Opinion
Court of Appeals No. A-11399 No. 6281
02-03-2016
JAMES W. GRIM, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Michael T. Schwaiger, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Elizabeth T. Burke, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, 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. 3PA-11-1881 CR MEMORANDUM OPINION Appeal from the Superior Court, Third Judicial District, Palmer, Gregory Heath, Judge. Appearances: Michael T. Schwaiger, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Elizabeth T. Burke, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge MANNHEIMER.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
James W. Grim appeals his convictions on four counts of felony assault (for assaulting an employee of an ankle monitoring company and a state trooper) and one count of resisting arrest.
Grim waived his right to the assistance of counsel and represented himself at trial. Grim's primary argument on appeal is that his waiver of counsel was invalid because the superior court failed to inform him that, even if he waived his right to be represented by an attorney, there was a possibility that he might still have the benefit of "consultative counsel" — i.e., an attorney appointed to assist him in a non-representative capacity. For the reasons explained in this opinion, we reject Grim's argument.
Grim argues in the alternative that, even if his waiver of counsel was valid, his later handling of his case at trial was so obviously inept that the trial judge abused his discretion by failing to intervene, sua sponte, and appoint advisory counsel to assist Grim. As we explain in this opinion, we reject this argument as well.
Grim also argues that the evidence presented at his trial fails to support his conviction for resisting arrest. We conclude that, viewing the evidence in the light most favorable to the jury's verdict, reasonable people could be convinced beyond a reasonable doubt that Grim fought with the troopers because he knew that they were trying to arrest him, and Grim was trying to stop them from doing so. The evidence was therefore sufficient to support Grim's conviction.
Grim claims that the superior court should have sentenced him as a first felony offender, not a second felony offender, under Alaska's presumptive sentencing statutes. The issue is whether Grim's prior felony conviction, a Colorado conviction for obtaining drugs by fraud, was sufficiently similar to the analogous Alaska felony of fourth-degree controlled substance misconduct as defined in former AS 11.71.040(a)(9) — a statute which prohibited people from "obtain[ing] possession of a controlled substance by misrepresentation, fraud, forgery, deception[,] or subterfuge". We conclude that these two statutes are sufficiently similar that Grim was properly treated as a second felony offender.
Grim also challenges the number of assault convictions he received. In particular, Grim argues that the superior court violated his rights under the double jeopardy clause by entering three separate assault convictions for what was essentially one continuing assault against the employee of the monitoring company. The State concedes error on this issue, and we agree that Grim should only have received one conviction, not three.
Lastly, Grim argues that the superior court sentenced him under the mistaken belief that the law required the court to impose wholly consecutive sentences for Grim's assault on the monitoring company's employee and his later assault on the state trooper. Grim is correct that, under Alaska law, the court was only required to make the sentences consecutive by at least one day. And the record is unclear whether the superior court erroneously believed that the sentences had to be wholly consecutive. We therefore direct the superior court to reconsider its sentencing decision if the court acted under this mistaken belief.
Underlying facts
In July 2011, James Grim was on bail release in an unrelated felony case. The court had ordered him to wear an ankle monitor, and another of Grim's conditions of release required him to submit to drug testing.
On July 22nd, Nathan Jones, an employee of the private ankle monitoring company, came to Grim's residence to conduct a urinalysis. When Grim's urine tested positive for oxycodone, methadone, and benzodiazepam, Grim became distraught. He tore out his kitchen sink from underneath with his hands. Then he picked up a pair of heavy pliers (channel locks) and struck Jones on the head. Jones drew his firearm to keep Grim at bay, and then he left Grim's residence and called the state troopers.
Two state troopers — Joshua Varys and Wallace Kirksey — arrived in response to this call. They spoke briefly with Jones and with Gary Calhoun, a local church deacon who had come to Grim's house to counsel him and pray with him. Trooper Kirksey also conducted a pat-down search of Grim, and then released him. But at this point, Grim lunged at Trooper Varys and grabbed for his pistol, at the same time yelling, "Shoot me!"
