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THE COURT OF APPEALS OF THE STATE OF ALASKA
PHILLIP WICKHAM, )
) Court of Appeals No. A-
2104/2365
Appellant, ) Trial Court No. 4FA-S81-1584CR
) 4FA-S86-2327CR
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1276 - January 8, 1993]
______________________________)
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Christopher Zimmerman and Jay
Hodges, Judges.
Appearances: Marcia E. Holland, Assistant
Public Defender, Fairbanks, and John B.
Salemi, Public Defender, Anchorage, for
Appellant. W. H. Hawley, 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.]
BRYNER, Chief Judge.
Following a jury trial, Phillip J. Wickham was
convicted of one count of manslaughter and one count of third-
degree assault. In this appeal, Wickham argues that the trial
court erred in allowing him to be impeached by evidence of two
prior convictions that should have been set aside due to
Wickham's successful completion of probation after he had
received a suspended imposition of sentence for the prior
offenses. We reverse.
Wickham was charged with manslaughter and assault in
1986. Prior to trial on these charges, Wickham moved to set
aside a 1982 judgment of conviction for two counts of perjury,
for which he had received a suspended imposition of sentence
pursuant to AS 12.55.085. Wickham alleged that he had complied
with the requirements of his suspended imposition of sentence and
was therefore entitled to have the 1982 convictions set aside.
The superior court denied Wickham's set-aside motion without an
evidentiary hearing, concluding, as a matter of law, that
Wickham's probation on the perjury convictions had not yet
expired. Subsequently, the court ruled that because the perjury
convictions had not been set aside they could be used to impeach
Wickham if he elected to testify at his trial.
After being convicted of the manslaughter and assault
charges, Wickham appealed, challenging the superior court's
denial of his motion to set aside the 1982 perjury convictions
and contending that the court erred in ruling that those
convictions could be used against him for impeachment purposes.
In Wickham v. State, 770 P.2d 757 (Alaska App. 1989),
rev'd on other grounds, 796 P.2d 1354 (Alaska 1990), this court
found error in the superior court's ruling that Wickham's
probation on the perjury convictions had not yet expired. We
concluded that Wickham was entitled to a hearing to determine
whether good cause existed to deny the set-aside of his 1982
convictions, and we remanded his case, directing the superior
court to set aside the perjury convictions unless the state
established good cause for denial of the set-aside motion.
Wickham, 770 P.2d at 760.
We nevertheless stopped short of deciding whether use
of the 1982 perjury convictions to impeach Wickham would
necessarily amount to error, even if the superior court
determined, on remand, that these convictions should have been
set aside. Retaining jurisdiction over Wickham's appeal, we
expressly reserved this issue for further consideration following
the remand. Id. at 763-64.
On remand, the superior court conducted a hearing,
concluded that the state had failed to show good cause for denial
of Wickham's set-aside motion, and entered an order setting aside
the 1982 convictions. Wickham's case has now returned to us for
resolution of the issue we previously reserved: was use of the
1982 convictions for impeachment purposes improper given that
those convictions should have been set aside?
Alaska Statute 12.55.085 and Alaska Rule of Evidence
609 set the analytical framework within which we must resolve
this issue. Under AS 12.55.085,1 which governs suspended imposi
tions of sentence, the sentencing court has discretion to set
aside a conviction whenever a person receives a suspended
imposition of sentence and thereafter successfully completes
probation. However, under A.R.E. 609,2 which governs the use of
prior convictions for purposes of impeachment, a prior conviction
that has been set aside may still be used for impeachment
purposes unless "[t]he procedure" that led to the set-aside
"required a substantial showing of rehabilitation . . . ."
A.R.E. 609(d).
The precise issue in Wickham's case is thus whether the
set-aside procedure established in AS 12.55.085 -- Alaska's
suspended imposition of sentence statute -- is one that
"require[s] a substantial showing of rehabilitation," so as to
trigger the provision in A.R.E. 609(d) that precludes prior
convictions from being used for impeachment purposes after they
are set aside.
