Opinion
Court of Appeals No. A-9424.
November 14, 2007.
Appeal from the Superior Court, Third Judicial District, Anchorage, Larry D. Card, Judge, Trial Court No. 3AN-84-1725 CR.
Harry E. Lewis, pro se, Eloy, Arizona, for the Appellant. Douglas H. Kossler, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
MEMORANDUM OPINION AND JUDGMENT
Harry E. Lewis was convicted of first-degree murder in 1984. Lewis's original sentence provided that he would be eligible for parole after serving 20 years of his 99-year sentence. But the relevant sentencing statute provided that Lewis could not be eligible for parole until after he had served at least one third of his sentence (i.e., 33 years). Therefore, the portion of Lewis's sentence making him eligible for parole after 20 years was later struck. Lewis has since filed numerous motions and appeals, contesting various aspects of the procedure followed in amending his sentence, as well as the corrected sentence itself. All of Lewis's appeals have been rejected.
In 2005, Lewis filed a "Motion to Clarify Illegal Sentence" under Civil Rule 60, alleging that his corrected sentence was "void." Superior Court Judge Larry D. Card denied Lewis's motion. Lewis now appeals that decision. Because this Court has previously rejected the claims Lewis makes in this latest appeal, we affirm.
Facts and proceedings
The underlying facts of Lewis's conviction and subsequent litigation odyssey are detailed in Lewis v. State. In sum, Lewis was convicted of first-degree murder in 1984. Superior Court Judge C.J. Occhipinti sentenced Lewis to 99 years to serve. Lewis's sentence provided that Lewis would be eligible for parole after 20 years of imprisonment. However, during the appeal of Lewis's conviction and sentence, the State pointed out that the relevant sentencing statutes in effect at the time Lewis was sentenced mandated that Lewis serve at least one third of his sentence — 33 years — before becoming eligible for discretionary parole. Lewis, in turn, argued that his sentence should be reduced to 60 years so that the 20-year limitation on parole would be legal. We did not address this issue on direct appeal because Lewis did not raise the issue until his reply brief.
Lewis v. State, Alaska App. Memorandum Opinion and Judgment No. 4875 (May 26, 2004), 2004 WL 1166367 (" Lewis V").
See former AS 33.15.080, .230(a)(1).
Lewis V, Memorandum Opinion and Judgment No. 4875 at 3, 2004 WL 1166367 at *1 (footnote and citation omitted).
Lewis then filed a petition for a hearing with the Alaska Supreme Court, which the court granted. The supreme court issued an order recognizing the illegality of Lewis's sentence. This order remanded the case to the superior court, directing it to "enter an amended judgment, imposing a legal sentence." Superior Court Judge Ralph E. Moody struck the provision of Lewis's sentence which set Lewis's parole eligibility at 20 years, and left Lewis's parole eligibility to be determined by statute (i.e., 33 years). This Court affirmed Judge Moody's amendment to Lewis's sentence.
Lewis v. State, Case No. S-2046 (Alaska Supreme Court Order, May 4, 1987).
Id.
Lewis v. State, Alaska App. Memorandum Opinion and Judgment No. 1700 at 3 (Nov. 23, 1988), 1988 WL 1513109 at *2 (" Lewis II").
Lewis II, Memorandum Opinion and Judgment No. 1700 at 6, 1988 WL 1513109 at *3.
Lewis then filed numerous post-conviction relief applications and habeas corpus petitions with the courts of this state, as well as the federal courts. Lewis was unsuccessful in his efforts to have his sentence revisited. This Court most recently rejected Lewis's claims that Judge Moody improperly amended his sentence in Lewis V. In that appeal, we affirmed the superior court's denial of Lewis's Criminal Rule 35(a) motion to correct, what Lewis argued, was an illegal sentence.
See Lewis v. State, 901 P.2d 448 (Alaska App. 1995) (" Lewis III"); Lewis v. State, Alaska App. Memorandum Opinion and Judgment No. 4396 (May 9, 2001), 2001 WL 488068 (" Lewis IV"); Lewis V, Memorandum Opinion and Judgment No. 4875, 2004 WL 1166367; Lewis v. Pugh, No. A96-0002CV (D. Alaska Nov. 13, 1997), cert. denied, 525 U.S. 1021, 119 S. Ct. 551, 142 L. Ed. 2d 458 (1998).
