Opinion
Court of Appeals No. A-8803.
July 13, 2005.
Appeal from the District Court, Third Judicial District, Palmer, Suzanne H. Lombardi, Judge, and David L. Zwink, Magistrate. Trial Court No. 3PA-01-1902 CR.
Eugene B. Cyrus, Law Office of Eugene B. Cyrus, Eagle River, for the Appellant.
Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Robert W. Robinson III was charged with driving while intoxicated. This was his second offense, and he was sentenced to 20 days to serve — the mandatory minimum sentence for a second offender.
AS 28.35.030(a).
AS 28.35.030(b)(1)(B).
Robinson argues that the district court should not have considered his prior conviction in calculating his mandatory minimum sentence. He claims that his prior conviction is invalid because his waiver of counsel in that case was ineffective, and his plea was not knowing and voluntary. He also argues that the district court erred by denying his request for an evidentiary hearing to establish the invalidity of this prior conviction. We conclude that our decision in Brockway v. State bars Robinson from collaterally challenging his prior conviction on the ground that his plea was not knowing and voluntary. We do not reach Robinson's claim that he was entitled to an evidentiary hearing to collaterally challenge his conviction on the ground that he had not effectively waived his right to counsel, as Robinson presented no evidence to support that claim.
37 P.3d 427 (Alaska App. 2001).
Facts and proceedings
In 1988, Robinson pleaded no contest to misdemeanor driving while intoxicated. He was seventeen years old when he entered his plea.
In 2001, thirteen years later, Robinson was again charged with driving while intoxicated. Facing an enhanced minimum sentence as a second offender, he filed an application for post-conviction relief from his prior conviction, arguing that his waiver of counsel in the 1988 case was not knowing and intelligent, and that his plea was invalid. The district court summarily denied the petition. That decision was affirmed by the superior court, which held that Robinson's application was procedurally barred because it was filed outside the two-year statute of limitations for post-conviction relief. We denied Robinson's petition for hearing.
AS 12.72.020(a)(3)(A).
Robinson v. State, Alaska App. Order on Petition for Hearing No. A-8647 (November 14, 2003).
Robinson also collaterally challenged his 1988 conviction in the present case. Before trial, he moved to preclude the district court from enhancing his sentence based on his prior conviction, and asked for a hearing on that motion. Robinson made the same arguments raised in his post-conviction relief application. More specifically, he argued that the record of his 1988 change of plea hearing did not show that he had a full understanding of the benefits of counsel and of the hazards of self-representation when he waived his right to counsel. Robinson also argued that his no contest plea was involuntary because it was entered on his father's orders, and unknowing because he was not told that his conviction would increase the mandatory minimum sentence for a second offense more than ten years later. To support his claim that his plea was involuntary, Robinson submitted an unofficial transcript of a phone call between his father and his current attorney in which his father stated that he was the one "calling the shots" when Robinson entered his plea.
The State opposed this motion, arguing that it was premature because Robinson had not yet been convicted, that Robinson had not supported his claims with an appropriate affidavit, and that the challenge was barred by Brockway v. State. In his reply, Robinson attached an un-notarized affidavit stating that all factual assertions in his attorney's pleading were correct. District Court Judge Suzanne Lombardi denied Robinson's motion, but did not articulate her reasons.
Robinson went to trial and was convicted. At sentencing before Magistrate David L. Zwink, Robinson renewed his request for a hearing on his motion to preclude the use of his prior conviction for sentencing purposes. (By this time, Robinson had exhausted the appeals in his separate post-conviction relief case.) Relying on Brockway, Robinson argued that the sentencing hearing was the appropriate forum for him to challenge the use of his 1988 conviction as a predicate offense based on his claim that he was denied his right to counsel in that earlier proceeding. He also renewed his claim that his 1988 conviction was invalid because his plea in that case was involuntary and unknowing.
Magistrate Zwink reviewed the renewed motion and the one attachment to that motion — an unofficial transcript of Robinson's 1988 change of plea hearing — and ruled that Robinson had not made a prima facie case that his prior conviction was invalid. Magistrate Zwink therefore denied Robinson's hearing request.
After this ruling, Robinson's attorney realized he had omitted several attachments to his motion. Consequently, he filed a second request for a hearing, asking Magistrate Zwink to review the other evidence he had attached to his pre-trial motion but omitted from his renewed motion — the unofficial transcript of a phone conversation between Robinson's father and Robinson's current attorney, and Robinson's affidavit. Magistrate Zwink said he would treat Robinson's renewed request as a motion for reconsideration. However, Magistrate Zwink did not grant that motion for reconsideration, and he sentenced Robinson to 20 days to serve, the minimum sentence for a second offender.
In this appeal, Robinson argues that the district court erred by relying on his prior conviction in calculating his mandatory minimum sentence, and in denying his request for an evidentiary hearing on this issue. He argues that he was entitled to an evidentiary hearing because he presented a prima facie case that his 1988 conviction had the following constitutional infirmities: (1) his waiver of counsel was not knowing and intelligent; (2) his plea was involuntary because he was acting on his father's orders; and (3) his plea was unknowing because he was not told that his conviction would enhance his mandatory minimum sentence for a second offense more than ten years later.
