Opinion
Court of Appeals No. A-9948.
January 14, 2009.
Appeal from the Superior Court, Third Judicial District, Dillingham, Fred J. Torrisi, Judge, Trial Court No. 3DI-03-120 Cr.
Dan S. Bair, Assistant Public Advocate, Appeals Statewide Defense Section, and Joshua P. Fink, Public Advocate, Anchorage, and Richard Lance Clark, in propria persona, Seward, Alaska, for the Appellant.
Douglas H. Kossler, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
MEMORANDUM OPINION
Richard Lance Clark appeals the sentence he received for first-degree arson. Clark contends that the superior court committed several procedural errors during the sentencing proceedings, and he also contends that the superior court should have found mitigating factor (d)(9) (conduct among the least serious within the definition of the offense). For the reasons explained here, we conclude that Clark's claims have no merit, and we therefore affirm the judgement of the superior court.
AS 12.55.155(d)(9).
Underlying facts
This appeal stems from an incident that occurred in Clark's Point in March 2003. Clark got into an argument with the woman he lived with, Katherine Neilsen. During this argument, while Neilsen was in the kitchen, Clark splashed flammable liquid across the entrance to the kitchen and then set the liquid afire. The fire blocked Neilsen from leaving the kitchen, and it also produced thick black smoke. Neilsen, who is asthmatic, crouched on the floor near the kitchen sink, believing that she was going to die. She did, in fact, lose consciousness for some time as she struggled to breathe.
In meantime, Clark was now trying to extinguish the fire he had started. By pouring several buckets of water on the blaze, Clark succeeded in putting out the fire — but not before the fire had damaged the floor of the house and the paint on the ceiling, as well as a blanket and some shoes.
As a result of the incident, Clark was convicted of first-degree arson and third-degree assault. Superior Court Judge Fred J. Torrisi sentenced Clark to a composite term of 16 years' imprisonment with 8 years suspended ( i.e., 8 years to serve).
Clark appealed his convictions and sentence. On appeal, this Court upheld the jury's verdicts but we ruled that, under the double jeopardy clause, Clark should have only received one merged conviction for first-degree arson. Clark v. State, Alaska App. Memorandum Opinion No. 5125 (October 11, 2006) at pp. 17-20, 2006 WL 2924996 at *11. We also concluded that Clark had to be re-sentenced because Clark (who had been represented by counsel at trial) chose to represent himself at the sentencing hearing, but the superior court never obtained a valid waiver of counsel from Clark. Id., Memorandum Opinion No. 5125 at pp. 16-17, 2006 WL 2924996 at *8-9.
Judge Torrisi presided over Clark's re-sentencing. The judge found that the State had proved two aggravating factors under AS 12.55.155(c): (c)(8) — that Clark had a prior history of assaultive behavior; and (c)(15) — that Clark had more than two prior felony convictions. Clark proposed one mitigator under AS 12.55.155(d): (d)(9) — that his conduct in committing the offense was among the least serious within the definition of first-degree arson. However, Judge Torrisi concluded that Clark had failed to prove this mitigator.
Nevertheless, Judge Torrisi imposed a slightly lesser sentence than before. Noting that Clark had done well in prison during his appeal and awaiting re-sentencing, Judge Torrisi reduced Clark's sentence by 6 months: he sentenced Clark to 15½ years' imprisonment with 8 years suspended ( i.e., 7½ years to serve).
Clark now appeals once more.
The claim that the superior court should have found mitigator (d)(9)
As we explained above, Clark proposed one mitigating factor: AS 12.55.155 (d)(9) — that his conduct in committing the first-degree arson was among the least serious within the definition of the offense. Under AS 12.55.155 (f), it was Clark's burden to prove this proposed mitigator by clear and convincing evidence.
Clark's case is governed by the pre-2005 version of AS 12.55.155(f), but both the older version and the current version of this statute declare that a defendant bears the burden of proving mitigating factors by clear and convincing evidence.
Judge Torrisi concluded that Clark had failed to prove this mitigator. The judge noted that Clark had used an accelerant to start the fire, that Clark was intoxicated, that he was on misdemeanor probation at the time, and that the victim, Neilsen, was placed in significant danger and reasonably became afraid for her safety.
On appeal, Clark points out that the fire was of short duration, that he himself extinguished the fire, and that Neilsen suffered no lasting injuries as a result of the fire.
While these things may be true, the question to be decided is whether, considering the circumstances as a whole (including the factors recited by Judge Torrisi), Clark proved by clear and convincing evidence that his conduct was among the least serious within the definition of first-degree arson. We agree with Judge Torrisi that, given the facts as a whole, Clark failed to prove mitigator (d)(9).