Although we declined to resolve this issue in our
original opinion in this case, we expressed considerable
skepticism as to whether the broad discretionary grant of set-
aside authority established in AS 12.55.085 would qualify as a
procedure requiring "a substantial showing of rehabilitation," as
called for in A.R.E. 609(d). Specifically, we said:
In their briefs on appeal, both Wickham and
the state seem to assume that the trial court
could not have allowed the perjury
convictions to be used for purposes of im
peachment if they had been set aside. The
correctness of this assumption is debatable.
Alaska Rule of Evidence 609(d) precludes
evidence of a conviction for impeachment
purposes if:
(1) The conviction has been
the subject of a pardon, annu[l]-
ment, certificate of rehabil
itation, or other equivalent proce
dure, and
(2) The procedure under which
the same was granted or issued re
quired a substantial showing of
rehabilitation or was based on inno
cence.
This provision is very similar to Federal
Rule of Evidence 609(c). Federal cases
applying this rule to prior convictions under
various state statutes seem to turn on
whether the state's set-aside procedures
require an affirmative finding that the
defendant has been rehabilitated. See, e.g.,
United States v. Pagan, 721 F.2d 24, 29 (2d
Cir. 1983); Wilson v. Attaway, 757 F.2d 1227,
1244 (11th Cir.), rehearing denied, 764 F.2d
1411 (11th Cir. 1985); United States v.
Potts, 528 F.2d 883, 885 (9th Cir. 1975) (en
banc).
Alaska's set-aside statute, AS
12.55.085, does not expressly require a find
ing of rehabilitation. Under AS
12.55.085(d), a person who has been given a
suspended imposition of sentence must be
discharged without the imposition of a
sentence when that person successfully
completes the period of probation specified
in the original sentencing order. Under AS
12.55.085(e), upon discharge, "the court may
set aside the conviction and issue to the
person a certificate to that effect."
While it is obvious that the statutory
provisions governing suspended impositions of
sentence and set-asides are generally calcu
lated to promote the rehabilitation of deserv
ing offenders, it is uncertain whether a set-
aside order issued pursuant to AS
12.55.085(e) should be construed to represent
an affirmative finding of rehabilitation.
Both this court and the Alaska Supreme Court
have construed AS 12.55.085(d) and (e) to
require set-asides to be granted unless the
state can establish good cause for denial.
State v. Mekiana, 726 P.2d 189, 193 (Alaska
1986); Mekiana v. State, 707 P.2d 918, 921
(Alaska App. 1985). These decisions seem
consistent with the view that no affirmative
showing or finding of rehabilitation need be
made before a set-aside is granted; rather, a
set-aside should be granted as a matter of
right unless some specific reason for denial
is established.
Because this issue is a significant one,
and because it has not been addressed on
appeal by either party, we believe it prudent
to request additional briefing before
deciding whether, under A.R.E. 609(d), a
conviction that has been set aside under AS
12.55.085 can be relied upon for purposes of
impeachment.
Wickham v. State, 770 P.2d at 763-64.
Having now received and reviewed additional briefing
from the parties on this issue, we are convinced that our initial
skepticism was unfounded.
It is undisputed that the set-aside provisions of AS
12.55.085 do not expressly require "a substantial showing of
rehabilitation" before a conviction may be set aside. As the
state points out, and as Wickham acknowledges, this court has
interpreted Alaska's suspended imposition of sentence statute to
require set-aside upon successful completion of probation, unless
the state can demonstrate good cause for denial. Mekiana v.
State, 707 P.2d 918, 922 (Alaska App. 1985), rev'd on other
grounds, 726 P.2d 189 (Alaska 1986).
At first blush, the seemingly automatic set-aside
procedure embodied in our suspended imposition of sentence
statute may appear to be plainly inconsistent with the type of
"procedure requiring a substantial showing of rehabilitation"
that is necessary to bar use for impeachment under A.R.E. 609(d).
Closer scrutiny, however, reveals the inconsistency to be
apparent, not real.
