Opinion
Court of Appeals No. A-9960.
October 20, 2010.
Appeal from the Superior Court, First Judicial District, Ketchikan, Larry R. Weeks and Philip M. Pallenberg, Judges. Trial Court No. 1KE-06-570 CR.
Christine S. Schleuss, Law Office of Christine Schleuss, Anchorage, for the Appellant. Diane L. Wendlandt, 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
John V. Hanson was convicted of one count of second-degree assault and one count of third-degree assault committed against his wife Shannon Hanson. On appeal, Hanson argues that the superior court should have instructed the jury on the law of self-defense and that the court should have allowed him to introduce evidence of Shannon's violent character to support this theory. We conclude that Hanson gave up this defense, and the right to support it with evidence of Shannon's violent character, when he told the judge that it was "okay" not to give a self-defense instruction. Hanson also argues that it was error for the superior court to increase his sentence on the State's motion. We conclude that Hanson's original sentence was illegally lenient and that the court increased the sentence only to the extent necessary to cure this error.
AS 11.41.210(a) and AS 11.41.220(a), respectively.
Background
This case arose when Shannon returned to her home in Juneau after an evening of drinking. She testified that Hanson was waiting up for her, extremely angry and holding a gun. Hanson yelled at Shannon, and when she turned to walk away, he struck her on the top of the head with the gun. Hanson poured a bottle of wine on her and told her that one of them was "going to die here." Shannon fled.
Officers arrested Hanson and searched the house, but they never located the gun. Shannon later found a note partially written in Hanson's handwriting that said, among other things, "Goodbye cruel world. Goodbye cruel wife. I forgot I even owned this gun."
During the trial, Hanson testified that he did not own a gun or have a gun during the incident. He testified that the most he had done was shove Shannon when she grabbed him.
Although Hanson gave notice before trial of his intent to claim self-defense, he ultimately did not ask the judge to give the self-defense instruction he had submitted. Hanson also asked to introduce evidence of Shannon's character for violence while intoxicated, but Superior Court Judge Larry R. Weeks ruled that the evidence was inadmissible because Hanson was not claiming self-defense.
Hanson defended the charges by arguing that he did not have a gun, that Shannon's perception was unreliable, and that she was not actually frightened. He argued that he wrote the note only to convince Shannon that he was going to kill himself.
Hanson now appeals his conviction and sentence.
Discussion Hanson was not entitled to a self-defense instruction
Hanson first argues that the trial court erred by failing to instruct the jury on the use of non-deadly force in self-defense. According to Hanson, there was sufficient evidence to support the theory that he struck Shannon with the gun in self-defense in a manner that did not constitute the use of deadly force to entitle him to an instruction on this defense.
Before trial, Hanson filed a notice of his intent to assert that his actions were justified as self-defense, and he submitted a proposed instruction on the justified use of non-deadly force. But when the parties and the trial court discussed the proposed instructions, defense counsel indicated that he was not requesting the self-defense instruction, saying that he was "okay" with not offering the instruction at that time. Hanson did not renew his request, so the judge never ruled on the propriety of the instruction.
Because Hanson did not request the instruction, Hanson must show that failure to give the instruction was plain error. But Hanson cannot show plain error because there was a tactical reason not to request the instruction. Hanson's defense rested on his assertion that he did not use a gun in this incident. The argument that he used the gun legitimately would have been inconsistent with this testimony. Under these circumstances, the court did not commit plain error when it failed to give the instruction.
See Alaska R. Crim. P. 30(a); Mooney v. State, 105 P.3d 149, 155 (Alaska App. 2005).
See Jackson v. Am. Equity Ins. Co., 90 P.3d 136, 144 (Alaska 2004) (holding that a party cannot challenge a jury instruction as "plain error" if the record indicates that the party's failure to object was a tactical choice).
The evidence of Shannon's character for violence was inadmissable
In his opening brief, Hanson argues that the trial court erroneously excluded evidence of Shannon's character for violence when she was intoxicated. But in his reply brief, Hanson concedes that he would not have been entitled to introduce this evidence if he was not entitled to a self-defense instruction.
Alaska Evidence Rule 404(a)(2) allows the court to admit evidence of a victim's character when self-defense is at issue. But we have concluded that Hanson withdrew his request for a self-defense instruction. Self-defense was not at issue in Hanson's trial, so the judge did not err when he ruled that Hanson could not introduce this evidence.
See Allen v. State, 945 P.2d 1233, 1239-40 (Alaska App. 1997).
The illegal sentence was properly corrected
Hanson was convicted of both second-degree assault and third-degree assault. Judge Weeks found that one mitigating factor applied to the second-degree assault because it was the least serious conduct included within the description of this offense. But the judge found that this mitigating factor did not apply to the conviction for third-degree assault.
AS 12.55.155(d)(9).
The State argued that Hanson was subject to presumptive sentencing as a second felony offender because he had a prior conviction in Anchorage for two counts of fourth-degree misconduct involving a controlled substance. Hanson had received a suspended imposition of sentence on those counts, but the sentence was stayed pending resolution of his appeal. The convictions were affirmed on appeal, but at the time of Hanson's sentencing in Juneau no steps had been taken to initiate probation and the convictions had not been set aside.
