PHILIP G. DUTTON,             )
                              )    Court of Appeals No. A-6767
               Appellant,     )   Trial Court No. 1JU-96-1058 Cr
          v.                  )           O P I N I O N
STATE OF ALASKA,              )  
               Appellee.      )   [No. 1615 - January 8, 1999]

          Appeal from the Superior Court, First Judicial
District, Juneau, Larry R. Weeks, Judge.

          Appearances:  Kevin Shores, Assistant Public
Defender, Juneau, and Barbara K. Brink, Public Defender, Anchorage,
for Appellant.  Kenneth M. Rosenstein, Assistant Attorney General,
Office of Special Prosecutions and Appeals, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for Appellee. 

          Before:  Coats, Chief Judge, and Mannheimer and
Stewart, Judges. 

          MANNHEIMER, Judge.

          This appeal requires us to interpret a contract a plea
bargain.  Philip G. Dutton was charged with third-degree assault.
The State offered to reduce this charge to a misdemeanor (fourth-
degree assault), conditioned on Dutton's also pleading guilty to a
federal felony charge arising from the same episode.  Dutton
accepted the offer:  he pleaded guilty in federal court, and then
he was sentenced on the misdemeanor assault charge in state court. 
Six months later, however, Dutton withdrew his federal plea. 

          Dutton's withdrawal of his federal plea raises two
questions:  First, did Dutton materially breach his plea bargain
with the State when, following his state sentencing, he withdrew his
federal plea?  Second, assuming that Dutton's withdrawal of his
federal plea was a material breach of his plea bargain with the
State, could the State reinstate the original felony charge? 

          For the reasons explained here, we conclude that Dutton's
withdrawal of his federal plea was a material breach of his plea
agreement with the State, and we further conclude that the double
jeopardy clause did not prohibit the superior court from vacating
Dutton's misdemeanor conviction and reinstating the original third-
degree assault charge.  

          Underlying Facts
          Philip G. Dutton faced both state and federal felony 
charges stemming from his conduct in Glacier Bay National Park.  The
state felony charge was third-degree assault:  the State asserted
that Dutton had aimed a .44 magnum handgun at a man (Dan Foley) who
happened upon Dutton's campsite, and that Dutton had threatened to
shoot Foley. 

          To resolve this assault charge, Dutton and the State
entered into a plea agreement.  The State agreed to reduce the
assault charge to fourth-degree assault (a misdemeanor), and the
State further agreed that Dutton would receive a sentence of
12 months' imprisonment with 8 months suspended (4 months to serve),
plus forfeiture of the .44 magnum.  For his part, Dutton agreed to
plead no contest to fourth-degree assault and, additionally, to
plead guilty or no contest to at least one federal felony. 

          Dutton's change-of-plea hearing in superior court was
postponed twice, a delay of almost one month, until the parties made
sure that Dutton had entered his federal plea.  When this was
verified, the superior court accepted Dutton's plea to fourth-degree
assault and imposed the agreed-upon sentence. 

          Things unraveled six months later, when Dutton withdrew 
his plea to the federal felony.  The State announced that it
considered Dutton to have breached the plea agreement, thus
resuscitating the third-degree assault charge.  Over Dutton's
objection, Superior Court Judge Larry R. Weeks vacated Dutton's
fourth-degree assault conviction and allowed the State to reinstate
the third-degree assault charge.  

          Judge Weeks found that Dutton's agreement with the State
required Dutton not just to plead guilty in federal court but also
to be sentenced on that plea.  Accordingly, Judge Weeks ruled that
when Dutton withdrew his federal plea, he violated the terms of his
plea agreement with the State.  Judge Weeks then ruled that, because
Dutton had breached the agreement, the plea agreement should be
rescinded and the parties returned to the status quo ante:  Dutton's
misdemeanor assault conviction should be vacated, and the State
should be allowed to reinstate the original felony assault charge. 

          Following this ruling, Dutton was tried for third-degree
assault and was convicted.  He now appeals the superior court's
decision to allow the State to prosecute the third-degree assault

          The Standards of Review
          Plea agreements are, in essence, contracts between a
defendant and the government. 1  If a dispute arises
concerning the terms of the agreement, the trial court must make
findings regarding the existence and meaning of those terms.  If one
party alleges that the other party has violated the agreement, the
trial court must likewise make findings regarding the asserted
breach.  If a breach is found, the court must then decide whether
the breach was material.  And if the breach was material, the court
must fashion a remedy.  