Our decisions and those of the Alaska Supreme Court
have consistently construed Alaska's suspended imposition of
sentence statute -- and the set-aside provision incorporated
therein -- to be integrally linked to an offender's
rehabilitation. Recently, we observed:
A suspended imposition of sentence is a
unique disposition: by providing for the
eventual set-aside of a conviction, a
suspended imposition of sentence offers the
offender an incentive for reform and an
opportunity to start anew with a clean slate.
By its very nature . . . a suspended
imposition of sentence is primarily meant to
be a one-time opportunity for particularly
deserving first-offenders.
State v. Huletz, ___ P.2d ___ Op. No. 1248 at 6 (Alaska App.,
September 18, 1992). See also State v. Mekiana, 726 P.2d at 193;
Hansen v. State, 824 P.2d 1384, 1388-89 (Alaska App. 1992).
Given the unmistakable nexus between the suspended
imposition of sentence statute and the goal of allowing deserving
first-offenders an opportunity at rehabilitation, it seems
virtually inconceivable that a set-aside would ever be justified
in the face of substantial evidence establishing that an offender
had not actually been reformed. The suspended imposition of
sentence statute does not purport to allow convictions to be set
aside on grounds unrelated to rehabilitation, and we have never
interpreted it to do so.
It seems clear in context that, by presumptively entitl
ing all successful probationers to set-asides without further,
affirmative proof of rehabilitation, Alaska's suspended
imposition of sentencing statute does not abandon the requirement
of showing rehabilitation as a prerequisite to a set-aside;
rather, the statute merely shifts the burden of proof on the
issue. In practical effect, the statute deems successful
completion of probation to be the equivalent of a prima facie
showing of rehabilitation. This implicit showing of
rehabilitation imposes on the state the duty of rebuttal, that
is, the burden of presenting the court with evidence showing
"good cause" to deny set-aside, despite the offender's apparent
rehabilitation.
In Mekiana v. State, we described Alaska's suspended
imposition of sentence statute as performing this type of burden
shifting function:
AS 12.55.085 authorizes the sentencing court
to set aside a conviction when a deserving
offender successfully completes probation and
is discharged. In so doing, the provision
acts as a substantial incentive for probation
ers to perform well and accords significance
to a defendant's interest in being relieved
of the civil disabilities attendant upon
having a criminal record.
Mekiana v. State, 707 P.2d at 921 (footnote omitted).
In reviewing this court's opinion in
Mekiana, the Alaska Supreme Court expressly
agreed with this aspect of our decision:
[T]he court of appeals essentially has inter
preted the set-aside statute to require that
the State show why a set-aside should be
denied, which creates a presumption in favor
of a set-aside. We believe it appropriate to
put this burden of proof on the State.
State v. Mekiana, 726 P.2d at 193 (citation omitted).
In explaining its conclusion, the supreme court
expressed with unmistakable clarity its view that, absent
affirmative evidence to the contrary, successful completion of
probation amounts to a showing of rehabilitation:
Ordinarily, when a judge opts to order a
suspended 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.
Id. (emphasis added).
In short, the set-aside provisions of AS 12.55.085 are
intended for particularly deserving first-offenders -- offenders
whose prospects for reform are particularly promising. The
statute permits a set-aside to be granted only to those offenders
who fulfill their potential by successfully completing probation,
thereby making a prima facie "showing" of actual rehabilitation.
By affording the state the opportunity to rebut this prima facie
showing of rehabilitation with evidence establishing good cause
to deny a set-aside, and by entrusting the ultimate decision on
set-aside to the sound discretion of the sentencing court, the
statute provides for something more than an automatic restoration
of the status quo ante: it assures that set-aside orders will
reflect a substantial showing of rehabilitation.
For these reasons, we conclude that the set-aside
provisions of AS 12.55.085 "require a substantial showing of
rehabilitation," within the meaning of A.R.E. 609(d)(2).
Accordingly, we hold that a conviction may not be relied on for
impeachment purposes after it has been set aside under this
statute.3
The state nevertheless argues that the trial court's
ruling that Wickham's 1982 perjury convictions could be used for
impeachment purposes did not amount to error, because the
convictions had not yet been set aside when Wickham was tried.