Hanson v. State, Mem. Op. J. No. 4152, 1999 WL 34002425 (Alaska App. Nov. 24, 1999).
Hanson v. State, 210 P.3d 1240 (Alaska App. 2009).
Judge Weeks concluded that the Anchorage convictions must be deemed to have been set aside because there was no revocation pending when Hanson's probation expired. Based on this interpretation, the judge ruled that he would consider the Juneau convictions to be Hanson's first felony offenses. Judge Weeks therefore sentenced Hanson to three years' imprisonment with all but six months suspended on the second-degree assault charge, and to one year suspended on the third-degree assault charge.
Judge Weeks's decision was incorrect. A person who receives a suspended imposition of sentence has been convicted of a felony for purposes of presumptive sentencing, unless the defendant's conviction has been set aside.
Shaw v. State, 673 P.2d 781, 785-86 (Alaska App. 1983).
Three months after the Juneau sentencing hearing, an Anchorage judge denied Hanson's motion to set aside his previous convictions. Based on this ruling, the State moved to correct the Juneau sentence based on Alaska Criminal Rule 35(a). Hanson opposed the motion, and the case was assigned to Superior Court Judge Philip M. Pallenberg because Judge Weeks had retired.
This ruling was later affirmed on appeal. Hanson, 210 P.3d 1240.
Judge Pallenberg concluded that Hanson's sentence was illegal because Hanson had a prior felony conviction that had not been properly considered, and because the suspended sentence Judge Weeks had imposed for the third-degree assault conviction was below the presumptive range for a second felony conviction.
On Hanson's motion, Judge Pallenberg concluded that the two assault counts should merge, but he permitted the State to elect how the counts merged. The State opted to merge the mitigated second-degree assault count into the unmitigated third-degree assault count. Judge Pallenberg then sentenced Hanson to two years to serve, the minimum sentence for a second felony conviction for third-degree assault.
See AS 11.41.220(a)(e) (providing that third-degree assault is a class C felony); AS 12.55.125(e)(2) (providing that a presumptive range of two to four years applies to a Class C felony offense if the offense is a second felony conviction).
On appeal, Hanson argues that the State was not entitled to challenge his sentence as illegal because it did not appeal the original sentencing decision. But we have previously held, "A sentence can be attacked as illegal under Rule 35(a) regardless of whether the point could have been raised on an earlier direct appeal." A sentencing court's failure to recognize a prior conviction necessary to calculate the appropriate presumptive sentencing range renders the ensuing sentence illegal. Therefore, the State was entitled to correction of Hanson's illegal sentence despite its failure to raise this issue on direct appeal.
Stein v. State, 758 P.2d 132, 133 (Alaska App. 1988) (quoting 3 Charles Alan Wright et al., Federal Practice and Procedure § 584, at 395 (2d ed. 1982)); see also State v. Price, 715 P.2d 1183, 1185-86 (Alaska App. 1986) (reversing a trial judge's denial of a motion to correct an illegally lenient sentence despite the State's failure to object at the original sentencing hearing).
Dunham v. Juneau, 790 P.2d 239, 240-41 (Alaska App. 1990) (holding that failure to consider a prior DWI conviction rendered the sentence illegal), abrogated on other grounds by, Curtis v. State, 831 P.2d 359 (Alaska App. 1992); State v. LaPorte, 672 P.2d 466, 467 (Alaska App. 1983) (holding that it was illegal for a trial judge to impose a sentence less than the presumptive sentence without finding any mitigating factors).
In his reply brief, Hanson contends that the "law of the case" doctrine precluded Judge Pallenberg from revisiting the issue regarding his prior convictions because Judge Weeks had decided the issue at the sentencing hearing. But the "law of the case" doctrine generally does not apply when a newly assigned superior court judge makes a ruling that is inconsistent with a previous judge's ruling. And even if the doctrine applied, the Anchorage court's decision declining to set aside Hanson's prior convictions was a substantial reason for the Juneau court to review its decision on whether these convictions should be recognized for presumptive sentencing purposes.
Beal v. Beal, 209 P.3d 1012, 1017 (Alaska 2009); Bylers Alaska Wilderness Adventures Inc. v. Kodiak, 197 P.3d 199, 206 (Alaska 2008).
Hanson also presents an alternative argument based on the double jeopardy clause. Hanson contends that even if the superior court was correct in concluding that his sentence had to be modified because of his prior felony conviction, the superior court nevertheless violated the guarantee against double jeopardy by increasing his sentence more than the minimum amount required to cure the illegality.
See generally Joseph v. State, 712 P.2d 904, 906 (Alaska App. 1986) ("[I]f an order increasing an unlawful sentence can ever be justified, it will only be when the increase is actually necessary to correct the illegality. . . .").
Hanson's argument is based on Judge Pallenberg's ruling that it was improper for Hanson to receive separate convictions for both second-degree assault and third-degree assault — that the jury's verdicts on these two charges had to be merged for purposes of conviction and sentencing.
