Opinion
Court of Appeals No. A-9197.
July 30, 2008.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Randy M. Olsen, Judge, Trial Court No. 4FA-04-3278 CR.
David K. Allen, Assistant Public Advocate, Fairbanks, and Joshua Fink, Public Advocate, Anchorage, for the Appellant. Terisia Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Shortly after the superior court sentenced Lisa E. Rapp pursuant to a plea agreement, Rapp attacked both the sentencing procedures and the sentence she received. In this appeal, we address two questions: (1) did the superior court commit plain error by sentencing Rapp without a presentence report after Rapp expressly requested that the court proceed without one; and (2) did the superior court commit plain error by sentencing Rapp without inquiring into the possibility that Rapp's lawyer had a disqualifying conflict of interest or might be a material witness at her sentencing? For the reasons explained here, we reject Rapp's claims of error. And because we lack jurisdiction to adjudicate Rapp's attack on the severity of her sentence, we refer that issue to the supreme court.
Facts and proceedings
In February 2003, Rapp reported that her husband, Frederick Rapp, had assaulted her by pointing a gun at her. Rapp later described that assault in testimony before a Fairbanks grand jury. After the grand jury indicted Rapp's husband for felony assault, the husband's attorney asked Rapp to execute an affidavit recanting her accusation. In an affidavit prepared by the husband's attorney, William Satterberg Jr., Rapp declared:
Statements that I made to the state trooper regarding Fred's pointing a weapon at me were false. He never did point the weapon at me, nor did he ever wave the weapon in my direction, nor did he ever threaten me with the weapon.
Approximately one year later, Rapp and her husband separated, and Rapp sought custody of their daughter. In support of that request for custody, Rapp filed an affidavit prepared by her attorney, Gary Stapp. In this affidavit, Rapp reiterated her accusation that, in February 2003, her husband Fred threatened her with a handgun.
As a result of these two conflicting affidavits, Rapp was indicted for perjury by inconsistent statements.
S 11.56.230.
In addition to the perjury charge, Rapp faced unrelated criminal charges in two other cases. Attorney Stapp represented Rapp in all three of these cases.
After the two unrelated cases ended in a mistrial, Rapp negotiated a plea agreement with the State. Superior Court Judge Randy M. Olsen presided over the change of plea and sentencing hearing.
Under the plea agreement, the State agreed to dismiss Rapp's two unrelated criminal cases. For her part, Rapp agreed to plead no contest to the perjury charge. The agreement called for Rapp to pay a $5000 fine, and for Rapp to be sentenced to no more than 6 months to serve (with additional suspended time at the court's discretion), with the length of probation to be determined by the court. Stapp told Judge Olsen that Rapp wished to waive a presentence report and be sentenced as soon as possible.
Judge Olsen ultimately decided to accept this plea agreement and to proceed without a presentence report, as Rapp had requested. (See Alaska Criminal Rule 11(e)(1), which authorizes a sentencing judge to proceed without a presentence report in these circumstances.)
At the sentencing hearing the next day, Stapp argued that Rapp should receive a suspended imposition of sentence, conditioned on her serving the 8 days she had already spent in custody. The State asked the court to sentence Rapp to 18 months' imprisonment with 12 months suspended. Judge Olsen followed the State's recommendation and imposed an 18-month term with 12 months suspended.
Rapp then filed a motion asking the superior court to modify her sentence. After the superior court denied this motion, Rapp filed an appeal in this court. She also filed a petition for sentence review in the supreme court. The supreme court transferred Rapp's case to this court to resolve the issues within this court's jurisdiction. Analysis The superior court did not err by sentencing Rapp without a presentence report
When the parties presented their plea agreement to Judge Olsen, Stapp told the judge:
Your Honor, my client's going to plead no contest. . . . [A] $5000 fine [will] be imposed, [and] open sentencing otherwise. In exchange for that, the State's going to dismiss [the other two cases]. We'd like sentencing [to be held] as quickly as the court has time to fit us in. My client's waiving the presentence report. So we'd be ready to go as soon as you have time.
The State's attorney agreed generally with Stapp's characterization of no plea agreement, but added that the agreement called for a 6 month cap on Rapp's time to serve. Having heard the terms of the agreement, Judge Olsen advised Rapp of her rights, accepted her plea, and scheduled sentencing for the next morning.
Now, on appeal, Rapp argues that Judge Olsen committed plain error by failing to order a presentence report.
We doubt that Rapp is entitled to pursue this claim of plain error. If error was committed, it was done at Rapp's express request. Any claim of error would therefore be barred by the doctrine of invited error.