          On appeal, a trial court's findings of historical fact  
its findings regarding the terms of the agreement and whether those
terms were violated   will be upheld unless those findings are shown
to be clearly erroneous. 2  But the question of whether a
breach is "material"   that is, whether the breach destroys the
basic value of the agreement and excuses the non-offending party
from further adherence to the terms of the agreement   is ultimately
a question of law.  Thus, an appellate court decides this issue de
novo. 3  

          Did Dutton's plea agreement require him to persist in his
     federal plea through sentencing?  

          Dutton contends that, even though he withdrew his federal
plea after he was sentenced in state court, he nevertheless lived
up to the terms of the plea agreement.  He argues that the plea
agreement merely required him to enter the federal plea and did not
require him to be sentenced in federal court.  According to Dutton,
once he entered his federal plea, he satisfied his part of the
bargain and he was then at liberty to do anything he might to avoid
being sentenced in federal court.  

          As explained above, it was Judge Weeks's duty to resolve
this dispute concerning the terms of Dutton's plea agreement.  The
law allows a trier of fact to infer the existence and terms of a
contract "based on the reasonable meaning of a party's words and
acts". 4  When a conflict arises regarding the terms of a
contract, the trier of fact examines the parties' manifestations of
purpose and assent.  Because a contract is assessed under an
objective standard, if a party objectively manifested an intention
to be bound by the terms of a contract, that assent can not be
defeated by evidence of the party's unexpressed reservations or
subjective contrary intentions. 5 

          Dutton points out that he never expressly promised that
he would not withdraw his federal plea.  He also points out that the
state prosecutor was willing to allow the change-of-plea to go
forward in state court even though Dutton had not yet been sentenced
in federal court.  From this, Dutton argues that Judge Weeks should
have concluded that it was immaterial to the plea agreement whether
Dutton was ever sentenced in federal court.  

          The record as a whole, however, tends to refute Dutton's
argument.  As we explain below, the words and actions of the parties
provide ample basis for Judge Weeks's conclusion that Dutton's plea
agreement was premised, not just on Dutton's entry of a plea in
federal court, but on Dutton's conviction and sentencing in federal

          As already noted, Dutton's change-of-plea hearing was
postponed until the parties ascertained that Dutton had indeed
entered his plea in federal court.  In addition, the prosecutor told
Judge Weeks that the State's primary motivation for reducing the
charge from third-degree assault to fourth-degree assault was that
"[Dutton] has been convicted of a federal felony".  Dutton's
attorney agreed; the defense attorney told Judge Weeks that "the
State only agreed to reduce [the charge against Dutton] contingent
upon [his] entering a plea in federal court". 

          A few moments later, when discussing the fairness of the
proposed misdemeanor sentence (4 months to serve), the defense
attorney assured Judge Weeks that the important goals of sentencing
were going to be satisfied by Dutton's anticipated federal sentence: 

	I think that [Your Honor] can have some confidence in the 
	federal court and the fact ... that Mr. Dutton's rehabilitation
	and deterrence is going to be satisfied to a greater extent by 
	what's going to happen in federal court than it could be [in 
	state court] under misdemeanor probation. 

From this, Judge Weeks could justifiably conclude that the State's
plea agreement with Dutton contemplated that Dutton would be
convicted and sentenced in federal court. 

          In addition to this inference that Judge Weeks drew from 
objective manifestations of the parties, we note that Dutton's
interpretation of the plea agreement simply does not make sense. 
Dutton fails to suggest what benefit the State might gain from
Dutton's entry of a federal plea unless Dutton was actually
convicted and sentenced in federal court.  That is, there appears
to be no reason why the State would agree to reduce its charge
against Dutton in exchange for Dutton's entry of a guilty plea in
the federal case if the State believed that Dutton was then free to
withdraw the federal plea.  

          Given this record, Judge Weeks had ample evidentiary
justification for concluding that Dutton's plea agreement required
Dutton not just to enter a plea in federal court but also to persist
in that plea, so that he was convicted and sentenced in federal
court.  The judge's interpretation of the terms of the contract is
not clearly erroneous. 