Varys secured his weapon and struggled with Grim, trying to get Grim off of him. Trooper Kirksey came to Varys's assistance and took Grim to the ground. Grim lay on the ground, on his back, and he kicked and punched the troopers as they tried to roll him over onto his stomach and get his hands behind his back for handcuffing. During this struggle, the troopers used pepper spray and tasers on Grim, but they were unable to handcuff and subdue Grim until two other officers arrived to assist them.
For the assault on Jones (the ankle monitoring company's employee), Grim was charged with one count of second-degree assault and two counts of third-degree assault. For the assault on Varys (the trooper whose pistol Grim attempted to grab), Grim was charged with one count of third-degree assault. Grim was also charged with resisting arrest and violating the conditions of his release.
Shortly before his trial, Grim requested to represent himself. The superior court advised Grim (at length) of the dangers of self-representation and the advantages of having a lawyer, but Grim persisted in his request. After finding that Grim was minimally capable of presenting his own case, the superior court accepted Grim's waiver of his right to the assistance of counsel. Grim represented himself at his trial, and he was convicted on all counts. He obtained a lawyer to represent him at sentencing.
The superior court was not required to advise Grim of the possibility of consultative counsel before the court accepted Grim's waiver of his right to the assistance of counsel
More than twenty-five years ago, in James v. State, 730 P.2d 811, 814 n. 1 (Alaska App. 1987), this Court explained that a trial court is not allowed to honor a defendant's request to waive the assistance of counsel until the court has expressly apprised the defendant of the advantages of counsel and the perils of self-representation:
Modified on rehearing, 739 P.2d 1314 (Alaska App. 1987).
[Even though] a defendant has clearly and unequivocally declared his or her intention to appear pro se, the trial judge must conduct a thorough inquiry into the circumstances surrounding the [defendant's request]. ... This inquiry ... should include: advising the defendant of the right to counsel and the importance of having counsel; warning the defendant of the dangers and disadvantages of self-representation ... ; and inquiring into the defendant's educational background, previous experience with criminal trials, and general competence. ... [In addition,] the defendant must possess the mental competence to understand the dangers and ramifications of self-representation.Grim concedes that the superior court conducted a proper inquiry under James before the court allowed Grim to waive his right to counsel.
However, Grim contends that, before the superior court accepted his waiver of counsel, the court was required to advise Grim that the court had the authority to appoint an attorney to serve him in a purely advisory or consultative capacity, rather than serving as his legal representative.
There is language in McCracken v. State (one of our supreme court's early opinions on this subject) suggesting that pro se defendants might have a right to advisory counsel. But our later case law expressly holds the opposite: pro se defendants have no right to demand advisory counsel. See Annas v. State, 726 P.2d 552, 557 (Alaska App. 1986); Ortberg v. State, 751 P.2d 1368, 1375 (Alaska App. 1988); Public Defender Agency v. Superior Court, 343 P.3d 914, 915-16 (Alaska App. 2015).
518 P.2d 85, 91-92 (Alaska 1974).
Our prior decisions do indicate that courts have the discretion to appoint advisory counsel for pro se defendants. But in Public Defender Agency, we held that courts have no authority to appoint the Public Defender Agency for this purpose.
Public Defender Agency, 343 P.3d at 917.
Grim does not ask us to reconsider these decisions. That is, he does not contend that he has a right to have an attorney appointed to assist him in an advisory capacity.
Rather, Grim argues that before he made any decision as to whether to waive his right to the assistance of counsel, the court was required to inform him that, even after he waived the assistance of counsel, Grim could theoretically ask the superior court to appoint an attorney to assist him in an advisory capacity if things proved too difficult for Grim to handle on his own — and the superior court might theoretically decide, in its discretion, to grant Grim's request for advisory counsel.