Lewis V, Memorandum Opinion and Judgment No. 4875, 2004 WL 1166367.
Specifically, we held that the law of the case barred consideration of Lewis's claim that Judge Occhipinti's intent in sentencing Lewis should have been considered when Judge Moody amended Lewis's sentence. In Lewis II, we determined that Judge Moody had only performed a ministerial act by striking the illegal portion of Lewis's original sentence. Therefore, we concluded that this decision foreclosed Lewis's claim that Judge Moody should have considered Judge Occhipinti's intent in sentencing Lewis. We also held that Lewis had failed to make out a prima facie case of ineffective assistance of counsel.
Id. at 8, 2004 WL 1166367 at *4.
Id.
Id. at 13, 2004 WL 1166367 at *6.
In September 2005, Lewis filed a pro se "Motion Pursuant to Alaska Rules of Civil Procedure Rule 60(b)," in which Lewis asserted three claims: (1) that Judge Moody's correction of his original sentence was "void"; (2) that Judge Occhipinti's intent in sentencing Lewis should have been considered when Judge Moody amended Lewis's sentence; and (3) that Judge Moody "should never have been appointed to oversee the magisterial, clerical corrections involved in his resentencing due to his obvious conflict of interest," due to the fact that Judge Moody was aware of the facts of the case against Lewis because he had presided over the trials of Lewis's two codefendants. Judge Card denied Lewis's motion, ruling that Lewis's claims had already been decided against him and were accordingly barred by the doctrine of res judicata. Lewis now appeals that decision.
Discussion
On appeal, Lewis presents three claims. As an initial matter, the State argues that Civil Rule 60(b) is not a procedure that can be used to attack a criminal conviction. We need not decide this issue because we have previously rejected all of Lewis's claims.
First, Lewis argues that his trial and post-conviction attorneys were ineffective because they failed to argue that Judge Moody should have considered Judge Occhipinti's intent in resentencing Lewis. We rejected this claim in Lewis V. We explained that even if Lewis's attorneys had raised this issue, they would not have prevailed, because Judge Moody had merely "performed a `ministerial act' by striking the illegal portion of Lewis's sentence." Because Judge Moody performed a ministerial act, which did not require "further allocution and additional evidence and argument," we conclude that Lewis's additional argument, that his trial counsel was ineffective for failing to object when Judge Moody conducted Lewis's sentence correction hearing without Lewis's presence, is without merit. If trial counsel did not err by failing to make this objection, then it follows that post-conviction relief counsel was not ineffective for failing to raise the issue in the post-conviction relief application.
Id. at 13, 2004 WL 1166367 at *6.
Id. at 8, 13, 2004 WL 1166367 at *4, *6.
Lewis II, Memorandum Opinion and Judgment No. 1700 at 5, 1988 WL 1513109 at *2.
Second, Lewis claims that Judge Occhipinti's intent in sentencing Lewis should have been considered by Judge Moody in correcting Lewis's sentence. Lewis conceded below that "[a]t various times over the intervening years . . . movant has repeatedly asserted this same cause of action." Lewis is correct. We implicitly rejected this claim in Lewis II. In Lewis V, we admitted "that we did not explicitly address the issue of Judge Occhipinti's intent." We explained, however, that Lewis's claim — that Judge Occhipinti's intent should be considered — was properly rejected because the Alaska Supreme Court's remand directed the trial court to simply "strik[e] the illegal portion of Lewis's original sentence (i.e., a ministerial act)."
Id.
Lewis V, Memorandum Opinion and Judgment No. 4875 at 8, 2004 WL 1166367 at *4.
Id.
Third, Lewis argues that his confrontation clause rights were violated because Judge Moody conducted the hearing without Lewis present, and — as Lewis asserts — Judge Moody improperly relied on his knowledge of the case against Lewis stemming from his experience presiding over the trials of Lewis's two codefendants. This Court has already rejected Lewis's argument that the hearing before Judge Moody was the type of proceeding requiring Lewis's presence.
Lewis II, Memorandum Opinion and Judgment No. 1700 at 5, 1988 WL 1513109 at *2.
Lewis apparently concedes that all the claims he raises in this appeal have already been decided. But he argues that "enforcement of the previous decision would work a manifest injustice." However, no new facts have come to light since we issued the decisions Lewis complains about to justify overturning them now.
Accordingly, the judgment of the superior court is AFFIRMED.