author: STEWART, Judge.

text:
    STATE of Alaska, Appellant, v. John DUPIER, Rodman E. Miller, and Philip J. Twohy III, Appellees.
    Nos. A-8270, A-8271, A-8272.
    Court of Appeals of Alaska.
    Aug. 1, 2003.

      Jon K. Goltz, Assistant Attorney General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellant.
    Melvin M. Stephens II, Kodiak, for Appel-lee Miller, and Michael Hough, Homer, for Appellees Dupier and Twohy.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

STEWART, Judge.

John Dupier, Rodman E. Miller, and Philip J. Twohy hold federal permits to fish for halibut and sablefish off the coast of Alaska. The State charged them with violating state law by landing their fish in Alaska without first obtaining an interim-use or landing permit from the Commercial Fisheries Entry Commission (CFEC) The district court dismissed the charges, and the State appealed. For the reasons set out below, we agree with the district court.

Summary of our decision

The CFEC was created to regulate participation in Alaska's commercial fisheries. The primary task of the CFEC is to evaluate whether the number of fishers in a particular fishery should be limited to conserve the fishery resource and promote the health of the fishing industry.

Alaska statutes authorize the CFEC to issue three types of fishing permits to commercial fishers. The CFEC issues two of these permits-the limited entry permit and the interim-use permit-to regulate fishing in fisheries subject to limited entry by the CFEC (%e, all state-regulated fisheries in which the number of participants is currently limited or could be limited in the future). Limited entry permits (as their name implies) allow selected fishers to participate in fisheries in which the CFEC has limited access. Interim-use permits, on the other hand, are issued to all qualified fishers who wish to participate in a fishery the CFEC has not limited. This interim-use permit allows the CFEC to prevent fishers who do not have the appropriate commercial fishing gear from operating in fisheries in which entry has not been limited; it also allows the CFEC to gather data on those fisheries to determine if entry should be limited in the future. Thus, as the term "interim-use" suggests, the legislature created interim-use permits so the CFEC could regulate fisheries that might later be subject to limited entry.

The third type of permit-the landing permit-was created to give the state some control over the activities of fishers who participate in federally controlled fisheries but wish to land their catch in Alaska. Unlike the limited entry and interim-use permits, landing permits, although legislatively authorized, have never been used. The Department of Fish and Game has never established eligibility standards for these permits, nor authorized the CFEC to issue the permits. Thus, the Department of Fish and Game never took the legislatively required steps to regulate the landings by fishers who fish in federally controlled fisheries but want to land their cateh in Alaska. To fill this void in the halibut and sablefish fisheries, the CFEC began requiring holders of federal permits to fish in those fisheries to obtain state interim-use permits before landing their catch in Alaska, even though interim-use permits were created for a different purpose.

The appellees in this case are fishers who participated in the federally controlled halibut and sablefish fisheries and landed their catch in Alaska. The State alleged that their conduct was illegal because they did not have an interim-use or landing permit. District Court Judge M. Francis Neville dismissed the charges because she found that the CFEC had no authority to require fishers operating exclusively in federal waters to obtain interim-use permits. She also held that the appellees could not be penalized for failing to get landing permits because the CFEC had never issued such permits. We agree with Judge Neville's conclusions and therefore affirm her decision.

The CFEC is only authorized to issue interim-use permits to fishers participating in fisheries that are potentially subject to limited entry by the CFEC. The Alaska Legislature created the landing permit to regulate the landing of fish by fishers who participate in federally controlled fisheries but who wish to land their catch in Alaska. While the CFEC's desire to require such fishers to obtain an interim-use permit in place of the unobtainable landing permit is understandable, in doing so the CFEC exceeded its authority.

Discussion

Background

Resolution of this appeal requires some review of the federal and state laws governing fishing off the coast of Alaska.

The Alaska legislature created the CFEC in 1978 to "regulate entry into the commercial fisheries for all fishery resources in the state." The original impetus for the CFEC was to limit participation in the salmon fishery; however, the CFEC was given authority to limit entry in other commercial fisheries when necessary to achieve sustained yield of the fishery resource and the economic health of the fishing industry. The legislature directed the CFEC to limit entry in "distressed" fisheries and fisheries that, while not distressed, had reached levels of participation that required limitation to achieve the act's purposes. As noted above, for fisheries in which participation was to be limited immediately, the CFEC was directed to issue entry permits based on certain criteria. For fisheries in which participation was not immediately limited, the CFEC was to issue interim-use permits. Those permits were unlimited in number and were to be issued to "all applicants who can establish their present ability to participate actively in the fishery." After January 1, 1974, no person could operate gear in the commercial taking of fish "without a valid entry permit or a valid interim-use permit issued by the commission."

The federal government has also acted to regulate fisheries off the coast of Alaska. In 1976, Congress enacted the Magnuson-Fish-ery Conservation and Management Act (subsequently renamed the Magnuson Stevens Fishery Conservation and Management Act) to address over-fishing in areas adjacent to territorial waters, particularly by foreign fishing boats. The act established a 200-mile "fishery conservation zone"-now called the "exclusive economic zone" (EEZ) -over which the federal government exercises fishery management authority. The halibut fishery is governed by both the Magnu-son-Stevens Act and a convention between the United States and Canada that is implemented in the United States by the Northern Pacific Halibut Act of 1982. The Magnu-son-Stevens Act applies almost exclusively to the EEZ. The Halibut Act applies to all "convention waters," including waters "within and seaward of the territorial sea or internal waters" of the United States. Because the Halibut Act governs fishing in Alaska's territorial waters, the Board of Fisheries has issued a regulation barring any person from commercially harvesting or possessing halibut in a manner inconsistent with that act.

At the time these federal laws went into effect, AS 16.05.680 made it unlawful for any person in Alaska to purchase fish from a fisher who did not have a state license or permit to fish. (In 1982, the legislature also enacted AS 16.10.265 and AS 16.10.267, which, respectively, made it unlawful for fish processors to buy fish from fishers who did not hold a limited entry or interim-use permit, and for fishers to sell fish without a limited entry or interim-use permit.) Apparently, there were few difficulties enforcing these state laws because most holders of permits to operate in federally managed fisheries also had state permits. However, in 1984 a fisher who had a permit for the federally regulated high seas salmon troll fishery but no state permit decided to land his catch in Alaska instead of Washington. When told he could not land his fish in Alaska without a state permit, he threatened to sue the state, arguing-apparently with the backing of the federal government-that federal law authorized him to land in Alaska. To avoid a lawsuit, the legislature enacted AS 16.05.675, which requires a person who has a federal permit to fish in the EEZ but no state entry or interim-use permit to get a "landing permit" from the CFEC before landing fish in the state. The statute gave the commissioner of Fish and Game discretion to set up eligibility standards for landing permits and to authorize the CFEC to issue permits for a particular fishery if the Department found in writing that doing so would be consistent with state resource conservation and management goals.

The history of this legislation reveals two rationales for why the legislature required the commissioner of Fish and Game to affirmatively authorize landing permits, instead of simply authorizing the permits and directing the Department to issue eligibility standards. First, although the legislation was initiated to accommodate one fisher with a federal permit who wished to land his catch in Alaska, the unsettled boundaries of state and federal authority had broader implications. The CFEC cautioned legislators about enforcement problems that might arise in other fisheries, particularly the crab fishery, if fishers with federal permits were allowed to land their catch in Alaska. The legislature was warned that it would be difficult to prevent crab fishers with federal permits from fishing illegally in state waters en - route to landing their catch in Alaska if participation in the state crab fishery were limited. Sharman Haley, a special assistant with the CFEC, offered the House Resources Committee an additional reason for making landing permits contingent on an affirmative act by Fish and Game: "so that a policy decision [could] be made at a later stage in the negotiations with the Federal government as to whether or not the State will fold on this issue, and issue these [salmon] trollers permits, or whether the [CFEC] will contest the Federal government's right to preempt our landing laws." For reasons that are not explained in the record, the Department of Fish and Game never issued regulations under AS 16.05.675. Moreover, the State does not dispute Judge Neville's finding in this case that the CFEC has never issued landing permits.

In 1996, the federal government limited entry in the sablefish and halibut fisheries in the Gulf of Alaska and portions of the Bering Sea and the Aleutian Island area. The regulations provide that any person (including a corporation or other entity) that owned or leased a vessel that made fixed gear landings of halibut or sablefish in regulated waters in 1988, 1989, or 1990 qualified for a federal permit. That person was issued "quota shares" in proportion to their legal landings of halibut or sablefish during specified years. Each year, that person's individual fishing quota is calculated by multiplying that quota share by the annual allowable catch. Subject to some restrictions, the regulations allow quota shares and individual fishing quotas to be sold, leased, or otherwise transferred.

This new federal regulation led to enforcement and record-keeping problems for the state. When the federal quota share program went into effect, the state only required one entry or interim-use permit for each vessel landing fish in Alaska. However, under the federal quota share system each vessel could have numerous holders of fishing quotas each claiming landings of halibut and sablefish. This situation led to discrepancies and omissions in the landings data received by the state and federal governments, as well as difficulties in determining who to prosecute (the holder of the fishing quota or the holder of the entry or interim-use permit) for possession of undersized fish, prohibited species, or violations of other state fish and game laws. To resolve this problem, the Department of Fish and Game contacted the CFEC about issuing a regulation to require each holder of fishing quotas to have a state permit. The result was 20 AAC 05.110(c), which requires each person reporting a landing of fish under an individual fishing quota to hold a state entry or interim-use permit. In issuing this regulation, the CFEC primarily relied for authority on AS 16.10.267, which requires each fisher selling fish in the state to possess a landing permit, limited entry permit, or interim-use permit.