          (In his brief to this court, Dutton raises the possibility
that, because of circumstances beyond Dutton's control, his federal
plea might not have resulted in a conviction and sentence.  Dutton
suggests, for example, that he would not have violated his plea
agreement if the U.S. Attorney's Office had decided to reject
Dutton's plea and instead go to trial on all of the outstanding
federal charges.  There may be some merit to Dutton's argument, but
it is entirely hypothetical.  It was Dutton's choice to withdraw his
federal plea.) 

          Was Dutton's breach of the plea agreement a material

          Judge Weeks concluded that Dutton's breach of the plea
agreement (his withdrawal of his federal plea) was a "material"
breach   that is, a serious enough breach to warrant rescinding the
plea bargain and allowing the State to reinstate the original
charge.  The question of whether a breach is material must be
answered by examining the reasonable expectations of the parties and
then assessing to what extent the breach defeated these
expectations. 6  

          Dutton was charged with aiming a .44 magnum handgun at
another man and threatening to kill him.  This conduct falls within
the core of third-degree assault as defined in AS 11.41.-
220(a)(1)(A).  At the change-of-plea hearing, the prosecutor
explained that the State viewed Dutton's conduct as serious and that
the State had agreed to reduce the charge to a misdemeanor (fourth-
degree assault) only because Dutton had pleaded guilty to a federal

          The record shows that both parties contemplated that
Dutton's federal sentence would be more important than his state
sentence.  The plea agreement called for Dutton to serve 4 months
in jail for the misdemeanor assault.  Because Dutton had been in
custody for several months by the time he changed his plea, Dutton's
4-month sentence amounted to time served.  When Dutton's attorney
spoke to the court about this proposed sentence, the defense
attorney assured Judge Weeks that Dutton's misdemeanor sentence was
of small importance because the judge could rely on Dutton's federal
sentence to satisfy the sentencing goals of deterrence and

          Given these circumstances, we agree with Judge Weeks that
Dutton's withdrawal of his federal plea significantly defeated the
State's expectations and was therefore a material breach of the plea

          On appeal, Dutton argues that even if he breached the plea
agreement by withdrawing his federal plea, this breach was not
material because the State ultimately was not harmed.  Dutton points
out that, even though he withdrew his federal plea and went to
trial, he was subsequently convicted of several federal offenses,
for which he received a composite sentence of 12 months'

          There are two problems with Dutton's argument; the first
one is procedural and the second one is substantive.  

          First, Dutton did not receive his federal sentence until
September 4, 1997.  This was approximately four months after Judge
Weeks made his decision concerning Dutton's breach of his plea
agreement with the State.  In fact, Dutton had already been tried,
convicted, and sentenced in the superior court for third-degree
assault before he was sentenced in federal court.  Dutton's state
sentence was entered on August 15, 1997   three weeks before his
federal sentencing.  

          Under these circumstances, if Dutton believed that his
federal sentence mitigated his breach of the plea agreement, it was
his duty to present this argument to Judge Weeks and to ask Judge
Weeks to reconsider his earlier decision to rescind the plea
agreement.  Dutton can not litigate this issue for the first time
on appeal. 

          Second, even though Dutton was eventually tried and
convicted in federal court, this does not necessarily mean that he
committed no material breach of his plea agreement with the State.
For instance, in United States v. Gonzalez-Sanchez 7, the
government agreed to dismiss some of the charges against one
defendant, Carlos Latorre, in exchange for Latorre's promise to
cooperate fully and honestly in the prosecutions of his co-
defendants.  However, when Latorre later took the stand as a
government witness, his testimony differed materially from his
earlier statements to the federal investigators.  The government
thereupon rescinded the plea agreement and reinstated the original
charges against Latorre. 