In support of this argument, the state cites Clark v. State, 739
P.2d 777 (Alaska App. 1987). Clark was charged with being a
felon in possession of a concealable firearm. His underlying
felony conviction was on appeal at the time of the alleged
offense and was later reversed. Clark argued that the subsequent
reversal of the underlying conviction should have barred his
conviction for being a felon in possession. We affirmed Clark's
conviction, concluding that Clark was a convicted felon at the
time of the alleged crime, and that it was unreasonable for him
to gamble on the possibility of a reversal on appeal by carrying
a concealable firearm. Id. at 781.
As the state acknowledges, we have more recently distin
guished the situation in Clark from one involving a suspended
imposition of sentence. Specifically, in Hansen v. State, 824
P.2d 1384 (Alaska App. 1992), we held that a defendant with a
prior felony conviction could not be convicted of being a felon
in possession of a concealable firearm if he was entitled to a
set-aside of the prior conviction at the time he possessed the
firearm. We found that "a defendant who has completed probation
on a suspended imposition of sentence stands on different ground"
than one whose conviction is on appeal:
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 defen
dant'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 defen
dant's record in a timely fashion.
Id. at 1389.
In our view, Hansen, not Clark, squarely governs the
present case.4 Particularly in the circumstances of the present
case, where Wickham sought, and was erroneously denied, an order
setting aside his 1982 convictions prior to his trial, we find no
basis for denying nunc pro tunc effect to the set-aside of the
prior convictions.
Accordingly, we conclude that Wickham's conviction must
be REVERSED.5
_______________________________
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1. AS 12.55.085 provides, in pertinent part:
Suspending imposition of sentence. (a) . . .
if it appears that there are circumstances in
mitigation of the punishment, or that the
ends of justice will be served, the court
may, in its discretion, suspend the
imposition of sentence and may direct that
the suspension continue for a period of time,
not exceeding the maximum term of sentence
that may be imposed, and upon the terms and
conditions that the court determines, and
shall place the person on probation, under
the charge and supervision of the probation
officer of the court during the suspension.
. . . .
(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.
2. Alaska Rule of Evidence 609 states, in pertinent part:
Impeachment by Evidence of Conviction of
Crime.
(a) General Rule. For the purpose of
attacking the credibility of a witness, evi
dence that he has been convicted of a crime
is only admissible if the crime involved
dishonesty or false statement.
. . . .
(d) Effect of Pardon, Annulment, or
Certificate of Rehabilitation. Evidence of a
conviction is inadmissible under this rule
if:
(1) The conviction has been the subject
of a pardon, annulment, certificate of reha
bilitation, or other equivalent procedure,
and
(2) The procedure under which the same
was granted or issued required a substantial
showing of rehabilitation or was based on
innocence.
3. The various federal cases we cited in our original
opinion do not compel a contrary conclusion. Those cases
interpret Federal Rule of Evidence 609(c), which differs somewhat
from its counterpart, Alaska Rule of Evidence 609(d). Federal
Rule of Evidence 609(c) reads:
(c) Effect of pardon, annulment, or
certificate of rehabilitation. Evidence of a
conviction is not admissible under this rule
if (1) the conviction has been the subject of
a pardon, annulment, certificate of rehabili
tation, or other equivalent procedure based
on a finding of the rehabilitation of the
person convicted, and that person has not
been convicted of a subsequent crime which
was punishable by death or imprisonment in
excess of one year, or (2) the conviction has
been the subject of a pardon, annulment, or
other equivalent procedure based on a finding
of innocence.
This rule differs from A.R.E. 609(d) in that it focuses
not on whether a set-aside order was granted under a procedure
that required a substantial showing of rehabilitation, but rather
on whether the order was in fact based on a finding of
rehabilitation, regardless of the underlying procedure involved.
