Opinion
Court of Appeals No. A-10210.
June 23, 2010.
Appeal from the Superior Court, Second Judicial District, Nome, Ben Esch, Judge, Trial Court No. 2NO-07-195 CI.
David Reineke, Assistant Public Defender, Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Marilyn J. Kamm, Assistant Attorney General, Criminal Division Central Office, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
While on parole, Al Ahnangnatoguk was arrested for punching his nephew in the face twice. As a result of this, his probation officer instituted proceedings to revoke parole. The parole board rejected Ahnangnatoguk's claim of self-defense and found him guilty of violating his parole conditions by committing assault in the fourth degree. The parole board revoked Ahnangnatoguk's parole.
Ahnangnatoguk applied for post-conviction relief, arguing that the parole board's decision was not supported by substantial evidence, and that the parole board erred in relying on hearsay evidence. Superior Court Judge Ben Esch rejected Ahnangnatoguk's arguments and dismissed his application.
Ahnangnatoguk appeals the superior court's dismissal, arguing again that the parole board's decision was not based on substantial evidence and that it erred in relying on hearsay evidence. We affirm.
Factual and procedural background
Ahnangnatoguk was convicted of second-and third-degree assault. He was sentenced to a composite term of 9 years. He was released on mandatory parole on November 1, 2006.
See AS 33.20.010.
On November 21, 2006, Ahnangnatoguk got into a fight with his nephew, Gary Cantrell. The police were called, and Officer William Droke investigated this incident.
The following facts are taken from Officer Droke's police report, which was introduced at the parole revocation hearing. Cantrell told Officer Droke that Cantrell's grandfather, Allen Ahnangnatoguk (Ahnangnatoguk's father), was in the storage area looking for an extension cord. Allen Ahnangnatoguk got upset because everything was so messy. He yelled at Cantrell for causing the mess. Cantrell got upset, saying that it was not his fault.
At this point, Ahnangnatoguk intervened and was very upset at Cantrell for yelling at Allen Ahnangnatoguk. According to the police report:
[Cantrell] said he and his uncle were yelling at each other and at one point he pushed his uncle [Ahnangnatoguk] away because he was up in [Cantrell's] face. [Cantrell] said he had to do this a couple of times and then all of a sudden his uncle slugged him in the face.
Cantrell said he is sure that his uncle hit him two times. Cantrell's lip was swollen and bloody and he had blood on his hands from wiping his lip.
Officer Droke then interviewed Ahnangnatoguk. Ahnangnatoguk said that Cantrell was being loud and disrespectful toward Allen Ahnangnatoguk, who is eighty years old. He said this made him angry. So he told Cantrell that he should not be talking to his grandfather like that. He said that he and Cantrell started yelling at each other. Cantrell "pushed him in the chest a couple of times." Ahnangnatoguk said "he was just defending himself and punched [Cantrell]."
Officer Droke arrested Ahnangnatoguk for assault. Ahnangnatoguk's probation officer filed a parole violation report and requested the parole board revoke Ahnangnatoguk's parole for committing the crime of assault in the fourth degree.
The parole board held a revocation hearing on February 13, 2007. Ahnangnatoguk, his attorney, and his probation officer appeared telephonically. Ahnangnatoguk's probation officer relied on Officer Droke's police report and read from the report.
Ahnangnatoguk testified at the parole hearing. He stated that Cantrell had come running up to him and had pushed him a couple of times. Ahnangnatoguk stated that he had broken ribs, and that when Cantrell pushed him, it really hurt his ribs. He claimed that he therefore hit Cantrell in self-defense.
One of the members of the parole board pointed out that, according to the police report, Ahnangnatoguk had not told Officer Droke that he had broken ribs. Ahnangnatoguk explained that he didn't tell Officer Droke about his ribs because he did not want to get his nephew (Cantrell) in trouble. When he was asked why he had not said anything about the ribs even after he had been arrested, Ahnangnatoguk stated that no one had asked.
