Opinion
Court of Appeals No. A-10958 No. 6091
09-10-2014
SIEGFRIED PEDERSEN, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Siegfried Pedersen, in propria persona, Palmer, 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. Trial Court No. 3PA-09-2426 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Palmer, William L. Estelle, Judge. Appearances: Siegfried Pedersen, in propria persona, Palmer, 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 Hanley, District Court Judge. Judge MANNHEIMER.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Siegfried Pedersen was convicted of criminal charges arising from two separate incidents involving his neighbors. The first of these incidents occurred on May 13, 2009, and the second incident occurred four months later, on September 13, 2009.
The charges arising from these two incidents were joined for trial. However, following his conviction, Pedersen asked this Court to sever the two cases for purposes of appeal, and we granted that request. In Pedersen v. State, unpublished, 2012 WL 1232607 (Alaska App. 2012), we resolved Pedersen's challenge to the charges arising from the May 2009 incident. The present appeal concerns only Pedersen's convictions arising from the September 2009 incident.
Pedersen raises more than a dozen claims of error. As we explain in this opinion, all but one of those claims lack merit or were not preserved for appeal. We do, however, conclude that Pedersen received an illegal sentence: for the offense of second-degree weapons misconduct, the superior court sentenced Pedersen to a term of imprisonment that exceeds the upper end of the applicable presumptive sentencing range. Such a sentence is permissible only if the sentencing court finds one or more aggravating factors. In Pedersen's case, the superior court relied on an aggravating factor that only applied to the May 2009 incident, not the September 2009 incident for which Pedersen was being sentenced. We therefore reverse Pedersen's sentence for second-degree weapons misconduct, and we direct the superior court to re-sentence him.
Underlying facts
In order to explain our resolution of the issues in this appeal, we must describe the facts of both the May 2009 incident (i.e., the incident underlying Pedersen's earlier appeal) and the September 2009 incident (i.e., the incident underlying the present appeal).
The May incident involved a confrontation between Pedersen and a man named Wayne Rutherford, who was renting a cabin from Pedersen. The cabin was located about 300 feet away from Pedersen's house.
This confrontation started because Rutherford saw Pedersen using a backhoe to dig a ditch across Rutherford's driveway — a ditch that would effectively prevent Rutherford from using the driveway to leave his home. When Rutherford went outside to ask Pedersen about this ditch, Pedersen swung the backhoe bucket at him. Rutherford stepped around the backhoe and confronted Pedersen — at which point Pedersen put his hand on a pistol that he was carrying on his hip. Rutherford retreated and called the state troopers.
Two troopers came out to investigate. They tried to telephone Pedersen several times, but they were unsuccessful. The troopers then walked onto Pedersen's property, toward his house. As they approached, they could hear Pedersen talking. The troopers knocked on the side of Pedersen's house, and then they saw Pedersen standing on his balcony, armed with a handgun.
Pedersen yelled at the troopers about trespassing. The troopers ducked behind the house, and then they heard the gun go off. The troopers told Pedersen that they were only there to talk to him, but Pedersen continued to yell at them about trespassing.
Rather than engage in a firefight with Pedersen, the troopers made their way back to Rutherford's cabin. Several minutes later, after they reached the cabin, the troopers heard a second gunshot fired in their direction. The troopers did not arrest Pedersen at that time.
The September incident involved a confrontation between Pedersen and two of his other neighbors, Daniel Blythe and Bobbie Luxford.
Blythe was getting ready to go to work when he saw Pedersen outside his house. Pedersen was in the process of removing a "Slow, Kids at Play" sign that Blythe and Luxford had erected, and he was throwing the sign into the woods. Blythe went outside to confront Pedersen, but then he heard Pedersen fire a pistol, so he went back to get his own gun. By the time Blythe came back outside, Pedersen was driving off. Blythe then went to work.
When Blythe came home from work that night, he noticed that the blind on one of his windows was broken. The next day, Blythe and Luxford inspected the broken window blind and discovered that there was a bullet hole in the window. At that point, Luxford called the troopers.
When the troopers arrived to investigate, they found a spent bullet lodged in the stairwell of Blythe and Luxford's home. Following an investigation, the troopers arrested Pedersen four days later.
The same day that the troopers arrested Pedersen, they searched his house and seized several guns, as well as various types of ammunition.
Procedural facts
Based on the September incident, Pedersen was charged with third-degree assault (for placing Blythe in fear of serious physical injury by means of a dangerous instrument), second-degree weapons misconduct (for discharging a firearm at Blythe and Luxford's home), and two counts of fourth-degree weapons misconduct (discharging a firearm on or from or across a highway).
