Opinion
Court of Appeals No. A-10585.
August 11, 2010.
Appeal from the District Court, Third Judicial District, Anchorage, Stephanie Rhoades, Judge, Trial Court No. 3AN-08-13738 CR.
Appearances: Jonathon T. Torres, Gorton, Logue, and Graper, Anchorage, for the Appellant. David Hammond, Assistant Municipal Prosecutor, and Dennis A. Wheeler, Municipal Attorney, Anchorage, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
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 precedent for any proposition of law.
MEMORANDUM OPINION AND JUDGMENT
Lloyd A. Jenkins was convicted of operating a motor vehicle while under the influence, driving with license suspended or revoked, driving without insurance, and refusing to take a chemical breath test.
Anchorage Municipal Code (AMC) 9.28.020.A.
AMC 9.28.019.B.1.
AMC 9.28.030.
AMC 9.28.022.C.
Jenkins was contacted because he was driving on private property while his license was suspended, in violation of a municipal ordinance. Before trial, he moved to dismiss the charges, asserting that the police contact was unlawful because the municipal ordinance was inconsistent with the state statute prohibiting driving with a suspended license, and therefore invalid. On appeal, he contends that the district court erred when it found that there was no significant inconsistency between the municipal and state laws. He also contends that the district court erred when it did not delay the trial to allow him to meet with prospective private counsel. For the reasons set forth here, we reject Jenkins's contentions and affirm the district court's decisions.
Facts and proceedings
On December 7, 2008, Anchorage Police Officer Chad Schaeffer was dispatched to investigate whether Jenkins was driving a vehicle while his license was suspended. A neighbor had called the police to report that Jenkins was plowing snow on a vacant lot that Jenkins owned. The neighbor believed that Jenkins's license had been suspended and that he should not be driving.
As Schaeffer drove to the vacant lot, he checked on the status of Jenkins's license and confirmed that it was suspended. When he arrived at the lot, Schaeffer saw a flatbed plow truck with a sander on the bed. He estimated that the truck, with the sander and the plow, weighed about 6000 pounds. Jenkins was driving the truck forwards and backwards on the lot, plowing snow. When Schaeffer contacted Jenkins, he noticed that Jenkins appeared intoxicated. Ultimately, Jenkins was convicted of operating while under the influence, driving with license suspended or revoked, driving without insurance in effect, and refusing to take a chemical breath test.
Prior to trial, Jenkins moved to suppress all the evidence and to dismiss the charges. He asserted that the evidence should be suppressed because the police knew he was driving on private property and therefore had no reasonable suspicion to stop him for driving with a suspended license. He argued that municipal law did not prohibit a person whose license was suspended from driving a motor vehicle on private property.
The Municipality opposed, pointing out that the municipal ordinance did in fact prohibit a person whose license was suspended from driving on private property. In response, Jenkins changed tactics and argued that the ordinance was invalid under AS 28.01.010(a) because it was inconsistent with the state's motor vehicle laws, which only prohibit driving with a suspended license on public property. Alaska Statute 28.01.01 0(a) provides that Title 28, the motor vehicle title, "[is] applicable within the municipalities of the state" and that "[a] municipality may not enact an ordinance that is inconsistent with the provisions of this title or of the regulations adopted under this title."
AMC 9.28.019.B provides that it is unlawful for a person to "[d]rive a motor vehicle at a time when the person's driver's license [has been suspended or revoked]."
AS 28.15.291(a)(1) provides that it is unlawful for a person to "drive[] a motor vehicle on a highway or vehicular way or area at a time when that person's driver's license [has been suspended or revoked]."
After a hearing, District Court Judge Stephanie Rhoades found that the municipal ordinance was not fatally inconsistent with state law, and denied the motion.
Trial began on September 15, 2009. Jenkins was represented by appointed counsel. On the first day of trial, just prior to jury selection, Jenkins's attorney informed Judge Rhoades that Jenkins had "indicated that . . . it is his sincere desire to hire private counsel." Judge Rhoades explained that "[w]e're past that point. Anything else?" Although Jenkins said that he had an appointment later that day to speak with a private attorney, Judge Rhoades continued on to jury selection.
Later, Judge Rhoades explained her decision to proceed with trial. She found that Jenkins's request to meet with a private attorney was made too late in the proceedings, on the morning of trial after the jury had already been called. Judge Rhoades also noted that Jenkins had public defenders in two pending cases, including a felony case, as well as the appointed attorney in his municipal case. She found that these circumstances suggested that Jenkins did not have the ability to hire private counsel, and that if he could afford to do so, he would more likely hire private counsel for his felony case. She concluded that because his circumstances indicated that it was unlikely that he could afford to hire private counsel, the last-minute request was an attempt to manipulate the system.
The jury returned guilty verdicts on all counts.
The municipal ordinance is not inconsistent with the state statute
As already described, Anchorage police contacted Jenkins for violating the municipal ordinance that makes it illegal to drive on public or private property with a suspended driver's license. Jenkins acknowledges that a home-rule municipality may enact its own traffic code, but he argues that the municipal ordinance is invalid because it is inconsistent with state law. He argues that because the ordinance is invalid, the police lacked a lawful reason to contact him.
