dissenting:
Because I conclude that Love has not shown manifest injustice, I would affirm the superior court.
Love was acting as co-counsel on his case when he entered into a plea agreement with the State. Under the Alaska Rule of Professional Conduct 1.2(a), it was Love's choice whether to accept a compromise in his case and what plea to enter. See also Standard 4-52 of the American Bar Association's Standards for Criminal Justice, "The Defense Function".
All essential terms of the plea agreement were in writing and filed with the court. The agreement called for Love to plead no contest to one count of fourth-degree misconduct involving a controlled substance.1 The State agreed that statutory mitigating factor AS 12.55.155(d)(14) (now (d)(18) under the present code; Love's offense involved a small quantity of controlled substances) applied and agreed that Love would receive a mitigated presumptive 2-year term. (Love had prior felonies and faced a presumptive 3-year term to serve under the pre-March 2005 sentencing law.) The State agreed that the other pending count Love faced in this case-resisting arrest 2-would be dismissed along with another misdemeanor case, State v. Love, 3AN-04-11604. Love agreed to waive the presentence report and be sentenced at his change of plea. The Notice of Agreement filed with the court included a provision that read: "The defendant shall receive credit for all time served under this case."
At the change of plea before Superior Court Judge pro tem Sigurd E. Murphy, Love's attorney asked the court to include a provision in the judgment that Love get credit for time served because Love thought he had already "done his time." Judge Murphy understood this to mean that the Department.of Corrections (DOC) would caleu-late the time that Love had acerued rather than a situation where Love had completed serving his time because he understood that he should endorse "DOC to give credit for time served rather than saying it's a time served [case.]" Neither Love nor his attorney said anything to Judge Murphy about his understanding and neither claimed the notice of plea agreement was incomplete. Although Love's attorney told Judge Murphy that they thought Love had served all his time, they did not tell Judge Murphy that the plea agreement guaranteed that Love would not serve any additional time. Judge Murphy accepted the plea, and Love received the agreed mitigated presumptive term. Judge Murphy included a provision in the temporary order for "DOC to give credit for time served" for the 2 years imposed.
Shortly after sentencing, Love's attorney moved to withdraw, informing the court that Love would attempt to withdraw his plea and that a potential reason under Criminal Rule 11(h) was that Love might assert ineffective assistance of counsel. The attorney informed the court that Love thought that the Department of Corrections erred when it charged time he had previously served to his parole revocation case. When the Depart*438ment of Corrections calculated Love's time served on this case, it did not grant Love double credit for the time he served on the parole violation and for the time he was subject to bail conditions in this case. Superior Court Judge Larry D. Card allowed Love's assistant public defender to withdraw and appointed the Office of Public Advocacy.
Love, as co-counsel, personally filed a motion to withdraw his plea. Love contended that plea withdrawal was necessary to correct manifest injustice under Criminal Rule 11{h)(4)(D)G) because he did not receive the sentence concessions contemplated by the agreement, and the State had failed to seek the concessions promised in the agreement. Love did not contend there was manifest injustice under Criminal Rule 11(h)(4)(4) because he received ineffective assistance of counsel. Later, the assistant public advocate assigned to Love's case, and Love as co-counsel, both replied to the State's opposition consistent with Love's original claim that the State was not fulfilling its bargain. Neither pleading filed by Love or Love's assistant public advocate claimed ineffective assistance of counsel.
Judge Card held an evidentiary hearing on Love's motion. There were no opening statements by the parties before Judge Card heard testimony from Love, Love's trial attorney, and the assistant district attorney involved in the plea negotiations. After hearing the evidence presented, Judge Card heard argument on the motion from the State, Love's attorney, and Love himself. Neither Love nor his attorney argued that he had received ineffective assistance of counsel.
Under Alaska Criminal Rule 11(b)@), a defendant moving to withdraw a plea after sentencing must prove that withdrawal of the plea is necessary to correct manifest injustice.
Judge Card found that Love's co-counsel discussed with Love the relevant statutes and whether concurrent time was possible in Love's situation. However, Judge Card found that Love relied on his own beliefs and concluded that he would obtain double credit even though he had been informed of the contrary from his co-counsel.