Pedersen's trial on these charges was scheduled to begin on January 21, 2010. But on that day, the State notified the superior court that a grand jury had indicted Pedersen on felony charges arising from the May incident, and Pedersen's trial was delayed.
The superior court later granted the State's motion to join all of the charges for trial. At the joint trial, the jury convicted Pedersen of all the charges arising from the two incidents.
As we explained earlier, we granted Pedersen's request to bifurcate his appeal, and we have already affirmed Pedersen's convictions arising from the May incident. In the present appeal, Pedersen challenges his convictions arising from the September incident.
Pedersen's attack on the arrest and search warrants related to the September charges
Pedersen asserts that the arrest and search warrants were not supported by probable cause. But as he acknowledges, he did not attack these warrants in the trial court.
Alaska Criminal Rule 12(b) and 12(c), in combination, declare that motions to suppress evidence and attacks on the procedures used to institute the criminal proceedings must be raised within 45 days of the defendant's arraignment, or by any later motions deadline set by the trial court — and, in any event, they must be made before trial. Under Criminal Rule 12(e), a defendant who fails to meet the deadline forfeits any such claims.
As Pedersen acknowledges, he failed to attack the arrest and search warrants related to the September incident in the trial court. He is therefore precluded from attacking these warrants in this appeal.
Pedersen's attack on the criminal complaints relating to the September incident
Pedersen argues that the criminal complaint filed against him (the complaint relating to the September incident) failed to comply with the requirements of Alaska Criminal Rule 3 in two respects.
First, Pedersen points out that the complaint was signed by a state trooper, rather than by the victims of the offenses (Blythe and Luxford). But there is no requirement that criminal complaints be signed by the victim of the crime. Indeed, the complaining party in a criminal case is the government, not the victim.
See Cooper v. District Court, 133 P.3d 692, 698-99 (Alaska App. 2006).
Moreover, as we explained in the preceding section, Criminal Rule 12 requires that all attacks on the institution of criminal charges be raised before trial. Accordingly, to the extent that Pedersen is arguing that the complaint was legally inadequate to support the criminal charges against him, he is precluded from raising this attack on appeal because he did not raise this claim in the trial court.
Second, Pedersen argues that the complaint did not comply with Criminal Rule 3(e) and the corresponding provision of Criminal Rule 37(e)(2) because the complaint did not list the search warrant issued in connection with this case (the warrant authorizing the search of Pedersen's residence).
But the record does not contain a copy of this search warrant, nor does the record indicate when this search warrant was granted. The record does indicate that the warrant was executed after the troopers arrested Pedersen on September 18, 2009. And the complaint was signed two days earlier, on September 16th.
In other words, based on this record, we are unable to tell whether the search warrant was issued before the complaint was filed, and it affirmatively appears that the warrant was not served until after the complaint was filed. Thus, Pedersen has failed to establish a violation of Criminal Rules 3(e) and 37(e)(2).
Moreover, even assuming that the search warrant should have been listed on the complaint, Pedersen has not shown that he was prejudiced by the absence of this information on the complaint. The record shows that Pedersen knew about the search warrant: in a motion to dismiss the indictment (i.e., the indictment based on the September incident), Pedersen stated, "A search warrant was obtained to seize all weapons owned by Mr. Pedersen."
Thus, even if the failure to list the search warrant on the complaint constituted a violation of Criminal Rule 3(e) and Criminal Rule 37(e)(2), Pedersen has not shown this violation prejudiced him. And for this reason, Pedersen is not entitled to relief. See Brannan v. State, 798 P.2d 337, 339 (Alaska App. 1990).
Pedersen's claim that the State violated his right to a preliminary hearing under Alaska Criminal Rule 5
Under Alaska Criminal Rule 5(e)(4), when a defendant is taken into custody on felony charges, and is unable to obtain bail release within ten days, and is not indicted within those ten days, the defendant is entitled to a preliminary hearing. At this preliminary hearing, the State must establish probable cause to believe that the defendant committed the crimes charged, or the defendant is entitled to immediate release and to dismissal of the charges — but without prejudice to a later indictment.
See Sproates v. State, 81 P.3d 301, 302-04 (Alaska App. 2003); Buchanan v. State, 561 P.2d 1197, 1208 (Alaska 1977).
Here, Pedersen did not receive a preliminary hearing within the time limits of Criminal Rule 5. Indeed, in the trial court, the State conceded as much: because of the violation of Rule 5, the State reduced two of the pending felony charges to misdemeanors and consented to have the other two felony charges dismissed pending Pedersen's later indictment. (Pedersen remained in custody because of the pending misdemeanor charges, for which he had no right to a preliminary hearing.)
