issues and noting that the grand jury
indictment in the original weapons misconduct case had been “difficult to obtain.”23
Another issue also emerged at the sentencing hearing: the parties
disagreed as to whether the global plea agreement included the stipulated aggravating
factors that had been part of the original agreement. The State moved to withdraw its
offer on the ground that there was no meeting of the minds regarding whether
aggravating factors applied.24 Frankson moved to enforce the agreement with the
understanding that the global agreement did not include any stipulations to statutory
aggravators.25 The superior court agreed with Frankson and granted Frankson’s motion
to enforce the global plea agreement.26
However, the court also ruled that it had the authority to consider
sua sponte any non-Blakely aggravators established by the record in evaluating whether
to accept or reject the sentencing agreement. The superior court subsequently found a
non-Blakely statutory aggravating factor based on Frankson’s multiple prior
21 Id.
22 Id. at 748.
23 Id. at 747-48.
24 Id. at 748.
25 Id.
26 Id.

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misdemeanor assault convictions — AS 12.55.155(c)(8) (the defendant’s criminal
history includes “repeated instances of assaultive behavior”).27 Because the superior
court found a non-Blakely aggravator, the court was authorized to sentence Frankson
above the presumptive range and the court was also permitted to consider a Blakely
aggravator — AS 12.55.155(c)(13) (the defendant’s actions were directed at a law
enforcement officer).28 Based on these aggravators, the court rejected the sentencing
agreement as too lenient.29
Frankson petitioned this Court to review the superior court’s rejection of
the sentencing agreement. He challenged the court’s conclusion that it had the authority
to consider a non-Blakely aggravator when deciding whether to accept or reject a
sentencing agreement that did not include any aggravators.
In Frankson I, we concluded that the superior court had the authority to
consider a non-Blakely aggravator when deciding whether to accept or reject a
sentencing agreement.30 We also recognized that, under existing Alaska caselaw, it was
not error for the superior court to consider a Blakely aggravator once a non-Blakely
aggravator (and the enhanced sentencing range) were established.31
27 As already noted, AS 12.55.155(c)(8) is a Blakely aggravator that must be found
beyond a reasonable doubt by a jury if the State intends to rely on anything other than prior
convictions to establish the repeated instances of assaultive conduct. See Douglas v. State,
151 P.3d 495, 506-07 (Alaska App. 2006).
28 Frankson I, 518 P.3d at 754; see also Cleveland v. State, 143 P.3d 977, 988 (Alaska
App. 2006) (explaining that, under Alaska’s sentencing scheme, “once one or more
Blakely-compliant aggravating factors were proved, the sentencing judge was empowered
to impose any sentence up to the statutory maximum”).
29 Frankson I, 518 P.3d at 754-55.
30 Id. at 754.
31 Id. at 755 (citing Cleveland, 143 P.3d at 988).

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We then remanded the case to the superior court to reconsider whether to
accept or reject the sentencing agreement. We explained that a remand was necessary
for two reasons.32 First, the parties provided more detail on appeal regarding their
reasons for entering into the plea agreement than they had before the superior court, and
we concluded that the superior court should therefore have the opportunity to evaluate
those reasons within the legal framework provided by Frankson I.33 Second, a remand
was needed to ensure that the procedures under Alaska Criminal Rule 11(e)(3) were
followed if the superior court again rejected the sentencing agreement as too lenient.34
In the prior proceedings, the parties had mistakenly treated the superior court’s rejection
of the sentencing agreement as “automatically nullifying the entire plea agreement.”35
But, under Alaska Criminal Rule 11(e), a trial court’s rejection of a sentencing
agreement does not affect the underlying charge bargain.36 Thus, when a trial court
rejects a sentencing agreement as too lenient, the trial court must give the defendant the
opportunity to maintain their guilty plea(s) and proceed to open sentencing without the
sentencing agreement.37
Proceedings on remand
Frankson’s sentencing on remand was assigned to the same superior court
judge who had previously rejected the sentencing agreement as too lenient. Both parties
had the opportunity to submit memoranda before the sentencing hearing.
32 Id. at 757-58.
33 Id.
34 Id. at 758.
35 Id.
36 Id.
37 Alaska R. Crim. P. 11(e)(3); Frankson I, 518 P.3d at 758.

