Opinion
Court of Appeals No. A-11186 Trial Court No. 1KE-10-85 CR No. 5952
06-05-2013
MICHAEL DRACO OSCEOLA, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: William R. Satterberg Jr, Attorney for the Appellant. Stephen R. West, District Attorney, Ketchikan, 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 Superior Court, First Judicial District, Ketchikan, William B. Carey, Judge.
Appearances: William R. Satterberg Jr, Attorney for the Appellant. Stephen R. West, District Attorney, Ketchikan, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Coats, Senior Judge.
Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).
COATS, Senior Judge.
Following a jury trial, Michael Draco Osceola was convicted of four counts of theft in the second degree, a class C felony. Osceola was a third felony offender and therefore faced a presumptive term of three to five years of imprisonment on each count. The superior court sentenced Osceola to a composite term of five years.
AS 11.46.130(a)(1).
On appeal, Osceola argues that the caption of the superior court's written judgment must be amended because it misdescribes his name. We affirm the superior court's ruling on this matter.
Osceola further argues that he is entitled to be resentenced by another judge. In particular, Osceola claims (for the first time on appeal) that certain comments made by the superior court at sentencing, and during the litigation of a post-sentencing motion, gave rise to a reasonable appearance of bias. We remand Osceola's case to the superior court to allow him to litigate this issue under the procedures established in AS 22.20.020.
Finally, Osceola argues that his composite sentence is excessive. Osceola's sentence falls within the presumptive range that applies to his case, so there is a question as to whether AS 12.55.120(e) deprives this Court of jurisdiction to decide Osceola's excessive sentence claim. This question is currently being briefed in other cases, so we will defer our decision in Osceola's case until we have resolved this jurisdictional issue.
Osceola's claim that the superior court erred in not modifying the judgment to reflect only the name "Michael Draco Osceola"
Michael Osceola has gone by many different names in Alaska and Florida. In general, these names consisted of different arrangements of the names "Michael", "Brady", "Draco", and "Osceola". In April 2009, he legally changed his name to "Michael Draco Osceola." Nine months later, on January 22, 2010, Osceola stole jewelry from four different jewelry stores, resulting in his current convictions.
The original criminal complaint, filed the day after the thefts, listed Osceola's name as "Michael Osceola Brady." The indictment, which was filed five days later, listed Osceola's name as "Michael Osceola Brady aka Michael Osceola Draco."
On the day after he was indicted, Osceola appeared in superior court for his arraignment. Osceola has not supplied a transcript of this proceeding for this appeal. But it appears, from the log notes of this arraignment, that the superior court judge raised the issue of Osceola's name — and, after hearing from Osceola's counsel, the judge indicated that he would refer to the defendant as "Mr. Osceola".
After Osceola was convicted, the court ordered a presentence report. This presentence report referred to Osceola as "Michael Brady". Osceola objected to the use of the name "Michael Brady" in the report, and he renewed this objection at his sentencing hearing. The court ruled that, because Osceola had legally changed his name from "Brady" to "Osceola" before the commission of his current offenses, his legal name for purposes of his convictions was "Michael Draco Osceola". (The court later amended the presentence report, changing all of the "Michael Brady" references to "Michael Osceola".) But when the court issued its written final judgment, the caption stated that the defendant's name was "Michael Draco Osceola a/k/a Michael O. Brady."
After the judgment was distributed, Osceola's attorney wrote to the clerk of court, asking that the reference to the name "Michael O. Brady" be deleted from the judgment. The court issued an order denying the attorney's request. In its order, the court explained that Osceola had been known as "Michael O. Brady" in the past, and he had only recently changed his name. The court reasoned that keeping the reference to the former name on the judgment might help to ensure that the records would reflect that Osceola was the same person who had previously been convicted under the other name (and similar names).
On appeal, Osceola argues that the superior court abused its discretion by refusing to modify the caption of the judgment. In response, the State argues that the judge followed the procedure specified in Alaska Criminal Rule 10(b)(2)(i) — the procedure that a court must follow if the defendant declares, at his felony arraignment on an indictment or information, that the name stated in the indictment or information is not his true name. Rule 10(b)(2)(i) provides: "If the defendant states that another name is the defendant's true name, the court shall direct entry thereof to be made in the record. Subsequent proceedings on the indictment or information shall be had against the defendant by both the declared true name and the name which appears on the indictment or information."
It appears that the superior court reached the result prescribed by this rule: the court's final judgment lists both the defendant's legal name, "Michael Draco Osceola", and the name which appears on the indictment, "Michael Osceola Brady". We accordingly conclude that the superior court did not abuse its discretion in denying Osceola's motion.