When the felony charges against him were either reduced or dismissed (pending later indictment), Pedersen received the only remedy to which he was entitled. As this Court explained in Marshall v. State, 198 P.3d 567, 577 (Alaska App. 2008), even when a defendant does not receive a preliminary hearing as prescribed by Criminal Rule 5, the violation of the rule becomes moot if the defendant is later indicted on felony charges — which is what happened in Pedersen's case.
Thus, Pedersen's argument concerning the lack of a preliminary hearing is moot.
Pedersen's claim that the State violated its duty to present exculpatory evidence to the grand jury
On appeal, Pedersen argues that the grand jury indictment arising from the September incident is flawed because the State failed to inform the grand jurors about his purported alibi, and that none of the footprints found at the scene matched Pedersen's footprints, and that the bullet found in the stairwell of the Blythe / Luxford residence did not match any of the firearms found in Pedersen's house.
However, in the superior court, Pedersen preserved only one of these arguments: his claim that the State should have informed the grand jurors about the lack of a ballistics match between the bullet found in the stairwell and the firearms found in Pedersen's house.
The superior court denied Pedersen's challenge to the indictment on two bases.
First, a prosecutor's duty to present exculpatory evidence to the grand jury extends only to evidence that is known to the prosecutor, and the superior court found that the ballistics testing had not been completed at the time the State presented Pedersen's case to the grand jury.
See York v. State, 757 P.2d 68, 73 (Alaska App. 1988); Wilkie v. State, 715 P.2d 1199, 1201 (Alaska App. 1986).
Second, the superior court concluded that the lack of a ballistics match did not constitute "exculpatory" evidence for grand jury purposes because there were non-exculpatory explanations for the lack of a match — in particular, the possibility that Pedersen hid the firearm, or got rid of it, after the shooting. See Wilkie v. State, 715 P.2d 1199, 1201 (Alaska App. 1986), and Frink v. State, 597 P.2d 154, 164-66 (Alaska 1979) (limiting the prosecutor's duty to presenting evidence that in and of itself tends to negate guilt).
Pedersen does not challenge the superior court's finding that the ballistics results did not exist at the time the State presented Pedersen's case to the grand jury. That finding is dispositive of Pedersen's claim of error.
Pedersen's challenges to the conditions of his pre-trial bail and his post-conviction bail
Pedersen raises various challenges to the procedures that the trial court used when setting his pre-trial bail. (Pedersen filed an earlier appeal of his pre-trial bail conditions, as authorized by Appellate Rule 207, but he later voluntarily withdrew that appeal. See Pedersen v. State, Court of Appeals File No. A-10599.)
Now that Pedersen has been convicted and sentenced, his challenges to his pre-trial bail are moot — because he is no longer in custody under that pre-trial order. See State v. Roberts, 999 P.2d 151, 153 (Alaska App. 2000).
Pedersen also challenges his post-conviction bail (that is, his bail pending appeal). But Appellate Rule 206(b) specifies that an appeal of a defendant's conditions of post-conviction bail must be filed within 30 days after the trial court's issuance of the challenged bail order, and the appeal must take the form of a motion in the defendant's related appeal of their criminal conviction.
Pedersen has not followed these procedures. And because we are today issuing our decision on the merits of his appellate claims, Pedersen's situation has substantially altered since the time the superior court made its bail decision. For these reasons, we decline to address Pedersen's attacks on the conditions of his post-conviction bail.
Pedersen's claim that the charges arising from the May incident and the charges arising from the September incident should have been tried separately
As we explained earlier in this opinion, just as Pedersen was about to go to trial on the charges arising from the September incident, a grand jury indicted him on charges arising from the May incident. The superior court later granted the State's request to join the two cases for trial. In this appeal, Pedersen argues that the charges were not properly joined.
Alaska Criminal Rule 8(a) governs the joinder of criminal charges for trial. Here, the pertinent clause of the rule is subsection (a)(1), which allows joinder when the offenses charged against a defendant "are of the same or similar character", and when it appears that the evidence of the different offenses will be cross-admissible.
Even when charges are properly joined under Criminal Rule 8(a), the trial court has the authority under Criminal Rule 14 to require separate trials if either the defendant or the government would be unfairly prejudiced by joinder. Thus, Pedersen's claim actually raises two questions: (1) Were the conditions for joinder specified in Rule 8(a) met? and (2) Could the superior court reasonably conclude that joinder of these charges would not unfairly prejudice Pedersen?
In both the May and the September cases, Pedersen was charged with offenses of "the same or similar character": third-degree assault (for threatening people with a firearm), and second-degree weapons misconduct (for discharging a firearm in the direction of a dwelling, or toward a building with reckless disregard for the risk of injury to a person).