The merger of these two counts raised a new sentencing issue. As we have already described, Hanson's original sentencing judge (Judge Weeks) found that Hanson's second-degree assault conviction was mitigated under AS 12.55.155(d)(9) but that no mitigators applied to Hanson's third-degree assault conviction. This meant that Hanson's minimum sentence for the greater offense of second-degree assault was actually lower than his minimum sentence for the lesser offense of third-degree assault.
Second-degree assault is a class B felony. Under AS 12.55.125(d)(3), Hanson faced a presumptive sentencing range of four to seven years' imprisonment for this offense. But because Judge Weeks found that mitigator (d)(9) applied to this offense, Hanson's sentence for second-degree assault could be as low as no time to serve.
AS 11.41.210(b).
See AS 12.55.155(a)(1).
Third-degree assault is a class C felony. Under AS 12.55.125(e)(2), Hanson faced a presumptive sentencing range of two to four years' imprisonment for this offense. But because no mitigators applied to this offense, Hanson had to receive at least two years to serve.
AS 11.41.220(e).
See AS 12.55.125(g).
Because of this situation, Judge Pallenberg allowed the State to elect which of the two counts should be reduced to judgment. The State, for obvious reasons, elected to proceed on the third-degree assault count — meaning that Judge Pallenberg had to increase Hanson's sentence to the minimum sentence for that count, two years' imprisonment.
Hanson contends that Judge Pallenberg violated his rights under the double jeopardy clause by allowing the State to choose the count that required the greater minimum sentence. But in Douglas v. State, we noted that, in situations where the double jeopardy clause requires a merged conviction based on two or more jury verdicts of guilty, "Alaska case law suggests that the State should be able to choose the offense for which the court enters judgement and sentences the defendant."
215 P.3d 357 (Alaska App. 2009).
Id. at 365.
Giving the State the right of election in this situation is consistent with the State's authority to dismiss a criminal charge under Alaska Criminal Rule 43(a). Although this Court has not previously considered the question of whether Criminal Rule 43(a) gives the State a continuing right to dismiss a criminal charge even after the jury has returned its verdicts, Federal Criminal Rule 48(a) (the corresponding federal rule) is interpreted to apply to post-verdict — indeed, post-judgment — situations.
Criminal Rule 43(a) states: "The prosecuting attorney may file a dismissal of an indictment, information[,] or complaint and the prosecution shall thereupon terminate. Such a dismissal shall not be filed during the trial without the consent of the defendant."
See 3B Charles Alan Wright et al., Federal Practice and Procedure § 812, at 331 (3d ed. 2004) ("[Criminal] Rule 48(a) continues to apply even after conviction and sentencing[,] and the same standard applies to a government request for dismissal at that stage. . . ."); United States v. Gonzalez, 58 F.3d 459, 460 (9th Cir. 1995); United States v. Weber, 721 F.2d 266 (9th Cir. 1983); United States v. Hamm, 659 F.2d 624, 628-29, 633 (5th Cir. 1981). But see United States v. Smith, 467 F.3d 785, 789 (D.C. Cir. 2006) (questioning whether the government retains the authority to dismiss a criminal charge under Federal Criminal Rule 48(a) after the conviction has been affirmed on appeal).
Judge Pallenberg's decision to allow the State to elect how the two jury verdicts should be merged in Hanson's case merely followed this broader principle that the State has the authority to choose which charges to pursue. The State might have elected to completely dismiss the second-degree assault charge — leaving Hanson in the same sentencing posture.
Nor do we perceive any fundamental unfairness in this result. The Alaska Legislature has decreed that the minimum sentence for an unmitigated third-degree assault is greater than the minimum sentence for a mitigated second-degree assault. In Hanson's case, the jury found that the State had proved both of these offenses, but Alaska double jeopardy law required the sentencing judge to enter only one combined judgment based on the jury's verdicts. Hanson is essentially arguing that, because the jury found him guilty of a nominally greater offense (second-degree assault), he can avoid the mandated minimum punishment for the offense of third-degree assault. But if we look beyond the names or classifications of these offenses, and we instead examine (and attempt to implement) the legislature's intended range of punishment for offenders who commit these crimes, we are led to conclude that the "greater" offense in Hanson's situation is the third-degree assault conviction that carries a minimum sentence of two years' imprisonment.
For these reasons, we uphold Judge Pallenberg's decision to let the State elect which of the two jury verdicts it wished to pursue to conviction and sentencing.
Hanson also argues that mitigating factor (d)(9) (conduct among the least serious within the definition of the offense) should also apply to his offense of third-degree assault. But although Judge Weeks found that mitigator (d)(9) applied to Hanson's offense of second-degree assault, the judge specifically found that the conduct underlying Hanson's offense of third-degree assault was not among the least serious within the definition of that offense. We agree. Judge Pallenberg properly concluded that Hanson's third-degree assault offense was not mitigated — and that, therefore, Hanson's minimum sentence for that crime was two years' imprisonment.
Conclusion
We therefore AFFIRM the superior court's judgment and sentence.