Opinion
Court of Appeals No. A-10889 Trial Court No. 3AN-07-10801 CR No. 5836
04-25-2012
MAVAEGA BRANDON TAUTUA, Appellant, v. STATE OF ALASKA, 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 precedent for any proposition of law.
MEMORANDUM OPINION
AND JUDGMENT
Appeal from the Superior Court, Third Judicial District, Anchorage, David C. Stewart, Judge.
Appearances: Stephen Hale, Law Offices of Dan Allan & Associates, Anchorage, for the Appellant. Jack R. McKenna, Assistant District Attorney, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
COATS, Chief Judge.
In November of 2007, Mavaega Brandon Tautua was convicted of a felony, theft in the second degree. He received a suspended imposition of sentence and was placed on probation for a period of one year. Under the terms of his probation, Tautua was ordered to pay a police training surcharge of $100 to the court, which was due within ten days of the judgment, and a correctional facility surcharge of $100 to the Department of Law, which was due immediately. The court also entered a judgment ordering Tautua to pay $250 to the State for the cost of appointed counsel. Thus, in total, Tautua was required to pay $450. The conditions of Tautua's probation required that he apply for a permanent fund dividend every year so that restitution could be paid from the dividend.
AS 11.46.130(a)(1).
Tautua applied for the 2008 Permanent Fund Dividend (as the court had directed him to do). The total dividend for that year was $3,269, easily sufficient to satisfy Tautua's $450 debt to the State. But for unknown reasons, the Department of Law garnished only $350 from Tautua's dividend, leaving the $100 police training surcharge unpaid.
In November 2008, as Tautua's one-year probation was expiring, the superior court sent a notice to the Department of Law and the Department of Corrections, alerting these entities that Tautua's probation would soon expire, and asking them to notify the court if they had any objection to releasing Tautua from probation and setting aside his conviction under the terms of the SIS.
Even though the superior court's notice expressly informed the two departments that Tautua's $100 police training surcharge remained unpaid, neither department filed an objection to releasing Tautua from probation or setting aside his conviction.
But even though the State filed no objection, the superior court never issued an order setting aside Tautua's conviction. Instead, several months later (in early April 2009), the superior court distributed a notice to all the parties stating that the court had tentatively decided not to set aside Tautua's conviction, because Tautua had failed to pay the $100 police training surcharge. In this notice, the court informed Tautua that he had until April 24th to request a hearing on this matter — and that if Tautua failed to request a hearing, the court would issue an order declaring that Tautua's conviction would not be set aside.
Neither Tautua nor any other party requested a hearing in response to the court's notice. However, the court took no follow-up action. In particular, the court never issued an order declaring that Tautua's conviction would not be set aside.
This issue remained dormant until a year and a half later, when Tautua was charged with several felonies. Shortly thereafter, on October 12, 2010, Tautua filed a motion to set aside his prior conviction for theft in the second degree. Tautua filed an affidavit in which he swore that he had never received any notice from the court that he owed an additional $100 or that his conviction would not be set aside. He stated that he knew that the State had taken money out of his permanent fund dividend, and he believed that the State had taken all of the money that he owed. He stated that his probation officer had told him that he could truthfully claim that he was not a convicted felon. The State opposed the motion to set aside the conviction.
Superior Court Judge David C. Stewart, sitting pro tem, issued an order denying Tautua's motion to set aside his 2007 conviction. Judge Stewart gave two reasons for denying Tautua's motion. First, that Tautua never paid the surcharge required under the court's judgment. Second, that Tautua had recently been indicted in a new felony case. Tautua appeals.
Why we reverse Judge Stewart's decision
When a sentencing court imposes a suspended imposition of sentence, Alaska Criminal Rule 35.2 sets out the procedure for determining whether the defendant's conviction should be set aside. The rule provides that if "the defendant has completed the probationary term without imposition of sentence and no petition to revoke probation is pending, the court shall discharge the defendant from probation."The rule contemplates that the court will consider whether to set aside the defendant's conviction at that same time. This procedure was not followed in Tautua's case. Although the court sent out a late notice that, unless Tautua requested a hearing or failed to appear, the court would enter an order not setting aside his conviction, the court never issued an order following this notice.
In Mekiana v. State, the Alaska Supreme Court concluded that, when a sentencing court has failed to timely rule on whether a defendant's conviction should have been set aside, the sentencing court could conduct a belated set-aside hearing addressing the issue of whether the defendant's conviction should be set aside. But the court held that, in holding the belated set-aside hearing, the sentencing court could only consider "those facts existing at the time the probationer was discharged." The court explained that the sentencing judge "must decide the set-aside question based upon an evaluation of the defendant's conduct and situation as of the date of discharge from probation."
726 P.2d 189 (Alaska 1986).
Id. at 193.
Id.
Id.
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Judge Stewart violated Mekiana by considering Tautua's indictment on new criminal charges — charges that were based on events that took place after Tautua's probation ended. In addition, Judge Stewart never held a hearing on Tautua's assertion that he did not receive the superior court's April 2009 notice — the notice in which the court informed the parties that it had tentatively decided not to set aside Tautua's conviction, and which set a deadline for requesting a hearing on this matter.
For these reasons, we vacate the superior court's order, and we direct the superior court to renew its consideration of whether Tautua's 2007 conviction should be set aside.
Conclusion
The superior court's order is VACATED, and this case is remanded to the superior court for further proceedings in accordance with this opinion.