Procedural history

This permit scheme led to some confusion when the State charged the appellees in this case. Initially, all three appellees were charged with failing to have an interim-use permit under 20 AAC 05.110(c), and the State seized the proceeds of their catches. Later, the State conceded that it could not forfeit fishing proceeds under 20 AAC 05.110(c) because a first violation of that regulation was only punishable by a fine of no more than $5,000. The State then charged each appellee with an additional count of failing to have a landing permit under AS 16.05.675. Courts are required to forfeit the fish taken or retained as a result of a violation of that statute.

The appellees all filed motions to dismiss. Judge Neville granted those motions, ruling that the appellees could not be convicted under AS 16.05.675 because the CFEC had never issued landing permits and the appel-lees could not get them. Judge Neville also found that the appellees could not be convicted under 20 AAC 05.110(c) because that regulation was invalid. Judge Neville gave several reasons for this conclusion: (1) the legislature had intended fishers landing fish caught in federal waters to get landing permits, not interim-use permits; (2) 20 AAC 05.110(c) was inconsistent with the legislative purpose behind interim-use permits, which were intended to authorize fishers to operate specific gear in specific fisheries managed by the state; and (8) by requiring fishers harvesting fish in federal waters to hold permits that had been designed for fishers operating in state fisheries, the CFEC had created unintended conflicts with federal law. After dismissing the charges on these grounds, the district court ordered the State to return all the seized funds.

Is the CFEC authorized to require holders of individual fishing quotas for halibut and sablefish to have interim-use permits to land fish in Alaska?

The primary question raised by this appeal is whether the CFEC exceeded its statutory mandate by requiring holders of federal permits to fish for halibut and sablefish who fished exclusively in the EEZ to have state interim-use permits to land that catch in Alaska. An agency can exceed its statutory authority "either by pursuing impermissible objectives or by employing means outside its powers." The State advances two reasons that the CFEC acted within its authority in promulgating 20 AAC 05.110(c): (1) the CFEC has authority to require interim-use permits for fishers operating in any fishery in which the CFEC has not limited entry; and (2) the regulation serves the CFEC's purposes of promoting the health of Alaska's fishery resources and fishing industry.

The State supports this argument by reference to AS 16.48.210, which in part provides:

Interim-use permit; qualifications. (a) Pending the establishment of the maximum number of entry permits under AS 16.48.240 and the issuance of entry permits under AS 16,48.270, the commission shall issue interim-use permits under regulations adopted by the commission for each fishery, not subject to a moratorium under AS 16.48.225, to all applicants who can establish their present ability to participate actively in the fishery for which they are making application.
(b) Before the issuance of the maximum number of entry permits for a given fishery, the commission may issue an interim-use permit to an applicant who may later become eligible for an entry permit under AS 16.483.270. j
(c) To the extent that the commissioner of fish and game authorizes it under AS 16.05.050(2)(10), the [CFEC] may grant an interim-use permit to a person to engage in the commercial taking from a fishery on an experimental basis.

As the legislative history of the limited entry program and the wording of this statute suggest, the legislature intended interim-use permits to be "the first phase in the limited entry scheme." The State's broader reading of AS 16.48.210-that the CFEC has authority to issue interim-use permits for any fishery in which it has not limited entry, regardless of who manages that fishery-ignores the legislature's intent in creating interim-use and landing permits. Alaska Statute 16.48.210 requires the CFEC to issue interim-use permits to all fishers who can establish their ability to participate actively in the fishery for which they are making an application. Under the State's reading of AS 16.43.210(a), the CFEC would be obliged to issue an interim-use permit to any qualified applicant to fish in any fishery in the world. And because those permits authorize fishers to land fish in Alaska, it follows that the CFEC could not impose any special requirements on fishers operating in the EEZ when they sought to land their catch in Alaska. Yet the legislative history of AS 16.05.675, the landing permit statute, indicates that the legislature gave the Department of Fish and Game discretion to authorize landing permits so it could prevent fishers operating in the EEZ from landing their cateh in Alaska (or at least regulate the manner in which those federal permit holders landed their catch) if doing so would serve state conservation and management goals.

The more reasonable interpretation of AS 16.48.210(2) is that it requires the CFEC to issue interim-use permits to all qualified applicants to fish in commercial fisheries managed by the CFEC in which entry has not been limited-that is, fisheries over which the CFEC has authority to limit entry or impose a moratorium, but has not yet done so. This interpretation is supported by AS 16.48.210(a), which requires the CFEC to issue interim-use permits "pending" the CFEC's establishment of a limited entry program under AS 1643.240, and by AS 16.43.100(a), which defines the CFEC's powers as "regulat{ing] entry into the commercial fisheries for all fishery resources in the state."

The State concedes that the CFEC's authority over halibut is limited to Alaska waters, but argues that the state retains some jurisdiction over the halibut fishery, the extent of which has not been judicially determined. To support this argument, the State points to Board of Fisheries regulations that adopt the International Pacific Halibut Commission regulations by reference, limit by-catch in the halibut fishery, and require buyers and sellers of fish in Alaska to record their landings on Department of Fish and Game "fish tickets," a practice that aids the administration of the federal quota share program. But the relevant question here is not the extent of the state's general authority over the halibut fishery, but the extent of the CFEC's authority to require halibut and sa-blefish fishers landing fish harvested in the EEZ to hold interim-use permits, The CFEC was created to establish and administer the state's limited entry program. The legislature authorized the CFEC to issue interim-use permits as a first phase in that program. Under the Halibut Act, all authority to limit entry in the halibut fishery is held by the International Pacific Halibut Commission and the Secretary of Commerce. The State acknowledged this much in district court, declaring that "the State has never taken the position that it can regulate the taking of halibut in any manner that is contrary to the federal law governing the taking of halibut." Furthermore, under the Magnuson-Stevens Act, the federal government exercises management authority over all the fisheries in the EEZ, including the halibut and sablefish fisheries. Because the legislature only intended the CFEC to issue interim-use permits to applicants to fish in fisheries in which the CFEC could limit entry, and because the CFEC has no authority to limit entry in the halibut and sablefish fisheries in the EEZ, we conclude that the CFEC has no authority to require fishers in the EEZ to hold state interim-use permits.

The State points to subsections (b) and (c) of AS 16.48.210-which give the CFEC discretion to issue interim-use permits in two other situations-as evidence that the legislature "plainly intended that interim-use permits could be required by the CFEC in a variety of fisheries to which the CFEC has not limited entry to a maximum number of participants." But AS 16.48.100, which lists the duties and powers of the CFEC, directs the CFEC to "issue interim-use permits as provided in AS 16.48.210, 16.48.220, and 16.43.225." As our supreme court observed in Kalmakoff v. State, AS 16.43.100 does not give the CFEC broad discretion to issue interim-use permits as it sees fit; rather, "[t]he commission's discretion is ... limited to that which is outlined in [the] provisions [listed in AS 16.48.100(8) ]." None of those provisions authorize the CFEC to require persons fishing in federally managed fisheries in the EEZ to obtain interim-use permits. Although the permit requirement, by aiding the state's data collection and enforcement efforts, might serve the CFEC's purposes of promoting the health of Alaska's fisheries and fishing industry, that alone cannot justify an wiltra vires regulation; a regulation banning oil tanker traffic in the EEZ might also serve those purposes, but would exceed the CFEC's authority to establish and administer the state's limited entry program.

The legislature apparently reached this same conclusion in 1984 when a salmon fisher with a valid federal permit but no state interim-use or entry permit sought to land his catch in Alaska. Legislators were informed that fishers operating in state waters could land their fish in Alaska with interim-use or entry permits, but that fishers with federal permits were "currently prohibited by state law from landing their catch in Alaska." The legislature therefore did not direct the CFEC to issue the salmon fisher an interim-use permit; rather, at the CFEC's urging, the legislature passed a bill giving the commissioner of Fish and Game discretion to authorize the CFEC to issue landing permits in these circumstances. When the legislature enacted this legislation, it could not have intended to make landing permits available to holders of individual fishing quotas for halibut and sablefish because that federal program did not yet exist. But the legislature gave the Department of Fish and Game discretion to require landing permits in the cireumstances specified in the statute: when a fisher with a valid federal permit to harvest fish in the EEZ wants to land that fish in Alaska but holds no entry or interim-use permit.

The State argues that the legislature only intended landing permits to be issued when interim-use and entry permits were unavailable. But the State cites no convincing legislative history or statutory language to support this claim. Indeed, the legislative history provided by the State suggests a contrary conclusion; the enrolled bill report explains that the landing permit statute would allow the State "to require a landing permit even though it could not necessarily require a fishing permit." If the legislature had intended to limit landing permits to fishers ineligible for other state permits, it could have said so. It is equally plausible that the legislature created landing permits for fishers who do not have interim-use or entry permits because they operate only in federal waters.

We conclude that 20 AAC 05.110(c) is an invalid regulation because the CFEC has no authority to require fishers operating exclusively in federally managed fisheries in the EEZ to hold interim-use permits. The legislature specifically authorized the Department of Fish and Game to require fishers without interim-use or entry permits to get landing permits if they wished to land fish caught in the EEZ in an Alaska port. Because the Department of Fish and Game has never issued eligibility standards for landing permits under AS 16.05.8675 or authorized the CFEC to issue such permits, the appellees could not be prosecuted for failing to obtain them.

The State asserts that the appellees could still be prosecuted under AS 16.05.675 for not having interim-use or entry permits. But AS 16.05.675 does not require fishers to have interim-use or entry permits; rather, it directs fishers without interim-use or entry permits to obtain landing permits. The State also asserts that even if the CFEC has no authority to issue a regulation requiring interim-use permits for halibut and sablefish landings, it has discretion to issue those permits under AS 16.43.100(a)(5) and (8). The State claims that because AS 16.10.267 required the appellees to have some type of permit to sell their fish in Alaska, they were obliged to obtain the one type of permit available to them-the interim-use permit. But the appellees were not charged with violating AS 16.10.267, and we will not reverse the district court because the appellees potentially committed an offense that was never charged. In any event, for the reasons discussed above, we conclude that the CFEC only has discretion to issue interim-use permits to fishers operating in fisheries over which the CFEC has authority to limit entry.