See Alaska Const., art. 10, § 11 ("A home rule borough or city may exercise all legislative powers not prohibited by law or by charter."); AS 29.04.010 ("A home rule municipality has all legislative powers not prohibited by law or charter.").
The Alaska Supreme Court decision in Cremer v. Anchorage disposes of Jenkins's argument. In Cremer, the defendant was convicted of violating an earlier version of the Anchorage ordinance by driving in a large, privately owned parking lot while his driver's license was suspended. Like Jenkins, Cremer argued that the municipal driver's license ordinance was invalid under AS 28.01.010 because it was inconsistent with the state driver's license statute, which only regulated driving with a suspended license on public property.
575 P.2d 306 (Alaska 1978).
Id. at 307.
The Cremer court acknowledged that the ordinance and the statute weredifferent. But the court said that "this slight discrepancy between the statute and the ordinance, i.e., the driving of motor vehicles on private property, is [not] of such a nature that the exercise of municipal power has been directly or indirectly prohibited by legislative action." The court concluded that the municipal ordinance was therefore not — for the purposes intended under AS 28.01.010 — inconsistent with the state statute. Because the ordinance was not inconsistent with the statute, the ordinance was valid.
Id. at 307-08.
Id. at 308.
Id.
Id.
Jenkins argues that the holding in Cremer is limited to "large commercial parking lots held open to public ingress and egress." But nothing in Cremer limited the holding to those facts, and we conclude that the supreme court's decision is broad enough to cover the circumstances in Jenkins's case.
Moreover, as Judge Rhoades found, the Municipality has an interest in regulating drivers "in a densely populated municipality . . . especially in a situation where [the operator] is driving around 6000 [pounds] of truck[.]" There is a difference between a lot located in a densely populated municipality and the often extremely large lots located in rural areas of the state. In a densely populated area, a presumably dangerous driver — that is, one whose license had been suspended or revoked — poses a risk to those living in close proximity on adjacent lots. Because of this difference, Judge Rhoades found that the Municipality had a legitimate reason for regulating driving on private lots.
Judge Rhoades's ruling is in accord with the Cremer decision. Consequently, the ordinance was valid and Jenkins was lawfully stopped for driving while his license was suspended. Because the stop was lawful, Judge Rhoades did not err when she denied Jenkins's motion to suppress the evidence and to dismiss the charges.
Why it was not erroneous to deny Jenkins's last-minute request for a delay to allow him to confer with, and possibly hire, private counsel
As already explained, on the first day of trial, just prior to the start of jury selection, Jenkins's court-appointed attorney announced that Jenkins wanted to hire a private attorney. Judge Rhoades said that Jenkins's request was made too late, and she concluded that he was attempting to manipulate the system.
On appeal, Jenkins contends that Judge Rhoades erred by denying him "the opportunity to consult with and potentially hire private counsel." He asserts that "[t]o mandate that [he] go through trial without giving him the opportunity to confer with private counsel deprived him of the ability to effectively pursue all avenues of his legal defense." He does not claim that he would have been able to hire private counsel.
The Alaska Supreme Court has held that, under certain circumstances, a trial court does not abuse its discretion when it denies a defendant's last-minute request for a delay to allow the defendant to retain counsel, or to give a late-hired attorney time to prepare for trial. In Gottschalk v. State, the supreme court explained that, in determining whether the trial court should have granted a continuance, the "prime focus of inquiry must be on the reason for the requested continuance" but that the court "will also consider whether the moving party has acted diligently and in good faith."
Gottschalk v. State, 602 P.2d 448, 451 (Alaska 1979); Burleson v. State, 543 P.2d 1195, 1199-1201 (Alaska 1975).
Id. at 450.
The Gottschalk court found no abuse of discretion where the trial court denied the defendant's last-minute request for a continuance to allow him to consult with the attorney he had just retained and to prepare hisdefense. The court noted that Gottschalk had seven months in which to retain and consult with an attorney, hence his predicament was attributable solely to his lack of diligence.
Id. at 451.
Id.
Here, Jenkins had more than nine months to contact and confer with an attorney — he was charged on December 7, 2008, and trial began September 15, 2009. At trial, Jenkins gave Judge Rhoades no reason to support his last-minute request for time to consult with and possibly hire a private attorney.
In addition, before a conviction can be reversed because of the denial of a motion for continuance, it must be shown that the denial resulted in prejudice to the accused. Jenkins has not explained what, if any, prejudice he suffered when Judge Rhoades denied his implicit request to delay the trial.
Klockenbrink v. State, 472 P.2d 958, 964-65 (Alaska 1970); see also Burleson, 543 P.2d at 1198 ("We indicated [in Klockenbrink] that before a conviction would be reversed because of the denial of a motion for continuance, it must be shown that the denial resulted in prejudice to the accused.").
The record supports Judge Rhoades's finding that Jenkins was attempting to manipulate the system. We conclude that Judge Rhoades did not abuse her discretion.
Conclusion
The district court's judgment is AFFIRMED.