Opinion
Court of Appeals No. A-10239.
June 16, 2010.
Appeal from the Superior Court, Third Judicial District, Palmer, Beverly Cutler, Judge, Trial Court No. 3PA-07-1535 CR.
Beth G. L. Trimmer, Assistant Public Advocate, and Rachel Levitt, Public Advocate, Anchorage, for the Appellant.Tamara de Lucia, 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
A jury convicted Todd Crist of first-degree sexual assault, third-degree assault, and fourth-degree assault. The charges were based on allegations that Crist held his girlfriend, D.Y., and their nineteen-month-old son captive in their bedroom for several hours and that he forcibly had intercourse with D.Y. against her will. Superior Court Judge Beverly Cutler sentenced Crist to 32 years in jail with 7 years suspended.
AS 11.41.410(a)(1).
AS 11.41.220(a)(2).
AS 11.41.230(a)(3).
On appeal, Crist argues that Judge Cutler erred in considering at sentencing the trial testimony and statements in the presentence report of Crist's two ex-wives, who testified about acts of violence and intimidation which Crist inflicted upon them. We conclude that Judge Cutler did not err in considering this evidence at sentencing. Crist also contends that his sentence is excessive. We conclude that the sentence was not clearly mistaken. Crist also argues that Judge Cutler erred in denying his motion for a new trial based on his contention that he had received ineffective assistance of counsel. We affirm Judge Cutler's ruling.
Factual and procedural background
D.Y. testified at trial that she had met Crist three years earlier in Homer. She became pregnant within a few months. She testified that starting in the late summer of 2006, the couple began fighting about random things. According to D.Y., Crist would scream at her for a while and then leave. D.Y. stated she wanted to leave the relationship, but she didn't because Crist would threaten to kill himself.
On June 18, 2007, Crist and D.Y. started fighting as soon as Crist woke up. Crist pinned D.Y. down on the bed and yelled at her for an extended period of time. D.Y. told him that she didn't want to be in the relationship anymore and that she was going to leave. Crist repeatedly threatened to kill D.Y. if she moved from the bed. When D.Y. tried to call 911, Crist took the phone, removed the battery, and threw the phone against the wall. He repeated that he would kill her if she tried that again. D.Y. was scared that Crist would kill her or their son. Eventually Crist ordered D.Y. to remove her clothing or he would kill her. D.Y. removed her clothing and told Crist not to have sex with her. He got on top of her and put his penis inside of her as she cried and told him not to. Crist left the cabin in the car around 5:30 p.m. The phone was not working, and the cabin was sixteen miles outside of town. Crist returned at around 7:30 p.m. Crist continued to yell at D.Y., threatening to kill her, until around 11:00 p.m. The next morning, Crist drove D.Y. to work, threatening her the entire way. From work, D.Y. contacted the police. The police went to D.Y.'s and Crist's cabin and arrested Crist.
Crist's two former spouses testified at trial. Crist and A.S. were married from 1989 to 1999. At trial, A.S. testified to many similarities between her relationship with Crist and D.Y.'s relationship with Crist. These included Crist yelling at her in rages and threatening to kill himself when she talked about ending the relationship. A.S. also testified that Crist left bruises on her upper arms from holding her against her will.
A.T. and Crist started dating in 1999 and were married from 2001 until 2003. A.T. testified that Crist would get into moods and "blow up." When "he gets mad, he gets in your face, and he screams at you, and he calls you names, and he stands over you and is threatening the way he stands, and he's right in your face that you can't get away." During one particular argument, Crist grabbed A.T., pushed her onto the bed, and would not allow her to leave the bedroom. Crist threatened to commit suicide if they split up. A.T. stated that Crist's takeover of the finances and failing to make the house payments finally led to them splitting up. He moved out of their home in October 2002.
The night of October 31, Crist broke into the house and awoke A.T. by rubbing her face while she was in bed. He tried to kiss her and told her he wanted to sleep with her. He broke her cell phone and pushed her back on the bed when she tried to get up. He broke both house phones and the bedroom door. He told A.T. that she needed to call off the divorce or he would kill her and the kids. This lasted over two hours. A.T. was terrified and agreed to everything he said. She finally convinced Crist to leave. Once Crist left, A.T. took her three children and drove to the police station. Crist was arrested that night.
