Opinion
Court of Appeals No. A-10332.
June 30, 2010.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Mark I. Wood, Judge, Trial Court No. 4FA-08-412 CR.
Margi A. Mock, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Terisia Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Introduction
James C. Hoover Jr. appeals his conviction for felony refusal to submit to a chemical test. He claims that the trial judge erred in finding that he waived his right to a jury trial on the prior convictions element of felony refusal. Because there is sufficient evidence in the record to support Judge Wood's conclusion that Hoover voluntarily waived jury trial on the prior convictions element, we affirm his conviction.
Factual and procedural background
A grand jury indicted James Hoover Jr. for felony driving under the influence and felony refusal to submit to a chemical test. These offenses were charged as felonies because the State alleged that Hoover had been previously convicted of two prior offenses within the last ten years of either driving under the influence or refusal to take a chemical test. Hoover moved for a bifurcated trial, asking for the jury to first determine whether he had committed the offenses of driving under the influence and refusal to submit to a chemical test before addressing the element of Hoover's prior convictions. Superior Court Judge Mark I. Wood granted the motion to bifurcate.
AS 28.35.030(a).
AS 28.35.032(a).
AS 28.35.030(n) AS 28.35.032(p) (elevating the offense to a class C felony where the person has been previously convicted two or more times within the past ten years of either driving under the influence or refusal to submit to a chemical test).
See Ostlund v. State, 51 P.3d 938, 941-42 (Alaska App. 2002).
The jury convicted Hoover of refusing to submit to a chemical test, but was unable to agree on a verdict on the driving under the influence charge. The prosecutor subsequently dismissed the driving under the influence charge.
Following the verdict, Judge Wood temporarily excused the jury and conferred with the parties. Judge Wood explained to Hoover that to convict him of a felony, the State would have to prove that he had two prior convictions within the last ten years of either driving under the influence or refusal. He explained that the State could introduce evidence of certified copies of Hoover's prior convictions. He explained that Hoover could have the jury determine, beyond a reasonable doubt, whether Hoover had two prior convictions. Or Hoover could waive his right to a jury trial and the judge would determine whether Hoover had the two prior convictions. He explained that, for Hoover to waive his right to a jury trial, Hoover would have to waive this right in writing. He also told Hoover that Hoover could admit that he had the two prior convictions, conceding this element. The court then went off the record to allow Hoover to discuss his options with his attorney.
When the court reconvened, Judge Wood asked if Hoover had reached a decision about how he wanted to proceed. Hoover's counsel stated that Hoover was unsure of what to do. Judge Wood then said, "What we're going to do is I'll give each side a minute to open with respect to this, then turn it over to [the State] to present the evidence and give you each an opportunity to close, okay? Okay, we'll bring the jury in." The court then again went off record. When the proceedings came back on record, the following exchange ensued:
THE COURT: Mr. Hoover, you understand you have a right to have the trial jury decide whether or not there are two prior convictions within the last 10 years and after January 1, 1996, which is one of the elements of the offense. You understand that?
MR. HOOVER: Yes, sir.
THE COURT: It's the same trial jury that's heard all the other evidence in the case, and you have all the same rights with respect to that as you did with respect to the other two charges that had been presented, one which resulted in a hung jury and one which resulted in a conviction. Do you understand that? In other words, you don't lose any rights when you have the trial jury. It's the same thing that we've been doing. If you decide not to have a trial jury, you're saying I don't want the jury to decide, I want the court to decide. Do you understand that?
MR. HOOVER: I think so.
THE COURT: Okay, I mean, are you clear headed today? You look clear headed.
MR. HOOVER: Oh, I'm clear headed, I'm just shocked, that's all.
THE COURT: Okay, well, I certainly can understand that. That's usually why this decision is made prior to trial.
MR. HOOVER: Yeah, I don't know which way would be better, of course there probably is no better way.
THE COURT: You know, it's up to you. But I'm not going to waste any more time. I'm either going to bring the jury in and do it or you're going to sign the waiver and I'm going to do it, so . . .
MR. HOOVER: Okay. Do I have to sign that?
MS. KRANENBURG [DEFENSE COUNSEL]: [Yes]
Hoover signed a document which provided: "I, James C. Hoover, Jr., after full advisement of my rights, do hereby waive my right to a trial by jury on the issue of my prior convictions for Driving Under the Influence, or Refusal to Submit to a Chemical Test."
Judge Wood addressed Hoover's attorney to confirm that the waiver was with her advice. He then stated that "this is a knowing, intelligent waiver. He certainly knows what his rights to a jury trial are. He's been present through an entire jury trial. And this is a decision made with the advice of counsel. And I will accept it."
Judge Wood found that the State had proven that Hoover had previously been convicted of two prior offenses within the ten-year time period. Judge Wood then convicted Hoover of felony refusal to submit to a chemical test.
Why we affirm Judge Wood's finding that Hoover waived his right to a jury trial
On appeal, Hoover argues that the record is insufficient to show that he waived his right to a jury trial on the prior convictions element of the felony charge of refusal to take a chemical test. He points to the fact that the record shows that he equivocated about whether or not to waive his right to a jury trial and that his attorney told the court that Hoover was not certain about what he wanted to do. He points to the fact that just before he signed the written waiver, he stated, "Okay. Do I have to sign that?"
Alaska Criminal Rule 23(a) provides that "cases required to be tried by jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the court and the consent of the State." The record must "explicitly demonstrate that the defendant understood and personally relinquished the right to trial by jury." A written waiver is the best record evidence of the defendant's express consent. We are to affirm a trial court's acceptance of a defendant's waiver of his right to a jury trial if the trial court's finding of a personal, knowing, and voluntary waiver is supported by substantial evidence.
McGlauflin v. State, 857 P.2d 366, 369 (Alaska App. 1993) (overruled on other grounds).
Walker v. State, 578 P.2d 1388, 1390 (Alaska 1978).
Walunga v. State, 630 P.2d 527, 528 n. 4 (Alaska 1980).
We conclude that Judge Wood's finding that Hoover made a personal, knowing, and voluntary waiver of his right to a jury trial is supported by substantial evidence. The record shows that Judge Wood personally addressed Hoover and explained to him that he had a right to a jury trial on the prior convictions element of refusal to take a chemical test. Judge Wood went off the record twice to give Hoover an opportunity to consult with his counsel on this issue. After again informing Hoover of his options, Judge Wood told Hoover that he was ready to bring the jury in unless Hoover wanted to sign the waiver and have the judge decide the prior convictions element. Hoover stated, "Okay. Do I have to sign that?" His counsel responded affirmatively. Judge Wood could properly determine that when Hoover stated, "Okay. Do I have to sign that?", Hoover was asking if, to waive his right to a jury trial, he needed to sign the jury waiver. Judge Wood was present in court so that he could see the actual transaction, and Hoover's attorney indicated that Hoover was signing the waiver with her consent. Substantial evidence in the record, including Hoover's written waiver, supports Judge Wood's finding that Hoover made a personal, knowing, and voluntary waiver of his right to a jury trial.
The judgment of the superior court is AFFIRMED.