Opinion
A-13520 0326
05-31-2023
MITCHEL LEE JOSEPH, 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. Kenneth M. Rosenstein, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Fourth Judicial District, Trial Court No. 4TO-18-00068 CR Tok, Paul R. Lyle, Judge.
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.
Kenneth M. Rosenstein, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Terrell, Judges.
SUMMARY DISPOSITION
Mitchel Lee Joseph was convicted of one count of felony refusal to submit to a breath test. On appeal, Joseph argued that the trooper misadvised him that he could be charged with a misdemeanor (rather than a felony) if he refused to submit to the breath test. The State conceded that the advisement was erroneous under the Alaska Supreme Court's decision in Olson v. State, and the State requested that the case be remanded for additional factual findings to determine whether the improper advisement influenced Joseph's decision to refuse the breath test.
AS 28.35.032(p).
Joseph v. State, 2022 WL 1101814, at *2 (Alaska App. Apr. 13, 2022) (unpublished), amended on reh'g (Order dated Apr. 25, 2022).
Olson v. State, 260 P.3d 1056, 1061 (Alaska 2011).
Joseph, 2022 WL 1101814 at *2.
On remand, the superior court held an evidentiary hearing at which Joseph and the trooper both testified. Joseph testified that he refused to submit to the breath test because he was innocent of driving under the influence. Joseph also testified that, although he could not recall the trooper's exact words, he thought that the trooper told him that refusal was a misdemeanor. Joseph speculated that there was a "big possibility" that his decision-making could have been affected, had he known that the charge would be a felony. The trooper testified that Joseph was "uncooperative" throughout the encounter.
Based on the testimony at the evidentiary hearing and the superior court's review of the recorded interaction, the court found Joseph's testimony that he "could have" been influenced by the misadvisement was not credible for three reasons. First, Joseph admitted that he was not really listening to what the trooper told him. Second, the record showed that Joseph refused to submit to the breath test before the trooper had provided the misadvisement, and that Joseph continued to refuse even after he was warned that the refusal charge could be a felony. And lastly, Joseph refused to submit to the breath test because he believed that he did not need to submit to the breath test if he had not been driving. Based on these three reasons, the superior court found that the trooper's misadvisement did not influence Joseph's decision to refuse to submit to the breath test.
Joseph now challenges this ruling, arguing that the superior court's factual findings were clearly erroneous. A finding is "clearly erroneous" if, after reviewing the entire record in the light most favorable to the prevailing party, the appellate court is left with a definite and firm conviction that the trial court was mistaken. Here, the superior court's findings are well-supported by the record and its credibility determinations are entitled to deference.
Giacomazzi v. State, 633 P.2d 218, 222 (Alaska 1981); Meyer v. State, 368 P.3d 613, 620 (Alaska App. 2016).
Maloney v. State, 667 P.2d 1258, 1267-68 (Alaska App. 1983).
Accordingly, we reject Joseph's challenge to the superior court's ruling, and we AFFIRM the judgment of the superior court.