Most cases construing the federal rule thus inquire into the
actual basis for set-aside, and preclude impeachment when it can
be shown that a set-aside order was based on a finding of
rehabilitation. See, e.g., United States v. Wood, 943 F.2d 1048,
1054-56 (9th Cir. 1991); United States v. Ferguson, 776 F.2d 217,
222 & n.5 (8th Cir. 1985); Brown v. Frey, 889 F.2d 159, 171 (8th
Cir. 1989); United States v. Thorne, 547 F.2d 56, 59 (8th Cir.
1976); Wilson v. Attaway, 757 F.2d 1227, 1244 (11th Cir. 1985);
Smith v. Tidewater Marine towing, Inc., 927 F.2d 838, 840-41 (5th
Cir. 1991). See also United States v. Pagan, 721 F.2d 24, 29 (2d
Cir. 1983).
The state maintains that the wording of A.R.E. 609(d)
is more restrictive than that of Federal Rule of Evidence 609(c),
and that this difference indicates an intent on the part of the
drafters of A.R.E. 609(d) to apply the rule more narrowly than
its federal counterpart. We have found no support for such a
conclusion.
The differing emphasis in the federal rule -- on a
"finding" rather than a "showing" of rehabilitation -- seems to
favor exclusion of previously set-aside convictions in some
instances where admission might be allowed under the Alaska rule,
while allowing admission in some instances where exclusion would
be required in Alaska. Compare, e.g., United States v. Ferguson,
776 F.2d 222 & n.5 (precluding impeachment when court concluded
that prior expungement order was actually based on
rehabilitation, even though the statute under which the order was
entered did not require a showing of rehabilitation), with
United States v. Wood, 943 F.2d at 1054-56 (allowing impeachment
when a set-aside statute similar to Alaska's was closely tied to
the goal of rehabilitation but did not require an actual finding
of rehabilitation).
Our attempts to gain insight into the differences
between A.R.E. 609(d) and Federal Rule of Evidence 609(c) have
yielded little useful information. Alaska Rule of Evidence
609(d) is identical to former Alaska Criminal Rule 26(f)(3),
which was adopted by the Alaska Supreme Court in 1973. See
Lowell v. State, 574 P.2d 1281, 1282-83 (Alaska 1978). Criminal
Rule 26(f)(3), in turn, appears to have been taken verbatim from
Rule 609(c) of the Proposed Rules of Evidence for the United
States Courts and Magistrates (Revised Draft, March 1971). See
51 F.R.D. 315, 391-95 (1971). The March 1971 revised draft of
Proposed Federal Rule of Evidence 609(c) underwent changes by the
United States Supreme Court in July of 1973, see 56 F.R.D. 183,
270-71 (1973), and was passed on to Congress, where further
revisions were incorporated before Congress enacted Federal Rule
of Evidence 609(c) in its final form. See generally 1 Stephen A.
Saltzburg & Michael M. Martin, Federal Rules of Evidence Manual,
2-5 (5th ed. 1990).
Nothing in the legislative history of Federal Rule of
Evidence 609(c) provides insight into the reasons for the shift
from the 1971 proposed language, which, like Alaska's A.R.E.
609(d), spoke of a procedure that "required a substantial showing
of rehabilitation," to the current language of Federal Rule of
Evidence 609(c), which speaks of "a finding of . . . rehabilita
tion." See 1 Saltzburg & Martin, supra, at 640, 671-680.
Similarly, we have found no legislative history indicating the
Alaska Supreme Court's reasons for adopting the language of the
1971 proposed federal rule. It would appear that the supreme
court simply elected to follow what was then the most current
formulation of the proposed federal rule. In any event, since
the current version of Federal Rule of Evidence 609(c) was not in
existence when A.R.E. 609(d) was promulgated, there is no support
for the state's contention that the Alaska rule was meant to be
more narrowly applied than the federal rule.
4. The state seems to suggest that we reconsider Hansen
because, in the state's view, it goes against decisions in other
jurisdictions. We find nothing in the state's brief to warrant
reconsideration of Hansen.
5. Our reversal of Wickham's conviction makes it
unnecessary to consider his sentencing argument.