At the conclusion of the trial, the jury convicted Crist of sexual assault in the first degree, assault in the third degree, and assault in the fourth degree. Crist appeals.
At sentencing, Judge Cutler could properly consider the evidence from Crist's former wives
As we have previously stated, Crist's former wives, A.S. and A.T., testified to their tumultuous relationships with Crist, relationships which were similar to Crist's relationship with D.Y. which led to his current convictions. In sentencing Crist, Judge Cutler gave significant weight to this testimony, which she concluded showed that Crist had consistently engaged in controlling and assaultive behavior.
Crist argues that it was improper for Judge Cutler to rely on the testimony presented at trial. He argues that he was not given notice that Judge Cutler would rely on this testimony.
We disagree. The trial court is allowed to consider the evidence presented at trial in determining a defendant's sentence. In fact, even where a jury has a reasonable doubt about whether a defendant committed a greater offense and therefore acquits the defendant, "the court [is] not bound by the jury's acquittal but [is] entitled to rely on its own view of the facts." Therefore, under well-established law, Judge Cutler was entitled to consider the trial testimony of A.S. and A.T. at sentencing. Furthermore, in its sentencing memorandum, which was filed before sentencing, the State specifically indicated that it was relying on this testimony. Crist has not supported his claim with any contrary authority, and we are aware of none. We conclude that Judge Cutler did not err in relying on the trial testimony of A.S. and A.T.
DeGross v. State, 816 P.2d 212, 217 (Alaska App. 1991) (citations omitted).
Crist also argues that Judge Cutler erred in considering statements of A.T. which appeared in the presentence report and went beyond the testimony that she gave at trial. In particular, according to the presentence report, A.T. told a police investigator that, during their relationship, Crist was addicted to crack cocaine. But, if he wanted to contest A.T.'s statement in the presentence report based on the fact that it was hearsay, Crist was required to make a testimonial denial. Crist did not do this. Therefore, Judge Cutler was entitled to rely on the statements that A.T. made in the presentence report. (We also note that Judge Cutler never mentioned Crist's drug use in sentencing him.) We therefore find no error. The sentence Judge Cutler imposed was not clearly mistaken
Hamilton v. State, 771 P.2d 1358, 1362 (Alaska App. 1989); Garland v. State, 172 P.3d 827, 829 (Alaska App. 2007).
Crist argues that the sentence Judge Cutler imposed was clearly mistaken. He argues that the sentence imposed for first-degree sexual assault was excessive, and that the composite sentence was excessive.
As a first felony offender convicted of sexual assault in the first degree, an unclassified felony, Crist was subject to a presumptive range of 20 to 30 years of imprisonment. For assault in the third degree, a class C felony, Crist faced a presumptive term of up to 2 years of imprisonment. In addition, the jury found an aggravating factor, that Crist's conviction was a felony assault committed against "a member of the social unit made up of those living together in the same dwelling as the defendant." The aggravating factor authorized the court to impose up to the 99-year maximum sentence for sexual assault in the first degree and the 5-year maximum sentence for assault in the third degree. Judge Cutler imposed a sentence of 30 years with 7 years suspended for the sexual assault conviction and a consecutive 2 years for the assault conviction. (Judge Cutler merged Crist's conviction for assault in the fourth degree with his conviction for assault in the third degree.) Therefore, Crist's composite sentence was 32 years with 7 years suspended.
AS 11.41.410(a)(1); AS 12.55.125(i)(1)(A)(ii).
AS 11.41.220(a)(2); AS 12.55.125(e)(1).
AS 12.55.155(c)(18)(A).
The first question which we must answer is whether we have jurisdiction to review Crist's sentence. This question requires us to consider AS 12.55.120(e). That statute provides that we have no jurisdiction to review a sentence which is within the presumptive range authorized by statute. Because Judge Cutler imposed Crist's sentence for sexual assault in the first degree within the presumptive 20 to 30 year range, we have no jurisdiction to review that sentence.