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In his sentencing memorandum, Frankson argued that the court should
accept the sentencing agreement as consistent with the Chaney criteria. In contrast, in
its sentencing memorandum, the State argued that the court should reject the sentencing
agreement as too lenient. The State was represented by a different prosecutor than the
one who had originally extended the offer and who had argued in favor of the agreement
at the first sentencing hearing.
At the sentencing hearing on remand, the superior court stated that it
would first hear argument regarding the original plea agreement and would then decide
whether it accepted or rejected the plea agreement. The court explained that if it rejected
the plea agreement, it would give Frankson the opportunity under Criminal Rule 11(e)
to decide whether to withdraw his guilty pleas or maintain his pleas and proceed to open
sentencing. The court noted that there was an addendum to the presentence report which
included a commendation for Officer Moore and Officer Grimes. The commendation
stated that there had been a trooper investigation into the incident which had “concluded
that Frankson had discharged a round towards Officers Moore and Grimes when the
magazine tube of his rifle experienced a jam . . . and failed to load another round.”
Frankson contested the fact that he had discharged his rifle, and the
defense attorney noted that neither officer had heard Frankson discharge a shot. The
prosecutor agreed that the officers had not heard the shot, but pointed out that Eves,
Frankson’s friend, had reported and testified at the grand jury proceeding to hearing
Frankson shoot a round prior to Officer Moore’s discharge of his weapon.
Consistent with the State’s sentencing memorandum on remand, the
prosecutor argued that the court should reject the plea agreement as too lenient. The
prosecutor claimed that there were no evidentiary or witness issues that he was aware
of. The presentence report writer again asserted that the 720-day sentence was too
lenient.
In contrast to the prosecutor, the defense attorney argued that there were
evidentiary and witness issues in the case that should be taken into account when

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evaluating the sentencing agreement. Frankson also spoke, noting that the original
prosecutor had a very different view of the case. Frankson denied shooting his rifle at
the officers.38
After hearing from both parties, the superior court again rejected the plea
agreement as too lenient. In rejecting the agreement, the court emphasized Frankson’s
criminal history, which involved multiple misdemeanor assault convictions, including
assaults against law enforcement. The court also found that Frankson had discharged
his rifle prior to Officer Moore firing his gun.
After rejecting the sentencing agreement as too lenient, the superior court
stated: “So with that, Mr. Frankson has a decision to make if he wants to be sentenced
open terms or if he wants me to set this case for trial. And do you need a moment or
have you been able to talk to him about that?” This question was apparently directed at
defense counsel.
Defense counsel stated that he had “spoken with Mr. Frankson at length
about this” and “he’s going to be maintaining his pleas, and we’ll proceed to the open
sentencing today.” The court then gave the parties an opportunity to add to their prior
comments before sentencing Frankson. After requesting a moment and conducting a
whispered conversation with Frankson, defense counsel stated, “Yes. We’re ready to
proceed. He’s going to be maintaining his guilty pleas. Thank you.”
When the State sought to make further argument, Frankson interjected,
“Your Honor, can he speak up for the record, though? I’m maintaining my guilty plea
to the original charges . . . for the 720 days, right?” While Frankson was speaking, the
Court simultaneously stated, “Yeah,” possibly responding to the request for counsel to
38 Although Frankson denied shooting the rifle, he did not provide a testimonial denial.
See Hamilton v. State, 771 P.2d 1358, 1362-63 (Alaska App. 1989) (holding that the State
cannot rely on hearsay evidence at sentencing if the defendant has provided a testimonial
denial — i.e., the defendant has taken the stand and testified under oath and been subject
to cross-examination).

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speak up for the record. Although some of Frankson’s comments were difficult to
follow, the following exchange ensued:
The court: Those aren’t tied together anymore,
because I’ve rejected the Rule 11. But yes on the assault
three, yes on the assault four. You’re maintaining your plea.
That’s what you’ve indicated to me. That’s what I
understand.
Mr. Frankson: To my understanding . . . I’m way over
my time served on all charges. . . . I’m stating from . . . my
understanding from the . . . Court of Appeals, the papers that
I have, the 720 days, . . . the court . . . had three ways about
going about it. It was not up to you to deny the Rule 11
agreement. . . . It stated for the record that you infringed in
my case. That means to violate —
Defense counsel: Hang on. Hang on.
[Various parties trying to talk over each other]
Defense counsel: — I think the main concern here is
the court’s made a decision about the Rule 11 agreement.
I’ve indicated to Mr. Frankson, if he maintains his pleas, you
know — and I’m not saying the court’s going to make a
mistake in the sentence, but he does have a right to an appeal
of the sentence —
The court: Oh, sure.
Defense counsel: — on the open basis and —
The court: Absolutely.
Defense counsel: — of the rejection. And so that’s part
of it. And so we can save some of the arguments for a
different judge if we need to at a later time.
Frankson: All right. I —
The court: Yeah.
Frankson: I apologize.
The court: But everything you’ve said is right here,
and it’s going into what you would be sentenced to. Okay.

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Following this exchange, the parties proceeded to advance arguments regarding
sentencing.
While the superior court was making its sentencing findings, Frankson
again interjected, exhibiting confusion about his potential sentence. When the court
indicated that it was imposing the maximum sentence of 5 years for the third-degree
assault conviction, Frankson interrupted, stating that he was “under the impression that
I’m not going to be getting 5 years” and that if the court was going to sentence him to
5 years, then he would like to “withdraw my guilty plea.” This request to withdraw his
plea was not addressed by the superior court. Instead, a back-and-forth exchange ensued
in which the superior court reminded Frankson that he was already “time-served” (i.e.,
that counting Frankson’s statutory good time credit, he had already served the 5-year
sentence and would be released).
After continuing with its sentencing remarks, the court imposed a final
sentence of 5 years on the third-degree assault and 8 months on the fourth-degree
assault, to be run consecutively. Frankson interrupted to state that the court was being
“biased and prejudiced” and that he would appeal.
Frankson then asked if the court was going to ask how he pleaded to the
charges, noting that he entered a plea for 720 days. The court clarified that Frankson
already pleaded guilty to charges, that he did not withdraw his plea, and that his lawyer
could explain more to him. Frankson again disputed the length of his sentence, noting
that the sentence was “not the original plea agreement that I pled out to.” The court
suggested that Frankson talk to his attorney about his desire to appeal the sentence.
Frankson was then fingerprinted and the hearing ended.

