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THE COURT OF APPEALS OF THE STATE OF ALASKA
DANNY N. HANSEN, )
) Court of Appeals No. A-3274
Appellant, ) Trial Court No. 3KN-S88-1441CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1196 - January 24, 1992]
)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Kenai,
Charles K. Cranston, Judge.
Appearances: Allan Beiswenger, Robinson,
Beiswenger & Ehrhardt, Soldotna, for
Appellant. John A. Scukanec, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Charles E. Cole, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, Coats, Judge,
and Andrews, Superior Court Judge.*
[Mannheimer, Judge, not participating.]
COATS, Judge.
Danny N. Hansen was convicted of two felony offenses in
1982. He was sentenced to a suspended imposition of sentence.
Hansen's probation expired on October 22, 1987, but the court
never held a set-aside hearing to expunge the felony convictions
from Hansen's record. In October 1988, one year after the court
had released Hansen from probation, a grand jury indicted Hansen
on one count of assault in the third degree and one count of
misconduct involving weapons in the first degree. AS
11.41.220(a)(1); AS 11.61.200(a)(1). The assault count is a
class C felony and charges Hansen with placing another man in
fear of imminent serious physical injury by means of a dangerous
instrument, a .44 caliber revolver. The misconduct involving
weapons count is a class C felony and charges Hansen with
possessing a weapon capable of being concealed on his person, the
.44 caliber revolver, after having been previously convicted of a
felony.
Hansen was represented by a public defender. The
public defender told Hansen that he had no defense to the
misconduct involving weapons charge because his 1982 convictions
had never been set aside. The state offered to drop one charge
against Hansen if he agreed to plead to the other charge.
According to Hansen's public defender, Hansen chose to plead to
the assault charge, rather than to the weapons charge, because he
believed that in doing so he would be more likely to one day
regain his ability to possess a firearm. Hansen entered his plea
to the assault charge on December 29, 1988.
On March 22, 1989, Hansen's public defender moved to
withdraw the plea. The public defender contended that she had
mistakenly advised Hansen that he did not have any defense to the
misconduct involving weapons charge because Hansen's 1982 felony
convictions had not been set aside. According to Hansen's
affidavit, he would not have entered a plea to the assault charge
except for the fact that he had believed there was no defense to
the weapons charge.
Superior Court Judge Charles K. Cranston initially
denied Hansen's motion to withdraw his plea, ruling that the
motion did not have a sufficient factual showing. Hansen
subsequently moved to have his 1982 convictions set aside under
State v. Mekiana, 726 P.2d 189 (Alaska 1986). On May 3, 1989,
the court set aside Hansen's 1982 convictions. On May 5,
Hansen's public defender filed a new motion to withdraw Hansen's
plea based on the fact that she had provided Hansen with
incorrect legal advice on which he based his decision to plead.
Judge Cranston concluded that the fact that Hansen's convictions
had been set aside did not provide Hansen with a defense to the
weapons charge. He concluded that in order for Hansen to have a
defense to the weapons charge, Hansen had to have had the court
set aside his underlying felonies prior to the date he possessed
the concealable weapon. Judge Cranston therefore concluded that
Hansen's public defender had accurately advised him that he had
no defense to the weapons charge, and denied Hansen's motion to
withdraw his plea. Superior Court Judge James A. Hanson denied
Hansen's motion to reconsider.
Following sentencing, Hansen, now represented by new
counsel, filed a motion for post-conviction relief under Alaska
Criminal Rule 35.1. Hansen contended that the May 1989 set-aside
hearing retroactively expunged his 1982 convictions as of the
date of Hansen's completion of probation and that he therefore
had a complete defense to the weapons charge. Hansen contended
that he received ineffective assistance of counsel because if he
had known that the set-aside was retroactive, he would not have
pled to any charges. Judge Cranston denied this motion. Hansen
appeals, arguing that Judge Cranston erred in refusing to allow
him to withdraw his plea. We agree with Hansen and reverse his
conviction.
Hansen moved to withdraw his plea prior to sentencing.
Under Alaska Criminal Rule 11(h)(2):
Before sentence, the court in its discretion
may allow the defendant to withdraw a plea
for any fair and just reason unless the
prosecution has been substantially prejudiced
by reliance upon the defendant's plea.
If Hansen entered a plea based upon mistaken legal advice that he
had no defense to the misconduct involving weapons charge, he has
established a fair and just reason to withdraw his plea. Judge
Cranston reached a similar conclusion, relying on our decision in
Shetters v. State, 751 P.2d 31, 35 (Alaska App. 1988). Judge
Cranston based his refusal to allow Hansen to withdraw his plea
upon his conclusion that Hansen did not have a defense to the
misconduct involving weapons charge, and that therefore Hansen's
attorney's advice was correct.