Brockway v. State precludes Robinson from collaterally challenging his prior conviction on the ground that his plea was involuntary and unknowing
Under our decision in Brockway, Robinson's only avenue for challenging his 1988 conviction on the ground that his plea was unknowing and involuntary was an application for post-conviction relief. Alaska Statute 12.72.020(a)(3)(A) provides an applicant with two years from the date of entry of judgment to pursue this relief. When this two-year statutory bar was enacted, ch. 79, § 40, SLA 1995 established a savings clause for defendants whose convictions were entered before July 1, 1994. The savings clause required those defendants to file a petition for post-conviction relief by July 1, 1996. Robinson waited thirteen years to file his application, and the district court denied the application because it was untimely.
Robinson v. State, No. 3PA-02-1341 CI (Alaska Super., June 26, 2003).
In Brockway, the defendant also sought to collaterally challenge a prior conviction that was used to enhance his criminal sentence. Brockway pleaded no contest to third-degree weapons misconduct (felon in possession of a concealable firearm). Because he had been convicted of felonies previously, Brockway faced a 2-year presumptive term.
Brockway, 37 P.3d at 428.
Id.
At sentencing, Brockway moved to preclude the court from sentencing him as a second felony offender, arguing that the judge in the prior felony case had not complied with Criminal Rule 11, and that his plea had not been knowing and intelligent. The superior court rejected Brockway's claim. In affirming that decision, we followed the "great weight of authority" prohibiting a defendant from collaterally attacking a prior conviction during sentencing in an unrelated criminal case. Brockway's only avenue for challenging his conviction on these grounds, we held, was a petition for post-conviction relief.
Id. at 429.
Id.
Id. at 429-30.
In light of the rule announced in Brockway, we conclude that Robinson was not entitled to collaterally challenge his 1988 conviction in this case on the ground that his plea in that earlier proceeding was not knowing and voluntary. We find no basis for creating an exception to this rule under the circumstances of Robinson's case.
The district court was not required to advise Robinson of the collateral consequences that arose from legislation enacted years after his plea
Robinson also claims that his plea was unknowing because he was not told that his conviction would increase the minimum sentence for a second offense as a result of legislation enacted years later. Robinson concedes that he was told, in accordance with the law in effect at the time, that he would face enhanced mandatory minimums for convictions within the following ten years. But the legislature later changed that law to require courts to count all prior driving while under the influence convictions when calculating a defendant's minimum sentence, not just convictions within the preceding ten years. Robinson was thus instructed in accordance with the law in effect at the time he committed this offense.
See Ch. 63, § 11, SLA 2001. In 2004, the legislature changed the "look back" period for prior drunk driving convictions to 15 years. Ch. 126, § 4, SLA 2004.
The judge's lack of clairvoyance with regard to this future change in law did not render Robinson's plea unknowing. The sentence Robinson received in this case was imposed for his second driving while under the influence conviction, not as a direct consequence of his 1988 conviction. Consequently, his enhanced sentence in this case was a collateral effect of his earlier conviction. A court is not required to inform a defendant of "every conceivable collateral effect the conviction might have" — particularly not a collateral effect that could not have been predicted because it did not exist under the law at that time. Although the court in 1988 warned Robinson that his conviction could enhance his penalties for another offense within ten years, Criminal Rule 11 imposed no requirement that Robinson be warned of those consequences. Moreover, when AS 28.35.030 was amended in 2001 to impose a life time "look back" for prior convictions, Robinson had constructive notice that he faced enhanced penalties if he committed another offense.
Tafoya v. State, 500 P.2d 247, 250 (Alaska 1972).
Cf. Peterson v. State, 988 P.2d 109, 118 (Alaska App. 1999) (ruling that Criminal Rule 11(c)(4) required trial judge to inform defendant of sex offender registration requirement, under AS 12.63, before accepting a plea of guilty or nolo contendere).
Robinson presented no evidence that his prior conviction was invalid because he was denied the right to counsel
In Brockway, we noted a generally recognized exception to the rule against collateral attacks on prior convictions "if the defendant was completely denied the right to counsel in the prior proceeding." Robinson argues that this exception permits him to challenge his prior conviction on the ground that he did not knowingly and intelligently waive his right to counsel. We find it unnecessary to decide that claim, as Robinson presented no evidence that he was denied his right to counsel in 1988.
See also United States v. Cruz-Alcala, 338 F.3d 1195, 1197 (10th Cir. 2003) (noting that there is no precedential authority from the Tenth Circuit regarding whether an involuntary or unknowing waiver of counsel causes a "complete denial of counsel" for purposes of the exception to the general prohibition against collateral challenges to prior convictions, and declining to address that issue because it was not raised); Nix v. State, 65 S.W.3d 664, 669 n. 20 (Tex.Crim.App. 2001) (declining to address whether a claim of involuntary waiver of counsel shares the same quasi-jurisdictional status as a claim that the defendant was indigent, did not waive counsel, and the court failed to appoint counsel).