The next question is whether the superior court could reasonably find that evidence of these different offenses would likely be cross-admissible (even if the charges arising from the two incidents were tried separately). But given the procedural posture of Pedersen's case, a portion of this question is moot.
As we have explained, Pedersen has already litigated a separate appeal involving his convictions arising from the May incident, and this Court affirmed those convictions. The only convictions at issue now are Pedersen's convictions from the September incident. Thus, even if the trial of the May charges was rendered unfair by the joinder (an issue that Pedersen did not raise in his other appeal), that problem would be moot. The only live question, at this point, is whether Pedersen's trial on the September charges was rendered unfair by the joinder.
To answer that question, we must evaluate whether the superior court could reasonably find that evidence of the May incident would be admissible at a separate trial of the charges arising from the September incident.
With regard to the charges arising from the September incident, Pedersen's defense was alibi: he claimed that he was not present at the Blythe / Luxford property on the day in question, that he had not fired a weapon at them or at their house, and that Blythe and Luxford were lying about what happened because they wanted to get him out of the neighborhood.
The superior court concluded that evidence of the May incident was admissible, and was relevant to prove Pedersen's guilt of the offenses arising from the September incident, because this evidence (if believed) tended to prove that Pedersen acted antagonistically and violently toward a specific group of people — his geographic neighbors — in disputes over land use.
The Alaska Supreme Court has upheld similar rulings in past cases. See Adkinson v. State, 611 P.2d 528, 531-32 (Alaska 1980) (upholding the admission of evidence that the defendant acted violently toward other trespassers), and Frink v. State, 597 P.2d 154, 169-170 (Alaska 1979) (upholding the admission of evidence that the defendant acted violently toward men who he believed were romantically involved with his girlfriend).
Given the record here, and given the supreme court's decisions in Adkinson and Frink, we conclude that the superior court did not abuse its discretion when it ruled that evidence of the May incident would be admissible even at a separate trial of the charges arising from the September incident.
The superior court also concluded that Pedersen would not be unfairly prejudiced by the joinder. On appeal, Pedersen argues that the inclusion of evidence concerning the May incident improperly bolstered the State's case regarding the September charges.
As this Court explained in Pease v. State, 54 P.3d 316, 322 (Alaska App. 2002), a defendant is "hard-pressed" to show actual prejudice from a joinder of charges when "the evidence would have been admitted even if the judge had granted separate trials." In Pedersen's case, the evidence of the May incident might have strengthened the State's case with respect to the September charges, but that was proper — because, as we have just concluded, this evidence was admissible even at a separate trial of the September charges.
Pedersen also argues that he was prejudiced by the joinder because he had originally planned to testify only at the trial of the May charges, but the joinder forced him to testify about both the May charges and the September charges.
In the superior court, Pedersen raised this objection orally, after the court had already announced its joinder decision (based on the arguments contained in the parties' written pleadings). When Pedersen's attorney raised this new argument in response to the court's decision, the court suggested that the attorney should present this new argument more fully in a motion for reconsideration. The defense attorney replied that he would do so. But the defense attorney never filed a motion for reconsideration.
As a consequence, the record on this issue consists only of the defense attorney's assertion that (1) Pedersen wished to testify about the May incident but that (2) he did not wish to testify about the September incident, because the State's evidence with respect to that incident was weaker — an apparent reference to the fact that the State was unable to match the bullet retrieved from the stairwell with any of the weapons found in Pedersen's house.
There is a line of Alaska cases — beginning with Cleveland v. State, 538 P.2d 1006 (Alaska 1975), and culminating most recently with Grandstaff v. State, 171 P.3d 1176, 1187-88 (Alaska App. 2007) — explaining the law that applies when a defendant argues against a joinder of charges on the basis that the defendant wishes to testify about some of the charges but not others.
In order to prevail on such an argument, defendants must make a convincing showing that they have both (1) important testimony to give concerning one set of charges, and (2) a strong need to refrain from testifying on the other set. This means that defendants who oppose joinder on this basis "must specifically identify what [they plan] to testify about on the one [set of charges]", and must specifically identify "what dangers lie in testifying on the other."
Grandstaff, 171 P.3d at 1187-88, citing Nell v. State, 642 P.2d 1361, 1364 (Alaska App. 1982).
Grandstaff, 171 P.3d at 1188, citing Nell v. State, 642 P.2d at 1364.
Pedersen's attorney was given the opportunity to flesh out his objection to the joinder (when the superior court invited him to file a motion for reconsideration), but the defense attorney failed to do so. And in his oral remarks to the court, Pedersen's attorney never explained to the superior court why it was important for Pedersen to testify about the May charges, and why it was important for Pedersen to refrain from testifying about the September charges.
