Opinion
A-13496
05-25-2022
JARED JOSEPH KOWALSKI, Appellant, v. STATE OF ALASKA, Appellee.
Michael Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. Elizabeth T. Burke, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Third Judicial District, Anchorage No. 3AN-18-04490 CI, Michael L. Wolverton, Judge.
Michael Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, under contract with the Office of Public Advocacy, Anchorage, for the Appellant.
Elizabeth T. Burke, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
SUMMARY DISPOSITION
Jared Joseph Kowalski was convicted, following a jury trial, of three counts of first-degree sexual abuse of a minor and one count of second-degree sexual abuse of a minor for engaging in sexual acts with his seven-year-old stepdaughter. We affirmed his convictions on appeal. Kowalski then filed an application for post-conviction relief raising two claims, which were ultimately dismissed. Kowalski now appeals the dismissal of both claims.
AS 11.41.434(a)(1) and AS 11.41.436(a)(2), respectively.
Kowalski v. State, 2017 WL 838635, at *5 (Alaska App. Mar. 1, 2017) (unpublished).
Kowalski's first claim was that his sentence was unconstitutional because the consecutive sentencing scheme for sex offenders was created by a bill that violated the single-subject clause of the Alaska Constitution. The superior court ruled that Kowalski had waived this claim by failing to raise it on direct appeal. Now, Kowalski argues that this procedural bar does not apply to his case because the purported unconstitutionality of the sentencing statute created a jurisdictional defect that rendered his sentence illegal, and an illegal sentence can be corrected at any time.
See Alaska Const. art. II, § 13; SLA 2004, ch. 124, § 2; see also Smith v. State, 187 P.3d 511, 517 (Alaska App. 2008) (declining to express an opinion as to whether the insertion of consecutive sentencing legislation into a bill related to non-indigenous fish violated Alaska's constitutional single-subject rule).
See AS 12.72.020(a)(2) (barring a post-conviction relief claim if the claim "was, or could have been but was not, raised in a direct appeal").
See AS 12.72.010(2) (establishing as a ground for post-conviction relief that "the court was without jurisdiction to impose sentence"); see also Alaska R. Crim. P. 35(a) (providing that an illegal sentence claim can be raised at any time).
It is true that Alaska law allows for the correction of an illegal sentence at any time, but "[t]he term 'illegal sentence' has been narrowly construed." It "applies only to sentences which the judgment of conviction did not authorize." Here, Kowalski challenges as unconstitutional a statute that requires some portion of the sentence for each sex offense conviction be imposed consecutively. But even if that statute were unconstitutional, the sentencing court still had the authority to impose some or all of Kowalski's sentence for each conviction consecutively, because sentencing courts generally have the authority to do so. Kowalski's sentence is therefore not illegal, and we find no error in the superior court's dismissal of his sentencing claim. (We also note that the court imposed a composite sentence above the minimum required by the consecutive sentencing statute, indicating that the consecutive sentencing statute did not impact the court's determination of the appropriate composite sentence.)
Bishop v. Anchorage, 685 P.2d 103, 105 (Alaska App. 1984).
Id.
See AS 12.55.127(b) (stating that, except when provided otherwise by statute, "terms of imprisonment may be concurrent or partially concurrent").
In his reply brief, Kowalski also argues that the procedural bar violates his right to due process and equal protection. But this argument is waived because it was raised for the first time in the reply brief. See Danco Expl., Inc. v. State, Dep't of Nat. Res., 924 P.2d 432, 435 n.1 (Alaska 1996) ("[N]ew arguments presented for the first time in reply briefs are considered waived.").
Kowalski's second claim was that his trial attorney was ineffective when he promised the jury in his opening statement that a witness would testify but then failed to call that witness to testify at trial. The superior court dismissed this claim because Kowalski failed to attach an affidavit from the missing witness establishing what the witness would have said if called to testify.
See Allen v. State, 153 P.3d 1019, 1024-26 (Alaska App. 2007) (affirming dismissal of post-conviction relief claim for failure to state a prima facie case because petitioner did not provide affidavits from witnesses who would have given proposed testimony).
On appeal, Kowalski argues that the superior court misunderstood the nature of his ineffective assistance of counsel claim because it "got sidetracked" when the State moved to dismiss on the grounds that Kowalski had failed to attach an affidavit from the missing witness. Kowalski now asserts that he was not claiming that he was prejudiced by the fact that the witness's testimony was never presented to the jury; rather, he was claiming that he was prejudiced by the fact that his attorney made a promise in his opening statement that he did not keep, regardless of what the witness would have actually testified to at trial. Kowalski therefore argues that it was unnecessary to produce evidence of what the witness would have testified.
But Kowalski's application was highly ambiguous as to the nature of the prejudice he was alleging, and the superior court's interpretation of his argument was reasonable. To preserve an issue for appeal, a party must both raise and obtain a ruling on that issue or at least make every effort to obtain a ruling. If Kowalski believed the State had misrepresented the nature of his claim, he could have corrected the State in his response to the State's motion to dismiss. Alternatively, if Kowalski believed the superior court's ruling misunderstood the nature of his claim, he could have filed a motion for reconsideration under Alaska Civil Rule 77(k)(1)(iii), which permits a litigant to seek reconsideration of a ruling if, in reaching its decision, "[t]he court has overlooked or misconceived a material question in the case." By failing to pursue either of these options, Kowalski has failed to preserve for appeal the prejudice argument he now relies on.
See Pierce v. State, 261 P.3d 428, 433 (Alaska App. 2011); see also Taylor v. Johnston, 985 P.2d 460, 467 (Alaska 1999) ("To preserve a claim based on [the trial] court's failure to rule on a motion, a party must make every effort to request and obtain a ruling before proceeding to trial.").
But even if Kowalski had preserved this argument, we would still conclude that the superior court properly dismissed Kowalski's ineffective assistance of counsel claim. To succeed on this claim, Kowalski needed to allege facts that, if proven true, would show, inter alia, that there is a reasonable possibility that the outcome of his trial would have been different if this potential witness's testimony had never been mentioned.
See Risher v. State, 523 P.2d 421, 425-27 (Alaska 1974) (declining to find ineffective assistance of counsel in light of "admittedly devastating evidence" against the defendant).
The evidence in his case, however, was very strong: It included testimony from both Kowalski's stepdaughter (the victim) and the stepdaughter's mother, who admitted that she had participated in the sexual abuse with Kowalski. Furthermore, Kowalski's attorney never claimed that the promised witness had specific knowledge of whether sexual abuse had occurred. Instead, he represented that she would testify that the victim's father had anger issues and that the child victim had behavioral issues that predated the alleged abuse.
Given the strength of the trial evidence and the tangential nature of the witness's anticipated testimony, there was no reasonable possibility that the outcome of the trial would have been any different if the trial attorney had refrained from mentioning the witness in his opening statement. Accordingly, we find no error in the superior court's dismissal of the ineffective assistance of counsel claim for failure to state a prima facie case for relief.
The judgment of the superior court is AFFIRMED.