The claim that the superior court should not have found aggravators (c)(5) and (c)(15)
As explained earlier, Judge Torrisi found that the State had proved two aggravating factors under AS 12.55.155(c): (c)(8) — that Clark had a prior history of assaultive behavior; and (c)(15) — that Clark had more than two prior felony convictions. Because both of these aggravators were based on Clark's prior convictions, they were Blakely-compliant: that is, they were exempt from the right to jury trial announced in Blakely v. Washington.
542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). With regard to aggravator (c)(8), see Milligrock v. State, 118 P.3d 11, 16 (Alaska App. 2005), where we held that this aggravator is Blakely-compliant so long as the proof of the aggravator consists solely of the defendant's undisputed prior convictions for crimes of assault. With regard to aggravator (c)(15), see State v. Avery, 130 P.3d 959, 962 (Alaska App. 2006), where we held that this aggravator is Blakely-compliant if the State relies on the defendant's undisputed prior felony convictions.
Even though the United States Supreme Court held in Blakely that a sentencing judge does not need to submit aggravating factors to a jury if those factors are based on the defendant's prior convictions, Clark argues that the federal case law supporting this rule is questionable, and he asserts that the Supreme Court is likely to abandon the prior-conviction exception if this issue is raised again. Clark asks us to anticipate that the law will change, and to immediately renounce the prior-conviction exception to the Blakely right to trial by jury.
Blakely, 542 U.S. at 301, 124 S.Ct. at 2536.
We have already twice rejected this same argument. See Lockuk v. State, 153 P.3d 1012, 1015 (Alaska App. 2007), and Tyler v. State, 133 P.3d 686, 689-690 (Alaska App. 2006). Clark has failed to convince us that our decisions in Lockuk and Tyler are wrong. We therefore adhere to those prior decisions.
We now turn to a number of claims that Clark raises pro se ( i.e., acting separately from his attorney). The claim that neither Clark's sentencing attorney nor his current appellate attorney are validly authorized to represent him
Clark raises the claim that neither the attorney who represented him in the re-sentencing proceedings nor the attorney currently representing him on appeal are validly authorized to represent him. And, based on the assumption that neither attorney could validly act as his legal representative, Clark makes the further claim that the superior court lacked jurisdiction to proceed with the re-sentencing, and that this Court lacks jurisdiction to adjudicate Clark's appeal.
See Johnson v. Zerbst, 304 U.S. 458, 467-68; 58 S.Ct. 1019, 1024-25; 82 L.Ed. 1461 (1938) (holding that, when a defendant has been unlawfully deprived of the right to counsel, the court lacks jurisdiction to proceed).
Clark makes these claims based on the fact that neither of these attorneys was willing to sign a proposed contract that Clark sent to them. Clark's proposed contract specified various limits on the scope of the representation, and it also specified various aspects of the attorneys' duties toward Clark. We described this contract in detail in our previous decision in Clark's case:
Under this proposed contract, the Office of Public Advocacy would promise not to represent Clark in any "statutory non-constitutional" court. Instead, the Office of Public Advocacy would promise to represent Clark only in "true court[s] of record with prescribed boundaries [and] a true seal of court", "in which the Constitution of the United States and the Laws . . . made pursuant there[to] [are] the rule of law".
The proposed contract also required the Office of Public Advocacy to confine their representation of Clark to courts whose judicial officer is "a bona fide public officer . . . of the State of Alaska [who] has an Oath of Office on file in a public forum that arises under Article VI of the Constitution of the United States . . . and Article XII section 5 of the Constitution of the State of Alaska . . . [and who] has filed an Official Bond as mandated by . . . AS 39.15". In addition, the proposed contract required the Office of Public Advocacy to refuse to represent Clark in any court in which the judicial officer is "a member of the Alaska Bar".
Another provision of the proposed contract prohibited the Office of Public Advocacy from "waiv[ing] . . . any of [Clark's] constitutionally secured rights without [his] express written consent".
Finally, the proposed contract required the Office of Public Advocacy to "always abide by the Constitution of the United States and the Laws which shall be made pursuant there[to] which are not listed or enumerated in this contract."
Clark, Memorandum Opinion No. 5125 at pp. 3-4, 2006 WL 2924996 at *1-2.
In our previous decision in Clark's case, we pointed out that several provisions of this contract are contrary to Alaska law and would impede an attorney's ability to properly discharge the responsibilities of the representation. We concluded:
[I]n the last analysis, Clark's proposed contract is an attempt to make his attorneys conform their conduct to Clark's particular views regarding the Constitution, the proper role of the federal and state governments, and the validity of Alaska courts and judicial officers. The contract would have required Clark's attorneys to restrict their representation of Clark to those courts and legal proceedings that Clark was personally prepared to recognize as constitutionally valid. . . .