          On appeal, Latorre argued that even if he failed to
cooperate fully and honestly, the government suffered no injury
because the government ultimately obtained the conviction of
Latorre's co-defendant.  The federal court of appeals rejected this

	[Latorre's] argument misinterprets his obligation under the plea
	agreement.  The government's promise was not conditioned upon ...
	conviction of ... any other defendant; it was conditioned upon 
	Latorre's cooperation in the government' investigation and prose-
	cutions.Latorre failed to cooperate with the government.  He cannot
	expect to receive the benefits of his plea agreement simply because the 
	government was successful in its prosecution of [the co-defendants]
	despite Latorre's surprise testimony.  The district court's findings
	that Latorre failed to cooperate fully and honestly and that this
	failure constituted a material breach of the plea agreement are not
	clearly erroneous. 

Gonzalez-Sanchez, 825 F.2d at 579.
          Similarly, in Dutton's case, the federal government
ultimately succeeded in convicting Dutton of felony charges despite
his refusal to enter a plea, but this fact does not excuse Dutton's
breach of the plea agreement, nor does it render his breach of the
agreement any less material.  

Could Judge Weeks rescind the plea agreement after Dutton
had already been convicted of misdemeanor assault (based on his
plea) and had served his sentence? 

          Dutton argues that even if he materially breached his plea
agreement with the State, the double jeopardy clauses of the federal
and state constitutions forbade Judge Weeks from rescinding the plea
agreement, vacating Dutton's misdemeanor conviction, and allowing
the State to reinstate the third-degree assault charge.  

          Dutton points out that, when he withdrew his federal plea,
his state court conviction for fourth-degree assault was already
final.  (Indeed, as just explained, Dutton had already served his
sentence because he was sentenced to time served.)  Dutton also
points out that fourth-degree assault is a lesser offense included
within the original charge of third-degree assault.  From this,
Dutton concludes that his conviction and sentence for fourth-degree
assault preclude any later prosecution for third-degree assault
arising out of the same incident, even if he did violate the terms
of his plea agreement. 

          It is true, as a general rule, that the double jeopardy
clause forbids a state from prosecuting a defendant after the
defendant has already been convicted and punished once for the same
offense.  This same rule applies when the second prosecution is for
a greater offense after the defendant has been convicted of a lesser
included charge arising from the same incident. 8  However,
the rule is different when the defendant has secured the lesser
charge as part of a plea bargain.  In Ricketts v. Adamson 9,
the United States Supreme Court held that the federal double
jeopardy clause is not violated when, following a defendant's breach
of a plea agreement, the government reinstitutes a greater charge
that was reduced as part of a plea agreement   even after the
defendant has changed their plea and been convicted of the reduced

          The defendant in Adamson was charged with first-degree
murder in connection with the bombing death of a news reporter. 
Adamson was allowed to plead guilty to a lesser included offense
(second-degree murder) in exchange for his promise to testify
against two other participants in the conspiracy.  He did so. 
Adamson was then sentenced for second-degree murder and began
serving his sentence.  However, the convictions of the two other
conspirators were reversed on appeal, and the government again
called upon Adamson to testify against them.  This time, Adamson
refused.  The government responded by rescinding the plea agreement
and charging Adamson with first-degree murder.  Adamson was tried
and convicted. 

          Having exhausted his state appeals, Adamson ultimately
sought a federal writ of habeas corpus.  He argued that the double
jeopardy clause prohibited the state from prosecuting him a second
time for his role in the murder, and he also argued that, even
though he had agreed to the plea bargain, no one had ever explicitly
asked him to waive his double jeopardy rights. 10  The Supreme
Court  rejected this contention: 

	We ... assume that jeopardy attached at least when [Adamson] 
	was sentenced ... on his plea of guilty to second-degree murder.
	Assuming also that[,] under Arizona law[,] second-degree murder 
	is a lesser included offense of first-degree murder, the Double 
	Jeopardy Clause, absent special circumstances, would have precluded
	[Adamson's] prosecution ... for the greater charge on which he now
	stands convicted.  Brown v. Ohio [citation omitted].  The State
	submits, however, that [Adamson's] breach of the plea [agreement] ... 
	removed the double jeopardy bar to prosecution of [Adamson] on the
	first-degree murder charge.  We agree with the State. 

 Adamson, 483 U.S. at 8, 107 S.Ct. at 2685 (footnotes omitted).  
	Dutton acknowledges that Adamson appears to remove any
potential double jeopardy objection based either on the apparent
finality of Dutton's fourth-degree assault conviction and sentence
or on the fact that fourth-degree assault is a lesser included
offense of the original charge, third-degree assault.  Dutton
argues, however, that Adamson allows such a result only when the
plea agreement expressly provides that the defendant's breach will
result in reinstatement of the original charges.  

