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THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Court of Appeals No. A-4361
Appellant, ) Trial Court No. 3PA-91-1592CR
)
v. ) O P I N I O N
)
DAVID W. PEEL, )
)
Appellee. ) [No. 1272 - December 31, 1992]
)
Appeal from the District Court of the State
of Alaska, Third Judicial District, Palmer,
Peter Ashman, Judge.
Appearances: Cynthia L. Herren, Assistant
Attorney General, Office of Special Prosecutions
and Appeals, Anchorage, and Charles E. Cole,
Attorney General, Juneau, for Appellant. L.
Andrew Robinson, Hartig, Rhodes, Norman, Mahoney &
Edwards, Palmer, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
COATS, Judge.
David W. Peel pled no contest to the offense of driving
while intoxicated (DWI), a class A misdemeanor. AS 28.35.030.
Peel had a prior conviction for driving while intoxicated in
Louisiana in 1986. The state contended that because Peel had
previously been convicted of DWI, the court was required to
sentence Peel to a minimum sentence of twenty days of
imprisonment and a $500 fine.1
In the trial court, Peel argued that District Court
Judge Peter Ashman should not use his previous conviction for DWI
from Louisiana to classify Peel as a second DWI offender. Peel
pointed out that under Louisiana law, defendants who were charged
with criminal offenses which carry a penalty of no more than six
months in jail cannot obtain a jury trial. DWI is such an
offense in Louisiana, and he therefore had no right to a jury
trial. Under the Alaska Constitution, Peel would be entitled to
have a jury trial for any offense where he faced imprisonment.
Baker v. City of Fairbanks, 471 P.2d 386, 401-02 (Alaska 1970).
Peel argued that since his Louisiana conviction would not have
been valid under Alaska law, the Louisiana conviction was flawed
and the court could not use that prior conviction to impose the
mandatory minimum penalty under AS 28.35.030. Peel pointed out
that in Pananen v. State, 711 P.2d 528 (Alaska App. 1985), this
court held that the trial court could not use a previous DWI
conviction from Wisconsin to enhance the minimum sentence on an
Alaskan DWI conviction because the defendant had not been
entitled to court-appointed counsel on the Wisconsin conviction.
He contended that the court should reach a similar result since
he had not been entitled to a jury trial.
The state contended that Judge Ashman should
distinguish between prior convictions where the defendant had no
right to counsel and prior convictions where the defendant had a
right to counsel but did not have a right to a jury trial. The
state argued that while a conviction where the defendant had no
right to counsel might be unreliable, there was no reason to
reach a similar conclusion where the defendant was represented by
counsel but did not have a right to a jury trial.
Judge Ashman concluded that in Alaska the right to a
trial by jury is a core constitutional right which is similar to
the right to counsel. He concluded that because the state of
Louisiana did not allow Peel a trial by jury, he should not use
this prior conviction as a prior DWI offense for purposes of
applying the mandatory minimum punishments under AS 28.35.030.
He therefore concluded that he should treat Peel as a first
offender for sentencing purposes under AS 28.35.030. The state
petitioned for review from this decision, and Judge Ashman stayed
the sentencing proceeding. This court granted review. We now
affirm Judge Ashman's decision.
It appears that under federal law there is no
impediment to a court using a prior conviction where the
defendant did not have a right to a jury trial to enhance the
penalty for a subsequent conviction. In Blanton v. City of North
Las Vegas, Nevada, 489 U.S. 538, 543 (1989), Justice Marshall,
writing for a unanimous Court, held that the federal Constitution
does not guarantee the right of jury trial for an offense for
which the maximum prison term is six months or less. The Court
held that the State of Nevada did not have to provide a jury
trial for a first offense of driving under the influence, for
which the maximum term was six months. However, the Court noted
that repeat offenders were subject to increased penalties,
Blanton at 540 & n.2, and specifically declined to consider
whether the state could use previous convictions where the
defendant had no right to a jury trial to enhance the penalties
for subsequent convictions. Id. at 545 n.12.