In other words, it appears that the true function of the proposed contract would have been to transform all of Clark's views on these issues into potential bases for later disclaiming his attorney's actions and for later arguing that he had received ineffective assistance of counsel.
Clark, Memorandum Opinion No. 5125 at p. 8, 2006 WL 2924996 at *4.
For these reasons, we held in our previous decision that Clark's trial attorney was not required to sign this proposed contract. Id. We now apply that same conclusion to Clark's sentencing attorney and his appellate attorney. The fact that these two attorneys refused to sign Clark's proposed contract did not affect the attorneys' authority to represent Clark.
The claim that Clark's jury should have been instructed on one or more lesser included offenses
Clark claims that his jury should have been instructed on one or more lesser included offenses. Because Clark could have raised this claim when he first appealed his convictions and sentence, Clark can not raise this claim now. In Hurd v. State, 107 P.3d 314, 327-29 (Alaska App. 2005), this Court held that Alaska's "law of the case" doctrine bars appellate litigants from "splitting their claims among different appeals in the same lawsuit". In other words, a litigant is not allowed to raise new claims in a subsequent stage of an appeal if those claims could have been raised in an earlier stage of the appeal. The claim that Clark could not be prosecuted for arson because the investigation of this incident was conducted by the state troopers rather than the state fire marshal
Clark notes that, under 13 AAC 52.010, the state fire marshal (or a representative of the fire marshal) must be notified whenever a fire appears to be of suspicious origin. This same regulation declares that the fire marshal may, in his or her discretion, investigate any fire that appears to be of suspicious origin, or that involves loss of life or serious personal injury, or that destroys or substantially damages property.
(In Clark's brief, he refers to this regulation as "13 AAC 52. 020. But, given Clark's arguments, it is clear that he means to refer to 13 AAC 52.010.)
Based on this regulation, Clark argues that the investigation of his case was fatally flawed because it was conducted by the state troopers rather than the fire marshal's office. But, as the regulation itself states, the fire marshal has the discretion whether to investigate any particular fire. Moreover, the regulation does not purport to bar other law enforcement agencies from investigating a fire if the fire marshal declines to do so.
The claims that the State was constitutionally required to include its two aggravators in the indictment and prove them to the grand jury, and that the State was then constitutionally required to prove these aggravators to the trial jury beyond a reasonable doubt
Clark argues that, under Blakely, the State was required to include its two aggravators (aggravators (c)(8) and (c)(15)) as allegations in Clark's indictment, and to prove these aggravators to the grand jury. Clark further argues that the State was required to prove the aggravators again to the trial jury, this time beyond a reasonable doubt.
With regard to Clark's grand jury indictment claim, we rejected this same argument in State v. Dague, 143 P.3d 988, 991 (Alaska App. 2006), and we adhere to that decision.
With regard to Clark's trial jury claim, we have already explained that both of the State's aggravators were based on Clark's undisputed prior criminal convictions, and thus these aggravators were exempt from the Blakely jury trial requirement.
The claim that Clark's sentence should not have exceeded 7 years to serve
As we explained toward the beginning of this opinion, Clark was originally sentenced for both first-degree arson and third-degree assault, but in our previous decision in this case — Clark v. State, Memorandum Opinion No. 5125 at pp. 17-20, 2006 WL 2924996 at *11 — we concluded that, under the Alaska double jeopardy clause, those two convictions had to merge. Accordingly, at Clark's re-sentencing, he was only sentenced for the offense of first-degree arson.
Clark argues that, because he was originally sentenced to 8 years to serve for the arson, and because Judge Torrisi indicated that one of those 8 years was based on Clark's assaultive behavior, his sentence should now be reduced to 7 years to serve. Clark argues that this Court "annulled" his third-degree assault conviction, and that therefore the superior court could not properly enhance his sentence to any degree based on his assaultive behavior.
It appears that Clark has misinterpreted Judge Torrisi's sentencing remarks. Judge Torrisi originally sentenced Clark to 8 years to serve for the first-degree arson and an additional 2 years to serve for the third-degree assault. Thus, when Judge Torrisi indicated that one year of Clark's 8-year arson sentence was based on Clark's "assaultive behavior", it appears unlikely that Judge Torrisi was referring to the conduct which formed the basis of Clark's third-degree assault conviction (conduct for which Clark received a separate 2 years to serve). Rather, it appears that Judge Torrisi was referring to aggravator (c)(8) — the fact that Clark had a previous history of assaultive behavior.
