Opinion
Court of Appeals No. A-8637.
November 10, 2004.
Appeal from the District Court, Third Judicial District, Anchorage, Samuel D. Adams and Gregory J. Motyka, Judges, Trial Court No. 3AN-02-9093 Cr.
Lance C. Wells, Anchorage, for the Appellant.
John E. McConnaughy III, Assistant Municipal Prosecutor, and Frederick H. Boness, Municipal Attorney, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
Paul Swenning was convicted of misdemeanor driving while intoxicated in 2002. Because Swenning had seven prior convictions for this offense, he faced a mandatory minimum sentence of 360 days' imprisonment. (Under Anchorage municipal law, this is the mandatory minimum sentence for defendants who have five or more prior convictions.) But Swenning argued that his prior convictions were constitutionally invalid and that, for this reason, they should not be counted when determining his mandatory minimum sentence.
Anchorage Municipal Code § 9.28.020(A).
Anchorage Municipal Code § 9.28.020(C)(1)(f): "Upon conviction for driving under the influence . . . [t]he court shall impose a minimum sentence of imprisonment of . . . [n]ot less than 360 days and a fine of not less than $7,000.00 if the person has previously been convicted more than four times."
The district court held that, whatever the potential flaws in Swenning's prior convictions, he had no right to attack those prior convictions at the sentencing proceedings for his current offense. The district court relied on our decision in Brockway v. State, 37 P.3d 427, 429-430 (Alaska App. 2001), where we held that a defendant generally has no right to collaterally attack prior convictions at the sentencing hearing for a new crime, even if the defendant's sentence for the new crime is being enhanced on account of those prior convictions.
Swenning now appeals the district court's ruling, but he fails to address the merits of that ruling in his brief. That is, Swenning fails to discuss our decision in Brockway or offer any reason to believe that the district court misinterpreted it.
Moreover, Swenning's briefing of most of his underlying claims of error is so inadequate that it must be deemed a waiver of the claimed errors.
Finally, even with regard to the claims of error that Swenning has adequately briefed, those claims are meritless. Thus, Swenning is not entitled to the relief he seeks in this appeal — i.e., to be sentenced without his prior convictions counting toward the calculation of his mandatory minimum sentence. For these reasons, we affirm the decision of the district court.
Swenning has failed to address the merits of the district court's decision
As explained above, Swenning argued to the district court that his prior DWI convictions were flawed in various ways, and that therefore the court should disregard those convictions when assessing Swenning's mandatory minimum sentence. The district court did not reach the merits of any of Swenning's underlying claims. Rather, the district court ruled that even if Swenning's prior convictions were flawed in the ways he suggested, Swenning had no right to collaterally attack his convictions in connection with his sentencing in the present case. The district court took this ruling directly from our decision in Brockway v. State, 37 P.3d at 429-430.
In Swenning's brief to this Court, he notes that the district court relied on Brockway when ruling that Swenning had no right to attack his prior convictions. But that is the last time that Swenning mentions the Brockway decision. Instead of arguing that the district court wrongly interpreted Brockway, or that Brockway itself was wrongly decided, Swenning simply launches into his arguments about the various purported flaws in his prior convictions.
Because the district court's ruling is dispositive of Swenning's case, because that ruling goes unchallenged, and because that ruling is not plainly mistaken, we affirm the district court's judgement.
See Steve v. State, 875 P.2d 110, 114 (Alaska App. 1994).
Swenning's underlying claims of error, and why we conclude that all of them are either inadequately briefed or meritless
Even if we were not affirming the district court on the ground that Swenning has failed to challenge the district court's dispositive ruling, we would affirm the district court on the ground that Swenning has either failed to adequately brief his underlying claims of error or has presented claims that are meritless.
Swenning has seven prior convictions for driving under the influence. Arranged in chronological order, they are:
1971 (January) Fairbanks 1972 (June) Fairbanks 1984 (July 22) Anchorage 1984 (July 28) Anchorage 1987 (July) Anchorage 1988 (August 4) Anchorage 1988 (August 29) Anchorage
(We are taking Swenning at his word regarding these convictions. This is the list contained in his brief. Swenning has not provided us with the judgements or any other supporting evidence of these convictions.)
Swenning argues that all Alaska DWI convictions entered between 1974 and 1980 are invalid because the version of the state DWI statute that was in effect during those years was declared partially unconstitutional in Crutchfield v. State, 627 P.2d 196 (Alaska 1980). But there is nothing in the record before us to indicate that Swenning was ever prosecuted under the state statute. For all we know, each of his seven prior convictions was prosecuted under a municipal ordinance. Moreover, none of Swenning's convictions are from the years 1974 through 1980. Swenning does not explain how the Crutchfield decision could possibly apply to his prior cases.
Swenning also argues that all Alaska DWI convictions entered between 1980 and 1983 are invalid because the version of the state DWI statute that was in effect during those years was declared partially unconstitutional in Williford v. State, 674 P.2d 1329 (Alaska 1983). But, again, there is nothing in the record before us to indicate that Swenning was ever prosecuted under the state statute. As we recently noted in Sheridan v. Anchorage, ___ P.3d ___, Alaska App. Opinion No. 1952 (October 29, 2004), the Anchorage municipal DWI ordinance in effect during those years was worded substantially differently from the state DWI statute that was declared partially invalid in Williford.