AS 12.55.120 (e) provides:
A sentence within an applicable presumptive range set out in AS 12.55.125 . . . may not be appealed to the court of appeals . . . on the ground that the sentence is excessive. However, the sentence may be reviewed by an appellate court on the ground that it is excessive through a petition filed under the rules adopted by the supreme court.
We also do not have jurisdiction to review Crist's sentence for assault in the third degree, because Judge Cutler also imposed that sentence within the presumptive range. However, we do have jurisdiction to review the fact that Judge Cutler imposed Crist's sentences consecutively.
Osborne v. State, 182 P.3d 1155, 1158 (Alaska App. 2008).
In sentencing Crist, Judge Cutler recognized that, under former law, Crist would have faced a presumptive term of 8 to 12 years as a first felony offender convicted of sexual assault in the first degree. But the legislature had recently increased the presumptive term to 20 to 30 years of imprisonment. Judge Cutler concluded that, although an aggravating factor applied to Crist's offense, there was no reason to impose a sentence for sexual assault in the first degree above the 20-to 30-year presumptive range.
Judge Cutler concluded that Crist did not appear to have good prospects for rehabilitation. She concluded that she should impose a sentence of 2 years for assault in the third degree and recognized that this was the top of the presumptive range for that offense. Judge Cutler concluded that this was appropriate because Crist had held D.Y. "practically hostage in her own house" for four to five hours and repeatedly threatened her. The judge stated that the offense was close to being a kidnapping. She concluded that she should therefore impose the 2-year term as a consecutive sentence.
In imposing the sentence for sexual assault in the first degree, Judge Cutler reasoned that the testimony of Crist's two previous spouses demonstrated that Crist's offenses were part of an established controlling and assaultive pattern of behavior. She concluded that this justified imposing a sentence above the 20-year minimum presumptive sentence. She therefore imposed the sentence of 30 years with 7 years suspended for the sexual assault conviction and a consecutive 2 years for the assault conviction, resulting in a composite sentence of 25 years to serve with 7 years suspended. Therefore, the sentence of time to serve was within the 20-to 30-year presumptive range for sexual assault in the first degree.
Crist's argument on appeal that his sentence is excessive is essentially an argument that in setting a presumptive term of 20 to 30 years for sexual assault in the first degree, the legislature has established too severe a sentence for his crime.
In Dancer v. State, we recognized that "[t]he Alaska Supreme Court has consistently held that the power to determine an appropriate punishment for an offense is vested exclusively in the legislature." We recognized that a court should grant "substantial deference" to the authority of the legislature to determine the appropriate punishment for crime. Given the authority of the legislature to establish appropriate sentences, Crist's argument is meritless.
715 P.2d 1174 (Alaska App. 1986).
Dancer, 715 P.2d at 1179 (citations omitted).
Id. at 1181.
As we pointed out, the composite sentence which Judge Cutler imposed was 25 years to serve with an additional 7 years suspended. The sentence of 25 years to serve falls squarely within the presumptive range for sexual assault in the first degree.
Judge Cutler gave substantial reasons for the sentence which she imposed. We conclude that the sentence was not clearly mistaken. Judge Cutler did not err in denying Crist's motion for a new trial
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
Prior to sentencing, Crist moved for a new trial based on a claim of ineffective assistance of counsel. The State took the position that it would prefer that the court impose a sentence and that Crist could then file an application for post-conviction relief. But the State agreed to respond to Crist's motion. The State filed a memorandum in opposition to the motion for new trial. Crist responded. In its opposition, the State argued that Crist had failed to establish a prima facie case of ineffective assistance of counsel and Judge Cutler should therefore dismiss the case.
Judge Cutler held oral argument on Crist's new trial motion. She found that Crist had not established a prima facie case of ineffective assistance of counsel and denied his motion for a new trial.
In this appeal, Crist asks this court to find that his ineffective assistance of counsel claim cannot be resolved on appeal because Judge Cutler did not hold an evidentiary hearing. He relies on Barry v. State for his proposition that: "Claims of ineffective assistance of counsel normally cannot be heard on direct appeal and must be raised in an application for post-conviction relief because the record of the defendant's trial is usually inadequate to resolve such claims."
