Opinion
Court of Appeals No. A-11506 No. 6167
04-15-2015
SAYE B. GATEI, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Glenda Kerry, Law Office of Glenda J. Kerry, Girdwood, for the Appellant. Donald Soderstrom, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 3AN-12-8035 CI
t/w 3AN-08-12250 CR
MEMORANDUM OPINION Appeal from the Superior Court, Third Judicial District, Anchorage, Jack Smith, Judge. Appearances: Glenda Kerry, Law Office of Glenda J. Kerry, Girdwood, for the Appellant. Donald Soderstrom, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, and Allard and Kossler, Judges. Judge ALLARD.
Saye B. Gatei filed an untimely application for post-conviction relief asserting that he should be allowed to withdraw a guilty plea based on newly discovered evidence. After appointing counsel to litigate the timeliness of Gatei's application, the superior court dismissed the application as untimely. Gatei appeals. For the reasons explained here, we affirm the superior court's dismissal.
Background facts and prior proceedings
In 2008, Gatei was arrested on suspicion of driving under the influence. When the police asked him to submit to a breath test, he refused several times, and when he finally agreed to take the test, he refused to provide a complete breath sample. Gatei then requested an independent blood test, but when the phlebotomist arrived to administer the test, he refused that test as well.
Because Gatei had prior convictions, he was charged with felony driving under the influence and felony refusal to submit to a chemical test. He was also charged with driving while license suspended. The charges were resolved on August 21, 2009, in a plea bargain under which Gatei pleaded guilty to felony driving under the influence and the State dismissed the other charges.
AS 28.35.030(a), (n).
AS 28.35.032(p).
AS 28.15.291(a).
About a year later, in the summer and fall of 2010, the Anchorage Daily News published a series of articles questioning the accuracy of breath-alcohol tests the state had administered from 2006 to 2010 based on the discovery of errors involving some of the alco bottles used to confirm the calibration of the DataMaster machines.
On June 22, 2012 — almost three years after he pleaded guilty and almost two years after the Anchorage Daily News articles were published — Gatei filed a pro se application for post-conviction relief, arguing that he should be allowed to withdraw his plea based on the "newly discovered" evidence about the alco bottle errors affecting some of the state's DataMaster machines.
Gatei's application was untimely because it was not filed within 18 months of his conviction. He argued, however, that he was entitled to a relaxation of this deadline because his claim was based on newly discovered evidence.
See AS 12.72.020(a)(3)(A) (providing that in cases where the defendant did not appeal post-conviction relief claims may not be brought more than 18 months after entry of judgment in the criminal case).
Alaska Statute 12.72.020(b)(2) provides, in pertinent part, that a court may hear an otherwise untimely application for post-conviction relief based on newly discovered evidence if the defendant establishes due diligence in presenting the claim and shows that the newly discovered evidence:
(A) was not known within
(i) 18 months after entry of the judgment of conviction if the claim relates to a conviction;
. . . .
(B) is not cumulative to the evidence presented at trial;
(C) is not impeachment evidence; and
(D) establishes by clear and convincing evidence that the [defendant] is innocent.
After appointing counsel for the limited purpose of litigating the timeliness of the application, the superior court dismissed Gatei's application based, in part, on the court's conclusion that the accuracy of the breath test was not at issue in Gatei's case because Gatei did not successfully take a breath test and was charged with refusal.
See Holden v. State, 172 P.3d 815, 818 (Alaska App. 2007) (holding that the Alaska Constitution guarantees indigent defendants the right to appointed counsel for the limited purpose of litigating the timeliness of an application for post-conviction relief).
On appeal, Gatei argues that "it is plausible that problems with the Datamaster test affected the end result of there not being a final reading of Gatei's [breath-alcohol level.]" He also argues that "[f]urther exploration of this issue could result in a credible attack at trial of the actual Datamaster test at issue."
We disagree. The only thing Gatei's "new" evidence involving the alco bottle errors establishes is that had Gatei provided a complete breath sample and obtained a breath test result, there was a chance the result would have been inaccurate. But Gatei refused to take a breath test, and he was therefore unaffected by any of the these problems.
Gatei also argues that, as a matter of due process, he should have been allowed to file an amended post-conviction relief application before the court ruled on the timeliness of his application because it is possible that Gatei had other post-conviction claims that would not have been untimely had they been raised. Gatei never obtained a ruling from the superior court on this issue, and it is therefore waived. Additionally, as the State points out, if Gatei's attorney had discovered any potentially timely claims in the course of litigating the timeliness of Gatei's pro se post-conviction relief application, she could have brought those issues to the attention of the court. As it was, however, she only sought to file an amended post-conviction relief application to further argue Gatei's claim related to the alleged calibration errors.
See Marino v. State, 934 P.2d 1321, 1327 (Alaska App. 1997) (a defendant who fails to obtain a ruling on the merits of an issue cannot then raise the issue on appeal); see also Hertz v. State, 2003 WL 294408, at *2 (Alaska App. Feb. 12, 2003) (unpublished).
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We therefore conclude that the superior court properly dismissed Gatei's application for post-conviction relief as untimely.
Conclusion
The judgment of the superior court is AFFIRMED.