Thus, Pedersen's explanation — his offer of proof — was not sufficient to meet the standard established by our prior decisions on this point. Pedersen failed to offer the superior court any good reason to reconsider its ruling on the joinder.
For these reasons, we uphold the superior court's ruling that Pedersen would not be unfairly prejudiced by the joinder.
Pedersen's claim that the State failed to meet its pre-trial discovery obligations
Pedersen contends that the State failed to provide all of the documents he requested during pre-trial discovery — in particular, potentially adverse information about the victims and other witnesses.
But when this issue was discussed in the trial court, the judge twice asked Pedersen's attorney whether the defense was satisfied with the discovery provided by the State. After asking the second time, the trial judge stated (without objection from defense counsel) that the defense "ha[d] waived" — i.e., was no longer pressing — their earlier objection regarding discovery.
Given this record, Pedersen failed to preserve his objection to the scope of the State's pre-trial discovery.
Pedersen's challenge to the prosecutor's remarks during opening statement and summation
Pedersen asserts that his conviction should be reversed because, during the State's opening statement, the prosecutor pointed to Pedersen and said, "We're here on a very serious case, on a very dangerous man: the defendant right here."
As soon as the prosecutor made this remark, Pedersen's attorney objected and moved for a mistrial. The superior court denied the mistrial, but the court gave a curative instruction to the jury — explaining that the case was about Pedersen's conduct, and not his character as a person. The defense attorney made no further objection on this issue and did not ask the court for any additional relief.
The prosecutor committed misconduct by characterizing Pedersen as "a very dangerous man" during opening statement. Compare our decision in Rogers v. State, 275 P.3d 574, 576 (Alaska App. 2012), where we held that a prosecutor acted improperly when he declared, in opening statement, that the defendant was a "bad, bad man who committed a terrible crime".
However, the question on appeal is whether the superior court abused its discretion when the court decided to respond to the prosecutor's remark with a curative instruction, rather than granting a mistrial.
When a trial judge responds to an impropriety during trial with a curative or cautionary instruction to the jury, that instruction "is presumed to cure any error". Roth v. State, 626 P.2d 583, 585 (Alaska App. 1981).
Quoting Anderson v. State, 438 P.2d 228, 332-33 n. 15 (Alaska 1968).
Concededly, the trial judge's instruction might have been more direct. The judge did not explicitly tell the jury to disregard the prosecutor's comment. Instead, the judge essentially told the jury that Pedersen's underlying character was beside the point, and that the jurors were to focus on whether the State could prove that Pedersen committed the offenses charged in the indictment.
But as we explained, Pedersen's attorney did not ask the trial judge for a different or fuller curative instruction. Nor does Pedersen argue on appeal why we should conclude that the judge's instruction was insufficient.
We therefore conclude that the trial judge did not abuse his discretion by handling the problem in this manner.
Pedersen also challenges a remark that the prosecutor made during his summation to the jury at the close of the case — a remark regarding a defense witness, James Sims.
As we noted earlier, Pedersen presented an alibi defense to the charges arising out of the September incident. In support of this alibi defense, Pedersen called James Sims as a witness. Sims was a neighbor of Pedersen's. He testified that Pedersen was within his sight all day on September 13, 2009, and that he did not see Pedersen leave his property.
On direct examination, the defense attorney asked Sims if he and Pedersen were friends. Sims responded, "Well, we're neighbors. ... I probably wouldn't associate with him if I wasn't a neighbor." The defense attorney later asked Sims whether he socialized with Pedersen, to which Sims responded, "Not other than when I'm up there [in the neighborhood]; I'll have a cup of coffee and watch ... 10, 15 minutes of a movie [with him, and] then I go back to work, and he goes back to work."
On cross-examination, Sims explained that he only lived in the Caswell Lakes area about 20 to 40 days per year. Sims testified that every time he came to Caswell Lakes, he would go to see Pedersen, "have a cup of coffee with him, and listen to his turmoils of life." Sims also testified that Pedersen gave him access to his house after he was arrested, so that Sims could "maintain [the house] and keep an eye on things." In addition, Sims stated that he had spoken to Pedersen "at least a dozen times" since Pedersen was arrested, and that he had visited Pedersen in jail "probably at least six to eight times and [discussed] maintenance of his property and other issues."
In summation, the prosecutor told the jurors that Sims was "more of a buddy" to Pedersen, not just a neighbor. Even though Pedersen's attorney did not object to the prosecutor's remark at the time, Pedersen now contends (on appeal) that the prosecutor's remark violated his rights.