675 P.2d 1292 (Alaska App. 1984).
Actually, in Barry, we stated that ineffective assistance of counsel claims should "be argued first to the trial judge either in a motion for a new trial or an application for post-conviction relief" instead of on direct appeal to the appellate court. Crist brought his ineffective assistance of counsel claim as a new trial motion.
Barry, 675 P.2d at 1295-96.
When a defendant brings a claim based on ineffective assistance of counsel, it is incumbent on the defendant to establish a prima facie case. The State argued that Crist had not set out a prima facie case in his new trial motion. Following oral argument on the new trial motion, Judge Cutler concluded that there was no need to have an evidentiary hearing because, even if she assumed all of the facts Crist alleged as the basis for his claims of ineffective assistance of counsel, there was no basis to find that Crist had actually received ineffective assistance of counsel.
State v. Jones, 759 P.2d 558, 565-66 (Alaska App. 1988).
On appeal, Crist does not point to any allegation in his claim which, if accepted as true, would have proven that he received ineffective assistance of counsel. He merely argues that we do not have a sufficient record to decide the claim on direct review. But, as we have pointed out, Crist was entitled to bring his claim of ineffective assistance of counsel as a new trial motion. And, if Crist did not establish a prima facie case of ineffective assistance of counsel, Judge Cutler was authorized to dismiss his claim. She was not required to hold an evidentiary hearing. We accordingly conclude that Judge Cutler did not err in denying Crist's new trial motion. Conclusion
The judgment of the superior court is AFFIRMED.
I write separately to further explain, and respond to, Crist's argument that the superior court, when sentencing Crist, improperly relied on the testimony given by two witnesses at Crist's trial.
Crist's basic premise (as clarified by his attorney at oral argument) is that, for purposes of a defendant's sentencing hearing, any testimony that was earlier presented at the defendant's trial is hearsay if the sentencing judge relies on that testimony as proof of the matters asserted. From this premise, Crist argues that he was entitled to advance notice that his sentencing judge intended to rely on this hearsay — because, without advance notice, Crist would be unable to make an informed decision whether to take the stand at his sentencing hearing, offer a testimonial denial of the witnesses' earlier testimony, and thus invoke his conditional right to confront these witnesses under our decisions in Hamilton v. State, 771 P.2d 1358, 1362-63 (Alaska App. 1989), and Ashenfelter v. State, 988 P.2d 120, 125-26 (Alaska App. 1999).
Because we are so used to the notion that a sentencing judge can rely on the testimony that the judge heard during the defendant's trial, this contention might appear to be frivolous. But the wording of Alaska Evidence Rules 801(c) and 804(b)(1) arguably provides support for Crist's argument that the trial testimony of the two witnesses should be deemed hearsay if offered at the sentencing hearing.
Evidence Rule 801(c) defines hearsay as "[any] statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Under this definition, a statement made by a witness at one trial or hearing is apparently hearsay when offered at a later trial or hearing, even though the interested parties had a fair chance to cross-examine the witness at the earlier hearing.
This was not the rule at common law. As explained in John Henry Wig-more, Evidence in Trials at Common Law (Chadbourn rev'n, 1974), § 1370, Vol. 5, p. 55:
The [common-law] hearsay rule excludes testimonial statements [that were] not subjected to cross-examination. When, therefore, a statement has already been subjected to cross-examination and is hence admitted — as in the case of a deposition or testimony at a former trial — it comes in because the rule is satisfied, not because an exception to the rule is allowed.
(Emphasis in the original)
But as acknowledged in the footnote that accompanies this excerpt from Wigmore (a footnote composed by the revisor, Professor Chadbourn), "[t]he trend today is to classify the evidence as hearsay, [and to provide] admissibility [via] an exception to the hearsay rule."
This is the approach taken by Federal Evidence Rule 804(b)(1) and Alaska Evidence Rule 804(b)(1). Both of these evidence rules create an exception to the hearsay rule for "[t]estimony given [by] a witness at another hearing of the same or a different proceeding".