Because Judge Neville correctly ruled that 20 AAC 05.110(c) is an invalid regulation, and that the appellees could not be prosecuted for failing to obtain landing permits under AS 16.05.675, we affirm the court's orders granting the motions to dismiss.

Did the district court err in dismissing the charge against Twohy for landing sablefish without a sablefish interim-use permit?

The State argues that the court erred in dismissing the charge against Twohy for landing sablefish without an interim-use permit because the state has broader authority over sablefish fishing than halibut fishing, and because Twohy never sought dismissal of that charge. We find no merit to these claims. For the reasons discussed above, we conclude that the CFEC has no authority to require individual fishing quota holders to obtain interim-use permits before landing sa-blefish caught in the EEZ in Alaska, The State concedes that Twohy caught the sablefish he landed in the EEZ. Therefore, we express no opinion on the authority of the CFEC to require interim-use permits for sablefish harvested in Alaska's territorial waters regulated concurrently by the state and federal governments.

Conclusion

The decision of the district court is AFFIRMED.

      . 20 AAC 05.110(c); AS 16.05.675.

      . Webster's New World College Dictionary (4th ed.2002) defines "interim" as "the period of time between; meantime."

      . See 20 AAC 05.110(c).

      . AS 16.43.100(a)(1); AS 16.43.020(a).

      . See Governor William A. Egan's January 10, 1973, transmittal letter for legislation to regulate entry in Alaska's commercial fisheries, at 22 (Senate Resources Committee file on H.B. 126, 1973-74) ("To summarize, this bill provides a means for regulating entry into Alaska's commercial fisheries. While it has been designed to have broad applicability, it is directed initially at limiting entry into the State's salmon fisheries because the need for effective action there is greatest."). The House Resources Committee initially introduced H.B. 126 to regulate participation in the salmon fishery. H.B. 126, 8th Leg., ist Sess. (1973); 1973 House Journal 504. A committee substitute was introduced that allowed the CFEC to designate the specific fishery resources to be subject to limited entry. C.S.H.B. 126, 8th Leg., ist Sess. (1973); 1973 House Journal 504. This enabled the CFEC "to extend limited entry to other fisheries ... without additional legislation." 1973 House Journal 504. That change remained in the final version of the bill. See Estate of Lewis v. State, 892 P.2d 175, 180 n. 10 (Alaska 1995); see also AS 16.43.010; AS 16.43.100(a)(1).

      . AS 16.43.230; AS 16.43.240(a).

      . AS 16.43.240(b).

      . AS 16.43.250(a).

      . AS 16.43.140(a); AS 16.43.210(a).

      . AS 16.43.210(a).

      . AS 16.43.140(a).

      . 62 Fed.Reg.2047 (January 15, 1997).

      . See State v. F/V Baranof, 677 P.2d 1245, 1248-49 (Alaska 1984). The regulations governing the Gulf of Alaska and adjoining areas are codified at 50 C.F.R. § 679.

      . See Presidential Proclamation No. 5030, 48 Fed.Reg. 10605 (March 14, 1983); see also Pub.L. 102-251, § 302(a)(1) & (b) (1992).

      . See F/V Baranof, 677 P.2d at 1249 (citing 16 U.S.C. §§ 1811, 1812).

      . See 16 U.S.C. §§ 773 et seq.; Convention for the Preservation of the Halibut Fishery of the Northern Pacific Ocean and Bering Sea, March 2, 1953, U.S.-Can., 5 U.S.T.1954 and Protocol Amending the Convention Between the United States and Canada for the Preservation of the Halibut Fishery of the Northern Pacific Ocean and Bering Sea, March 29, 1979, U.S.-Can., 32 U.S.T. 2483. Congress has regulated the halibut fishery in some form since 1924. See Martinsen v. Mullaney, 85 F.Supp. 76, 78, 12 Alaska 455, 459 (D.C.Alaska 1949) (citing 43 Stat. 648).

      . See 16 U.S.C. §§ 1811, 1812; United States v. Ertsgaard, 222 F.3d 615, 617 n. 4 (9th Cir.2000).

      . See Ertsgaard, 222 F.3d at 617 & n. 4. (citing 16 U.S.C. § 773(d) & Protocol Amending the Convention Between the United States and Canada for the Preservation of the Halibut Fishery of the Northern Pacific Ocean and Bering Sea, 32 U.S.T. at 2487).

      . See 5 AAC 28.092.

      . See ch. 94, art. III, § 10, SLA 1959 (making it unlawful to purchase fish from a person who has no state license); ch. 105, § 11, SLA 1977 (amending that law to make it unlawful to purchase fish from a person who does not hold a permit under AS 16.43).

      . See letter from Norman C. Gorsuch, Attorney General, to Governor Bill Sheffield on C.S.H.B. 376 (June 21, 1984); notes from interview with John Williams of the CFEC (in Senate Resources Committee file on H.B. 376, 1983-84).

      . Seeid.

      . See id.

      . See id.; see also Committee Minutes, House Resources Committee hearing on H.B. 376 (May 23, 1983) (comments by Sharman Haley, Special Assistant, CFEC) and Senate Resources Committee hearing on C.S.H.B. 376 (March 27, 1984) (comments by Haley of the CFEC and Norm Cohen, Special Assistant, Department of Fish and Game).

      . AS 16.05.675 provides:
      Landing permits. (a) A person who does not hold a limited entry permit or interim-use permit issued under AS 16.43 may not deliver or land fish in the state unless the person
      (1) holds a valid federal permit to operate commercial fishing gear in the fishery conservation zone; and
      (2) has been issued a landing permit by the Commercial Fisheries Entry Commission.
      (b) The commissioner may by regulation establish eligibility requirements for the issuance of a landing permit.
      (c) The commissioner may authorize the Commercial Fisheries Entry Commission to issue landing permits for a fishery if the commissioner has made a written finding that the issuance of landing permits for that fishery is consistent with state resource conservation and management goals.

      . AS 16.05.675(c).

      . See Committee Minutes, House Resources Committee hearing on H.B. 376 (May 23, 1983) (comments by Haley at CFEC); letter from Gor-such, Attorney General, to Governor Sheffield on C.S.H.B. 376 (June 21, 1984); notes of interview with Williams of the CFEC (Senate Resources Committee file on H.B. 376).

      . See id.

      . See id.

      . See Committee Minutes, House Resources Committee hearing on H.B. 376 (May 23, 1983) (comments by Haley at CFEC).

      . See 50 CFR. § 679.1; see also Alison Rieser, Prescriptions for the Commons: Environmental Scholarship and the Fishing Quotas Debate, 23 Harv. Envtl. L.Rev. 393, 412-14 (1999). Authority to regulate these fisheries is found in the Magnuson-Stevens Act, 16 U.S.C. §§ 1801 et. seq. and the Halibut Act, 16 U.S.C. §§ 773 et seq. See 50 C.F.R. § 679.

      . 50 CFR. § 679.40(a)(3)(i); see generally Foss v. National Marine Fisheries Serv., 161 F.3d 584, 586-87 (9th Cir.1998); Ferguson v. Ferguson, 928 P.2d 597, 598 (Alaska 1996) (both describing the federal quota share program}.

      . 50 CFR. § 679.40(a)(@G)-G3).

      . 50 C.F.R. § 679.40(b)-(c).

      . 50 C.F.R. § 679.41.

      . See November 6, 1996, memorandum from Phil Rigby, scientific program manager, Department of Fish and Game, to Earl Krygier, extended jurisdiction program manager, Department of Fish and Game (included in CFEC file on 20 AAC 05.110(c); March 19, 1998, press release on new CFEC requirements for holders of individual fishing quotas.

      . See id.

      . See id.; see also e-mail correspondence in the CFEC file on 20 AAC 05.110(c).

      . See April 7, 1997, e-mail from Krygier at the Department of Fish and Game to Beccy Kalwara and Bruce Twomley at the CFEC and attached November 6, 1996, memorandum from Rigby to Krygier referenced in note 34, supra.

      . 20 AAC 05.110 provides:
      Permit Required to Possess Fish or Shellfish. (a) It is unlawful for any person to possess, within water subject to the jurisdiction of the state, any fish or shellfish, taken for a commercial purpose, aboard a fishing vessel commonly used for taking that species of fish or shellfish unless the person has in his possession a valid interim-use or entry permit card allowing him to take the fish or shellfish in his possession with the gear with which the vessel is equipped unless waived by the commission for good cause.
      (b) As used in this section, a "commercial purpose" includes any sale, purchase, trade, gift, or any portion of a commercial transaction.
      (c) For purposes of this section, a person reporting a landing of fish under a federal individual fishing quota (IFQ) possesses fish for a commercial purpose.

      . See Minutes, November 14, 1997, and December 17, 1997, meetings of the CFEC.

      . See April 29, 1998, letter from the CFEC to Denise Branshaw denying her request to reconsider 20 AAC 05.110(c).

      . AS 16.43.970(a).

      . AS 16.05.723.

      . See State v. Hebert, 743 P.2d 392, 394 (Alaska App.1987).

      . We apply our own judgment to determine if the regulation is consistent with and reasonably necessary to carry out the purposes of the statutory provisions conferring rulemaking authority. See Deubelbeiss v. Commercial Fisheries Entry Comm'n, 689 P.2d 487, 492-93 (Alaska 1984).