But in closing argument, counsel for both sides can discuss the evidence and can argue "any inferences that can reasonably be drawn therefrom." Lewis v. State, 862 P.2d 181, 189 (Alaska App. 1993). Taking Sims's testimony as a whole, it was reasonable to infer that Sims and Pedersen had a closer relationship than many neighbors, and that Sims was, indeed, "more of a buddy" to Pedersen. Thus, the prosecutor's remark was not plain error; indeed, it appears to have been proper.
Pedersen's claim that the jurors saw him wearing prison footwear
Pedersen asserts that, during the trial, the jurors saw him wearing prison footwear: pink socks and blue and white slippers. He argues that the jurors were able to infer that he was in prison, and thus their consideration of the case may have been prejudiced.
Pedersen concedes that his trial attorney failed to "take any corrective action", but he asserts it was plain error for the trial judge to allow the trial to proceed.
The record shows that, on the first morning of trial, Pedersen arrived at the courthouse wearing prison attire, but his defense attorney had brought civilian clothing for Pedersen to wear. It is possible that Pedersen's attorney forgot to bring shoes and socks for Pedersen — but if that was the case, the record does not show it. This Court has searched the electronic transcript for the words "clothes", "attire", and "shoes" — and we failed to find any discussion of these topics after the jury first came into the courtroom.
Even assuming that Pedersen was wearing prison footwear when the trial first began, the record fails to support Pedersen's argument that this was so prejudicial as to constitute plain error. The jury selection and presentation of evidence in Pedersen's case lasted a total of nine days. There is no indication that Pedersen was wearing prison footwear this whole time.
Moreover, Pedersen's jury was fully aware that Pedersen was in custody. His alibi witness, Sims, testified he had visited Pedersen in jail several times, and that he was taking care of Pedersen's property.
In short, if the alleged error occurred, it was not plain error.
Pedersen's claims regarding the diagram of Pedersen's neighborhood that the prosecutor used during the examination of several witnesses
At trial, during the examination of several witnesses, the prosecutor used a diagram of Pedersen's neighborhood. The trial judge directed the prosecutor to place this diagram where the jurors and Pedersen's defense attorney could see it, and the judge checked several times to make sure that the diagram was visible to the jurors and to counsel.
Pedersen contends that he personally could not see this diagram, at least at certain times, and that his inability to see the diagram amounted to a deprivation of due process. Pedersen relies primarily on the fact that the prosecutor would remove the diagram from its easel in order to have witnesses point to specific aspects of the diagram, or to mark on the diagram.
But there is nothing in the record to support Pedersen's claim that he was unable to see the diagram. As Pedersen concedes, his attorney never objected to the placement of the easel or the prosecutor's temporary removal of the diagram from the easel.
In a separate claim, Pedersen argues that the prosecutor's diagram did not accurately depict his neighborhood, and that the prosecutor's use of this inaccurate diagram elicited false or misleading testimony about the location of various structures in the neighborhood. There is no basis in the record for this claim.
We further note that, in addition to using the diagram, the prosecutor introduced photographs of the area. If the diagram was indeed inaccurate, both the defense attorney and the jurors had ample opportunity to observe the inaccuracy.
Pedersen's claim that the trial judge failed to instruct the jury on the defense of alibi
As we have explained, Pedersen's defense to the charges arising from the September incident was alibi. On appeal, Pedersen claims that the trial judge failed to instruct the jury on alibi.
This claim has no basis in the record. Pedersen's attorney requested the pattern instruction on alibi, and the trial judge gave it.
Pedersen's claim that the evidence presented at his trial was legally insufficient to support his convictions on the charges arising from the September incident
Pedersen argues that the evidence presented at his trial was legally insufficient to support his convictions on the charges arising out of the September incident: third-degree assault (for placing Blythe in fear of imminent serious physical injury by means of a dangerous instrument), second-degree weapons misconduct (for shooting at a dwelling), and two counts of fourth-degree weapons misconduct (discharging a firearm from, on, or across a highway).
More specifically, Pedersen contends the evidence was not sufficient to establish that he was the perpetrator of these offenses. In the alternative, Pedersen contends that, to the extent the State's evidence might be viewed as sufficient, it should nevertheless be deemed insufficient because (according to Pedersen) the troopers who testified for the State gave false testimony and lacked credibility.
Pedersen's arguments are based on a skeptical view of the State's evidence. But when an appellate court assesses the legal sufficiency of the evidence presented at a defendant's trial, we are required to view the evidence — and all reasonable inferences to be drawn from that evidence — in the light most favorable to upholding the jury's verdicts.