The answer to the underlying legal issue is clear,. Former AS 12.55.025(e) provided in pertinent part that "if the defendant has been convicted of two or more crimes, sentences of imprisonment shall run consecutively." We have consistently interpreted that provision to require sentences to be imposed consecutively in circumstances that exist in Love's case where a defendant is on parole and commits another offense. In Jennings v. State,3 this court held that under former AS 12.55.025(e), trial judges were required to impose a consecutive sentence when a defendant is convicted for a crime which the defendant committed after the defendant had been imprisoned on a former offense.4 We followed that interpretation in cases that followed.5
Judge Card reviewed the potential claims of manifest injustice specified in Criminal Rule 11(h)(4)(A)-(D). Judge Card noted that Love's original trial attorney had identified ineffective assistance as a potential claim (in the motion to withdraw), and although the issue had not been litigated at the hearing, Judge Card found that Love's attorney had been effective and rejected (4)(A) as a potential basis for manifest injustice. Judge Card found that Love's attorney had discussed the impact of former AS 12.55.025(e) with Love. However, Love chose to follow his own analysis of the situation. As Judge Card found, "Mr. Love has his own thought process[.]" Essentially, Judge Card found that Love relied on his own legal analysis, not that of his co-counsel.
Judge Card also concluded that Love had not shown manifest injustice under (4)(B) (the plea was entered by one not acting on the defendant's behalf) or (4)(C) (the plea was entered involuntarily).
Finally, Judge Card found that Love received the charge and sentence concessions *439contemplated by the plea agreement and rejected Love's claim that there was manifest injustice under Rule 11(h)(4)(D).
There was no evidence presented at the hearing that the prosecuting attorney promised Love the result he hoped for. Love entered into the plea agreement relying on his own analysis of the law and his personal expectations of the result. Furthermore, Love has not shown that the judge who handled his change of plea and his sentencing, Superior Court Judge pro tem Sigurd E. Murphy, was informed of Love's personal interpretation of the law, nor has Love shown that Judge Murphy did anything to credit Love's unilateral interpretation of the law. Judge Card found that Love's co-counsel told Love about the policy for crediting time served, explained the statutes, and discussed the law with Love.
Judge Card found that the parties were not attempting to enter an illegal plea agreement. - He found that Love did not develop a misunderstanding of the plea agreement from his co-counsel, from the Department of Corrections, from the prosecution, or from the judge at his change of plea and sentencing.
Although the parties did not litigate the issue in the superior court, Judge Card addressed the point when he rejected all the listed grounds in Criminal Rule 11(h)(4). After Judge Card ruled on the motion, Love's assistant public advocate moved to withdraw and reassign the case to the Public Defender Agency, pointing out that Love had not claimed that his original trial attorney was ineffective.
Even though the issue was not litigated in the superior court, the majority finds as a matter of plain error that Love's co-counsel was incompetent, apparently because "Love's attorney did not flatly tell Love that [Love's] understanding of the law was wrong." And the court implicitly concludes that the incompetence contributed to Love's actions.
But Judge Card found that Love's attorney explained the statutes and talked over the law with Love. He found that Love's attorney acted as any reasonable attorney would have in advising Love of his rights, obligations, and potential liability. But as Judge Card found, "Love thought he had an answer." Love thought, based on anecdotal information in other prisoner's cases and based on his own analysis, that he would obtain concurrent time. Judge Card also found that Love did not obtain this view based on his lawyer's advice, on anything the prosecutor did, or on anything Judge Murphy did at the change of plea.
In my view, Judge Card's findings show that Love decided to go forward with the plea agreement contained in the written notice to the court no matter what his attorney may have advised because he was convinced that his own analysis was correct. I also do not conclude that the record establishes as a matter of law that Love's trial attorney was incompetent, especially when the issue was not litigated and the State was not on notice that the trial attorney's competence was an issue.
. AS 11.71.040(a)(3)(a) (possession of heroin).
. AS 11.56.700(a)(1).
. 713 P.2d 1222 (Alaska App.1986).
. Id. at 1223.
. See Griffin v. State, 9 P.3d 301, 308 (Alaska App.2000), Smith v. State, 892 P.2d 202, 203 (Alaska App.1995), Sanders v. State, 718 P.2d 167, 168 (Alaska App.1986).