      . See Simpler v. State, 728 P.2d 227, 229 (Alaska 1986).

      . See AS 16.43.210(a).

      . See Committee Minutes, House Resources Committee hearing on H.B. 376 (May 23, 1983) {comments by Haley at CFEC); letter from Gor-such, Attorney General, to Governor Sheffield on C.S.H.B. 376 (June 21, 1984); notes of interview with Williams of the CFEC (Senate Resources Committee file H.B. 376, 1983-84).

      . - Emphasis added.

      . - See Brief of Appellant at 11 ("The CFEC interim-use permit for halibut applies to all halibut possessed in Alaska waters ....") (emphasis added).

      . See 5 AAC 28.092; see also 50 C.F.R. § 679.3(b)(1) (''The conservation and management of groundfish in waters of the territorial sea and internal waters of the State of Alaska are governed by the Alaska Administrative Code at 5 AAC Chapter 28 and by the Alaska Statutes at Title 16.7").

      . 5 AAC 28.070.

      . See 5 AAC 39.130(c) (requiring buyers and sellers to complete fish tickets); AS 16.05.690 (requiring each buyer of fish to keep a record); AS 16.05.050(a)(5) (authorizing the Department of Fish and Game to collect data to promote the purposes of the Title).

      . See 50 C.F.R. § 679.5 (incorporating fish ticket reporting requirements in the federal quota share program); 50 C.F.R. § 679.3 (providing that the "Alaska Administrative Code (5 AAC 39.130) governs reporting and permitting requirements using ADF & G 'Intent to Operate' and 'Fish Tickets.' ").

      . See AS 16.43.100; AS 16.43.210.

      . See Simpler, 728 P.2d at 229.

      . See 16 U.S.C. § 773(c).

      . See F/V Baranof, 677 P.2d at 1249 (citing 16 U.S.C. § 1811, 1812).

      . AS 16.43.100(8).

      . 697 P.2d 650 (Alaska 1985).

      . Id. at 653. Since Kalmakoff was decided, the legislature amended AS 16.43.100(8) to add AS 16.43.225 to the list of statutes governing the CFEC's issuance of interim-use permits. AS 16.43.225 was enacted in 1991, and gives the CFEC authority to establish a moratorium on new entrants into at-risk fisheries.

      . - See Sectional Analysis for C.S.H.B 376 (House Resources Committee file, 1983-84); see also notes from interview with Williams at the CFEC (Senate Resources Committee file on H.B. 376, 1983-84) (observing that "[iJn-state fisher(s are] eligible to land fish by holding an entry permit or interim-use permit.").

      . There is some indication in the legislative history that the CFEC was concerned with the bill's implications for the groundfish fishery, but the reasons for this concern are not clear. See notes from interview of Williams at the CFEC (Senate Resources Committee on HB. 376, 1983-84).

      . Enrolled Bill Report for C.S.H.B. 376 (emphasis added).

      . AS 16.05.675(a)(2) provides that "[al person who does not hold a limited entry permit or interim-use permit issued under AS 16.43 may not deliver or land fish in the state unless the person ... has been issued a landing permit by the Commercial Fisheries Entry Commission."

      . AS 16.43.100(a)(5) and (8) provide:
      To accomplish the purposes set out in AS 16.43.010, the commission shall ...
      (5) designate, when necessary to accomplish the purposes of this chapter, particular species for which separate interim-use permits or entry permits will be issued;

      (8) issue interim-use permits as provided in AS 16.43.210, 16.43.220, and 16.43.225(.]

      . See State v. Kalve, 9 P.3d 291, 294 (Alaska App.2000).


source: Caselaw Access Project

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Complainant, v. Kjaere ANDREWS, f/k/a Karen McLaughlin, Respondent.
    No. 02PDJ097.
    Office of the Presiding Disciplinary Judge of the Supreme Court of Colorado.
    Aug. 6, 2003.
    Attorney Registration. The Hearing Board suspended Respondent Kjaere Andrews, f/k/a Karen McLaughlin, attorney registration number 14895 from the practice of law for a period of six months in this reciprocal discipline matter from the State of Vermont. The Supreme Court of Vermont suspended respondent for a period of six months, holding that respondent violated the following Vermont Rules of Professional Con-duet; 1.5(b)(the basis or rate of fee shall be communicated in writing), 1.15(a)(an attorney shall hold client's property separate from attorney's own property), 1.15(a)(every attorney in private practice who receives funds of a client shall maintain a trust accounting system), and 1.16(d)(upon termination a lawyer shall refund any advance payment of fee not yet earned). The People did not seek a harsher sanction for respondent's conduct constituting knowing misappropriation of client funds under the Rules of Professional Conduct in Colorado; accordingly the Hearing Board imposed the same sanction imposed by the sister jurisdiction, finding that a harsher sanction could not be imposed where respondent lacked adequate notice pursuant to C.R.C.P. 251.21(d). Respondent was ordered to pay the costs of the disciplinary action.
   Opinion by

Presiding Disciplinary Judge ROGER L. KEITHLEY

and Hearing Board members, JERRY D. OTERO and MARILYN L. ROBERTSON, both members of the bar.

REPORT, DECISION AND IMPOSITION OF SANCTION

SANCTION IMPOSED: ATTORNEY SUSPENDED FOR SIX MONTHS

A sanctions hearing pursuant to C.R.C.P. 251.15 was held on April 15, 2008 in this default proceeding before the Presiding Disciplinary Judge ("PDJ") and two hearing board members Jerry D. Otero and Marilyn L. Robertson, both members of the bar. Terry Bernuth, Assistant Attorney Regulation Counsel, represented the People of the State of Colorado (the "People"). Kjaere Andrews ("Andrews"), the respondent, did not appear in person or by counsel.

The Complaint in this action was filed November 7, 2002. The People filed a proof of attempted service with this court on November 20, 2002, establishing that the Citation and Complaint were sent via regular and certified mail to Andrews' last known address on November 7, 2002, and were returned with no forwarding address available. Andrews did not file an Answer to the Complaint. Service was therefore proper pursuant to C.R.C.P. 251.32(b). On February 3, 2008, upon the People's motion, the PDJ entered an Order granting default. As a result of the Order granting default, all factual allegations set forth in the Complaint were deemed admitted and all rule violations set forth in the Complaint were deemed established pursuant to C.R.C.P. 251.15(b).

This is a reciprocal discipline matter from the State of Vermont brought pursuant to C.R.C.P. 251.21. C.R.C.P. 251.21(d) requires that in a reciprocal discipline matter from another jurisdiction, if the rules of professional conduct governing the attorney in Colorado would warrant a substantially different discipline than that warranted in the sister jurisdiction, the People must provide notice of the intent to seek harsher discipline in the Complaint. Claim III of the Complaint provided notice to Andrews that the People would seek identical discipline to the discipline imposed in Vermont.

At the sanctions hearing, the People's exhibits 1 through 9 were offered and admitted into evidence. Karen L. Bershenyi testified on behalf of the People. The Hearing Board considered the People's argument, the facts established by the entry of default, the exhibits admitted, the testimony of the witness, and made the following findings of fact which were established by clear and convincing evidence.

I. FINDINGS OF FACT

Andrews has taken and subscribed the oath of admission, was admitted to the bar of the Supreme Court of Colorado on October 28, 1985 and is registered upon the official records of this court, registration No. 14895. Andrews is subject to the jurisdiction of this court pursuant to C.R.C.P. 251.1(b).

All factual allegations set forth in the Complaint were deemed admitted by the entry of default, and are therefore established by clear and convincing evidence. See Complaint attached hereto as exhibit "A." The violations set forth in the Complaint were also deemed established by the entry of default.

On September 28, 2001, the State of Vermont Professional Responsibility Board entered a judgment suspending Andrews from the practice of law for a period of six months and one day. In Vermont, a suspension for a period of time greater than six months requires a formal reinstatement proceeding. On October 31, 2001, the order became final and the Supreme Court of Vermont suspended Andrews for a period of six months and one day effective on that date. A copy of the Order of Suspension is attached hereto as Exhibit "B."

This reciprocal discipline matter arises from Andrews' representation of Corylinn Jenne ("Jenne") commencing in June 2000, regarding Jenne's divorcee. Andrews and Jenne agreed to a rate of $50 per hour which was not reduced to writing. Jenne paid Andrews $1,000 as a retainer. - Andrews did not maintain a trust account and deposited the retainer into her personal or business account. Within a few weeks, Jenne notified Andrews that she wanted to represent herself pro se and requested an accounting and refund of the balance of the retainer.

Andrews did not have funds available to return the unused portion of the retainer to the client: she had spent the retainer on her own personal or business expenses. In July 2000, Andrews sent a letter and final bill to Jenne, informing her that the bill reflected an hourly rate of $100, instead of the agreed-upon $50 hourly rate. Andrews did not discuss the increased rate with her client. After applying the increased rate, Andrews indicated in the letter that she owed Jenne $150.75 which she later paid to Jenne. Jenne accepted the $150.75 as partial payment of $575.35, the retainer balance at the $50 hourly rate. Despite her understanding that Jen-ne did not accept the partial payment as a resolution of her request for a refund, Andrews did not pay the balance due to Jenne, and used the funds for her own purposes.