Rupeiks v. State, 263 P.3d 57, 59 (Alaska App. 2011); Cleveland v. State, 258 P.3d 878, 885 (Alaska App. 2011).
When the evidence is viewed in that light, it is sufficient to warrant a reasonable person in concluding, beyond a reasonable doubt, that Pedersen committed the charged offenses. The evidence is therefore legally sufficient to support the jury's verdicts.
Pedersen's various claims that his trial counsel was ineffective
Pedersen argues that he received ineffective assistance of counsel from the attorney who represented him at his trial. But absent the rare times when the record of a criminal trial provides incontrovertible evidence of attorney incompetence, Alaska law requires a defendant to litigate claims of ineffective assistance of counsel in a separate proceeding: either in a motion for a new trial, or in a petition for post-conviction relief. Barry v. State, 675 P.2d 1292, 1295-96 (Alaska App. 1984).
Pedersen asserts he has complied with the rule announced in Barry because he has provided this Court with an affidavit detailing his claims (as an attachment to his brief on appeal), and because he has attempted several times (unsuccessfully) to obtain a responsive affidavit from his trial attorney.
But although the Barry decision discusses the requirement of supporting affidavits, that is not the crux of the Barry decision. The crucial aspect of Barry is the requirement that claims of ineffective assistance of counsel be subjected to the testing of adversarial litigation — litigation in front of a court that is authorized (1) to receive evidence, (2) to evaluate the credibility of witnesses and to assess the weight to be given their testimony, and ultimately (3) to make findings of fact resolving conflicts in the evidence. Id., 675 P.2d at 1295-96.
This requirement is not satisfied by the presentation of affidavits on appeal, and Pedersen is not entitled to litigate his claims of ineffective assistance of counsel in this fashion.
We note, however, that Pedersen already has an application for post-conviction relief pending in the superior court. See our recent decision in Pedersen v. State, unpublished, 2014 WL 819605 (Alaska App. 2014).
Pedersen's claims that the sentencing court improperly rejected his proposed mitigating factors
In one sentence of his brief, Pedersen asserts that the superior court committed error when it rejected his proposed mitigating factors at sentencing. Pedersen's briefing is not sufficient to preserve these claims for appeal.
See Iverson v. Griffith, 180 P.3d 943, 946 n. 12 (Alaska 2008), and Adamson v. University of Alaska, 819 P.2d 886, 889 n. 3 (Alaska 1991), both holding that when an issue is given only cursory treatment in an appellant's opening brief, the issue is waived.
Pedersen's claim that the sentencing court should have referred his case to the three-judge sentencing panel, so that Pedersen might receive a sentence below the 1-year low end of the applicable presumptive range for second-degree weapons misconduct
In another sentence of his brief, Pedersen asserts that the superior court committed error when it rejected his request for referral to the three-judge sentencing panel under AS 12.55.165, so that he might receive a sentence of less than 1 year's imprisonment, the low end of the applicable presumptive range for his most serious offense, second-degree weapons misconduct. Again, Pedersen's briefing is not sufficient to preserve this claim for appeal.
Pedersen's sentence for second-degree weapons misconduct is illegal
For his conduct during the September incident, Pedersen was convicted of second-degree weapons misconduct under AS 11.61.195(a)(3)(B), third-degree assault under AS 11.41.220(a)(1)(A), and two counts of fourth-degree weapons misconduct under AS 11.61.210(a)(2).
Second-degree weapons misconduct is a class B felony. As a first felony offender, Pedersen was subject to a presumptive sentencing range of 1 to 3 years' imprisonment for this offense. Third-degree assault is a class C felony.As a first felony offender, Pedersen faced a presumptive sentencing range of 0 to 2 years' imprisonment for this offense.
AS 11.61.195(b).
AS 12.55.125(d)(1).
AS 11.41.220(e).
AS 12.55.125(e)(1).
For Pedersen's most serious offense (second-degree weapons misconduct), the superior court imposed a sentence above the applicable presumptive range: 4 years' imprisonment with 2 years suspended. The court sentenced Pedersen to a concurrent 6 months' imprisonment for the third-degree assault, and to two concurrent sentences of 1 day's imprisonment for the fourth-degree weapons misconduct convictions.
AS 12.55.125(n) declares that when the superior court sentences a defendant within one of the presumptive ranges specified by paragraphs (c), (d), (e), or (i) of AS 12.55.125, "the total term, made up of the active term of imprisonment plus any suspended term of imprisonment, must fall within the presumptive range ... ." (Emphasis added.) Here, the high end of the applicable presumptive range was 3 years, but Pedersen's total term for this offense was 4 years.