          The plea agreement in Adamson specifically provided that
if Adamson failed to abide by the terms of the agreement, the
original first-degree murder charge would be automatically
reinstated and the parties would be returned to the positions they
occupied before the agreement. 11  Although the Adamson plea
agreement did not explicitly mention the double jeopardy clause or
explicitly declare that Adamson would waive his double jeopardy
rights if he violated the agreement, the Supreme Court deemed the
above-referenced provisions to be the functional equivalent of an
explicit waiver of Adamson's double jeopardy rights in the event he
breached the agreement. 12 

          Dutton interprets Adamson as standing for the rule that,
if the government allows a defendant to plead guilty to reduced
charges, and if the government wishes to be able to reinstate the
original charges if the defendant breaches the plea agreement, then
the agreement itself must explicitly declare that one of the
consequences of a breach is reinstatement of the original charges. 
Dutton relies on cases holding that waivers of double jeopardy
rights must be intentional. 13  He argues that if Adamson were
interpreted to allow the State to reinstate the original charges
even when the plea agreement is silent on this point, this would,
in effect, lend judicial recognition to unintended forfeitures of
the constitutional guarantee against double jeopardy.  

          Dutton is correct that double jeopardy rights can not be
forfeited unintentionally.  Nevertheless, criminal defendants may
relinquish their double jeopardy rights by their conduct (or by the
conduct of their attorneys) even though no judicial officer ever
explains the double jeopardy consequences of this conduct to the
defendant beforehand.  

          This principle was addressed by the United States Supreme
Court in United States v. Scott. 14  The defendant in Scott
was charged with three counts of distributing narcotics.  In the
middle of his jury trial, Scott asked the trial judge to dismiss two
of the counts because of prejudicial pre-indictment delay; the trial
judge granted Scott's motion.  The government sought to appeal this
dismissal, but the federal appeals court ruled that the government's
appeal was barred by the double jeopardy clause   because the trial
judge's ruling had been issued in the middle of trial, after
jeopardy had attached. 

          The Supreme Court reversed the federal appeals court and
allowed the government to appeal the dismissal of the two counts. 
The Court held that the double jeopardy clause did not preclude the
government's appeal because Scott had elected to seek termination
of his trial on the two counts, and because Scott sought this
termination "on grounds unrelated to guilt or innocence". 15 
Because Scott chose to seek termination of the already-commenced
jury trial on grounds that did not constitute a factual acquittal,
Scott suffered "no injury cognizable under the Double Jeopardy
Clause" when the government appealed the trial judge's dismissal of
the two counts. 16

          The Supreme Court declared that its decision was not based
on any finding that Scott had "waived" his protection against double
jeopardy   in the sense of formally and voluntarily relinquishing
a known right. 17  Rather, the Supreme Court held, no such
formal waiver was required, for "the Double Jeopardy Clause ... does
not relieve a defendant from the consequences of his voluntary
choice." 18   

          A decade later, in United States v. Broce 19, the
Supreme Court elaborated on this theme, holding that a potential
double jeopardy defense was waived by a defendant's guilty plea even
though the defendant had not focused on the possibility of a double
jeopardy defense when he pleaded guilty.  The Court stated that the
defendant's "[r]elinquishment [of the potential double jeopardy
defense] derives not from any inquiry into [the] defendant's
subjective understanding of the range of potential defenses, but
from the admissions [he] necessarily made upon entry of a voluntary
plea of guilty." 20 

          Thus, defendants relinquish their protection against being
tried twice for the same crime when they file an appeal 21,
yet there is no requirement that a notice of appeal be accompanied
by the defendant's affidavit acknowledging this waiver.  Similarly,
a defense motion for mistrial constitutes a waiver of the
defendant's double jeopardy objection to a second trial 22,
yet our law does not require the trial judge to address the
defendant personally and secure an explicit waiver of double
jeopardy rights before granting the mistrial motion.  In both cases,
the relinquishment or "waiver" of double jeopardy rights is simply
a legal consequence of the defendant's action. 

