Opinion
Court of Appeals No. A-11258 Trial Court No. 3PA-12-390 CRNo. 5994
12-06-2013
ANDREW P. JOHNNIE III, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Michael Horowitz, Assistant Public Defender, Palmer, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Mary A. Gilson, Assistant Attorney General, Office of Special Prosecutions and 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.
MEMORANDUM OPINION
AND JUDGMENT
Appeal from the District Court, Third Judicial District, Palmer, David Zwink, Judge.
Appearances: Michael Horowitz, Assistant Public Defender, Palmer, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Mary A. Gilson, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Coats, Senior Judge.
Senior Judge COATS.
Andrew P. Johnnie III was convicted of misdemeanor driving while under the influence (DUI). Because this was Johnnie's second DUI offense, he was subject to a $3,000 mandatory minimum fine. Because the trial court found that the offense occurred in a traffic safety corridor, Johnnie' s fine was doubled — that is, the mandatory minimum fine was enhanced to $6,000. The district court imposed the enhanced fine.
Johnnie appeals his fine, claiming that the district court erred when it found that he had, as part of his plea, admitted that he had committed his DUI in a traffic safety corridor. For the reasons set out in this decision, we agree with Johnnie and therefore remand this case for further proceedings.
Background
In February 2012, Johnnie was stopped for speeding in Wasilla. This offense occurred on Knik Goose Bay Road at Wellington Drive, near mile post 7. Upon contacting Johnnie, police noted that when standing, he swayed; he also had an odor of alcohol, bloodshot and watery eyes, and poor manual dexterity. After administering field sobriety tests, the police arrested Johnnie, and then later administered a Datamaster test. The Datamaster results showed that his BAC was .198 percent.
Johnnie was charged with DUI. As already mentioned, if convicted, he faced a $3,000 mandatory minimum fine because this was his second DUI. In addition, if the DUI occurred in a traffic safety corridor, the fine would double. In other words, if the State proved this fact — that the DUI occurred in a traffic safety corridor — Johnnie's penalty would be enhanced.
AS 28.35.030(b)(1)(B) ("the court shall ... impose a fine of not less than $3,000 if the person has been previously convicted once").
AS 28.90.030(a) ("Whenever a person violates a provision of this title or a regulation adopted under the authority of this title within a ... traffic safety corridor, notwithstanding the amount of the fine or the maximum fine set under this title, the fine, or maximum fine, is double the amount provided in this title.").
At the change of plea hearing, Johnnie turned down the State's offered plea agreement. He turned it down because the agreement required him to admit that his offense occurred in a traffic safety corridor. He indicated that he wanted to contest whether the fine should be enhanced. After rejecting the plea agreement, Johnnie nonetheless entered a plea.
District Court Judge David Zwink accepted Johnnie's plea to the DUI offense and imposed sentence. Part of the sentence was an enhanced fine, $6,000. When the judge imposed the enhanced fine, Johnnie objected. He argued that he had not admitted that his offense occurred in a traffic safety corridor. Judge Zwink disagreed, finding that Johnnie had done so as part of his guilty plea.
On appeal, Johnnie claims that Judge Zwink erred when he found that Johnnie had admitted that he had committed the DUI offense in a traffic safety corridor.
What Must Be Proven to Increase a Mandatory Minimum Fine
In Apprendi v. New Jersey, the U.S. Supreme Court held that a criminal defendant has the right to demand a jury trial and proof beyond a reasonable doubt on any issue of fact (other than a prior conviction) that will increase the maximum penalty to which the defendant may be subjected. The U.S. Supreme Court recently extended Apprendi's reasoning to include fines. And even more recently, the U.S. Supreme Court held that facts that increase the mandatory minimum sentence are elements and must be submitted to the jury and found beyond a reasonable doubt. Although this latter decision was issued after Johnnie's sentence was imposed, it applies here because Johnnie's case is not yet final.
Apprendi v. New Jersey, 530 U.S. 466, 489-90, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000); see also Blakely v. Washington, 542 U.S. 296, 305, 124 S.Ct. 2531, 2538, 159 L.Ed.2d 403 (2004).
Southern Union Co. v. United States, 567 U.S. __, 132 S.Ct. 2344, 2350-51, 183 L.Ed.2d 318 (2012).
Alleyne v. United States, __ U.S. __, 133 S.Ct. 2151, 2155-67, 186 L.Ed.2d 314 (2013) (overruling Harris v. State, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002)) (plurality restatement of majority holding).
Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987).
In this case, Johnnie faced a mandatory minimum fine. This mandatory minimum fine would be doubled if his DUI offense occurred in a traffic safety corridor. As just explained, a fact that increases the mandatory minimum sentence must be submitted to the jury and found beyond a reasonable doubt. Therefore, during the plea proceedings, it was incumbent upon Judge Zwink to determine whether Johnnie was waiving his right to a jury trial and proof beyond a reasonable doubt on the issue of whether his offense took place in a traffic safety corridor.