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Frankson’s argument that the superior court erred in failing to obtain
Frankson’s personal affirmation that he was maintaining his guilty pleas
As we explained in Frankson I, Alaska Criminal Rule 11(e)(3) governs
the procedures that should be followed when a trial court rejects a sentencing agreement
as too severe or too lenient. This provision provides:
(3) Rejection of Agreement. If the court rejects the
[sentencing] agreement, the court shall inform the parties of
this fact and advise the prosecuting attorney and the
defendant personally in open court that the court is not bound
by the agreement. If the court rejects the agreement as too
lenient, the court shall then afford the defendant the
opportunity to withdraw the plea. If the court rejects the
agreement as too severe, the court shall then afford the
prosecuting attorney the opportunity to withdraw from the
agreement.
In Kolkman v. State, this Court provided further guidance on how these
procedures should work.39 In Kolkman, the Court emphasized that the plain language
of the rule required the trial court to inform the defendant “personally,” and it concluded
that the opportunity to withdraw the plea must therefore be extended to the defendant
personally, not to their defense counsel.40 According to the Court, “Unless the defendant
affirmatively and unequivocally expresses the desire to persist in the original plea of
guilty or no contest, no judgment may be entered on the plea.”41
The Kolkman Court further explained that the requirement that the
defendant personally express their desire to persist in the original plea derives from “the
court’s fundamental duty to assure that pleas of guilty or no contest be voluntarily and
39 Kolkman v. State, 857 P.2d 1202, 1208 (Alaska App. 1993).
40 Id.
41 Id.

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intelligently entered.”42 As the Court explained, “The rejection of a negotiated plea of
guilty or no contest rekindles the same concerns for the voluntariness and intelligence
of the defendant’s actions that are sparked by entry of the initial plea.”43 Thus, the law
requires that the defendant personally affirm their decision to maintain their plea:
Just as the defendant must confirm the initial decision to
plead guilty or no contest in accordance with the terms of an
agreement personally and in open court, so must the
defendant, upon a subsequent rejection of the agreement,
personally affirm the decision to persist in the original plea,
despite the change in circumstances . . . . Counsel’s power to
plead guilty or no contest on behalf of the defendant should
be no greater after rejection of a plea agreement than it was
at the inception of the case.[44]
In other words, when a court rejects a sentencing agreement as too lenient, it is not
enough for the court to accept the defense attorney’s assurances that the defendant
wishes to maintain their guilty or no contest plea. Instead, the court must address the
defendant personally and obtain the defendant’s voluntary and intelligent personal
affirmation that they wish to maintain their pleas.45
Frankson argues on appeal that the Kolkman requirement that the
defendant personally affirm their decision to maintain their guilty or no contest pleas
was not followed in his case. We agree. The record from the remand proceedings shows
that the superior court relied on the defense attorney’s assurances and never obtained
Frankson’s personal affirmation that he wanted to maintain his guilty pleas and proceed
to open sentencing. Indeed, the record suggests that Frankson may have remained
confused regarding whether the sentencing agreement for 720 days still applied even
42 Id.
43 Id. at 1209.
44 Id.
45 Id.

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after the superior court rejected the sentencing agreement. Under these circumstances,
it was error for the superior court to proceed to open sentencing without hearing from
Frankson personally regarding whether he wanted to maintain his guilty pleas and
proceed to open sentencing or whether he wanted to withdraw his pleas and have the
original charges from all three cases reinstated.
Frankson argues that a second remand is needed to remedy this error. We
agree. And, as we explain in the next section, we conclude that a remand is also needed
because the prosecutor breached the plea agreement by taking an actively adverse
position against the plea agreement.
Frankson’s argument that the prosecutor breached the plea agreement by
actively arguing against the plea agreement
In Ahvakana v. State, this Court acknowledged that, “as a general matter,
the State cannot argue against a sentencing agreement to which it is a party” once the
defendant has changed their plea in detrimental reliance on the parties’ plea
agreement.46 As the Court explained, “[A]n implicit term of [a sentencing] agreement
is that the parties will ask the court to impose that sentence, or, at the very least, that
neither party will actively petition the court to impose a different sentence.”47
Other courts also recognize this general principle of law. In Santobello v.
New York, the United States Supreme Court noted that “when a plea rests in any
significant degree on a promise or agreement of the prosecutor, so that it can be said to
46 Ahvakana v. State, 552 P.3d 495, 497-98 (Alaska App. 2024); see also State v.
Howard, 630 N.W.2d 244, 249-50 (Wis. App. 2001) (“Although a defendant has no right
to call upon the prosecution to perform while the agreement is wholly executory, once the
defendant has given up his ‘bargaining chip’ by pleading guilty, due process requires that
the defendant’s expectations be fulfilled.”).
47 Ahvakana, 552 P.3d at 500.