See, e.g., Alden H. v. State, Office of Children's Servs., 108 P.3d 224, 230 (Alaska 2005); Barrett v. State, 772 P.2d 559, 568-69 n. 10 (Alaska App. 1989) (discussing the doctrine of invited error).
In any event, no error took place in Rapp's case. As we have already noted, Criminal Rule 11(e)(1) expressly authorizes a judge to accept a sentencing agreement in a felony case and proceed to sentencing without ordering the Department of Corrections to prepare a presentence report. It was not error for Judge Olsen to follow the course authorized by Rule 11(e)(1), especially when Rapp's own attorney actively urged the judge to do so.
The superior court did not commit plain error when it failed to investigate Gary Stapp's purported conflict of interest
At Rapp's sentencing hearing, Judge Olsen heard argument from the attorneys representing the parties. When Stapp spoke on Rapp's behalf, he told Judge Olsen:
Mr. Satterberg drafted [the exculpatory affidavit in Fred Rapp's criminal case] and [he] submitted it to [my client]. And, over my strenuous objections, she signed it anyway. Later on, in the divorce case, the civil case, I prepared [the] affidavit [that again accused Fred of assaulting Rapp]. And I certainly, at first blush, did not see how they were irreconcilably inconsistent. After reading the court's decision and understanding my error, I accept responsibility. Perhaps if I wouldn't have drafted that affidavit in the custody case, [Rapp] never would have [been] charged with anything.
There was no further mention of, or comment upon, Stapp's role in these events.
On appeal, Rapp argues that Stapp should not have continued to represent her, given his role in the genesis of the affidavit that led to the perjury-by-inconsistent-statements charge. Rapp contends that, because of Stapp's participation in drawing up this affidavit, Stapp was a potential witness at the sentencing hearing — and that, as a consequence, Alaska Professional Conduct Rule 3.7 prohibited him from continuing to represent Rapp.
Professional Conduct Rule 3.7 states, in pertinent part, that "[a] lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except when . . . the [lawyer's] testimony relates to an uncontested issue[.]"
Rapp does not explain why it was "likely" that Stapp would be "a necessary witness" at her sentencing. No one made any attempt to call Stapp as a witness at the sentencing, nor did anyone suggest that Stapp had relevant testimony to offer. While Stapp may have drawn up the affidavit, it was Rapp who signed it and swore to the truthfulness of the statements contained in it. Moreover, as we pointed out above, to the extent that Stapp's remarks at the sentencing hearing did describe his personal involvement in the preparation of the affidavit, his remarks were not contested, and no one had any further comment on them.
In the alternative, Rapp suggests that even if Stapp was not prohibited from representing Rapp under Professional Conduct Rule 3.7, Stapp's involvement in the preparation of the affidavit gave rise to a "serious potential . . . conflict of interest." However, in her brief to this Court, Rapp expressly states that the "potential . . . conflict of interest" she is talking about is not based on the assertion that Stapp faces potential criminal or civil liability for his role in preparing the affidavit. Rather, according to Rapp, the "conflict of interest" is Stapp's awareness that, conceivably, he might have relevant testimony to offer at Rapp's sentencing.
In other words, Rapp asserts that Stapp had a "conflict of interest" because, depending on how things developed, he might have been obliged to withdraw from Rapp's case under Professional Conduct Rule 3.7. This is not a conflict of interest. Generally speaking, an attorney does not violate the Rules of Professional Conduct simply by continuing to represent a client when the attorney is aware of a potential ethical problem that does not exist yet, but that may conceivably arise in the future. Rather, the attorney's continued participation in the case is unethical only if the attorney knowingly ignores or unreasonably fails to perceive the fact that his continued representation of the client will violate the Rules of Professional Conduct.
For these reasons, we reject Rapp's assertion that Judge Olsen committed plain error by not recessing the proceedings suasponte and commencing an investigation into whether Stapp was ethically barred from continuing to represent Rapp.
This court has no jurisdiction to review Rapp's excessive sentence claim
Rapp's final argument is that her sentence of 18 months' imprisonment with 12 months suspended — i.e., 6 months to serve — is excessive. But under AS 12.55.120(a), we do not have jurisdiction to consider this claim. This statute declares that a defendant has no right to appeal a sentence of imprisonment in a felony case unless the sentence exceeds 2 years to serve. For this reason, this court cannot adjudicate Rapp's excessive sentence claim. Under Alaska Appellate Rule 215, Rapp must pursue a petition for sentence review in the Alaska Supreme Court. We therefore refer this claim to the supreme court.
Conclusion
We AFFIRM the judgment of the superior court to the extent described in this opinion, and we refer Rapp's excessive sentence claim to the supreme court.