Moreover, none of Swenning's convictions are from the years 1980 through 1983. Swenning does not explain how the Williford decision could possibly apply to his prior cases.
Swenning next argues that all Alaska DWI prosecutions prior to 1990 are invalid because of the Alaska Supreme Court's decision in Gundersen v. Anchorage, 792 P.2d 673 (Alaska 1990). Swenning asserts that the Gundersen decision established, for the first time, that a person arrested for DWI has a constitutional right to be offered an independent blood test. But Swenning misunderstands Gundersen.
In Anchorage v. Serrano, 649 P.2d 256 (Alaska App. 1982), this Court acknowledged that motorists who are arrested for driving while intoxicated and who submit to the breath test mandated by AS 28.35.031 have a constitutional right to be afforded a reasonable opportunity to challenge the government's breath test result. We held that the government could honor this right either by preserving a second breath sample for later independent testing, or by offering the motorist a contemporaneous opportunity to take an independent blood test. Because of our decision in Serrano, this constitutional right to independently test the government's breath test result was firmly established in 1982.
The issue presented to the supreme court eight years later in Gundersen was whether this Court's decision in Serrano was correct — i.e., whether the motorist's opportunity to obtain an independent blood test was indeed an adequate substitute for the preservation of a second breath sample. The supreme court held that it was. Gundersen, 792 P.2d at 677.
Five of Swenning's seven prior DWI convictions were entered after Serrano — i.e., after 1982. Swenning advances no reason to believe that the police who arrested him on those occasions failed to comply with Serrano's constitutional mandate. Thus, even assuming that Swenning's two oldest convictions (the ones from 1971 and 1972) were attackable on this basis, this would still leave him with five prior convictions — and the same mandatory minimum sentence of 360 days' imprisonment. In other words, the Serrano-Gundersen issue would be moot.
Swenning also mentions our decision in Simpson v. Anchorage, 635 P.2d 1197 (Alaska App. 1981), as casting potential doubt on the validity of his prior convictions. In Simpson, we invalidated the Municipality of Anchorage's DWI ordinance because it conflicted with state law. But Swenning fails to explain how Simpson is applicable to any of his prior DWI convictions. Even assuming that all five of Swenning's convictions from Anchorage were prosecuted under the Anchorage municipal ordinance, all of those convictions occurred after Simpson was decided. And although Swenning's oldest two convictions pre-date our decision in Simpson, those cases were prosecuted in Fairbanks.
Simpson, 635 P.2d at 1205-08.
Swenning next argues that all DWI convictions prior to 1996 are potentially attackable because, in Snyder v. State, 930 P.2d 1274 (Alaska 1996), the supreme court held that a DWI arrestee retains the constitutional right to an independent chemical test even if the arrestee refuses to take the state-mandated breath test. But, as Swenning himself concedes, the potential issue created by the Snyder decision arises only in instances where a driver is charged with DWI and refuses the mandated breath test.
As we recently held in Brodigan v. State, 95 P.3d 940 (Alaska App. 2004), a defendant's prior convictions are presumed valid. A defendant can not simply identify a legal problem that might conceivably affect a prior conviction, and then ask the court to assume that the prior conviction is invalid. Rather, it is the defendant's burden to show that, under the facts of the defendant's case, this conceivable legal problem actually affected the litigation of the defendant's case and potentially undermines the validity of the conviction. Brodigan, 95 P.3d at 944-45.
There is nothing in the record before us to indicate that Swenning has ever refused the mandated breath test, and Swenning's brief does not explain how the Snyder decision applies to any of his seven prior cases. We therefore conclude that this issue is meritless.
Finally, Swenning argues that the Alaska Legislature violated his rights to due process and equal protection of the laws when, in 2001, the legislature amended AS 28.35.030(o)(4) (now renumbered 030(r)(4)), the section of the state DWI statute that defines which of a defendant's prior convictions for DWI and breath test refusal will count toward calculation of the defendant's mandatory minimum sentence. Before 2001, a defendant's prior convictions counted toward calculation of the mandatory minimum sentence only if the convictions were less than ten years old. But in 2001, the legislature amended the statute so that all of a defendant's prior convictions were counted, regardless of age. This was the statute in effect at the time that Swenning was sentenced for his current offense.
(After Swenning was sentenced, the legislature again amended the statute. AS 28.35.030(r)(4) now sets a 15-year limit on prior convictions. See SLA 2004, ch. 126, § 4.)
Swenning argues that it was unconstitutional for the legislature to abolish the former ten-year limitation. But we recently rejected this same argument in Dunn v. Anchorage, ___ P.3d ___, Alaska App. Opinion No. 1953 (November 5, 2004). Dunn controls Swenning's case.
Conclusion
The judgement of the district court is AFFIRMED.