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be part of the inducement or consideration, such promise must be fulfilled.”48 Likewise,
in State v. Brady, the Montana Supreme Court recognized that “[w]hen the State agrees
to recommend a specific sentence in a plea agreement, a prosecutor is ‘obligated to
approach sentencing in a manner that will not undermine’ the recommendation.”49 As
an Idaho appellate court has similarly cautioned, “A prosecutor may not circumvent a
plea agreement . . . through words or actions that convey a reservation about a promised
[sentencing] recommendation, nor may a prosecutor impliedly disavow the
recommendation as something that the prosecutor no longer supports.”50
Courts have recognized that prosecutors must sometimes “walk a fine
line” at sentencing by “balanc[ing] [their] duty to convey relevant information to the
sentencing court against [their] duty to honor the plea agreement.”51 As a general matter,
a prosecutor does not breach an agreement when, acting as an officer of the court, the
prosecutor answers questions by the sentencing judge or assists the victim in the
exercise of their constitutional right to be heard.52 But “[t]he State’s duty of good faith
48 Santobello v. New York, 404 U.S. 257, 262 (1971). See generally 4 Wayne R.
LaFave et al., Criminal Procedure § 21.2(d) (4th ed. 2025).
49 State v. Brady, 569 P.3d 195, 201 (Mont. 2025) (quoting State v. McDowell,
253 P.3d 812, 816 (Mont. 2011)); see also State v. Carreno-Maldonado, 143 P.3d 343,
347 (Wash. App. 2006) (“Because a defendant gives up important constitutional rights by
agreeing to a plea bargain, the State must adhere to the terms of the agreement by
recommending the agreed-upon sentence.” (citing State v. Sledge, 947 P.2d 1199, 1205
(Wash. 1997))).
50 State v. Wills, 102 P.3d 380, 382 (Idaho App. 2004).
51 State v. Williams, 637 N.W.2d 733, 745 (Wis. 2002) (quoting State v. Hanson, 600
N.W.2d 278, 283 (Wis. App. 1999)).
52 Carreno-Maldonado, 143 P.3d at 348.

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requires that it not undercut the terms of the agreement explicitly or implicitly by
conduct evidencing an intent to circumvent the terms of the plea agreement.”53
In cases where the prosecutor breaches the plea agreement by directly
undermining the agreed-upon sentence, the remedy is clear: a defendant is entitled
either to withdraw any entered plea or to have the prosecutor’s obligations under the
bargain specifically enforced.54 As the Washington Supreme Court stated in In re
Personal Restraint of James:
When a prosecutor breaches an agreement by failing to
recommend [the agreed-upon sentence], a defendant is
entitled to withdraw any entered plea or to have the bargain
specifically enforced. This right exists even though the
sentencing judge was not bound, nor even influenced, by the
prosecutor’s recommendation.[55]
Specific enforcement in this circumstance generally means a remand for
a resentencing before a new judge.56 As the Montana Supreme Court explained in
Brady, “Directing resentencing before a new judge is not a commentary on the
individual sentencing judge’s fairness, but rather, an acknowledgment that a
prosecutor’s breaching conduct inevitably undermines the fairness of the entire
sentencing proceedings.”57
53 Id. at 347.
54 Id. at 349; see also Puckett v. United States, 556 U.S. 129, 137 (2009) (explaining
that a defendant’s remedies for a breached plea agreement, depending on the context,
include rescission and specific performance).
55 In re Personal Restraint of James, 640 P.2d 18, 20 (Wash. 1982) (citation omitted).
56 See Santobello v. New York, 404 U.S. 257, 263 (1971) (holding that if petitioner is
granted specific performance they “should be resentenced by a different judge”). See
generally LaFave, supra note 48, at § 21.2(e); 1A Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure: Criminal, § 182 (5th ed. 2026).
57 State v. Brady, 569 P.3d 195, 206 (Mont. 2025); see also United States v. Nolan-
Cooper, 155 F.3d 221, 241 (3d Cir. 1998) (noting that “this result obtains irrespective of