II CONCLUSIONS OF LAW AND IMPOSITION OF SANCTION

The Complaint in this action seeks imposition of discipline under the reciprocal discipline provisions of C.R.C.P. 251.21. The Supreme Court of Vermont held that Andrews violated the following Vermont Rules of Professional Conduct; 1.5(b)(the basis or rate of fee shall be communicated in writing), 1.15(a)(an attorney shall hold client's property separate from attorney's own property), 1.15(a)(every attorney in private practice who receives funds of a client shall maintain a trust accounting system), and 1.16(d)(upon termination a lawyer shall refund any advance payment of fee not yet earned). The Complaint in the within matter alleged that Andrews' conduct constituted grounds for discipline pursuant to C.R.C.P. 251.21 in claim I. Claim II asserts that Andrews' failure to report her suspension in Vermont to the Office of Attorney Regulation Counsel constitutes grounds for discipline pursuant to CR.C.P. 251.5(d) and C.R.C.P. 251.21(b) in claim II. Claim III provides notice to Andrews that the People did not intend to seek imposition of a sanction harsher than that imposed by Vermont. See CRCP. 251.2l(d)(stating that "[ilf the Regulation Counsel intends either to claim that substantially different discipline is warranted or to present additional evidence, notice of that intent shall be given in the Complaint"); People v. Calder, 897 P2d 881, 882 (Colo.1995)(analyzed under C.R.C.P. 241.17(d), the predecessor to C.R.CP. 251.21(d) and stating that in a reciprocal discipline case, the Supreme Court imposes the same discipline as that imposed in the foreign jurisdiction unless certain exceptions exist.)

A final adjudication in another jurisdiction of attorney misconduct constituting grounds for discipline is, for purposes of attorney disciplinary proceedings in Colorado, sufficient to conclusively establish such conduct. See CRCP. 251.2l1(a). The Order of the Supreme Court of Vermont constitutes such a final order.

Pursuant to C.R.C.P. 251.21(d)(4), the misconduct proved by the Order of the Supreme Court of Vermont warrants a substantially different form of discipline in Colorado. Seq, e.g., People v. Vorallo, 913 P.2d 1, 11 (Colo.1996)(stating that "[kJnowing misappropriation [for which the lawyer is almost invariably disbarred] 'consists simply of a lawyer taking a client's money entrusted to him, knowing that it is the client's money and knowing that the client has not authorized the taking, " citing In re Noonan, 102 N.J. 157, 160, 506 A.2d 722 (1986)). Because no notice was provided by the People, the Hearing Board cannot impose a greater sanction than that imposed by the State of Vermont. See also People v. Apker, 67 P.3d 23, 25 (Colo.O.P.D.J.2003)(hearing board finding that disbarment was the appropriate sanction under Colorado law for attorney's knowing conversion of client property in reciprocal discipline action from the State of Arizona where respondent was suspended from the practice of law for a period of six months and one day); People v. Costa, 56 P.3d 130, 134 (Colo.O.P.D.J.2002)(hearing board finding that disbarment was appropriate sanction under Colorado law for attorney's making a material misrepresentation to the court, neglecting a client's matter, failing to communicate with client, and knowingly failing to obey court orders in reciprocal discipline action where attorney was formally reprimanded and placed on probation by the State of New Mexico). Accordingly, Andrews is suspended for a period of six months with the requirement of a reinstatement proceeding.

III ORDER

It is therefore ORDERED:

1. KJAERE ANDREWS, attorney registration number 14895 is suspended from the practice of law for six months, effective thirty-one days from the date of this Order. If Andrews seeks reinstatement, she must comply with the reinstatement proceedings set forth in C.R.C.P. 251.29(c).

2. Andrews is ordered to pay the costs of these proceedings; the People shall submit a Statement of Costs within ten (10) days of the date of this Order. Respondent shall have five (5) days thereafter to submit a response thereto.

EXHIBIT A

Terry - Bernuth, Assistant - Regulation Counsel, John S. Gleason, Regulation Counsel, Denver, Attorneys for Complainant.

COMPLAINT

This complaint is filed pursuant to the authority of C.R.C.P. 251.14 and 251.21, and it is alleged as follows:

JURISDICTION

1. The respondent has taken and subscribed the oath of admission, was admitted to the bar of this court on October 28, 1985 as Karen McLaughlin, and is registered upon the official records of this court, registration no. 14895. She is subject to the jurisdiction of this court in these disciplinary proceedings. The respondent's registered home address is P.O. Box 1064, Stowe, VT 05672. The respondent was administratively suspended from the practice of law in Colorado on November 6, 1987 for failure to pay registration fees. In 1992, the respondent petitioned the Colorado Supreme Court for a waiver of active registration fees from 1987 to 1992 and a name change to Kjaere Andrews. The Court granted the respondent's requests and she was placed on inactive status and ordered to pay inactive registration fees for those years. The respondent failed to pay the inactive registration fees. The respondent's record at Attorney Registration reflects that she has been administratively suspended since November 6, 1987.

CLAIM I

[Reciprocal Action for Revocation-C.R.C.P. 251.21]

2, The respondent was licensed to practice law in the state of Vermont on or about December 17, 1981.

3. On September 28, 2001, a hearing panel of the professional responsibility board of the Supreme Court of Vermont recommended suspension of respondent's license to practice law for six months and one day for conduct in violation of her duties and obligations as a lawyer.

4, That recommended suspension became a final decision of the Supreme Court of Vermont when no appeal was taken by either party and the Supreme Court did not order review on its own motion. The order of suspension was effective October 31, 2001.

5. The hearing panel's decision was a final adjudication of the respondent's misconduct in Vermont, which constitutes grounds for discipline in Colorado, pursuant to C.RCP. 251.2l(@q). Exhibit A, which is a certified copy of the final decision of the hearing panel which became the order of the Supreme Court of Vermont conclusively establishes the respondent's misconduct pursuant to Vermont Supreme Court Administrative Order 9, Rule 11.

6. In Vermont, in June 2000, the respondent was hired by Corylinn Jenne (the client) to represent her in a divorce action. The client paid the respondent $1,000 as a retainer. The respondent did not maintain a trust account and deposited the retainer into her personal or business account. After a few weeks, the client decided to handle the divorce case pro se and requested an accounting and refund of the balance of the retainer.

7. In July, 2000, the respondent sent a letter and final bill to the client informing the client that she was being charged an hourly rate of $100 rather than the $50 per hour rate that had been agreed upon between the client and the respondent. After applying the hourly rate of $100, the respondent indicated in the letter that she owed the client $150.70 which was later paid to the client. The client accepted the $150.70 as partial payment of the amount she wanted refunded of $575.35, the retainer balance at the $50 per hour rate.

8. The respondent was charged with violations of the following Vermont Rules of Professional Responsibility: 1.5(b) (the basis or rate shall be communicated in writing), 1.15(a)(an attorney shall hold client's property separate from attorney's own property), 1.15A¥(every attorney in private practice who receives funds of a client shall maintain a trust accounting system), and 1.16(d)(upon termination, a lawyer shall refund any advance payment of fee not yet earned). The hearing panel deemed that those charges were admitted as a result of the respondent's default in the proceedings and found that the violations were proven by clear and convincing evidence.

9. The respondent's conduct in Vermont violates the following Colorado rules: Colo. RPC 1.5(b) (the basis or rate of the lawyer's fee shall be communicated in writing); 1.15(a) (an attorney shall hold client's property separate from attorney's own property) (every attorney in private practice shall maintain a trust account) and 1.16(d) (upon termination, a lawyer shall refund any advance payment of fee not yet earned).

CLAIM II

[Failure to Report Discipline Imposed Pursuant to C.R.C.P. 251.21(b) and Failure to Respond Pursuant to C.R.C.P. 251.5(d) ]

10. Paragraphs 1 through 9 are incorporated herein.

11. The respondent failed to report to Colorado the discipline imposed by the Vermont Supreme Court in violation of C.R.C.P. 251.21(b) and failed to respond to the Regulation Counsel's request for investigation in violation of C.R.C.P. 251.5(d).

WHEREFORE, the complainant prays at the conclusion hereof.

CLAIM III

[Notice Pursuant to C.R.C.P. 251.21(d) ]

12. Paragraphs 1 through 9 and 11 are incorporated herein.

13. The Vermont Supreme Court suspended the respondent for six months and one day stating, "At a minimum, a six-month suspension is necessary to protect the public, as no lesser sanction will require Respondent to demonstrate that she has acquired the fitness to act as a professional that she clearly lacks at present." Exhibit A, p. 7. In Vermont, a period of suspension that is greater than six months requires the respondent to apply for reinstatement. Vermont Supreme Court Administrative Order 9, Rule 22(D).

14. In reciprocal discipline proceedings, the same discipline of the other jurisdiction is usually imposed unless one of the following exceptions exists. See People v. Nangle, 973 P.2d 1271 (Colo.1999).

CRCP. 251.21(d) states the four exceptions:

(1) The procedure followed in the foreign jurisdiction did not comport with requirements of due process of law;
(2) The proof upon which the foreign jurisdiction based its determination of miscon-duet is so infirm that the Hearing Board cannot, consistent with its duty, accept as final the determination of the foreign jurisdiction;
(3) The imposition by the Hearing Board of the same discipline as was imposed in the foreign jurisdiction would result in grave injustice; or
(4) The misconduct proved warrants that a substantially different form of discipline be imposed by the Hearing Board.

15. None of the above-cited exceptions apply in the present case. Therefore, the discipline imposed in Colorado should be identical to the Vermont discipline. Accordingly, the respondent should be suspended for a period of six months and be required to demonstrate at a reinstatement hearing that she has acquired the fitness to act as a professional, which is the standard required by the Vermont Supreme Court.

WHEREFORE, it is prayed that the respondent be found guilty of violations of various rules of conduct which establish grounds for discipline as provided in C.R.C.P. 251.5 and 251.21 and the Colorado Rules of Professional Conduct and that she be appropriately disciplined and assessed the costs of the proceedings.

EXHIBIT B

STATE OF VERMONT

PROFESSIONAL RESPONSIBILITY BOARD

In Re: Kjaere Andrews, Esq.