But there may be no reason for the judgment to describe the prior name, "Michael Osceola Brady", as a name that Osceola is "also known as". It would appear to be more accurate to describe this prior name as "f/k/a" — that is, "formerly known as". Because a judgment can be modified under Criminal Rule 36 to correct clerical mistakes, Osceola may wish to apply to the superior court for this relief under Criminal Rule 36.
Osceola's claim that we should disqualify the sentencing judge based upon an appearance of bias
The superior court referred to Osceola's Native American heritage during its sentencing remarks and when it later issued its order denying Osceola's request to modify the judgment to reflect only the name "Michael Draco Osceola". The court remarked that Osceola had shown little pride in his heritage because one of the targets of his thefts was a business run by Alaska Natives. The court further remarked that the original Seminole chief Osceola had been one of the judge's boyhood heroes, and the court expressed disappointment that a namesake of Chief Osceola would engage in criminal behavior.
On appeal, Osceola does not assert that the superior court was actually biased against him, but he argues that the court's remarks gave rise to a reasonable appearance of bias — and that, for this reason, this Court should remand Osceola's case to the superior court for resentencing before another judge.
Alaska Statute 22.20.020 sets out a number of grounds for disqualifying a judge for cause. None of these grounds applies directly to Osceola's case, because Osceola does not assert that his sentencing judge was actually biased against him. However, in Phillips v. State, 271 P.3d 457, 466-67 (Alaska App. 2012), we assumed that disqualification was also required "when the circumstances give rise to a reasonable appearance of bias, even when there is no proof that the judge is actually biased."
In cases where the assigned judge does not recuse himself sua sponte, AS 22.20.020 provides that a party must file a motion in the trial court asserting that there is a ground for disqualifying the assigned judge, and asking the judge to disqualify himself. If the assigned judge denies the disqualification motion, the statute provides that another judge will be immediately appointed to review the assigned judge's decision.
Osceola never asked his sentencing judge to disqualify himself. Under normal circumstances, this would prevent Osceola from arguing for the first time on appeal that the sentencing judge should be disqualified. In general, a party should not be allowed "to take a gambler's risk" by withholding an objection, allowing the sentencing to take place, and then (if the party does not like the result) later arguing that the judge should have been disqualified.
Owens v. State, 613 P.2d 259, 261 (Alaska 1980) (quoting Mares v. United States, 383 F.2d 805, 808 (10th Cir. 1967)).
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But this is not what happened in Osceola's case. The sentencing judge's statements which Osceola now challenges were made during the judge's sentencing remarks and in a post-sentencing order. Although we think that the better procedure would have been for Osceola to raise this issue in the trial court, by filing a motion asking for a new sentencing hearing in front of another judge, we believe that the proper procedure is not clear, and we accordingly conclude that it would be unfair to summarily deny Osceola relief for failing to file a motion in the superior court.
However, because Osceola never litigated this issue in the superior court, we do not have an adequate record to consider this issue. Osceola was convicted following a jury trial which was presided over by the same judge. And it appears that this judge conducted several other proceedings. We have no record of Osceola's trial or these other proceedings — and that record might be relevant for evaluating the sentencing judge's comments in context.
We therefore conclude that we should remand this case to the superior court to allow Osceola to file a motion for disqualification under the procedures set out in AS 22.20.020.
Osceola's excessive sentence claim
Osceola argues that his composite sentence of five years of imprisonment is excessive.
AS 12.55.120(e) declares that this Court does not have jurisdiction to hear this claim, because Osceola's sentence is within the applicable presumptive range. Both parties to this case assume that this court does not have jurisdiction to hear the sentence appeal and that we should refer this issue to the Alaska Supreme Court. However, the constitutionality and meaning of AS 12.55.120(e) are currently being litigated before this Court in Reandeau v. State, File No. A-10469, Alvarenga v. State, File No. A-10554, and two other cases.
Because we are remanding Osceola's case to the superior court to allow Osceola to seek disqualification of his sentencing judge and a resentencing, we do not need to decide at this time whether we have jurisdiction to hear Osceola's sentence appeal.
Conclusion
We AFFIRM the superior court's ruling regarding the wording of the caption of the judgment. With regard to Osceola's claim that he is entitled to be resentenced by another judge, we decline to decide this claim in the first instance. Rather, Osceola may (if he wishes) pursue this matter in the superior court by filing a motion for disqualification under AS 22.20.020. And with regard to Osceola's claim that his composite sentence is excessive, we will stay our consideration of this claim until the jurisdictional issue is resolved in Reandeau and Alvarenga.
We accordingly retain jurisdiction of Osceola's excessive sentence claim. In all other respects, jurisdiction is returned to the superior court.