Grim also argues that, before he made any decision as to whether to waive the assistance of counsel, the superior court was required to inform him that even if he never requested consultative counsel, the superior court still might theoretically appoint an attorney to advise him, even over Grim's objection.
Alaska law authorizes judges — indeed, in some circumstances, Alaska law requires judges — to make allowances for some of the disadvantages that pro se litigants operate under. For example, our supreme court has repeatedly stated that when a person is litigating pro se, courts should enforce pleading requirements less stringently, and that when a pro se litigant is clearly trying to accomplish something but is failing because they lack knowledge of the proper procedure, a court must inform them of the proper procedure (although the court need not give a pro se litigant step-by-step instructions for litigating their claim).
See, e.g., Kaiser v. Sakata, 40 P.3d 800, 803 (Alaska 2002); Wright v. Shorten, 964 P.2d 441, 444 (Alaska 1998).
See, e.g., Wagner v. Wagner, 299 P.3d 170, 173-74 (Alaska 2013); Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987).
But while judges are authorized to make these accommodations for pro se litigants (to try to ensure that litigation involving self-represented parties meets a minimum standard of fairness), this judicial authority is only peripherally relevant to a defendant's decision to waive the protections afforded by the right to counsel.
It is a defendant's waiver of counsel that gives rise to a substantial danger of unfairness in the first place. As this Court recently explained in Pomeroy v. State, unpublished, 2015 WL 1285700, *4 (Alaska App. 2015):
[It] is difficult for a person to engage in litigation without the assistance of counsel. Litigation takes time and energy; it requires specialized knowledge and skills; and it can be both mentally and physically taxing. Moreover, litigation often requires people to put their emotions aside so they can make decisions with an adequate level of objectivity and foresight.
This is why the law puts procedural roadblocks in the path of criminal defendants who wish to waive their right to counsel and to represent themselves. ... [E]ven when a defendant announces that they do not want an attorney, courts will not allow the defendant to waive the right to counsel unless and until the defendant is expressly informed of the benefits of counsel and warned of the dangers of self-representation.
The fact that judges have the discretionary authority to ameliorate some of the dangers of self-representation does not materially alter the underlying fact that a defendant's decision to waive counsel puts the defendant at a substantial disadvantage. The defendant's decision carries significant adverse consequences, no matter what the judge may choose to do.
We therefore reject Grim's contention that a decision to waive counsel is not legally valid unless the defendant is expressly notified of the possibility that advisory counsel might be appointed at the trial judge's discretion later in the proceedings. Such a requirement would not promote the same goals as our law's existing procedural requirements that govern a defendant's waiver of counsel — the judge's duty to personally address the defendant and explicitly warn them of the dangers of self-representation and the benefits of counsel that they would be giving up.
Indeed, if we required judges to notify defendants of the slender and, in most instances, unrealistic hope that the court might later appoint consultative counsel, defendants might be misled into thinking that the consequences of waiving counsel were not as drastic as might otherwise appear. This would be inconsistent with the policy of James — the policy of discouraging defendants from waiving their right to counsel by apprising them of the dangers that this choice entails.
The superior court did not commit plain error when it failed to sua sponte appoint consultative counsel for Grim
Grim argues in the alternative that, even if his waiver of counsel was valid, his later handling of his case at trial was so obviously inept that the trial judge abused his discretion by failing to intervene, sua sponte, and appoint advisory counsel to assist Grim.
Note that Grim does not contend that his ineptitude rose to the level of outright incompetence to present his case — the point where the judge would have been required to revoke Grim's waiver of the right to counsel and appoint an attorney to represent him. Grim argues only that his need for advisory counsel was so obvious that any reasonable judge would have taken action to appoint one sua sponte.
See Shorthill v. State, 354 P.3d 1093, 1096 (Alaska App. 2015) (upholding a trial judge's finding that it would be "unjust and fundamentally unfair" to allow the defendant to represent himself at trial).