Such a sentence would be legal if the court had found an aggravating factor. And the State did prove one aggravating factor at Pedersen's sentencing — the aggravating factor defined in AS 12.55.155(c)(13): that Pedersen's conduct was knowingly directed at a law enforcement officer. But this aggravator applied only to the charges arising from the May incident (when Pedersen assaulted the troopers). It did not apply to the second-degree weapons misconduct arising from the September incident.
Thus, Pedersen's sentence for second-degree weapons misconduct is illegal, and he must be re-sentenced.
As this Court has recognized in past decisions, when a judge sentences a defendant for two or more crimes, the judge often views the separate convictions as essentially a single episode of criminal misconduct, and the judge's primary sentencing aim is to fashion a composite term that is appropriate for the totality of the defendant's conduct. In such cases, the judge's selection of the individual sentences for each separate conviction may be wholly fortuitous — and thus, when an appellate court decrees that one of the sentences must be vacated or reduced, the sentencing judge retains the authority to increase the defendant's remaining sentences, so long as the judge does not exceed the originally imposed composite sentence. See Walsh v. State, 134 P.3d 366, 372-73 (Alaska App. 2006); Allain v. State, 810 P.2d 1019, 1021-22 (Alaska App. 1991).
In its sentencing remarks in this case, the superior court characterized Pedersen as a person who demonstrated "[clear] disregard for the law", who "use[d] terror and fear to control people", and who had "no sense of society's limits or the limits of proper behavior". Based on Pedersen's behavior and his ongoing refusal to accept the notion that he might be to blame in any fashion, the superior court found that Pedersen was a "worst offender" for sentencing purposes, and that "[his] rehabilitation potential [was] remote".
The superior court further declared that isolation was the "most important" factor in selecting Pedersen's sentence:
The Court: The defendant needs to be isolated. There is no indication that he's going to change his behavior. There's no indication that he's not going to continue to escalate, and require ambulances and hearses to be sent to accompany law enforcement [officers] when they respond to his behavior. Isolation, I believe, is the most important.
. . .
In the Court's view, it's established beyond a reasonable doubt that the defendant is a worst offender, and that he is not going to stop violating people's property rights, ... [and] not going to stop intimidating, scaring, or traumatizing ... his neighbors[.]
The superior court sentenced Pedersen to 4 years' imprisonment with 2 years suspended (2 years to serve) for his most serious offense, second-degree weapons misconduct. But for Pedersen's other felony offense — third-degree assault — the court only imposed a sentence of 6 months' imprisonment, and the court ordered this sentence to run concurrently with Pedersen's weapons misconduct sentence.
The superior court's sentencing remarks, the relative lenity of Pedersen's sentence for third-degree assault, and the fact that this sentence for third-degree assault was made wholly concurrent (even though the third-degree assault charge was based on a temporally separate act of assault) all suggest that the sentencing court may have had a particular composite term in mind, and that Pedersen's individual sentences on these two felony counts were designed to achieve this composite term.
If so, then when Pedersen is re-sentenced, the superior court has the authority to adjust Pedersen's sentence on both counts under Allain.
Pedersen's remaining sentencing claims are moot
Pedersen raises a few other sentencing claims.
He asserts that the sentencing court violated his right to trial by jury when the court found that he was a "worst offender" for sentencing purposes without submitting this question to the jury. We rejected this argument in Baker v. State, 182 P.3d 655, 658-59 (Alaska App. 2008). But in any event, the claim is moot: a finding of "worst offender" is required only when a defendant receives the maximum sentence for an offense, and Pedersen did not receive the maximum sentence for any of his crimes.
Galaktionoff v. State, 486 P.2d 919, 924 (Alaska 1971).
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Pedersen also claims that his composite sentence is excessive, and that the length of his probation is excessive. Because Pedersen must be re-sentenced, these claims are moot.
Pedersen's other claims
Pedersen raises several other claims that do not relate to the validity of his convictions or sentences. Many of these claims are civil in nature. For instance, Pedersen claims that the troopers used excessive force when they arrested him; that the troopers violated his civil rights; that he was the victim of several thefts while in custody; that the troopers improperly secured his property after they conducted the search at his residence, and that they damaged his property while executing the search warrant; and that the individual who was prosecuted for stealing Pedersen's backhoe received too lenient a sentence, thereby demonstrating the trial court's prejudice against Pedersen.
These claims are not properly before this Court.
Conclusion
We AFFIRM Pedersen's convictions arising from the September 2009 incident. However, Pedersen's sentence for second-degree weapons misconduct is illegally severe, so Pedersen must be re-sentenced.
We do not retain jurisdiction of this appeal. If, after Pedersen is re-sentenced, either party wishes to appeal the superior court's sentencing decision, they may do so.