          Courts have applied this same rationale to a defendant's
breach of a plea agreement.  Even though a plea agreement may not
explicitly list reinstatement of the original charges as one of the
consequences of a material breach, courts nevertheless conclude that
the government can normally seek rescission   a return to the status
quo ante   if the defendant commits a material breach. 

          For example, in People ex rel. VanMeveren v. District
Court 23, the plea agreement called for a specified sentence. 
After the defendant entered his plea and the agreed-upon sentence
was imposed, the defendant filed a motion for reduction of the
sentence under a Colorado court rule similar to former Alaska
Criminal Rule 35(a). 24  The Colorado Supreme Court held that,
because the plea agreement did not expressly forbid the defendant
from filing a motion to reduce his sentence, the defendant had the
right to file the motion and the sentencing court had the authority
to grant it.  The Colorado court also held, however, that if the
sentencing court granted the motion and reduced the defendant's
sentence below the agreed-upon sentence, the government then had a
right to rescind the plea agreement. 25  

          The Michigan Court of Appeals reached a similar result in
People v. Siebert. 26  The two defendants in Siebert were
initially charged with several drug and gambling offenses, the most
serious of which was delivery of over 650 grams of cocaine   a crime
that carries a penalty of life imprisonment without parole in
Michigan. 27  The defendants agreed to plead guilty to a
lesser offense (delivery of between 225 and 650 grams of cocaine)
and to accept a sentence of 20 to 30 years' imprisonment; in
exchange, the government dismissed the other charges. 28  

          At the sentencing hearing, however, the judge declared
that the negotiated sentences were inappropriately severe.  He
sentenced one defendant to 5 to 30 years, the other defendant to
3 to 30 years. 29  As a result, the prosecutor asked the
court's permission to withdraw from the plea agreements.  When the
trial court refused to allow this, the government appealed.  

          The defendants argued that if the government was allowed
to reinstate the original charge after the defendants had already
been sentenced for a lesser included offense, this would violate the
double jeopardy clause. 30  The Michigan Court of Appeals
rejected this argument:

	In the instant case, the [trial] court's action in accepting 
	pleas of guilty [to] delivery of between 225 and 650 grams of 
	cocaine, without honoring the conditions placed on the charge 
	reduction by the [government], was violative of [the principle 
	that a trial judge can not, over the prosecutor's objection, 
	accept a defendant's plea to a lesser included offense and 
	dismiss the charged greater offense]....  [The] defendants in
	this case have not been tried for the greater offense [i.e.,
	delivery of 650 grams or more], and a plea conviction on a lesser
	charge before trial ... is not considered an acquittal of the
	greater charge.  [Citations omitted]  ... [T]he trial court made
	no factual determination that one or more elements of the greater
	offense could not be established.  Therefore, the Double Jeopardy
	Clause does not bar proceedings on the greater charge [when] the
	[defendant's] convictions and sentences for the lesser charge [are

Siebert, 507 N.W.2d at 223 (footnotes omitted).   

          The defendants contended that this result would violate
the Supreme Court's decision in Adamson.  They argued that, under
Adamson, reinstatement of the original charges is constitutionally
permissible only if the plea agreement explicitly reserves this
right to the government   that is, only if one or more clauses of
the agreement explicitly required the defendants to waive their
double jeopardy rights.  The Michigan Court of Appeals answered: 

	We reject [the] defendants' argument that[,] because the plea
	agreements do not expressly state that the prosecutor has [the]
	right to withdraw from the agreements and reinstate the original
	charges in the event the agreement is not honored, the prosecutor
	has no such right and the Double Jeopardy Clause would be violated
	by reinstatement of the original charges.  In Ricketts v. Adamson,
	[citation omitted], relied on by [the] defendants, ... [t]he [plea]
	agreement stated that if the defendant breached the agreement, the
	original charge would be reinstated.  ...  While the Supreme Court
	concluded that the defendant, according to the terms of the agreement,
	waived any double jeopardy rights, [the Court] did not hold that the
	Double Jeopardy Clause would have been violated had the agreement 
	not provided for reinstatement of the charges. 

Siebert, 507 N.W.2d at 223-24. 