This appellate argument is based primarily on the fact that Grim did not use the trial to challenge the State's allegations of assaultive conduct (as a lawyer might). Rather, Grim told the judge that the trial would be relatively quick, and that he did not intend to object to much of the State's evidence. Grim repeatedly declared that his purpose in going to trial was to publicly declare God's truth and God's authority, to openly proclaim that he was now a changed man, to ask the troopers' forgiveness, and to ask the jury to show mercy to him.
Given the litigation approach that Grim adopted, the trial judge did not commit plain error by allowing Grim to pursue his aims without appointing an advisory lawyer for him.
The evidence presented at Grim's trial was legally sufficient to support Grim's conviction for resisting arrest
One of Grim's convictions was for resisting arrest, AS 11.56.700(a)(1). This conviction was based on the evidence that Grim tried to grab Trooper Varys's pistol, and then he fought with the troopers while they tried to subdue him by physical force, then by pepper spray, then by taser.
On appeal, Grim argues that this evidence was legally insufficient to support a conviction for resisting arrest because the troopers never announced that Grim was under arrest or that they were trying to arrest him. Thus, according to Grim, the evidence was insufficient to establish (1) that the troopers were actually trying to arrest Grim when he used force against them, (2) that Grim knew that the troopers were trying to arrest him, and (3) that when Grim used force against the troopers, he did so for the purpose of obstructing the arrest.
The charge of resisting arrest was based on the events that occurred after Grim lunged at Trooper Varys and grabbed at his pistol. The troopers prevented Grim from gaining control of the pistol, and they took Grim to the ground, but Grim continued to fight back.
Neither Varys nor Kirksey directly testified that they were trying to arrest Grim at this point. Nor did either trooper testify that, during this struggle, they announced to Grim that he was under arrest. But given the dangerous situation created by Grim's actions, and given Grim's continued efforts to resist the troopers, reasonable jurors could conclude beyond a reasonable doubt (1) that Grim knew, when the troopers wrestled him to the ground, that they were trying to take him into custody, and (2) that Grim continued to fight with the troopers because he was trying to prevent them from doing so. Accordingly, the evidence at Grim's trial was sufficient to support his conviction for resisting arrest.
See Rae v. State, 338 P.3d 961, 963 (Alaska App. 2014) ("Evidence is legally sufficient to support a criminal conviction if the evidence and the reasonable inferences to be drawn from it, when viewed in the light most favorable to the jury's decision, are sufficient to convince fair-minded jurors that the government has proved its allegations beyond a reasonable doubt.").
The superior court properly sentenced Grim as a second felony offender because Grim had a prior felony conviction from Colorado that was substantially similar to a felony defined under Alaska law
The superior court sentenced Grim as a second felony offender for purposes of Alaska presumptive sentencing statutes because Grim had a prior Colorado felony conviction from 1998 for "obtaining [a] controlled substance by fraud or deceit", Colorado Statutes § 18-18-415. The question presented in this appeal is whether the Colorado offense was sufficiently "similar" to a then-existing Alaska felony offense to count as a prior felony conviction. See AS 12.55.145(a)(1)(B).
The Colorado statute forbade a person from employing fraud, deceit, misrepresentation, subterfuge, or forgery to "obtain" a controlled substance or to "procure the administration" of a controlled substance. The superior court concluded that the definition of this offense was sufficiently similar to former AS 11.71.040(a)(9), a provision of Alaska's fourth-degree controlled substance misconduct statute that was in effect at the time of Grim's offense. That statute prohibited a person from employing fraud, deception, misrepresentation, subterfuge, or forgery to obtain a controlled substance.
See 1992 Colorado Legislative Service, House Bill 92-1015.
On appeal, Grim points out that the Colorado statute speaks not only of people who fraudulently "obtain" a controlled substance, but also people who fraudulently "procure the administration" of a controlled substance. (According to Grim, this clause was placed in the Colorado statute because people were going to clinics and getting injections of controlled substances under false pretenses.) Grim argues that, because the Alaska statute does not expressly speak of "procuring the administration" of a controlled substance, the Colorado statute is substantially broader than its Alaska counterpart.