Seemingly, there would be no need for a hearsay exception for testimony given "at another hearing of the same . . . proceeding" unless all such former testimony were, indeed, hearsay. However, the commentaries to both Federal Evidence Rule 804(b)(1) and Alaska Evidence Rule 804(b)(1) appear to support a somewhat narrower interpretation of when testimony given earlier in a lawsuit should be considered hearsay.
Both the "Note" that accompanies Federal Evidence Rule 804(b)(1) and the Commentary that accompanies Alaska Evidence Rule 804(b)(1) contain essentially the same explanation of why former testimony is considered hearsay, even though the opposing party has already had an adequate opportunity to cross-examine the witness. The reason for categorizing the witness's earlier testimony as hearsay is that, even though the witness was subject to cross-examination, there is now a different trier of fact to evaluate the demeanor and credibility of the witness. Here is how the Alaska Commentary describes it:
Former Testimony. Former testimony does not rely upon some set of circumstances [as a] substitute for [the requirements of] oath and cross-examination [to establish the reliability of the evidence], since both oath and opportunity for cross-examination were present [when the witness gave the former testimony]. The only missing one of the ideal conditions for the giving of testimony is the presence of the trier [of fact, who can evaluate the witness's demeanor]. . . . [O]pportunity to observe demeanor is what in a large measure confers depth and meaning upon oath and cross-examination.
Commentary to Alaska Evidence Rule 804(b)(1), first paragraph.
Obviously, this rationale does not apply to a sentencing hearing where the trier of fact — i.e., the sentencing judge — is the same judge who presided over the defendant's trial. In these situations, the sentencing judge has personally observed the witness's demeanor while the witness was testifying, so all three of the necessary elements for evaluating the witness's testimony are present.
Because the rationale of Evidence Rule 804(b)(1) does not apply to these situations, one might argue that, despite any contrary rule suggested by the wording of Rule 804(b)(1), trial testimony should not be treated as hearsay when it is relied upon (either by a party or by the court) at the defendant's sentencing hearing.
I note that a contrary reading of Rule 804(b)(1) would lead to very strange results. For instance, this Court occasionally vacates a sentencing judge's decision and directs the judge to reconsider one or more aspects of the defendant's sentence. If Rule 804(b)(1) were construed as Crist suggests, then all of the testimony given at the defendant's original sentencing hearing would seemingly be hearsay if the judge wished to rely on that testimony during the new sentencing hearing held pursuant to our remand.
Although these questions are interesting, I conclude that the proper categorization of this evidence (as hearsay or non-hearsay) is ultimately moot. I reach this conclusion for two reasons.
First, even if the testimony given at a defendant's trial should be considered hearsay when it is offered at the defendant's later sentencing hearing, trial testimony is nevertheless admissible at a sentencing hearing — even over a hearsay objection — because Alaska Evidence Rule 101(c)(2) declares that the hearsay rules do not apply at sentencing hearings.
This leaves Crist's contention that the sentencing judge should have notified him in advance that the judge intended to rely on the two witnesses' trial testimony (in particular, the witnesses' assertions that Crist had committed prior, uncharged acts of domestic violence and intimidation). Crist argues that this advance notice was required so that Crist could decide whether to offer a testimonial denial of the matters asserted by the two witnesses, and thus trigger his conditional right of confrontation under Hamilton and Ashenfelter.
The answer to this contention is that Crist already had the opportunity to cross-examine these two witnesses concerning these same matters; he had that opportunity when the two witnesses testified at his trial. Crist has not asserted that his motivation to cross-examine the witnesses' assertions of domestic violence at his trial differed substantially from his motivation to cross-examine their assertions of domestic violence for sentencing purposes.
Crist argues that, even though he had an opportunity at trial to cross-examine the two witnesses concerning these same matters, he was represented by a new attorney at sentencing — an attorney who "did not have the benefit of having previously heard [the] statements . . . upon which the sentencing court was relying". But the right of confrontation belongs to the defendant, not to the defendant's attorney. The fact that a new attorney assumes the duty of representing a defendant in the middle of criminal proceedings does not mean that the defendant becomes entitled to a new round of cross-examination of the government's witnesses.
For these reasons, I concur with my colleagues that the sentencing judge properly relied on the two witnesses' trial testimony when the judge evaluated and fashioned Crist's sentence.