Opinion
A-13374
08-04-2021
BRYAN CURTIS JOHNSON, Appellant, v. STATE OF ALASKA, Appellee.
Michael Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Clyde Ed Sniffen Jr., Acting AttorneyGeneral, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Third Judicial District, Anchorage, Catherine M. Easter, Judge. Trial Court No. 3AN-16-08077 CR
Michael Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Clyde "Ed" Sniffen Jr., Acting AttorneyGeneral, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
SUMMARY DISPOSITION
Bryan Curtis Johnson was convicted, following a bench trial, of felony driving under the influence. A person is guilty of felony driving under the influence when the person is guilty of driving under the influence and the person has at least two prior convictions for either driving under the influence or refusal to submit to a chemical test within the last ten years. To prove the prior convictions element in Johnson's case, the State presented certified copies of a 2008 driving under the influence conviction and a 2010 refusal to submit to a chemical test conviction. Both convictions were from Alaska.
AS 28.35.030(n).
Id.
Prior to trial, Johnson filed a motion to dismiss the indictment, arguing that the 2008 conviction was constitutionally invalid. Specifically, Johnson argued that he was not adequately advised of his right to counsel and his waiver of counsel was therefore invalid. The superior court held an evidentiary hearing and subsequently denied Johnson's motion, finding that Johnson had failed to meet his burden of producing "some evidence" tending to prove that the advisements were inadequate or his waiver of counsel was invalid. Johnson now appeals this ruling.
Ordinarily, a defendant is not entitled to collaterally attack the validity of a prior conviction in a subsequent criminal case. See Brockway v. State, 37 P.3d 427, 429 (Alaska App. 2001) ("If a defendant wishes to collaterally attack prior convictions, the defendant must pursue a petition for post-conviction relief."). However, there are exceptions to this rule. One exception is when the defendant claims that he was "completely denied the right to counsel in the prior proceeding - either because the defendant asked for counsel and was denied one or (more likely) because the defendant proceeded without counsel and the trial judge did not obtain a knowing waiver of the right to counsel." Id. Because the law presumes the validity of criminal judgments, the initial burden is on the defendant to produce "some evidence" tending to prove the invalidity of the conviction. See Brodigan v. State, 95 P.3d 940, 944 (Alaska App. 2004) (declining to resolve who bears the ultimate burden of persuasion on this issue).
We find no merit to this appeal. A review of the record shows that Johnson received two lengthy and detailed advisements regarding his right to counsel and the benefits of counsel - the first in an arraignment video and the second from the judge.
See Swensen v. Anchorage, 616 P.2d 874, 878 (Alaska 1980) (requiring that the defendant be informed of "the role of a defense attorney and the advantages of being represented by one in a criminal proceeding" prior to obtaining waiver of counsel (quoting Gregory v. State, 550 P.2d 374, 379 (Alaska 1976))).
We also agree with the superior court that there is nothing in Johnson's colloquy with the judge that suggests that Johnson did not understand his right to counsel or that his waiver of counsel was anything other than knowing and intelligent.
On appeal, Johnson relies on an affidavit he submitted as part of his motion to dismiss to suggest that he did not understand his right to counsel. But Johnson forfeited any reliance on his affidavit by failing to testify at the evidentiary hearing. Johnson also argues that the superior court never directly found that his waiver was knowing; instead he asserts that the court found only that he was "afforded the opportunity" to knowingly waive his right to counsel. The State responds that this is "mere sophistry." We agree. Viewing the superior court's order as a whole, it is clear that the superior court found that Johnson's waiver was knowing. It is also clear that this finding is well supported by the record at the evidentiary hearing.
Accordingly, the judgment of the superior court is AFFIRMED.