To find an effective waiver of counsel, "it must be clear from the record that the person has been informed of the role of a defense attorney and the advantages of being represented by one in a criminal proceeding." Then, the court must make certain that the defendant's waiver of counsel is intelligent by conducting a "penetrating and comprehensive examination of all the circumstances under which such a plea is made." In some cases, "only a brief inquiry into a defendant's comprehension of the right will be necessary"; in extreme circumstances, the court must assign counsel if it determines that the defendant "may be unable to make an intelligent choice because of his mental condition, age, education, experience, the complexity of the case, or other factors."
Gregory v. State, 550 P.2d 374, 379 (Alaska 1976).
Id. at 380.
Id.
Robinson relies on Gregory v. State to argue that his waiver of counsel was ineffective. Gregory was convicted of driving while intoxicated after pleading guilty to that charge. Within a month of sentencing, Gregory moved to withdraw his plea, arguing that he had not knowingly and intelligently waived his right to counsel. Gregory's native language was Yupik, and he had difficulty understanding English. Therefore, the magistrate advised Gregory of his right to an attorney partially in English and partially in Yupik. But the magistrate never asked Gregory if he understood what an attorney could do for him. We reversed Gregory's conviction because we found that the record was "devoid of any indication that Gregory understood a lawyer's function and the advantages of legal representation in a criminal proceeding."
Id. at 377.
Id.
Id.
Id.
Id. at 379.
Id.
In Gregory, the magistrate followed an instruction handbook on how to inform a defendant of his rights in a misdemeanor case. However, the magistrate omitted the handbook's directive to ask the following question: Do you know what an attorney can do for you? (Pause for answer and explain if answer is "No.").
Id. at 379 n. 4.
Id.
Robinson argues that the judge in his 1988 case similarly failed to ensure that he understood the benefits of having an attorney. But Robinson's case is plainly distinguishable. Gregory had difficulty with basic English. Gregory was confused about legal terminology, including the terms "lawyer," "attorney," and "public defender." The magistrate informed Gregory that he had the right to an attorney, but never asked him if he understood the benefits of having counsel. Robinson, by contrast, showed no confusion with the court's inquiry at his change of plea hearing. Although Robinson was seventeen years old, and apparently had no experience with the criminal justice system, he was articulate and had a parent present. Robinson had viewed the arraignment video, which explained in some detail the benefits of an attorney. He told the court he understood what a lawyer is and what a lawyer does. Robinson asked the court to clarify the definition of "operating" a motor vehicle and he indicated that he understood the court's explanation. When the judge told Robinson he was entitled to argue that his conduct did not meet the definition of "operating" and asked Robinson if he wanted to confer with a lawyer about this issue, he said "No." Because Robinson looked at his father for advice on this issue, the judge asked Robinson if it was his own decision not to talk to a lawyer. Robinson indicated that it was.
Id. at 377.
Id. at 379.
Id. at 379 n. 4.
See Tobuk v. State, 732 P.2d 1099, 1101 (Alaska App. 1987) (finding that a limited inquiry into the defendant's understanding of the benefits of counsel was adequate where the magistrate "had no reason to question [the defendant's] appreciation for what he was giving up by waiving his right to counsel.")
The transcript of the change of plea hearing thus demonstrates that the trial judge thoroughly inquired into whether Robinson understood the benefits of counsel. This conclusion is strengthened by the presumption of regularity that attaches to final judgments. Robinson waited more than a decade to challenge the validity of his 1988 plea; it was thus his burden to show that his waiver of counsel was ineffective.
See Brodigan v. State, 95 P.3d 940, 944 (Alaska App. 2004) (citing Jerrel v. State, 851 P.2d 1365, 1372 (Alaska App. 1993)).
The other cases Robinson relies on to argue that his waiver was ineffective are inapposite. The defendants in those cases did not enter a plea to a single misdemeanor; rather, they contested felony charges and asserted by words or conduct their right to represent themselves at trial. We have required a higher level of scrutiny in those circumstances to ensure that defendant understands the dangers of self-representation.
McIntire v. State, 42 P.3d 558 (Alaska App. 2002); Evans v. State, 822 P.2d 1370 (Alaska App. 1991); James v. State, 730 P.2d 811 (Alaska App. 1987), modified on reh'g, 739 P.2d 1314 (Alaska App. 1987).
McIntire, 42 P.3d at 559-60; Evans, 822 P.2d at 1371-72; James, 730 P.2d at 812-13.
McIntire, 42 P.2d at 560; Evans, 822 P.2d at 1374; James, 730 P.2d at 813-14.
We conclude that Magistrate Zwink did not err in denying Robinson's request for a hearing and in sentencing him as a second offender. Because Robinson presented no evidence that his waiver of counsel in 1988 was ineffective, we need not decide whether he would have been entitled to an evidentiary hearing to collaterally challenge his prior conviction on this ground if he had presented evidence that his waiver was invalid.
Conclusion
Robinson's sentence is AFFIRMED.