PRB File. No.2001.014

* HEARING PANEL DECISION NO. 25

A Petition of Misconduct was filed with the Office of the Professional Responsibility Board in the above referenced case on May 18, 2001. Respondent acknowledged receipt on May 18, 2001, but did not file an answer to the Petition of Misconduct. On June 13, 2001, Deputy Disciplinary Counsel filed a Motion to Deem Admitted the Charges and Allegations Set Forth in the Petition of Misconduct. Respondent did not respond to the Motion. On June 21, this hearing panel issued an Order granting the Motion to Deem Charges Admitted. The panel further requested submissions concerning sanctions to be filed with the Board within 30 days. On July 18, 2001, Deputy Disciplinary Counsel filed Recommended Conclusions of Law and Recommendation of Sanction. The Respondent did not file any submissions concerning sanctions. After notice to Respondent, a sanctions hearing was conducted by telephone on August 27, 2001. Deputy Disciplinary Counsel Beth DeBernardi attended by phone. Respondent did not participate in the hearing or otherwise respond to the notice of hearing.

Findings of Fact

The findings of fact are those that have been previously deemed admitted, as follows:

1. The Respondent Kjaere Andrews is an attorney licensed to practice law in the State of Vermont.

2. Respondent was admitted to practice before the Vermont Supreme Court on or about December 17, 1981.

3. In March or April of 2000, Complainant Corylinn Jenne consulted with Respondent about representation in a divorcee.

4. On or about June 3, 2000, Complainant hired Respondent to represent her in a divorce.

5. At the time Respondent was hired by Complainant, the parties agreed to an hourly rate of $50 per hour.

6. The fee agreement was not reduced to writing.

7. Complainant paid Respondent the sum of $1,000.00 as a retainer.

8. At all times in question, Respondent did not have or maintain a client trust account.

9. - Respondent deposited the retainer into her personal or regular business account.

10. Respondent did not complete the preparation of the complaint for divorcee within the first few weeks of representation.

11. In mid-June of 2000, Respondent stated to Complainant that she might not be able to continue with the representation and that she was thinking of closing her law practice.

12. Complainant informed Respondent on or about June 22, 2000 that she would file her divorce pro se.

13. On or about June 22, 2000, Complainant asked Respondent for a final statement or accounting and for a return of the unearned portion of the retainer.

14. Respondent did not have funds available to return the unused portion of the retainer because she had spent the retainer on her own personal or business expenses.

15. Respondent and Complainant have a mutual friend, Ms. Moore.

16. When Respondent found herself short of funds to return the retainer to Complainant, Respondent sought to borrow funds from Ms. Moore for this purpose.

17. Ms. Moore provided a loan to Respondent so that Respondent could return the retainer to Complainant.

18. The loan was in the amount of $1,000.00.

19. Respondent used the finds borrowed from Ms. Moore for her own personal or business expenses rather than to repay the retainer to Complainant.

20. On or about July 12, 2000, Respondent sent a letter and final bill to Complainant wherein she informed Complainant that, due to the unexpected early termination of the representation, Respondent would retroactively charge an hourly rate of $100 per hour, rather than the $50 per hour agreed upon.

21. Respondent's letter also informed Complainant that, applying an hourly rate of $100.00, Respondent owed Complainant a balance (refund) of $150.70.

22, Respondent's letter informed Complainant that Respondent was not able to refund the balance of the retainer "today" because there was not enough money in Respondent's checking account to do so.

23. Respondent stated in her letter that she would come up with the money for the refund as soon as possible, but no later than two weeks from now when Ms. Moore returns.

24, On or about July 28, 2000, Respondent sent the sum of $150.70 to Complainant by personal check.

25. On or about August 1, 2000, Complainant informed Respondent that she would accept the sum of $150.70 as partial payment of the fill amount due to her of $575.85.

26. To date, Respondent has not returned any other sums to Complainant.

27. Respondent has provided various reasons for why she doubled the hourly rate charged to Complainant.

28. One reason provided was Respondent's contention that Complainant was told that the $50/hour rate was only available for representation lasting more than six months.

29. Respondent also contended that Complainant was told that the rate was subject to change based on Complainant's financial circumstances.

30. Respondent also contended that the doubling of the hourly rate was appropriate because Respondent's own financial cireum-stances were less favorable than Complainant's.

31. Complainant was never told at any time during the representation that the hourly rate would change for any of these reasons (or for any other reasons).

32. Respondent's failure to return the balance of Complainant's retainer exacerbated Complainant's already difficult financial cireumstances and also prevented Complainant from filing her divoree pro se because she did not have sufficient funds to pay the court filing fee.

Conclusions of Law

The charges, which have been deemed admitted and which the Hearing Panel concludes are supported by clear and convincing evidence, are that the Respondent violated Rules 1.5(b), 1.15(a), 1.15A, and 1.16(d) of the Vermont Rules of Professional Responsibility.

Rule 1.5(b)

Rule 1.5(b) of the Vermont Rules of Professional Conduct provides as follows:

"When the lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation."

The facts deemed admitted clearly and convincingly establish that the Respondent failed to communicate the $100 per hour rate of the fee to her client before or within a reasonable time after commencing the representation. At the commencement of the representation, the Respondent told Complainant that she would charge her $50 per hour for all work done. Nothing was said to suggest that this rate would or could change under differing cireamstances. Less than six weeks later, in sending a final bill, Respondent retroactively doubled her hourly rate with no prior notice to her client and without giving the client any opportunity to agree or disagree with this substantial change in the agreed upon terms of representation. The Panel concludes, as a matter of law, that the Respondent violated Rule 1.5(b) of the Vermont Rules of Professional Conduct.

Rule 1.15(a)

Rule 1.15(a) of the Vermont Rules of Professional Conduct provides as follows:

"A lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property. Funds shall be kept in accordance with Rules 115A, B and C...."

The facts deemed admitted clearly and convincingly establish that the Respondent did not hold Complainant's retainer separate from Respondent's own property, nor did she hold the finds in accordance with the rules governing client trust accounts. In fact, Respondent treated the funds as her own property, spending them on personal expenses before the fee was even earned. The Panel concludes, as a matter of law, that the Respondent violated Rule 1.15(a) of the Vermont Rules of Professional Conduct.

Rule 1.154

Rule 1.15A - of the Vermont Rules of Professional Conduct requires every attorney in private practice or who otherwise receives client funds to maintain a trust accounting system which includes the specific features set forth in Rule 1.15A. Respondent has admitted that she did not use any trust account system, and the facts that have been deemed admitted clearly and convincingly establish that the Respondent failed to maintain the required trust account. The Panel concludes, as a matter of law, that the Respondent violated Rule 1.15A of the Vermont Rules of Professional Conduct.

Rule 1.16(d)

Rule 1.16(d) provides as follows:

"Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned." (emphasis added)

The facts deemed admitted clearly and convincingly establish that Respondent did not hilly refund the advance payment of fee that had not been earned upon the termination of representation. The hourly rate agreed to by Respondent and Complainant was $50 per hour. Respondent performed 8.498 hours of work for Complainant, and accordingly the refund due amounted to $575.35 (ignoring for the moment the disputed 0.58 hours Respondent charged for preparing a bill and answering a telephone call from her client asking for the bill). Respondent did not refund that amount. Instead, Respondent calculated her fee at the arbitrarily imposed rate of $100 per hour, and refunded only $150.70 to Ms. Jenne. Accordingly, Respondent failed to refund a substantial portion of the retainer to Ms. Jenne in violation of Rule 1.16(d).

Sanctions

The ABA Standards for Imposing Lawyer Sanctions ("ABA Standards") suggest that the sanctioning body consider four lhetors in determining the appropriate sanction, as follows: (1) the duty violated; (2) the respondent's mental state; (8) the actual or potential injury; and (4) any mitigating andlor aggravating factors. ABA Sanctions, § 3.0 (1991 Edition); see also In Re Warren, 167 Vt. 259, 261, 704 A.2d 789 (1997).

The Office of Disciplinary Counsel has recommended a suspension of at least six months in length. Applying the four factors to the Respondent's case leads the Hearing Panel to conclude that a six month suspension is the minimum appropriate sanction under these cireumstances.

The Duty Violated

Respondent has violated her duty of loyalty to her client, in that she failed to preserve the property of her client by expending client hinds for personal use. The ABA Standards note that the obligations owed to clients are the most important of all the ethical duties owed by lawyers. ABA Standards, § II, page 5.

Respondent has also violated the duties that she owes as a legal professional, in that she did not communicate or deal properly with the fee agreement and did not handle appropriately her obligations with regard to termination of the representation and return of her client's retainer. See ABA Standards, § II, pages 5-6 and § III .7.0.

In this case, where the primary duty violated was the duty owed to a client, a more serious sanction is indicated. The fact that Respondent's conduct also violated her duty as a professional compounds the gravity of the offense.

Respondent's Mental State

The most culpable mental state is when the lawyer acts intentionally. In the case at hand, Respondent acted at least knowingly, and quite likely intentionally, when she failed to maintain any client trust account system and when she deposited and then spent her client's retainer without earning it. Moreover, by unilaterally and retroactively doubling her hourly rate, thereby substantially reducing the amount of her client's refund, Respondent must be found to have acted intentionally.

Extent of the Injury

The potential for serious injury to clients arising out of Respondent's commingling of funds and her failure to maintain a trust account was enormous. In addition, there was actual injury to Complainant, who has still not received the balance of her retainer and who was unable to file her divorce complaint due to her lack of funds for the court filing fee. The amount due, about six hundred dollars, was a significant amount of money to Complainant at a time when she had just left her husband and couldn't afford a place to live. Given the specific facts of this case, including Complainant's financial vulnerability, the actual harm must also be considered serious, thus supporting the recommendation of a suspension as the appropriate sanction.