At the conclusion of the hearing, the parole board found that Ahnangnatoguk had violated his conditions of parole by committing assault in the fourth degree and revoked his mandatory parole.
Ahnangnatoguk filed an application for post-conviction relief. In his application, he argued that the parole board erred in relying only on hearsay evidence to revoke his parole and that there was insufficient evidence for the parole board to conclude that he was not justified in striking his nephew in self-defense.
On April 21, 2008, Judge Esch dismissed Ahnangnatoguk's application for post-conviction relief. He pointed out that Alaska Evidence Rule 101(c)(2) and Veeder v. Anchorage permitted the use of hearsay at parole revocation proceedings. Judge Esch concluded that the parole board had substantial evidence before it which supported the board's decision to reject Ahnangnatoguk's claim of self-defense.
969 P.2d 642 (Alaska App. 1998).
Why we uphold Judge Esch's decision
Ahnangnatoguk argues that the evidence against him consisted of only the hearsay evidence in the police report. But, as Judge Esch pointed out, the evidence rules do not apply to parole revocation hearings. Therefore, the parole board was entitled to rely on the police report.
Alaska Evid. R. 101(c)(2); Veeder, 969 P.2d at 643.
Ahnangnatoguk acknowledges that "there is no prohibition against the use of hearsay at parole revocation hearings." But he argues that the police report supported his claim of self-defense. Ahnangnatoguk points to the information in the police report that Cantrell pushed him before he struck Cantrell.
He also points out that he testified at the parole revocation hearing. He argues that his testimony constituted "some evidence" that he acted in self-defense. He argues that the hearsay evidence in the police report was not sufficient for the parole board to reject his self-defense claim.
On appeal, Ahnangnatoguk relies on Hamilton v. State. In Hamilton, we held that, at sentencing, when a defendant denied hearsay allegations under oath and submitted to cross-examination, the State should produce the hearsay declarants to testify in court unless they are unavailable.
771 P.2d 1358 (Alaska App. 1989).
Id. at 1361-63.
Ahnangnatoguk raises the Hamilton issue for the first time on appeal, and, therefore, has in all probability waived the issue. In any event, we conclude that Hamilton does not apply in this case. Ahnangnatoguk never disputed Cantrell's version of the event. It was undisputed that Ahnangnatoguk and Cantrell argued, and that Cantrell pushed Ahnangnatoguk twice. In response, Ahnangnatoguk struck Cantrell twice in the face, injuring him. The question before the parole board was whether Ahnangnatoguk had acted in self-defense.
See Adams v. State, 927 P.2d 751, 756 (Alaska App. 1996) (Where issue is raised for first time on appeal, reversal is inappropriate unless appellant can show plain error.).
The question before Judge Esch, and before us, is whether the parole board's decision was supported by substantial evidence. We conclude that, on this record, there was substantial evidence supporting the parole board's decision that Ahnangnatoguk did not act in self-defense. The parole board could have concluded that Cantrell's act of pushing Ahnangnatoguk away did not justify Ahnangnatoguk's reaction of hitting Cantrell twice in the face.
See Alexander v. State, 38 P.3d 543, 545 (Alaska App. 2001).
See Mills v. Anchorage, Memorandum Opinion and Judgment No. 806 (Alaska App., Apr. 3, 1985), 1985 WL 1077981 at *2.
Ahnangnatoguk argues that because he testified telephonically, the board could not judge his demeanor and credibility and therefore could not have rejected his self-defense claim by finding that he was not a credible witness. But Ahnangnatoguk was represented by an attorney at the parole board hearing and never objected to appearing telephonically. He also never argued this issue to Judge Esch. He has therefore waived any argument that he was disadvantaged by appearing telephonically. Furthermore, on this record, with relatively undisputed facts, it seems highly unlikely that the parole board would have reached a different conclusion had Ahnangnatoguk testified in person before the board. The fact that Ahnangnatoguk did not object to appearing telephonically indicates that he and his attorney may have reached a similar conclusion. Conclusion
Adams, 927 P.2d at 756.
The decision of the superior court is AFFIRMED.