We note that a traffic safety corridor requires more than just a designation of a location on a highway; rather, a traffic safety corridor is "a portion of the highway on which signs have been erected designating that portion as a traffic safety corridor under AS 19.10.075." Thus, the State must prove not only the location, but also show that the highway had the proper signs.
The plea proceedings
Johnnie's plea proceedings took place approximately a month and a half after he was charged with DUI. The issue of the traffic safety corridor arose early at the hearing when Johnnie turned down the State's offered plea agreement. As already explained, he turned it down because the agreement required him to admit that the offense occurred in a traffic safety corridor. In doing so, he indicated that he did not wish to concede this fact because committing the offense in the traffic safety corridor subjected him to an enhanced fine. Despite this, the parties proceeded with the plea.
During the hearing, Judge Zwink asked the prosecutor if Knik Goose Bay Road at Wellington Drive (where Johnnie was stopped) was a traffic safety corridor. The prosecutor responded, "That's my belief, Your Honor, [based on] the notice from the officer on the ATN." (Apparently, the prosecutor was referring to a form that was not filed in the trial court record. Prior to the hearing, there was no document in the record indicating that the offense occurred in a traffic safety corridor.)
The only document in the record mentioning the traffic safety corridor is the log note generated at Johnnie's change of plea.
When Judge Zwink asked where on Knik Goose Bay Road Wellington Drive was located, the prosecutor, again apparently referring to the police report, responded, "near mile 7." Judge Zwink responded, "[T]hat's smack dab in the middle of it."
Judge Zwink then addressed Johnnie and advised him that "the State would have to prove that back on February 18th of this year near Wasilla, roughly around mile 7 of [Knik Goose Bay] Road, you were operating a motor vehicle while you were under the influence of alcohol." Judge Zwink went on to inquire as to whether Johnnie's plea was knowing and voluntary. Judge Zwink also told Johnnie that he faced a $6,000 fine.
Soon after Judge Zwink imposed sentence — in particular, when he imposed a $6,000 fine — Johnnie objected, contending that he had not admitted that his offense occurred in a traffic safety corridor. Despite Johnnie's objection, Judge Zwink found that Johnnie had admitted, as part of his guilty plea, that he had committed the DUI offense in a traffic safety corridor.
Why we find error
Under Criminal Rule 11, when taking a defendant's plea, a judge must address the defendant personally and determine that the defendant understands the nature of the charge. Here, Johnnie was charged with committing a DUI. But he was entitled to a jury trial not only on the DUI, but also on the fact that could enhance his mandatory minimum penalty — whether the DUI occurred in a traffic safety corridor. He was also entitled to have this fact proven beyond a reasonable doubt. It was thus incumbent upon Judge Zwink to ascertain whether Johnnie's plea included an admission of this fact.
Alaska Criminal Rule 11(c)(1).
See Southern Union Co., 132 S.Ct. at 2350-51; Alleyne, 133 S.Ct. at 2158.
See Southern Union Co., 132 S.Ct. at 2350-51; Alleyne, 133 S.Ct. at 2158.
Johnnie was not told that, as part of his plea, he was admitting that his DUI offense had occurred in a traffic safety corridor. Judge Zwink never plainly asked Johnnie if he was admitting that he had committed his DUI offense in a traffic safety corridor.
More importantly, early on in the hearing, Johnnie informed the court that he had rejected the State's proposed plea agreement because it included a doubled mandatory fine based on the traffic safety corridor enhancement. In the plea discussion that followed moments later, Judge Zwink did not determine whether Johnnie had changed his mind regarding his opposition to the enhancement. Nor, during the plea discussion between Judge Zwink and Johnnie, was the phrase "traffic safety corridor" ever mentioned. And even though the judge told Johnnie that his minimum fine would be $6,000, the judge did not tell Johnnie that this amount was double the mandatory minimum because of the enhancement.
It is true that Judge Zwink told Johnnie, before taking his plea, that he faced a $6,000 minimum fine. But even though Johnnie's attorney apparently missed the significance of this statement, he promptly objected after sentencing when he realized that the judge had imposed the enhanced fine based on a finding that the offense took place in a traffic safety corridor. He told Judge Zwink that he had not admitted that his offense occurred in a traffic safety corridor.
For these reasons, we conclude that Johnnie never unequivocally waived his right to a jury trial on whether his offense occurred in traffic safety corridor. Consequently, we remand this case to the district court to allow the parties the opportunity to litigate whether Johnnie committed the DUI in a traffic safety corridor.
Conclusion
We VACATE the district court's order concerning the fine. The case is REMANDED to the district court to allow the parties the opportunity to litigate whether the DUI offense occurred in a traffic safety corridor. We do not retain jurisdiction of this case.
Sitting by assignment made pursuant to article IV, section 11 of the Alaska Constitution and Administrative Rule 23(a).