          Courts have reached analogous decisions in cases where a
defendant, having negotiated a plea agreement, later challenges not
just the sentence but the entire underlying plea.  The Virginia
Court of Appeals faced such a case in Peterson v. Commonwealth. [Fn.
31  The defendant in Peterson was initially charged with a felony,
possession of marijuana with intent to distribute.  In exchange for
dismissal of this felony, Peterson agreed to plead guilty to a
misdemeanor, simple possession of marijuana, and to receive a
sentence of 12 months in jail.  

          Peterson entered this plea in district court and received
the negotiated sentence. 32  Ten days later, however, Peterson
appealed her conviction to the circuit court.  By doing this,
Peterson vacated not only her jail sentence but also her entire
conviction   for under Virginia law, a defendant who appeals a
district court conviction to the circuit court is entitled to a
trial de novo. 33  In response to Peterson's appeal, the
prosecutor reinstated the original felony charge.  Peterson was
tried and convicted of this felony.  

          On appeal, Peterson argued that the government's
reinstatement of the felony charge (possession of marijuana with
intent to distribute) violated the double jeopardy clause.  Relying
on Brown v. Ohio 34, Peterson asserted that she could not be
convicted of felony possession because she had already been
convicted of a lesser included offense arising out of the same
transaction.  The Virginia court rejected this argument:

	[S]everal federal and state courts [have addressed the analogous
	question of] whether retrying a defendant who has successfully
	appealed his plea-based conviction [on a lesser charge] violates
	double jeopardy.  Those courts ... have consistently answered 
	this inquiry in the negative.  [Citations omitted]  These courts
	reason that retrial on the original charges after a guilty plea
	[on a lesser included charge] has been reversed and vacated on 
	appeal does not constitute double jeopardy; rather, [the] jeopardy
	of the first trial continues through the appeal and into the
	subsequent retrial. 

Peterson, 363 S.E.2d at 446. 

          Similarly, in Village of Chagrin Falls v. Katelanos [Fn.
35, the defendant was initially charged with driving while
intoxicated but, at his arraignment, he agreed to plead no contest
to a reduced charge ("driving with an excessive alcohol content")
in exchange for the government's dismissal of the DWI charge.  The
defendant was convicted on his plea and sentenced, but he later
filed an appeal challenging the validity of his plea.  The Ohio
Court of Appeals concluded that Katelanos's plea should be vacated
because the arraigning judge had failed to adequately explain the
consequences of the plea.  Having reached this conclusion, the court
then held that the government was free to reinstate the original
charge against Katelanos   even though the plea agreement made no
mention of what should happen if Katelanos later challenged his

	Since the improper conviction resulted from a defective plea, 
	the defendant has not performed his part of the ... plea bargain.  
	Hence, we must vacate the [trial] court's action and reinstate 
	all the original charges. 

Katelanos, 561 N.E.2d at 994. 

          Applying the foregoing double jeopardy holdings to
Dutton's case, we conclude that the double jeopardy clause did not
bar reinstatement of the original third-degree assault charge after
Dutton withdrew his plea to the federal charge.  Judge Weeks found
that Dutton's plea agreement with the State hinged on the fact that
Dutton would be convicted and sentenced on at least one federal
felony   that this fact was crucial to the State's willingness to
dismiss the third-degree assault charge and allow Dutton to plead
to the reduced charge of fourth-degree assault.  When, following his
sentencing in state court, Dutton withdrew his federal plea, he put
himself in a legal position analogous to the defendants in District
Court, Siebert, Peterson, and Katelanos.  That is, Dutton received
the anticipated benefit of his bargain with the State, and then he 
voluntarily took action that defeated the State's expected benefit. 
Even though Dutton's plea agreement with the State did not contain
an explicit provision outlining the State's remedies if Dutton
withdrew his federal plea, we nevertheless conclude that the State
was entitled to rescission of the plea agreement   return of the
parties to the status quo ante, and reinstatement of the original

          Dutton's attack on one of the trial court's evidentiary

          Aside from his arguments concerning his plea agreement and
the double jeopardy clause, Dutton also argues that his conviction
should be reversed because the superior court allowed the State to
introduce certain evidence at his trial   photographs of firearms,
24,000 rounds of live ammunition, and thirty-eight knives that the
authorities seized from Dutton's campsite at Glacier Bay.  Dutton
claims that this evidence was unfairly prejudicial and should have
been excluded under Alaska Evidence Rules 403 and 404(b).  