This Court has never had occasion to decide whether, under Alaska law, the definition of fraudulently "obtaining" a controlled substance is broad enough to cover instances where a person fraudulently induces a medical practitioner to inject or otherwise directly introduce a controlled substance into a person's body. If the Alaska definition of "obtain" is broad enough to cover this conduct, then it would be irrelevant that the Colorado statute uses different language — "procuring the administration" of a controlled substance — to describe this same concept.
But we need not decide this question, because we are convinced that the gravamen of both the Colorado and the Alaska offenses is the use of deception, fraud, or forgery to obtain controlled substances. The fact that the Colorado statute also speaks of direct introduction of a controlled substance into a person's body does not make the Colorado statute dissimilar to Alaska's corresponding statute. See Phillips v. State, 330 P.3d 941, 942 (Alaska App. 2014); Borja v. State, 886 P.2d 1311, 1314 (Alaska App. 1994).
For the same reason, we reject Grim's argument based on the fact that Colorado's definition of "controlled substance" included anabolic steroids and various other specific substances (such as benzodiazepine derivatives) that were not listed in Alaska's contemporaneous definition.
In sum, the superior court correctly sentenced Grim as a second felony offender.
Grim should not have received three separate assault convictions for his assault on Nathan Jones
As we explained early in this opinion, Grim attacked the ankle monitoring company's employee, Nathan Jones, by hitting him in the head with a pair of heavy pliers. Based on this attack, the jury found Grim guilty of one count of second-degree assault for intentionally causing physical injury by means of the pliers, and also two counts of third-degree assault — one count for recklessly causing physical injury by means of the pliers, and the other count for recklessly placing Jones in fear of imminent serious physical injury by means of the pliers.
AS 11.41.210(a)(1), AS 11.41.220(a)(1)(B), and AS 11.41.220(a)(1)(A), respectively. --------
The superior court entered three separate convictions based on these verdicts, even though all three counts were based on the same assault on the same victim. The State now concedes that this was improper, and that the superior court should only have entered a conviction on the most serious charge, second-degree assault. We agree.
Why we direct the superior court to reconsider whether Grim's sentence for assaulting Nathan Jones should run wholly consecutively to Grim's sentence for assaulting Trooper Varys
A sentencing court's obligation to impose wholly consecutive or partially consecutive sentences is governed by AS 12.55.127. Under this statute, when a court is sentencinga defendant for two convictions under Alaska's assault statutes (AS 11.41.200 through 250), the court must consecutively impose "some additional term of imprisonment" for the second crime. AS 12.55.127(c)(2)(F). We have interpreted this language to mean that the sentencing court must impose at least one day's imprisonment consecutively. See Osborne v. State, 182 P.3d 1155, 1158 (Alaska App. 2008).
When the superior court was imposing Grim's sentences, the court declared that Grim's sentence for assaulting Trooper Varys "[had] to run consecutive" to his sentence for assaulting Nathan Jones. The court then proceeded to impose wholly consecutive sentences.
On appeal, the State contends that the superior court was not speaking of a legal obligation to impose the two sentences wholly consecutively, but rather was declaring the court's belief that, because the second assault was against a law enforcement officer, the two sentences should run wholly consecutively. This is one potential reading of the court's remarks, but it is by no means clear that this is what the court actually meant. Given the present record, it appears equally likely that the superior court mistakenly believed that the law required the sentences to be wholly consecutive.
We therefore direct the superior court to reconsider this matter.
Conclusion
Grim's three convictions for assaulting Nathan Jones must be merged into a single conviction for second-degree assault, and the superior court must reconsider its decision to impose wholly consecutive sentences for Grim's assault on Jones and Grim's separate assault on Trooper Varys. With these exceptions, the judgement of the superior court is AFFIRMED.