Alaska Statute 11.61.200, in pertinent part, reads:
(a) A person commits the crime of
misconduct involving weapons in the first
degree if the person
(1) knowingly possesses a firearm
capable of being concealed on one's person
after having been convicted of a felony by a
court of this state, a court of the United
States, or a court of another state or
territory. . . .
. . . .
(b) It is an affirmative defense to a
prosecution under (a)(1) . . . of this
section that
. . . .
(2) the underlying conviction upon
which the action is based has been set aside
under AS 12.55.085 [suspended imposition of
sentence statute] or as a result of post-
conviction proceedings. . . .
It is therefore a defense to the misconduct involving weapons
charge that the defendant has had the prior felony conviction set
aside under the suspended imposition of sentence statute. The
state argues, and Judge Cranston found, that Hansen had to have
had his convictions set aside before October 10, 1988, the date
he was charged with possessing the .44 caliber handgun. The
state cites federal authority holding that the burden is on the
defendant to clear his status before purchasing a firearm. See
Lewis v. United States, 445 U.S. 55, 64 (1980) (interpreting
federal felon in possession statute); see also United States v.
Cabrera, 786 F.2d 1097, 1098 (11th Cir. 1986) (convicted felon
must clear status, if unclear, before buying firearms; later
"expunction of the underlying conviction after the purchase of
the firearm has no effect on a conviction [for a felon receiving
a firearm transported in interstate commerce charge]").
The state also relies on our decision in Clark v.
State, 739 P.2d 777 (Alaska App. 1987). In Clark, the felony
conviction underlying a felon in possession of a concealable
firearm charge was on appeal at the time the defendant illegally
possessed the firearm. 739 P.2d at 778. This court subsequently
reversed the underlying conviction and the state ultimately
dismissed the underlying charge. Clark moved for post-conviction
relief on the charge of felon in possession of a concealable
firearm, arguing that his invalid conviction could not be the
basis of such a charge. In rejecting Clark's claim, we relied in
part on Lewis v. United States. We also relied on a policy
argument:
We see no reason why the legislature would
want to encourage a person who has formerly
been convicted of a felony to gamble by
possessing a concealable firearm, hoping that
if he or she is arrested for being a felon in
possession that he or she can defend against
that offense by having the former conviction
set aside.
Clark, 739 P.2d at 781. In denying Hansen's claim, Judge
Cranston found our decision in Clark to be controlling. However,
we find Clark to be distinguishable. To explain our reasons will
require us to discuss extensively AS 12.55.085, which governs the
suspended imposition of sentence, and State v. Mekiana, 726 P.2d
189 (Alaska 1986), which deals with the setting aside of
convictions under AS 12.55.085.
Alaska Statute 12.55.085 authorizes a sentencing judge
to suspend imposition of sentence. That statute provides in
pertinent part:
(d) The court may at any time during
the period of probation revoke or modify its
order of suspension of imposition of
sentence. It may at any time, when the ends
of justice will be served, and when the good
conduct and reform of the person held on
probation warrant it, terminate the period of
probation and discharge the person held. If
the court has not revoked the order of
probation and pronounced sentence, the
defendant shall, at the end of the term of
probation, be discharged by the court.
(e) Upon the discharge by the court
without imposition of sentence, the court may
set aside the conviction and issue to the
person a certificate to that effect.
In State v. Mekiana, the supreme court discussed the manner in
which a trial judge would apply the suspended imposition of
sentence statute:
Ordinarily, when a judge opts to order a
suspended [imposition of] sentence the judge
has evaluated the defendant's background and
offense and decided the defendant deserves a
chance to show that he or she has "reformed"
and therefore should be rewarded with a clean
record. One of the purposes of the set-aside
statute is to provide defendants with an
incentive to meet the conditions of their
probation. Thus, we would expect that in
most cases where a defendant successfully
completes probation, his or her conviction
would be set aside.
726 P.2d at 193.
In Mekiana v. State, 707 P.2d 918 (Alaska App. 1985),
rev'd in part, 726 P.2d 189 (Alaska 1986), Mekiana had completed
his probation on a suspended imposition of sentence on a felony
charge. The trial court discharged Mekiana from probation, but
did not check the box on the discharge form to set aside the
defendant's conviction. The trial court took this action without
giving the defendant notice or the opportunity for a hearing.
