Summary
suggesting that allowing new post-conviction relief claims to be brought on appeal would turn appeals into "a second, independent petition for post-conviction relief . . . addressed to an appellate court in the first instance"
Summary of this case from Morena v. StateOpinion
Court of Appeals No. A-9303.
August 1, 2007.
Appeal from the Superior Court, First Judicial District, Ketchikan, Trevor N. Stephens, Judge, Trial Court No. 1KE-03-444 Civ.
Dan Lowery, Assistant Public Defender, and Q uinlan Steiner, Public D efender, Anchorage, for the Appellant. Timothy W. Terrell, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Craig J. Tillery, Acting Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
In September 2001, Byron L. Peters was convicted of driving while intoxicated and driving while his license was revoked. This Court affirmed Peters's convictions on appeal: see Peters v. State, Alaska App. Memorandum Opinion No. 4766 (October 1, 2003), 2003 WL 22249922.
While Peters's direct appeal was pending, he filed a pro se petition for post-conviction relief. After Peters received a court-appointed attorney to assist him in this litigation, he filed an amended petition. In this petition, Peters alleged that his trial attorney had incompetently allowed the trial judge to instruct the jury that Peters's guilt of DWI hinged on his blood alcohol level at the time he submitted to the breath test, rather than on his blood alcohol level at the time he was driving. Peters also alleged that his appellate attorney had incompetently failed to raise this issue in Peters's direct appeal of his convictions.
(See Conrad v. State, 54 P.3d 313 (Alaska App. 2002), where this Court held that, under the pre-2004 version of AS 28.35.030(a)(2), a defendant's guilt of DWI hinged, not on whether their blood alcohol level equaled or exceeded the proscribed percentage at the time their breath or blood was tested, but rather on whether their blood alcohol level equaled or exceeded the proscribed percentage at the time they were operating the motor vehicle.)
Superior Court Judge Trevor N. Stephens denied the petition for post-conviction relief, and Peters now appeals. We affirm the superior court's decision because we conclude that the jury instructions at Peters's trial conformed to Conrad.
It is true that this Court issued our decision in Conrad in 2002 — that is, after Peters's trial. But twenty years earlier, in Doyle v. State, 633 P.2d 306 (Alaska App. 1981), another case dealing with a DWI prosecution based on blood alcohol level, this Court had already construed the Alaska statutes to require proof that the defendant's blood alcohol level equaled or exceeded the proscribed percentage at the time the defendant operated the motor vehicle — and that the defendant's blood alcohol level at the time of the chemical test(s) merely created a rebuttable presumption that the defendant's blood alcohol level was at least that high at the time of driving. Doyle, 633 P.2d at 310-11. We re-affirmed this view of the law in Conrad, 54 P.3d at 314-15.
Peters's jury was in fact instructed in accordance with this law. Jury Instruction 16, which listed the elements of the offense, informed the jurors that the State was required to prove beyond a reasonable doubt
that the defendant, Byron Peters, knowingly drove a motor vehicle . . . when, as determined by a chemical test taken within four hours after the alleged offense, there was 0.10 percent or more by weight of alcohol in [Peters's] blood. . . .
This instruction comports with Doyle and Conrad: it told the jurors that the State was obliged to prove that Peters knowingly drove a motor vehicle when there was 0.10 percent or more by weight of alcohol in his blood, as determined by a chemical test that was conducted within four hours of the event.
Further, any potential confusion in the wording of Instruction 16 was alleviated by Instruction 20, which instructed the jurors concerning the rebuttable presumption that this Court recognized in Doyle and re-affirmed in Conrad. Instruction 20 told the jurors (in pertinent part):
If you find that, within four hours of driving, Byron Peters was tested on a properly calibrated, properly functioning Intoximeter and the test result was at least .10 [percent blood alcohol], then it is presumed that the defendant had at least that amount of alcohol [in his body] at the time that he is alleged to have driven a motor vehicle.
Thus, Instruction 20 re-emphasized that the ultimate fact to be proved was Peters's blood alcohol level at the time of his driving, not his blood alcohol level at the time of the breath test.
Because Peters's jury was instructed in conformity with Doyle and Conrad, neither his trial attorney nor his appellate attorney acted incompetently when they failed to challenge Peters's DUI conviction on this ground.
On appeal, Peters raises another issue. He notes that Instruction 20 uses the phrasing " it is presumed that the defendant had at least that amount of alcohol . . . at the time that he is alleged to have driven a motor vehicle". Peters argues that this wording is error per se.