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In the current case, there is no dispute that the prosecutor argued directly
against the agreed-upon sentence. The agreed-upon sentence was a combined 720 days
to serve (600 days for the third-degree assault conviction and 120 days for the fourth-
degree assault conviction).58 But on remand, the State filed a sentencing memorandum
advocating for imposition of the maximum penalty of 5 years to serve for the third-
degree assault conviction and requesting that any sentence for the fourth-degree assault
conviction be run consecutively.
Frankson’s attorney did not object to the prosecutor arguing against the
plea agreement. Because the defense attorney did not object to the State’s failure to
advocate for the agreed-upon sentence, Frankson must show “plain error” to prevail on
appeal. “Plain error is an error that (1) was not the result of intelligent waiver or a
tactical decision not to object; (2) was obvious; (3) affected substantial rights; and
(4) was prejudicial.”59
On appeal, the State argues that the prosecutor’s failure to abide by the
terms of the sentencing agreement did not constitute plain error because of the “unique”
circumstances of this case, which the State equates to the “unique” circumstances
governing our decision in Ahvakana.60
But the circumstances in Ahvakana were very different than the
circumstances presented here. In Ahvakana, the defendant rejected the original plea
offer because his attorney incompetently told him that he was only facing 15 to 20 years
the fact that the need for resentencing was caused by the government and is not attributable
to any error by the sentencing judge”).
58 Frankson I, 518 P.3d 743, 747 (Alaska App. 2022).
59 Adams v. State, 261 P.3d 758, 764 (Alaska 2011).
60 Ahvakana v. State, 552 P.3d 495, 498 (Alaska App. 2024).

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rather than the mandatory 99-year sentence he was actually facing if he went to trial.61
After Ahvakana was convicted at trial and sentenced to the mandatory 99-year term, he
filed an application for post-conviction relief seeking a remedy to the ineffective
assistance of counsel he had received with regard to the plea agreement.62 The superior
court ultimately resurrected the plea agreement as a judicially-crafted equitable remedy
under Lafler v. Cooper for the ineffective assistance of counsel.63 At the change of plea
hearing, the prosecutor requested that he be allowed to speak against the sentencing
portion of the plea agreement.64 Ahvakana’s lawyer did not object to this request, and
the superior court therefore allowed the prosecutor to argue that the sentencing portion
of the agreement was too lenient — a proposition with which the superior court
ultimately agreed.65
Ahvakana later appealed his sentence, arguing, inter alia, that the superior
court plainly erred when it allowed the prosecutor to argue against the sentencing
portion of the agreement.66 We affirmed, noting the general principle that the State
should not argue against a plea agreement to which it is a party, but concluding that
allowing the State to do so under the “unique” circumstances presented by Ahvakana’s
case was not plain error.67 In finding no plain error, we noted that the State had been
largely deprived of the benefits of the original plea agreement because it had already
61 Id.
62 Id.
63 Id. at 500-01 (citing, inter alia, Lafler v. Cooper, 566 U.S. 156, 170 (2012)).
64 Id. at 499.
65 Id.
66 Id. at 500.
67 Id. at 497-98.

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had to bear the burden and expense of taking Ahvakana’s case to trial.68 We therefore
concluded that the superior court “was within its discretion to craft a remedy that
allowed Ahvakana to receive the potential benefit of the original plea agreement, while
still allowing the State to argue against the sentencing component.”69
The circumstances of Frankson’s case are very different. Here, the State
has not been deprived of the primary benefit of the plea agreement because Frankson
accepted the plea agreement and entered guilty pleas in accordance with that
agreement.70 Under these circumstances, it was plain error to allow the prosecutor to
take an actively adverse position against the sentencing agreement to which the State
had previously agreed.71
As already explained, the remedy for such a breach is well-established: “a
defendant is entitled to withdraw any entered plea or to have the prosecutor’s
obligations under the plea bargain specifically enforced.”72 Specific performance in this
circumstance means that Frankson is entitled to a new sentencing hearing before a
68 Id. at 500. We also noted that one of the conditions of the original plea agreement
was that Ahvakana would not file any substantive motions or move for pretrial bail release.
Ahvakana took both actions after rejecting the plea agreement, further depriving the State
of the benefits of its agreement. Id.
69 Id. at 498.
70 See Frankson I, 518 P.3d 743, 747 (Alaska App. 2022).
71 Cf. Giglio v. United States, 405 U.S. 150, 154 (1972) (“The prosecutor’s office is
an entity and as such it is the spokesman for the Government. A promise made by one
attorney must be attributed, for these purposes [discovery nondisclosure], to the
Government.”); see also Harvey v. State, 285 P.3d 295, 305 (Alaska App. 2012)
(explaining that, under Santobello, a “prosecutor’s promise concerning the sentencing
recommendation may [be] enforceable against the State” (citing Santobello v. New York,
404 U.S. 257, 262-63 (1971))).
72 State v. Carreno-Maldonado, 143 P.3d 343, 349 (Wash. App. 2006) (quoting In re
Personal Restraint of James, 640 P.2d 18, 20 (Wash. 1982)).

