Opinion
Court of Appeals No. A-9595, No. 5486.
June 10, 2009.
Appeal from the Superior Court, Third Judicial District, Homer, Margaret L. Murphy, Judge, Trial Court No. 3HO-04-443 Cr.
George J. Dozier Jr., Eagle River, for the Appellant. Blair M. Christensen, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION
In our earlier decision in this case, Burns v. State, Alaska App. Memorandum Opinion No. 5343 (June 4, 2008) 2008 WL 2312369, we remanded the case to the superior court, directing that court to hold additional proceedings on the issue of whether witness Carol Kumle had a valid basis for asserting the privilege against self-incrimination and declining to testify at Burns's trial.
Pursuant to our order, the superior court held a hearing on July 24, 2008. At that hearing, the superior court heard an ex parte presentation from Kumle and her attorney as to why they believed that, if Kumle had taken the stand at Burns's trial, the questions posed to her by Burns's attorney likely would have included questions which, if answered truthfully, would have revealed information tending to incriminate Kumle.
Based on the information presented at this hearing, the superior court concluded that Kumle had a valid basis for asserting the privilege against self-incrimination — and, thus, it had not been error to allow her to refrain from testifying at Burns's trial.
We have reviewed the audio record of that July 24th hearing, and we conclude that the superior court's decision is supported by the record. We therefore affirm the superior court's ruling on the question of privilege.
Our resolution of this question leaves one issue unresolved. Burns received a composite sentence of 5 years' imprisonment with 3 years suspended — i.e., 2 years to serve. He argues that, given the facts of his case, this sentence is excessive, and he asks us to reduce it.
Because Burns's sentence does not exceed 2 years to serve and because his sole claim is that the sentence is excessive, Burns has no right to appeal his sentence, and this Court has no jurisdiction to review his sentence. See AS 12.55.120(a) and AS 22.07.020(b), respectively.
In this situation, Alaska Appellate Rule 215, subsections (j) and (k), direct us to refer Burns's excessive-sentence claim to the supreme court. We accordingly do so — although we note, for the benefit of the supreme court and the parties, that there may be a procedural impediment to the adjudication of Burns's excessive-sentence claim.
During the superior court proceedings on remand, the court made an offhand reference to the fact that Burns "still could not be found". Based on the superior court's remark, this Court directed the Appellate Court Clerk's Office to contact the superior court and check on Burns's status. The superior court clerk reported that Burns failed to attend a status hearing on February 25, 2008, and that a warrant was issued for his arrest. As of May 19, 2009 ( i.e., more than one year later), that warrant remains outstanding.
When a defendant flees the jurisdiction or control of an appellate court, the court is authorized to dismiss the defendant's appeal without deciding the underlying claims of error. White v. State, 514 P.2d 814, 816 n. 8 (Alaska 1973). See also Fermin v. State, 975 P.2d 61 (Alaska App. 1999) (discussing the circumstances that constitute good cause for reinstating an appeal that was dismissed earlier because the defendant fled).
The supreme court and the parties may wish to consider this issue, now that Burns's case is being transferred to the supreme court.
To conclude: Burns's convictions are AFFIRMED, but we have no jurisdiction to decide Burns's claim that his sentence is excessive. Burns's case is therefore TRANSFERRED to the supreme court for resolution of that claim.