Later, Mekiana was convicted of another felony, and the state
wished to use Mekiana's prior conviction, for which he had
received the suspended imposition of sentence, as a prior felony
for purposes of presumptive sentencing. Mekiana argued that the
former felony could not count for purposes of presumptive
sentencing because he had never been given notice or an
opportunity to be heard on the question of whether the conviction
should be set aside. This court found that it was improper for
the trial court to refuse to set aside the conviction for which
Mekiana received the suspended imposition of sentence without
giving Mekiana notice and an opportunity for a hearing. We
concluded that, under AS 12.55.085, the court was required to
address the issue of set-aside contemporaneously with the issue
of discharge. Mekiana, 707 P.2d at 921. We therefore held that
when a defendant is discharged from probation and denied a set-
aside without prior notice and a hearing, the defendant's
conviction must be deemed set aside. Id. at 922 n.7.
The supreme court granted a petition for hearing. The
supreme court agreed that the trial court's refusal to set aside
Mekiana's conviction without giving him notice and an opportunity
for a hearing was invalid. Further, the supreme court agreed
that AS 12.55.085 "contemplate[s] that the issue of set-aside
must be considered contemporaneously with the granting of a
discharge." Mekiana, 726 P.2d at 193 (quoting Mekiana, 707 P.2d
at 922 n.7). The supreme court agreed with this court that AS
12.55.085 placed the burden on the state to show why a set-aside
should be denied, and that there was a presumption in favor of
set-aside. Mekiana, 726 P.2d at 193. However, the supreme court
concluded that when the defendant had been denied notice and an
opportunity to be heard on the set-aside issue, the defendant's
conviction should not automatically be set aside. As a remedy,
the supreme court adopted a procedure for a belated set-aside
hearing. At this hearing, the trial court could consider "only
those facts existing at the time the probationer was discharged."
Id.
Under the reasoning of this court's opinion in Mekiana,
Hansen's prior conviction would have automatically been set aside
because he completed his probation and was discharged from
probation apparently without the court taking any action on the
set-aside issue. In the supreme court's Mekiana decision, it
appears that the supreme court contemplated that the belated set-
aside of a conviction would relate back to the date of discharge.
The supreme court agreed with this court that the issues of
discharge and set-aside were to be considered by the trial court
contemporaneously.
In its opinion, the supreme court pointed out that a
defendant would not suffer disability from a belated set-aside
hearing. The supreme court relied on Tuten v. United States, 460
U.S. 660, 668 (1983), and noted that the United States Supreme
Court "in dicta sanctioned a belated, nunc pro tunc procedure to
determine whether a conviction should have been set aside under a
federal statute similar to Alaska's." Mekiana, 726 P.2d at 192.
A nunc pro tunc procedure is one in which the effective date of
the decision is retroactive to an earlier date.1 Thus, it
appears that in Mekiana, the supreme court intended the trial
court's decision at the belated set-aside hearing to relate back
to the date the decision should have occurred: the date the
defendant was discharged from probation. Although the supreme
court's decision was made in the context of whether the former
conviction could be used for purposes of presumptive sentencing,
rather than for purposes of whether a defendant could possess a
concealable firearm under AS 11.61.200, it appears that the
reasoning of the supreme court's decision in Mekiana would
support Hansen's position.
We also believe that there are policy reasons which
support finding in Hansen's favor. In his affidavit in support
of his motion for post-conviction relief, Hansen claimed that he
had discussed his suspended imposition of sentence with his
probation officer and his attorney. He contends that he was told
that if he completed his probation successfully, his conviction
would be removed from his record. He claims that he was never
told that he needed to have a set-aside hearing. Hansen claims
that after he completed his probation he believed that the felony
conviction had been expunged. The incident in which Hansen was
charged with possessing the concealable firearm took place
approximately a year after he completed his probation.
For purposes of this appeal, we do not decide whether
Hansen's affidavit is true. The trial court never considered the
issues raised in the affidavit; the trial court concluded that
even if true, Hansen's affidavit would not support a defense.
However, the affidavit does illustrate a scenario that could
arise in a case such as Hansen's. As the supreme court pointed
out, when a trial judge places a person on probation on a
suspended imposition of sentence, the court ordinarily has
decided that the defendant has an outstanding background, has
excellent prospects for rehabilitation, and should be given the
opportunity to be rewarded with a clean record if the defendant
successfully completes probation. In imposing a suspended
imposition of sentence, the court ordinarily emphasizes the risk
which the defendant faces: if the defendant fails on probation,
the court is authorized to impose any sentence, up to the maximum
provided by the statute. However, if the defendant successfully
completes probation, there is a presumption that the conviction
should be set aside. The con-viction is to be set aside at the
time the defendant is discharged from probation unless the state
can meet its burden of showing good cause why the conviction
should not be set aside. Mekiana, 726 P.2d at 193.