          Judge Weeks allowed the State to introduce this evidence
because he concluded that Dutton's possession of this arsenal was
relevant to demonstrate Dutton's state of mind at the time he
accosted the victim, Foley, and aimed the .44 magnum handgun at him.
This evidence, Judge Weeks ruled, tended to support the State's
allegation that Dutton had acted recklessly when he placed Foley in
fear of imminent serious physical injury   a culpable mental state
that was a necessary element of third-degree assault. 

          In Lerchenstein v. State 36, this court upheld the
admission of evidence that the defendant had acted in an angry,
aggressive, and combative manner during the hour preceding a
confrontation that resulted in a series of third-degree assaults and
one homicide.  We concluded that this evidence was relevant to the
issue of whether the defendant had acted reasonably.  For the same
reason, we conclude that Judge Weeks did not abuse his discretion
when he allowed the State to introduce the evidence of Dutton's
stockpile of arms and ammunition. 

          The judgement of the superior court is AFFIRMED. 


     See Closson v. State, 812 P.2d 966, 970 (Alaska 1991). 

     See id. 

     See id. at 974. 

     Howarth v. First National Bank of Anchorage, 596 P.2d 1164,
1167 (Alaska 1979); see also Zeman v. Lufthansa German Airlines, 699
P.2d 1274, 1281 (Alaska 1985). 

     See Howarth, 596 P.2d at 1167 n.8. 

     See Closson v. State, 784 P.2d 661, 665 (Alaska App. 1989),
rev'd on other grounds, 812 P.2d 966 (Alaska 1991). 

     825 F.2d 572 (1st Cir. 1987). 

     See Brown v. Ohio, 432 U.S. 161, 168; 97 S.Ct. 2221, 2226-27;
53 L.Ed.2d 187 (1977). 

     483 U.S. 1, 107 S.Ct. 2680, 97 L.Ed.2d 1 (1987). 

     See id., 483 U.S. at 7-8, 107 S.Ct. at 2684. 

     See id., 483 U.S. at 9, 107 S.Ct. at 2685.  

     See id., 483 U.S. at 9-10, 107 S.Ct. at 2685-86. 

     See generally Menna v. New York, 432 U.S. 61, 96 S.Ct. 241, 46
L.Ed.2d 195 (1975). 

     437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978). 

     Scott, 437 U.S. at 96, 98 S.Ct. at 2196. 

     Id., 437 U.S. at 99, 98 S.Ct. at 2198. 

     See Green v. United States, 355 U.S. 184, 191; 78 S.Ct. 221,
226; 2 L.Ed.2d 199 (1957). 

     Scott, 437 U.S. at 99, 98 S.Ct. at 2198. 

     488 U.S. 563, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989). 

     Id., 488 U.S. at 573-74, 109 S.Ct. at 764. 

     See United States v. Ball, 163 U.S. 662, 671-72; 16 S.Ct. 1192,
1195; 41 L.Ed. 300 (1896). 

     See United States v. Jorn, 400 U.S. 470, 485; 91 S.Ct. 547,
557; 27 L.Ed.2d 543 (1971). 

     575 P.2d 4 (Colo. 1978). 

     Former Criminal Rule 35(a) authorized trial courts to "reduce
a sentence within 120 days of the day it [was] imposed".  This
reduction could be based simply on the court's desire to reconsider
and show mercy.  See Thomas v. State, 566 P.2d 630, 639 n.34 (Alaska
1977); State v. Tinsley, 928 P.2d 1220, 1223 (Alaska App. 1996). 

     See People v. District Court, 575 P.2d at 7.

     507 N.W.2d 211 (Mich. App. 1993). 

     See id. at 214. 

     See id. 

     See id.  

     See id. at 220. 

     363 S.E.2d 440 (Va. App. 1987). 

     See id. at 443. 

     See id. 

     432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). 

     561 N.E.2d 992 (Ohio App. 1988). 

     697 P.2d 312, 317-18 (Alaska App. 1985), aff'd, 726 P.2d 546
(Alaska 1986).