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different judge.73 At that hearing, the prosecutor may not actively argue against the
agreed-upon sentence and the new judge must consider whether to accept the sentencing
agreement or reject it as too lenient. If the new judge rejects the sentencing agreement
as too lenient, then (as previously discussed) the judge must personally address
Frankson to determine whether he intends to maintain his guilty pleas and proceed to
open sentencing or whether he intends to withdraw his guilty pleas and go to trial on
the original charges in the three separate cases.
Because the superior court’s previous rejection of the sentencing
agreement was based on the superior court’s finding of the non-Blakely aggravator
AS 12.55.155(c)(8), we now address Frankson’s argument that the court did not have
the authority to find this aggravator under Erlinger v. United States.
Frankson’s argument that the superior court’s reliance on the statutory
aggravator AS 12.55.155(c)(8) to reject the plea agreement and to
sentence Frankson above the presumptive range was error under Erlinger
v. United States
Under Alaska’s presumptive sentencing scheme, a defendant convicted of
an offense faces a presumptive sentencing range based on a combination of the
offense’s classification (as a class A, B, or C felony) and the defendant’s status as a
first, second, or third felony offender.74 Under AS 12.55.155(c), the sentencing court
has the authority to exceed that presumptive range (up to the statutory maximum
sentence) based on a statutory aggravating factor. As we explained in our prior
73 See Santobello, 404 U.S. at 263; see also United States v. Ligon, 937 F.3d 714, 721
(6th Cir. 2019) (“[R]esentencing before a different district judge is the appropriate remedy
when the government breaches a plea agreement and [the defendant] is entitled to such
relief.”); State v. Fannon, 799 N.W.2d 515, 524 (Iowa 2011) (remanding for resentencing
before a new judge); State v. Howard, 630 N.W.2d 244, 254 (Wis. App. 2001) (“If the trial
court determines that resentencing is appropriate, the court should order resentencing by a
different judge.”).
74 Frankson I, 518 P.3d at 748-49.

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Frankson decision, there are “Blakely aggravators” that must be found by a jury beyond
a reasonable doubt and “non-Blakely aggravators” that can be found by clear and
convincing evidence by the sentencing judge.75
In Frankson’s case, the superior court relied on Frankson’s multiple prior
misdemeanor assault convictions to find AS 12.55.155(c)(8), a statutory aggravating
factor. Alaska Statute 12.55.155(c)(8) allows a sentencing court to impose a sentence
above the presumptive range if “the defendant’s prior criminal history includes conduct
involving . . . repeated instances of assaultive behavior.” As we have explained in
previous cases, “repeated instances” requires at least two instances of assaultive
conduct.76 In Frankson’s case, the superior court relied on Frankson’s prior convictions
for fourth-degree assault to find the aggravator.77 The presentence report indicates that
Frankson has at least eight prior convictions for fourth-degree assault.
On appeal, Frankson argues that the superior court’s reliance on
AS 12.55.155(c)(8) violated his Sixth Amendment right to a jury trial under a recent
United States Supreme Court decision, Erlinger v. United States.78 According to
Frankson, whether his convictions constitute “repeated” instances of assaultive
behavior was a question of fact that had to be found by a jury and could not be found
75 Id. at 751.
76 Murray v. State, 770 P.2d 1131, 1139-40 (Alaska App. 1989); Nashoalook v. State,
744 P.2d 420, 422 (Alaska App. 1987).
77 We note that the State is entitled to prove “instances of assaultive behavior” through
means other than prior convictions. See Russell v. State, 934 P.2d 1335, 1347 (Alaska
App. 1997). However, if the State relies on instances other than prior convictions, those
instances must be proved to a jury beyond a reasonable doubt. See Milligrock v. State,
118 P.3d 11, 16 (Alaska App. 2005) (“If the finding of aggravator (c)(8) in Milligrock’s
case hinged on assaultive behavior that did not lead to assault convictions, then this would
raise a substantial issue under Blakely.”).
78 Erlinger v. United States, 602 U.S. 821 (2024).

– 24 – 2830
by the court. He also argues that whether the prior convictions qualified as “instances
of assaultive behavior” is likewise a question of fact that must be found beyond a
reasonable doubt by a jury.
Erlinger was issued in June 2024, roughly fourteen months after
Frankson’s sentencing.79 The defendant in Erlinger pleaded guilty to being a felon in
possession, a federal offense that generally carried a maximum penalty of 10 years in
prison.80 However, the government also charged Erlinger under the Armed Career
Criminal Act (ACCA), which increased his potential prison term to a minimum of
15 years and a maximum of life if he had three prior convictions for “violent felon[ies]”
or “serious drug offense[s]” that were “committed on occasions different from one
another.”81 At sentencing, the government relied on Erlinger’s decades-old burglary
convictions for conduct that spanned seven days as constituting three prior convictions
for “violent felonies” that were committed “on occasions different from one another.”82
Erlinger objected to his burglary convictions being treated as convictions
that were committed “on occasions different from one another.”83 He argued that the
convictions represented a single continuing criminal episode and that the question of
whether these convictions were committed “on occasions different from one another”
was a jury question that could not be decided by the judge.84 The district court rejected
79 Id.
80 Id. at 825.
81 Id. (alterations in original).
82 Id. at 826-27.
83 Id. at 827.
84 Id.