Appropriate Sanctions

In cases involving the failure to preserve a client's property, suspension is appropriate when a lawyer "knows or should know that he (sic) is dealing improperly with client property and causes injury or potential injury to a client." ABA Standards, § 4.12. According to the comment to § 4.12, "[sluspension should be reserved for lawyers who engage in misconduct that does not amount to misappropriation or conversion. The most common cases involve lawyers who commingle client fluids with their own, or fail to remit client funds promptly." Id. This is precisely the misconduct in which Respondent was involved. It is clear that Respondent commingled funds and failed to remit client funds promptly, as well as failed to maintain a trust account, and failed to prospectively inform her client of a change in the terms of billing. At a minimum, a six month suspension is necessary to protect the public, as no lesser sanction will require Respondent to demonstrate that she has acquired the fitness to act as a professional that she clearly lacks at present.

Aggravating and Mitigating Factors

Under the ABA Standards, after determining which sanction is appropriate, the sanctioning body should then consider any aggravating or mitigating factors to see whether the proposed sanction should be adjusted up or down. In the case in hand, there are several aggravating factors.

First, the Respondent had a dishonest or selfish motive when she retroactively doubled her hourly rate for work done on behalf of Complainant, so that the amount of the refund due would be reduced from $575.35 to $150.70. A dishonest or selfish motive is an aggravating factor, as set forth in the ABA Standards, § 9.22(b).

Second, Respondent has never acknowledged the wrongfulness of her conduct, either to Complainant or to the Office of Disciplinary Counsel. Such failure to acknowledge the wrongful nature of one's conduct is an aggravating factor as set forth in the ABA Standards, § 9.22(g).

Third, the vulnerability of the Complainant is also an aggravating factor. During the time at issue, Complainant had recently left her husband, had no place to live except with friends, and had to borrow a substantial portion of the $1,000 retainer in order to commence her divorcee. In fact, due to Respondent's failure to return the retainer, Complainant was unable even to file her divoree pro se. The vulnerability of the victim is also an aggravating factor, as set forth in the ABA Sanctions, § 9.22(h).

Fourth, Respondent was first admitted to the practice of law in Vermont on or about December 17, 1981 and thus has had almost nineteen years experience in the practice of law at the time in question; accordingly her "substantial experience in the practice of law" must be considered an aggravating factor as well. ABA Standards, § 9.22(N).

Finally, Respondent has still made no effort to return the balance of the retainer to Complainant, despite the complaint to the Professional Responsibility Program and despite the passage of almost a year since she misappropriated Complainant's retainer. Indifference to making restitution is also an aggravating factor set forth in the ABA Standards at § 9.22(J).

Although Respondent has not come forward to present any mitigating factors, the following are possible mitigating factors; First, Respondent has no prior disciplinary sanctions on her record. Second, Respondent apparently alluded to some personal difficulties she was experiencing at the time in question. In particular, she apparently stated to Complainant that she was upset in June about the suicide of one of her other clients and she apparently had some financial problems at that time. However, because Respondent failed to provide her version of these events, the Hearing Panel does not have direct information concerning these possible difficulties and declines to speculate as to their relevance.

A balancing of the aggravating factors and the mitigating factors leaves the aggravating factors in preponderance and does not lessen the appropriateness of imposing a significant suspension.

Conclusion

The facts of this case demonstrated a complete lack of professionalism on the part of Respondent Kjaere Andrews. Respondent violated Rule 1.5(b) by charging an hourly rate twice as high as the rate communicated to the client. She violated Rule 1.15(a) by commingling Complainant's funds with Respondent's own funds. She violated Rule LISA by failing to have a trust account. She violated Rule 1.16(d) by failing to refund in hill the advance payment of fee that had not been earned at the time the representation was terminated. Finally, she added insult to injury by blaming Ms. Jenne for terminating the representation "early" when it was Respondent's own actions that led to the termination of Respondent's services.

This course of conduct on the part of Respondent Kjaere Andrews, for which she has not taken responsibility, supports Disciplinary Counsel's suggestion of at least a six month suspension. The Hearing Panel ree-ommends suspension of the Respondent's license to practice law for six months and one day, and directs that Respondent reimburse Complainant the full amount due to Complainant based upon the agreed upon rate of $50.00 per hour.

Panel member James Gallagher concurs with the Sanctions but dissents from the conclusion that Rule 1.5(b) of the Vermont Rules of Professional Conduct was violated under the facts of this case. Notwithstanding Respondent's later claim that she was entitled to $100 an hour, Respondent had communicated to Complainant that Respondent would charge $50 an hour. Mr. Gallagher believes this communication satisfied Rule 1.5(b) by contractually limiting Respondent to this agreed-upon rate.

PROFESSIONAL RESPONSIBILITY BOARD-HEARING PANEL NO. 6

      . Andrews has been administratively suspended in Colorado since November 1987 due to her failure to pay attorney registration fees.

      . C.R.C.P. 251.21(d) provides in relevant part:
      At the conclusion of proceeding brought under this Rule, the Hearing Board shall issue a decision imposing the same discipline as was imposed by the foreign jurisdiction, unless it is determined by the Hearing Board that:
      (1) The procedure followed in the foreign jurisdiction did not comport with requirements of due process of law;
      (2) The proof upon which the foreign jurisdiction based its determination of misconduct is so infirm that the Hearing Board cannot, consistent with its duty, accept as final the determination of the foreign jurisdiction;
      (3) The imposition by the Hearing Board of the same discipline as was imposed by the foreign jurisdiction would result in grave injustice; or
      (4) The misconduct proved warrants a stantially different form of discipline be imposed by the Hearing Board.


author: JACKSON, Presiding Judge: THORNE, Judge,

text:
    2003 UT App 261
    STATE of Utah, Plaintiff and Appellee, v. Liza Victoria CORWELL, Defendant and Appellant.
    No. 20020343-CA.
    Court of Appeals of Utah.
    July 17, 2003.

      Kent R. Hart and Patrick L. Anderson, Salt Lake Legal Defender Association, Salt Lake City, for Appellant.
    Mark L. Shurtleff, Attorney General, and Kenneth A. Bronston, Assistant Attorney General, Salt Lake City, for Appellee.
    Before Judges JACKSON, GREENWOOD, and THORNE.
   OPINION

JACKSON, Presiding Judge:

11 Liza Corwell appeals from the trial court's denial of her motion to withdraw her guilty plea from a conviction for attempted tampering with evidence in violation of Utah Code Annotated §§ 76-8-510 and 76-4-101 (1999). We reverse and remand.

BACKGROUND

12 On March 18, 2001, Detectives Troy Anderson and Tracy Ita of the Salt Lake City Police Department investigated a report that Corwell and Rebecca Champneys might be "using and/or selling narcotics" at a motel. The informant specifically directed the detectives to room number 286 at the Motel 6, located at 1990 West North Temple Street in Salt Lake City.

T8 Based on this information, the detectives went to the motel room and knocked on the door. Detective Ita identified himself as "Tracy" and, after Champneys expressed some confusion, Ita responded that he was "Tracy with the Salt Lake City Police Department." Then both officers displayed their badges-Ita through the peep hole in the door and Anderson through an adjoining window. Anderson testified that there was a "six to twelve" inch gap between the curtain and the door through which he could see into the room. When the detectives asked if Cor-well was also in the room, Champneys initially responded negatively. She later admitted that Corwell was in the room, however, after Anderson observed another woman in the room.

T4 After the detectives displayed their badges and asked Champneys to open the door, Champneys attempted to close the gap in the curtains. At the same time, Anderson saw Corwell put what he thought was a crack pipe into a purse and put it behind the bed. Anderson then observed "a lot of movement in the room," including trips to the bathroom by both women and efforts to conceal objects under the bed.

T5 The detectives repeatedly asked Champneys to open the door. When she refused, Ita obtained a key from the motel manager. Even with the key, however, the detectives were unable to enter the room because the women had dead-bolted the door. Detective Ita then kicked the door open.

T 6 Onee inside the room, Anderson arrested Champneys and Corwell. A search of Champney turned up a metallic pipe, which she admitted she used to smoke cocaine. He also discovered cocaine, Kleenex, and a burnt Brillo pad. A search of Corwell revealed a rock of cocaine and drug paraphernalia. While being searched in the bathroom, Champneys grabbed some cocaine from the counter and tried to flush it down the drain.

T7 On September 19, 2001, the trial court denied Corwell's motion to suppress. On December 7, 2001, Corwell entered a conditional guilty plea to attempted tampering with evidence, reserving her right to appeal the trial court's ruling on the suppression motion. Though both the plea statement and the trial court's questioning omitted the word "speedy" from the discussion of Corwell's rights, the trial court did inform Corwell that by pleading guilty she was giving up her right to a trial before an impartial jury, and that her trial was scheduled for the following Monday.

T8 On April 2, 2002, judgment was entered. On April 26, 2002, Corwell filed a notice of appeal. However, on April 29, Cor-well moved to withdraw her guilty plea. On June 5, 2002, Corwell filed a motion and memorandum "to hold appeal in abeyance and to stay the briefing schedule pending disposition of motion to withdraw guilty plea." In her motion, Corwell stated that if the trial court denied her motion to withdraw her guilty plea, she planned to appeal the denial of the motion to this court and would then request that this court consolidate her appeals from her conviction and the denial of her motion.

T9 On June 20, this court stayed the appeal and temporarily remanded the case, directing the trial court to rule on Corwell's motion to withdraw her guilty plea In granting the stay, this court stated: "If the trial court denies the motion, Appellant shall file an amended notice of appeal under the same appellate case number." On June 21, the trial court denied the motion. On September 10, Corwell filed a supplemental designation of record, a supplemental certificate, and a supplemental request for transeript. The final order was not entered until October 11, 2002. On October 28, 2002, Corwell filed an amended notice of appeal of the trial court's denial of her motion to withdraw the guilty plea.