Moreover, Clark's argument is also based on a misunderstanding of what happened to his third-degree assault conviction. We did not "annul" it in the sense of declaring it void for any and all purposes. Rather, we directed the superior court to merge it with Clark's arson conviction.
When we order the merger of two separate convictions because of a double jeopardy violation under Whitton v. State, 479 P.2d 302 (Alaska 1970), we do not require the superior court to dismiss one count in preference to the other, nor do we cast any doubt on the underlying verdicts in which the jury found the defendant guilty of all the conduct alleged. As we explained in Hurd v. State, 107 P.3d 314 (Alaska App. 2005), when the double jeopardy clause requires the merging of two counts, the trial court must enter a single conviction, and impose a single sentence, but that conviction and sentence is based on both verdicts:
[I]t is technically incorrect for a sentencing court to "dismiss" a count on Whitton [ i.e., on double jeopardy] grounds. Even though the Alaska double jeopardy clause, as construed in Whitton, prevents a sentencing court from entering separate convictions and sentences on two counts that constitute the "same offense", a Whitton ruling does not impugn the validity of the jury's underlying verdicts. That is, a Whitton ruling that two counts are duplicative casts no doubt on the validity of the jury's fact-finding or its conclusion that the defendant is guilty of the conduct alleged in both counts. For this reason, even though this Court has occasionally spoken of "dismissal" of the duplicative count, we have most often (and most correctly) described the proper course of action as a "merger" of the two counts into a single conviction — i.e., the entry of one conviction and sentence premised on both jury verdicts.
Hurd, 107 P.3d at 322 (footnotes omitted).
And, for this reason, when we order a merger of two counts and a re-sentencing, the trial court remains authorized to re-impose the defendant's original sentence, even though that sentence is now being imposed for only one count. Allain v. State, 810 P.2d 1019, 1021-22 (Alaska App. 1991).
We therefore reject Clark's argument that, at the re-sentencing hearing, Judge Torrisi's sentencing discretion was capped at 7 years to serve.
The claim that the State never proved that Neilsen suffered physical injury
Clark claims that the State never proved that Neilsen suffered injury as a result of Clark's actions. But neither of Clark's offenses required proof that he inflicted physical injury on Neilsen. The first-degree arson charge required the State to prove that Clark started a fire and, in so doing, he recklessly placed another person in danger of serious physical injury. The third-degree assault charge (brought under subsection (a)(1)(A) of the statute) required the State to prove that Clark recklessly placed another person in fear of serious physical injury by means of a dangerous instrument ( i.e., the fire). For these reasons, Clark's argument fails. The claim that Clark was not intoxicated when he set the fire
AS 11.46.400(a).
AS 11.41.220(a)(1)(A).
Clark claims that the evidence shows that he was not intoxicated at the time he set the fire. (This issue is pertinent because the definition of recklessness includes a special provision dealing with people who, because of their intoxication, fail to perceive a risk or a circumstance. See AS 11.81.900(a)(3).)
At Clark's trial, the evidence on this point was conflicting. Although there may be some evidence to support Clark's position, when the evidence as a whole is conflicting, we are obliged to view that conflict in the light most favorable to upholding the judgement issued by the superior court. Viewed in that light, the evidence is sufficient to support a finding that Clark was intoxicated.
See Dorman v. State, 622 P.2d 448, 453 (Alaska 1981); Eide v. State, 168 P.3d 499, 500 (Alaska App. 2007) (an appellate court must view the evidence in the light most favorable to upholding the verdict). And see Rausch v. Devine, 80 P.3d 733, 737 (Alaska 2003); Zemljich v. Anchorage, 151 P.3d 471, 474 (Alaska App. 2006) (applying the same rule with respect to a trial judge's findings of fact).
Clark's potential other claims
In his pro se brief, Clark may be attempting to raise other claims that we have not discussed here. For instance, Clark filed an 8-page supplement to his brief in which he detailed many portions of the testimony at grand jury and at his trial, each portion tending to show that Katherine Neilsen was intoxicated when Clark started the fire in their house. Clark apparently believes that this Court should consider the information contained in this pleading, but he does not explain why he believes that this information is relevant to any issue in this appeal.
To the extent that Clark is attempting to raise a claim about Neilsen's purported intoxication, or is attempting to raise other claims, these claims are either inadequately briefed or they rest on assertions of fact that are outside the existing superior court record. Accordingly, we will not address them further.
Conclusion
The judgement of the superior court is AFFIRMED.