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Erlinger’s request for a jury determination and instead made a judicial determination
that the multiple burglaries occurred on distinct occasions.85
Erlinger ultimately appealed the issue to the United States Supreme Court,
which held that whether Erlinger’s convictions were committed “on occasions different
from one another” was a “fact-laden task” that could only be decided by a jury beyond
a reasonable doubt.86 As the Court explained:
Presented with evidence about the times, locations, purpose,
and character of those crimes, a jury might have concluded
that some or all occurred on different occasions. Or it might
not have done so. All we can say for certain is that the
sentencing court erred in taking that decision from a jury of
Mr. Erlinger’s peers.[87]
The Court therefore held that the trial court had violated Erlinger’s right to a jury trial
under the Sixth Amendment by removing this “fact-laden” issue from the jury.88
Frankson argues that his Sixth Amendment rights were similarly violated
when the superior court relied on his prior convictions for purposes of finding the
statutory aggravator AS 12.55.155(c)(8). According to Frankson, the superior court had
no authority to find that his prior convictions constituted “repeated instances of
assaultive behavior”; instead, these findings could only be made by a jury beyond a
reasonable doubt. Frankson therefore argues that it was error for the superior court to
rely on AS 12.55.155(c)(8) to reject the plea agreement as too lenient and to sentence
him above the applicable presumptive range.
85 Id.
86 Id. at 834.
87 Id. at 835.
88 Id. at 834-35.

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In response, the State argues that the superior court did not err in relying
on “the fact of the prior convictions” to find the aggravator and it asserts that such
judicial findings are permitted under Almendarez-Torres v. United States.89 We agree.
Almendarez-Torres both predates and survives the Blakely line of cases.
In Almendarez-Torres, the United States Supreme Court held that a judge could find
the “fact of a prior conviction” without a jury.90 In Apprendi v. New Jersey, the Supreme
Court held that a criminal defendant had a right to a jury finding beyond a reasonable
doubt for “any fact that increases the penalty for a crime beyond the prescribed statutory
maximum” other than “the fact of a prior conviction.”91 But the Court explicitly
exempted “the fact of a prior conviction” from that required jury finding, and the Court
did not overrule Almendarez-Torres.92 Likewise, in Blakely, the Court extended the
Apprendi holding to legislatively prescribed presumptive sentencing, but again
recognized the exception for “the fact of a prior conviction.”93
On appeal, Frankson points out that the Supreme Court was highly critical
of Almendarez-Torres in Erlinger, and he suggests that it is only a matter of time before
the Supreme Court directly overrules Almendarez-Torres and prohibits sentencing
courts from relying on any prior convictions to enhance a defendant’s sentence above a
prescribed maximum penalty. We nevertheless conclude that, for now at least,
89 Almendarez-Torres v. United States, 523 U.S. 224 (1998).
90 Erlinger, 602 U.S. at 837 (citing Almendarez-Torres, 523 U.S. at 246-47).
91 Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).
92 Id. at 489-90. As the Court explained in Apprendi, the prior conviction exception
exists because the procedural safeguards embedded in the prior criminal proceedings
(which include jury findings beyond a reasonable doubt) “mitigate[] the due process and
Sixth Amendment concerns otherwise implicated in allowing a judge to determine a ‘fact’
increasing the punishment beyond the maximum of a statutory range.” Id. at 488.
93 Blakely v. Washington, 542 U.S. 296, 301, 303 (2004) (quoting Apprendi, 530 U.S.
at 490).

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Almendarez-Torres remains good law.94 We recognize, however, that “the fact of a prior
conviction” under Almendarez-Torres must be narrowly construed in light of
Erlinger.95
Here, the presentence report96 indicates that Frankson’s criminal history
includes the following convictions: (1) 2002 conviction for fourth-degree assault;
(2) 2011 conviction for fourth-degree assault; (3) 2013 conviction for fourth-degree
assault; (4) 2015 conviction for fourth-degree assault; (5) 2016 conviction for fourth-
degree assault; (6) 2016 conviction for fourth-degree assault; (7) 2017 conviction for
fourth-degree assault; (8) 2017 conviction for fourth-degree assault; and (9) 2018
conviction for fourth-degree assault.
Notably, unlike Erlinger, Frankson did not argue that these assault
convictions represented a single course of conduct. Nor could he reasonably make such
an argument given the dates of the convictions, most of which occurred in entirely
different years. Indeed, even excluding those fourth-degree assault convictions that
occurred in the same year as another fourth-degree assault conviction, the record still
shows more than enough separate convictions for fourth-degree assault to qualify as
“repeated instances of assaultive behavior” as those terms are defined under Alaska
law.97 Moreover, the court could make such findings based on the date of the conviction
94 See Erlinger, 602 U.S. at 838.
95 Id. at 837. We note, for example, that Erlinger suggests that the date of the offense
(as opposed to the date of the conviction) is not generally considered a permissible “fact”
that inheres in the prior conviction. Id. at 839.
96 Frankson did not raise the Erlinger issue in the superior court, and the judgments
for his prior convictions were therefore not submitted to the court. Given this plain error
posture, we rely on the presentence report here. As a general matter, however, courts should
rely on the underlying judgments. See, e.g., AS 12.55.145(b)-(d).
97 See AS 12.55.155(c)(8); Murray v. State, 770 P.2d 1131, 1139-40 (Alaska
App. 1989); Nashoalook v. State, 744 P.2d 420, 422 (Alaska App. 1987).