In this case, the defendant was discharged from
probation after successful completion. This is demonstrated by
the fact that his conviction was set aside in a belated set-aside
hearing. It appears to us that the state prosecutor's office and
the court system were at least partially responsible for the fact
that the set-aside hearing was not conducted in a timely manner
as is contemplated by the statute.2 There is a substantial
possibility that someone in Hansen's position could have been
misled into believing that the earlier felony conviction had been
set aside. We therefore believe that, using Hansen's case as
illustrative, when a defendant who completes probation on a
suspended imposition of sentence has that conviction set aside in
a belated set-aside hearing, the set-aside should ordinarily
relate back to the date the defendant was discharged from
probation.3
We find that Hansen's case is distinguishable from
Clark v. State, 739 P.2d 777 (Alaska App. 1987). In Clark, the
defendant was convicted for being a felon in possession while the
underlying felony was on appeal. This felony conviction was
later reversed on appeal, and ultimately was dismissed by the
state. We held that Clark could be convicted as a felon in
possession of a concealable firearm under AS 11.61.200 under
these circumstances. We concluded that it was unreasonable for a
defendant whose conviction was on appeal to gamble that his
conviction might ultimately be overturned. We concluded that the
legislature did not intend that people who had been convicted of
felonies and whose convictions were on appeal be able to possess
concealable firearms, even if their convictions were ultimately
reversed and dismissed.
It is reasonable to treat a conviction pending appeal
as valid. There is ordinarily no set time period in which an
appeal will be decided. When a defendant's conviction is on
appeal, it appears to us unreasonable for that defendant to
assume that the conviction is somehow invalid and that he is not
a convicted felon for purposes of AS 11.61.200, which makes it
unlawful for a person who has previously been convicted of a
felony to possess a concealable firearm.
In our view, a defendant who has completed probation on
a suspended imposition of sentence stands on different ground.
If that defendant successfully completes probation, that
defendant is ordinarily entitled to have the conviction removed
from his or her record on the date of discharge from probation.
As we have tried to illustrate, we believe that there is a
substantial possibility that a defendant could be confused about
the mechanism for removing that conviction from one's record.
When a defendant who is entitled to discharge is not discharged
or does not receive a set-aside determination upon the completion
of probation, the fault, at least in part, is that of the state
prosecutor's office and the court system. The court system has
not promptly responded to set aside the defendant's conviction as
required by law. Under these circumstances, we are disinclined
to penalize the defendant for an offense based upon a former
conviction that exists only because it was not removed from the
defendant's record in a timely fashion.
We accordingly hold that Hansen's attorney misinformed
him when she told him that he did not have a defense to being a
felon in possession of a concealable firearm under AS 11.61.200.
Because Hansen was misinformed concerning the law when he entered
his plea, he was entitled to withdraw his plea. We accordingly
hold that Judge Cranston erred in refusing to let Hansen withdraw
his plea.
The conviction is REVERSED, the case is REMANDED.
_______________________________
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1. "Nunc pro tunc" is "[a] phrase applied to acts
allowed to be done after the time when they should be done, with
a retroactive effect, i.e., with the same effect as if regularly
done." Black's Law Dictionary 1069 (6th ed. 1990). See
generally Fawcett v. Weaver, 163 So. 561, 562 (Fla. 1935) (citing
cases for support) ("[W]henever delay in entering a judgment is
caused by the action of the court, judgment nunc pro tunc will be
allowed as of the time when the party would otherwise have been
entitled to it if justice requires it."); State v. Nelson, 36
So.2d 427, 429 (Fla. 1948) (imposition of proper statutory
habitual offender sentence enhancement should be applied nunc pro
tunc to the date of original sentencing of the second felony).
2. We note that Alaska Criminal Rule 35.2, regarding
discharge from probation and set-aside of conviction following a
suspended imposition of sentence, became effective January 15,
1989.
3. In deciding Hansen's case, we find it unnecessary
to deal with the hypothetical situation in which a defendant
receives actual notice of a set-aside hearing to take place a
short time following discharge from probation. Under such
circumstances, it appears that it would be unreasonable for a
defendant to possess a firearm, gambling that he would ultimately
prevail in the set-aside hearing.