Peters points out that, under Alaska Evidence Rule 303(a)(1), when an evidentiary presumption runs in favor of the government in a criminal case (as was true in Peters's case), "no mention of the word `presumption' shall be made to the jury". Instead, according to Evidence Rule 303(a)(1), the jurors should simply be instructed that, if they find the foundational fact, they "may, but [are] not required to, infer the existence of the presumed fact from the proved fact".
In other words, Peters's jury should have been instructed (without the use of the word "presumed") that if they found that Peters's breath test result was .10 percent or higher, they were permitted — but were not required — to find that Peters's blood alcohol level was .10 percent or higher at the time of his driving.
But Peters did not raise this claim in his petition for post-conviction relief. He never drew Judge Stephens's attention to this problem, nor did he ever seek a ruling on this issue. The claim is entirely new on appeal. For this reason, we doubt that Peters is entitled to raise this claim.
It is true that, in a direct appeal of a criminal conviction, we allow defendants to raise claims of plain error — i.e., claims that were not preserved during the litigation of the underlying criminal case. But a petition for post-conviction relief is a separate civil action whose very purpose is to allow defendants to raise new claims of error — whether these claims be matters of plain error or otherwise (for example, claims of ineffective assistance of counsel).
Thus, when a defendant appeals an adverse decision in post-conviction relief litigation, it would appear that the defendant must be confined to the claims that were presented to the trial court (and ruled on) in that post-conviction relief proceeding. To rule otherwise would seemingly allow Peters and similarly situated defendants to turn their appeals into a second, independent petition for post-conviction relief — a petition addressed to an appellate court in the first instance.
But even assuming that Peters were entitled to pursue this claim, he would be obliged to show plain error — and, based on our examination of the record, Judge Stephens did not commit plain error by failing to sua sponte grant post-conviction relief to Peters on this issue.
First, Peters could have challenged the wording of Instruction 20 on direct appeal. Because of this, Peters is barred from raising this claim in a petition for post-conviction relief. See AS 12.72.020(a)(2).
Peters could conceivably argue that his appellate attorney ( i.e., the attorney who represented him in his direct appeal of his convictions) was incompetent for failing to attack the wording of Instruction 20 on appeal. But, as this Court has repeatedly recognized, a claim of ineffective assistance of counsel rarely qualifies as "plain error" — because an attorney's reasons for doing something (or omitting to do something) are hardly ever explained on the record of the underlying proceeding.
See Hutchings v. State, 53 P.3d 1132, 1135-36 (Alaska App. 2002); Sharp v. State, 837 P.2d 718, 722 (Alaska App. 1992); Barry v. State, 675 P.2d 1292, 1295-96 (Alaska App. 1984).
It is an appellate attorney's prerogative and duty to select the issues that will be presented on appeal (from among all the issues that conceivably might be argued). Peters has never confronted his appellate attorney with the fact that the attorney did not attack the wording of Instruction 20; nor has anyone ever elicited the appellate attorney's explanation of his failure to include this claim when he formulated Peters's appeal. Absent litigation of these matters, Peters can not pursue a claim of attorney incompetence.
Jones v. Barnes, 463 U.S. 745, 751-52; 103 S.Ct. 3308, 3312-13; 77 L.Ed.2d 987 (1983); James v. State, 49 P.3d 1120, 1127 (Alaska App. 2002).
And finally, our review of the record shows that there was no plain error because the wording of Instruction 20, although it may have violated Evidence Rule 303(a)(1), did not manifestly prejudice the fairness of Peters's trial.
Evidence Rule 303(a)(1) proscribes the use of the word "presumption" because of the danger that juries — that is, non-lawyers — may interpret this word as somehow altering the government's burden of proof, or even as a directive to find the disputed fact in favor of the government no matter what other evidence exists on that issue. See the Commentary to Alaska Evidence Rule 303(a).
But in Peters's case, the jury instructions never suggested that the evidentiary presumption created by Peters's breath test result was conclusive on the issue of whether Peters's blood alcohol level equaled or exceeded .10 percent at the time he operated the motor vehicle. Indeed, Peters's trial attorney repeatedly told the jurors that this presumption was rebuttable.
For these reasons, even assuming that Peters is entitled to pursue this claim, we find no plain error.
The judgement of the superior court is AFFIRMED.