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and the “fact of a prior conviction” — that is, based on the existence of the prior
conviction and the statutory elements of that prior conviction.98
Courts in other jurisdictions have likewise recognized that the
Almendarez-Torres exception for “the fact of a prior conviction” remains good law even
after Erlinger.99 In Dawson v. State, for example, the Nevada Supreme Court held that
Nevada’s “habitual criminal” sentence enhancement fit within the Almendarez-Torres
exception because it only required the trial court to find the requisite number of prior
convictions and did not involve a fact-laden inquiry like the Armed Career Criminal
98 See Erlinger, 602 U.S. at 839 (recognizing that courts have the authority to
determine “the fact of a prior conviction and the then-existing elements of that offense”);
see also State v. Dugan, 587 P.3d 487, 496 (Wash. App. 2026) (noting that a “court can
identify a date of conviction in the judgment and sentence with no need to consider the
conviction’s underlying facts”). Contrast People v. Wiley, 570 P.3d 436, 443-44
(Cal. 2025) (holding that, absent waiver or stipulation, the defendant was entitled to a jury
finding on the aggravating circumstance of “increasing seriousness” of his prior
convictions and the aggravating circumstance of performing “unsatisfactorily” on
probation).
99 United States v. Florence, 163 F.4th 1017, 1024 (6th Cir. 2026) (emphasizing that
Almendarez-Torres remains good law and holding that court’s use of prior conviction to
enhance sentence was proper); People v. Young, 254 N.Y.S.3d 91, 96 (N.Y. App. 2026)
(holding that the trial court could determine if defendant is second felony offender); People
v. Jackson, 225 N.Y.S.3d 903, 910 (N.Y. Sup. 2025) (concluding that New York’s
persistent violent sentencing scheme remains constitutional after Erlinger and continues to
fall within the Almendarez-Torres exception to Apprendi); People v. Holman,
___ N.E.3d ___, 2025 WL 3754132, at *7-8 (Ill. App. Dec. 29, 2025) (emphasizing that
Erlinger did not overrule Almendarez-Torres and holding that court could determine
whether the conviction occurred within ten years of the prior conviction, excluding time in
custody); Dawson v. State, 559 P.3d 356, 361 (Nev. 2024) (concluding that Nevada’s
“habitual criminal” sentence enhancement fit within the Almendarez-Torres exception
because it only required the trial court to find the requisite number of prior convictions).
But see State ex rel. Hanaway v. Hellmann, 728 S.W.3d 410, 414-15 (Mo. 2026) (requiring
jury to determine whether defendant’s prior DWI offenses were committed “on separate
occasions” as required by Missouri’s persistent offender statute).

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Act inquiry in Erlinger.100 And in United States v. Florence, the Sixth Circuit held that
the trial court could find a sentence enhancement for a defendant convicted of
possession of child pornography based on the defendant’s prior convictions for
possession of child pornography and attempted transportation of child pornography.101
The Sixth Circuit rejected the defendant’s assertion that a jury was needed to determine
whether the prior convictions qualified as “predicate offenses” because the district court
could make this determination by “look[ing] no further than the table of contents of the
U.S. Code” to confirm that the prior convictions were under the applicable chapter.102
This is not to say that finding “repeated instances of assaultive behavior”
under AS 12.55.155(c)(8) will never implicate Sixth Amendment jury concerns. As the
parties both recognize, federal constitutional law on these issues is still evolving. Here,
however, the superior court could find the statutory aggravating factor based solely on
the existence of the prior convictions — all of which were for assaultive behavior. We
therefore conclude that the court did not err when it relied on Frankson’s multiple prior
assault convictions to find the statutory aggravator, and we further conclude that, on
remand, the superior court has the authority to consider these prior convictions when
determining whether the statutory aggravator AS 12.55.155(c)(8) applies to Frankson’s
felony assault conviction.
100 Dawson, 559 P.3d at 361; see also Vaughn v. State, 563 P.3d 295, 302-03
(Nev. 2025) (explaining that one could be found a habitual criminal without submitting the
question to the jury because finding the necessary five previous convictions was unlike
“the fact-specific findings required for conviction under the Armed Career Criminal Act”
in Erlinger).
101 Florence, 163 F.4th at 1025.
102 Id.

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Conclusion
For the reasons explained here, we VACATE Frankson’s sentence and
REMAND this case to the superior court so that a new judge can hold a sentencing
hearing at which the prosecutor supports, or at least does not actively undermine, the
sentencing agreement. If the court accepts the sentencing agreement, the court shall
sentence Frankson to 720 days in accordance with the agreement. If the superior court
rejects the sentencing agreement as too lenient, the court must personally address
Frankson and obtain Frankson’s voluntary and knowing decision as to whether he wants
to withdraw his guilty pleas and proceed to trial or maintain his pleas and proceed to
open sentencing. We do not retain jurisdiction.