Lower federal courts have addressed this issue reserved
by Blanton and concluded that previous nonjury convictions can
enhance the penalties for subsequent convictions. In McCullough
v. Singletary, 967 F.2d 530, 532-34 (11th Cir. 1992), and United
States v. Williams, 891 F.2d 212, 214-15 (9th Cir. 1989), cert.
denied, 494 U.S. 1037 (1990), the circuit courts held that
previous juvenile convictions could be used to enhance the
sentence for a later felony offense even though the juvenile
convictions had been without the right to jury trials. In
Williams, the court specifically distinguished Baldasar v.
Illinois, 446 U.S. 222, reh'g denied, 447 U.S. 930 (1980)
(holding that prior uncounseled conviction could not increase
imprisonment for current offense) saying, "[t]he right to counsel
is more fundamental than the right to a jury trial." 891 F.2d at
215. In Westmoreland v. Demosthenes, 737 F.Supp. 1127, 1129-30
(D. Nev. 1990), the district court followed Williams and held
that prior nonjury convictions for driving under the influence of
alcohol (DUI) could, under the federal constitution, enhance the
term of imprisonment for later DUI convictions.
As we have previously pointed out, this court has
already concluded that the state cannot use convictions where the
defendant did not have the benefit of counsel as a basis for
applying the mandatory minimum sentence provisions of AS
28.35.030. We stated that "an uncounseled conviction is simply
too unreliable to be depended on for purposes of imposing a
sentence of incarceration, whether that sentence is imposed
directly or collaterally." Penanen, 711 P.2d at 532 (footnote
omitted). We held that the Alaska Constitution's guarantee of
due process compelled this conclusion if it was not compelled as
a matter of federal constitutional law. Id.
In its argument, the state attempts to distinguish the
defendant's right to counsel from his right to a jury trial. The
state points out that Peel's prior conviction was valid under
both the federal constitution and the law of Louisiana. However,
in the landmark case of Baker v. City of Fairbanks, 471 P.2d 386
(Alaska 1970), where the court held that any defendant who faced
imprison-ment or other serious penalty was entitled to a jury
trial, the court found little reason to distinguish between the
right to counsel and the right to a jury trial. Id. at 395 n.14.
See O'Donnell v. Municipality of Anchorage, 642 P.2d 835, 836 n.2
(Alaska App. 1982) ("[o]ur supreme court has indicated that the
right to jury trial and the right to counsel are equally funda-
mental.") We accordingly conclude that Judge Ashman correctly
decided that he should not use Peel's prior conviction for DWI as
a prior conviction for applying the mandatory minimum sentence
provisions of AS 28.35.030.2
AFFIRMED.
_______________________________
1. Alaska Statute 28.35.030 requires courts to
sentence defendants who are convicted of DWI to mandatory minimum
sentences which increase with prior convictions. For a person
who has not been previously convicted, the statute requires the
court to impose a minimum sentence of imprisonment of not less
than seventy-two consecutive hours and a fine of not less than
$250. AS 28.35.030(b). If the person has been previously
convicted once, the statute requires the court to impose a
minimum sentence of not less than twenty days of imprisonment and
a fine of not less than $500. Id. Former AS 28.35.030(k)(3)
stated that:
(3) "previously convicted" means having
been convicted in this or another jurisdic-
tion, within 10 years preceding the date of
the present offense, of operating a motor
vehicle, aircraft, or watercraft while
intoxicated under this section or another law
or ordinance with substantially similar
elements. . . .
AS 28.35.030(k)(3)(amended 1992).
2. Peel concedes that Judge Ashman could properly use
his prior Louisiana conviction for purposes of sentencing as long
as Judge Ashman did not use the prior conviction for purposes of
applying the mandatory minimum penalties. This concession seems
sound. See Nukapigak v. State, 562 P.2d 697, 701 (Alaska 1976)
(courts may consider "verified instances of past antisocial
behavior").