ISSUE AND STANDARD OF REVIEW

110 Corwell challenges the trial court's denial of her motion to withdraw her guilty plea. Specifically, Corwell challenges the trial court's compliance with rule 11 of the Utah Rules of Criminal Procedure in taking ber guilty plea Whether the trial court strictly complied with rule 11 is a question of law, which we review for correctness. See State v. Benvenuto, 1999 UT 60, ¶ 10, 983 P.2d 556 ("the ... question of whether the trial court strictly complied with constitutional and procedural requirements for entry of a guilty plea is a question of law that is reviewed for correctness" (quoting State v. Holland, 921 P.2d 430, 433 (Utah 1996))).

ANALYSIS

$11 Corwell challenges the trial court's denial of her motion to withdraw her guilty plea, arguing that the trial court failed to strictly comply with rule 11's requirements that she be informed of her right to a speedy trial and that her guilty plea would limit her right to appeal.

112 It is well established that rule 11's requirements must be strictly complied with by trial courts. Rule l1(e) "squarely places on trial courts the burden of ensuring that constitutional and rule l1(e) requirements are complied with when a guilty plea is entered." State v. Gibbons, 740 P.2d 1309, 1312 (Utah 1987). This duty requires "strict compliance" with the rule, State v. Abeyta, 852 P.2d 9983, 995 (Utah 1993), which means "** "that the trial court [must] ... establish on the record that the defendant knowingly waived his or her constitutional rights [to al speedy public trial before an impartial jury." ' " State v. Dean, 2002 UT App 323, ¶ 10 n. 2, 57 P.3d 1106 (quoting State v. Visser, 2000 UT 88, ¶¶ 10-11, 22 P.3d 1242 (quoting Utah R.Crim. P. 11(e))).

113 In Visser, however, the Utah Supreme Court held that the strict compliance rule does not "mandate a particular seript or rote recitation of the rights listed." Visser, 2000 UT 88 at ¶ 11, 22 P.3d 1242. Instead, the rule requires that the trial court ensure that defendants know their rights and the consequences for waiving them by pleading guilty. See id. While the trial court must therefore make certain that "no requirement of the rule is omitted," id. at T 12, the court is allowed to rely on the cireum-stances of the case to determine whether the defendant has been appraised of his or her rights. See id.

T 14 The facts of Visser are instructive. In Visser, the defendant entered a guilty plea in the middle of his trial. See id. at 11. He later filed a motion to withdraw his plea, arguing that the trial court had failed to inform him of his constitutional right to a speedy trial before an impartial jury. See id. The trial court denied the motion. See id. at « 6. On review, the supreme court concluded that " 'striet compliance can be accomplished by multiple means.! " Id. at 112 (quoting State v. Maguire, 880 P.2d 216, 218 (Utah 1991). Thus, where " 'the contents of other documents such as the information, presen-tence reports, exhibits, etc.," " indicate that " 'no requirement of the rule [has been] omitted," " the court's ruling will be deemed to have been in compliance with rule 11. Visser, 2000 UT 88 at ¶ 12, 22 P.3d 1242 (citations omitted). Accordingly, insofar as "the record detailled] Visser's personal trial experience up to the point of his plea agreement," the supreme court therefore "conclude[d] that this experience communicated at least as much as would the mere oral recitation of the 'right to a speedy public trial before an impartial jury. " Id. at T 18.

115 The present case presents a scenario significantly different from that presented in Visser. Whereas Visser's mid-trial status evidenced a clear understanding of his right to a speedy trial, Corwell's trial had not yet started at the time of her plea. Thus, she was never afforded the right to a speedy trial, and no such right was communicated to her in the colloquy. It is true that the trial court did note that Corwell's case was set for trial the following Monday. We conclude, however, that this mention did not effectively communicate to Corwell that she had a right to a speedy trial. Modern trial practice is replete with opportunities for delay, postponement, or continuance. Without more, the mere mention of an imminent trial date is not sufficient to satisfy rule 11's requirement that a defendant be apprised of the right to a speedy trial.

$16 This conclusion is supported by our prior case law. In State v. Hittle, we concluded that omitting the word "speedy" constituted plain error because "the constitutional right to a speedy trial is a distinct right of criminal defendants, separate from the right to a trial before an impartial jury." 2002 UT App 184, 18, 47 P.3d 101. "If the defendant is not fully informed of his [or her] rights prior to pleading guilty, then the guilty plea cannot be voluntary." Id. at 110. Although the term "speedy" "may be communicated by various means to the defendant, [it] may not be considered [a] merely inconsequential modifier[ ] to the jury trial right." Dean, 2002 UT App 323 at ¶ 10 n. 2, 57 P.3d 1106. Here, nothing in the record suggests that the trial court established that Corwell waived anything more than her right to a lengthy and delayed trial.

"17 The trial judge also failed to inform Corwell that her guilty plea limited her right to appeal. "By pleading guilty, the defendant is deemed to have admitted all of the essential elements of the crime charged and thereby waives all non-jurisdictional defects, including alleged pre-plea constitutional violations." State v. Parsons, 781 P.2d 1275, 1278 (Utah 1989). The trial judge and the plea statement merely informed Corwell that she could appeal the denial of her motion to suppress under State v. Sery, 758 P.2d 935 (Utah Ct.App.1988). However, the trial court's only clarification of this right was, "so everybody is clear on that, it means you ean appeal it." - "It" was never sufficiently explained. Likewise, it was defense counsel that acknowledged the court's "clarification." - Just as a jury trial is a separate and distinct right from the right to a speedy public trial, the limits on an appeal are separate from the right to appeal generally. See Hittle, 2002 UT App 134 at ¶ 8, 47 P.3d 101.

118 The State contends that by failing to include the right to a speedy trial and the provision concerning the limited right to appeal in the plea statement, and by failing to point out the omissions when the trial judge asked "if there was anything either one of you would have me ask your client regarding Rule 11 appointments," Cor-well invited error. We disagree. "[I]t is not sufficient to assume that defense attorneys make sure that their clients fully understand the contents of the affidavit." Gibbons, 740 P.2d at 1313. The duty to ensure that defendants know and understand the rights they are surrendering when pleading guilty rests not on the parties, but on the trial court. See id. at 1312.

T19 The State also claims that the trial court strictly complied with the rule 11 requirements insofar as Corwell was aware of the rights that were overlooked, and that the guilty plea was properly accepted. In his order denying Corwell's motion to withdraw her guilty plea, the trial judge conceded that he covered "most" of the rule 11 requirements and thus "substantially" complied with rule ll(e)k However, case law requires "strict compliance with rule 11, rather than substantial compliance" when accepting a guilty plea. See id. at 1818-14; see also Visser, 2000 UT 88 at ¶ 11, 22 P.3d 1242; Abeyta, 852 P.2d at 995; State v. Tarnawiecki, 2000 UT App 186, ¶ 12, 5 P.3d 1222. The quantum of error is irrelevant; rather, strict compliance requires reversal in this case because the trial court failed to inform Corwell of two of her constitutionally protected rights. See Tarnawiecki, 2000 UT App 186 at ¶ 19, 5 P.3d 1222, Accordingly, the trial court did not strictly comply with rule 11(e), and it erred in denying Corwell's timely motion to withdraw her guilty plea.

CONCLUSION

[ 20 The trial court erred in denying Cor-well's motion to withdraw her guilty plea because the trial court did not strictly comply with rule 11(e) during the plea colloquy. Accordingly, we reverse the denial of Corwell's motion to withdraw her plea, vacate her conviction, and remand for proceedings consistent with this opinion.

21 I CONCUR: PAMELA T. GREENWOOD, Judge.

THORNE, Judge,

(concurring):

T22 I concur with the decision to reverse the trial court's denial of Corwell's motion to withdraw her plea based on the trial court's failure to strictly comply with rule 11 of the Utah Rules of Criminal Procedure. However, absent the specific failures outlined in the majority opinion, I believe the plea colloquy was exemplary and the caution demonstrated by the trial court should be highlighted. During the colloquy, the trial court conducted an in-depth discussion with Corwell addressing virtually all of the rights due her in the criminal proceeding. The discussion ranged from the court's ensuring that Cor-well had read and understood the pleading document prepared by counsel, to its explaining that, in pleading guilty, she was waiving her right to a jury trial, her right to confront the State's witnesses, the presumption of innocence, and the State's duty to prove her guilty beyond a reasonable doubt. The court also explained to Corwell the range of possible sentences she faced should she accept the plea agreement.

23 Furthermore, it is clear from the ree-ord that the trial court understood that rule 11 does not envision nor require the recitation of a formulaic speech. Rather, the trial court understood that, under rule 11, its role was to conduct an actual inquiry into the nature and depth of the defendant's understanding of her rights and to ensure that her plea was entered in a knowing and voluntary fashion.

124 Finally, because the court accepted the plea pursuant to State v. Sery, 758 P.2d 935, 939 (Utah Ct.App.1988), and because the trial was scheduled to begin on the day following the plea hearing, the court's failure to strictly comply with rule 11 is understandable, albeit insufficient to satisfy our rule 11 jurisprudence.

125 Accordingly, I concur with the decision to reverse and remand the trial court's denial of Corwell's motion to withdraw her guilty plea.

      . - Corwell also argues that the police did not have probable cause to search her hotel room. This exact issue was previously addressed by this court in an appeal filed by Corwell's co-defendant. See State v. Champneys, Case No. 20020123, 2003 WL 21290158 (Utah Ct.App. March 27, 2003). Under the terms of State v. Ellis, 969 P.2d 1053 (Utah Ct.App.1998), the law of the case doctrine renders Champneys binding on us for the purposes of Corwell's appeal. Accordingly, we decline to address the issue.