Opinion
Court of Appeals No. A-10579.
September 1, 2010.
Appeal from the Superior Court, Third Judicial District, Anchorage, Philip R. Volland, Judge, Trial Court No. 3AN-06-4633 CR.
Shelley K. Chaffin, Law Office of Shelley K. Chaffin, Anchorage, for the Appellant. Sharon L. Marshall, Assistant District Attorney, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Ronald Christian was convicted of first-degree murder for the killing of Christopher Lindstrom. His co-defendant, Charles M. Greenlee, pleaded guilty to a single count of theft in the second degree, a class C felony. Greenlee's conviction was based on his use of credit cards that Christian had stolen from Lindstrom.
AS 11.46.130(a)(7).
Christian's case was severed from Greenlee's for a separate trial. Superior Court Judge Philip R. Volland conducted Christian's trial and later presided at Greenlee's sentencing hearing. At Greenlee's sentencing, the prosecutor referred to testimony presented at Christian's murder trial. Greenlee's attorney objected on the basis that she had not been present at the trial, but the judge overruled the objection.
Later, Judge Volland expressly referred to the testimony from Christian's trial when he explained his ruling on an aggravating factor submitted by the State — that Greenlee's offense involved conduct that was among the most serious conduct included in the definition of this offense because it was connected to Lindstrom's murder. The judge also referred to Christian's trial when he explained his ruling on a mitigating factor submitted by the defense — that Greenlee had assisted the authorities with Christian's prosecution by leading them to Lindstrom's body. These references were improper.
See AS 12.55.155(c)(10).
See AS 12.55.155(d)(11).
A judge cannot rely on personal knowledge of matters outside the judicial record. When a judge presides over separate trials or sentencing hearings for co-defendants, the judge is obliged to disregard any information that is not admissible against a particular defendant and decide each defendant's case solely upon the evidence presented in that case. In addition, the defendant is entitled to advance notice of the evidence that the State will rely upon to support any aggravating factors, so that the defendant can prepare responsive evidence for the sentencing hearing. Judge Volland therefore erred when he considered the evidence from Christian's trial during Greenlee's sentencing hearing without advance notice to Greenlee.
Tuttle v. State, 65 P.3d 884, 886-87 (Alaska App. 2002).
Alaska R. Crim. P. 32.1(c)(1); Hartley v. State, 653 P.2d 1052, 1055-56 (Alaska App. 1982).
We have previously recognized that a sentencing judge's reliance on inadmissible evidence when finding an aggravating factor is harmless error when the factor is established by other admissible evidence. In this case, the presentence report contained a six-page narrative based on the grand jury testimony from joint proceedings in which Greenlee was indicted for theft and Christian was indicted for murder. Greenlee did not object to this material, and all of the judge's remarks about Greenlee's knowledge of the homicide and the serious nature of the theft could have been based on this admissible material from the presentence report.
See, e.g., Brown v. State, 12 P.3d 201, 209 (Alaska App. 2000).
Furthermore, the judge's reliance on the testimony from Christian's trial did not increase the range of permissible sentences the court could impose. There was no serious question as to the applicability of another aggravating factor submitted by the State — that Greenlee was on felony parole at the time of this offense. And, as Judge Volland noted, the aggravating factors he found did not expand the sentencing range for Greenlee's crime: Because Greenlee was a third felony offender, the presumptive range for his offense extended to the five-year maximum penalty for second-degree theft.
AS 12.55.155(c)(20).
AS 12.55.125(e)(3).
Judge Volland also mentioned testimony presented at Christian's trial when he expressed some scepticism about the extent of Greenlee's cooperation in the search for Lindstrom's body. But this remark also appears to have been harmless: The judge's remark did not prevent him from finding by clear and convincing evidence the mitigating factor that Greenlee had given substantial assistance to the authorities.
Moreover, Judge Volland did not mention the testimony from Christian's trial in his ultimate sentencing conclusion. The judge stated that the maximum five-year sentence was warranted by Greenlee's long criminal history, which included between five and seven prior felony convictions. But the judge concluded that the mitigating factor recognizing Greenlee's assistance to the authorities tempered this consideration to a certain extent, so he imposed a sentence of only fifty-six months' imprisonment. From this record, we conclude that the judge's improper reliance on the testimony from Christian's trial had no appreciable effect on Greenlee's sentence.
See Alderman v. Iditarod Prop. Inc., 104 P.3d 136, 142 (Alaska 2004) (explaining that admission of evidence is harmless when there is no reasonable likelihood that the evidence had an appreciable effect on the trial court's decision).
In his statement of issues to this court, Greenlee also contends that his sentence is excessive, but he fails to argue this point in his brief. Even if Greenlee had adequately argued this issue, we would not address it. Greenlee is not entitled to appeal to this court on the ground that his sentence is excessive because his sentence falls within the presumptive range for his offense.
AS 12.55.120(e).
We therefore AFFIRM the superior court's judgment and sentence.