NOTICE: This opinion is subject to formal
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THE COURT OF APPEALS OF THE STATE OF ALASKA
JOHN B. MONROE, )
) Court of Appeals No. A-3957
Appellant, ) Trial Court No. 4FA-S90-
1719CR
)
v. ) O
P I N I O N
)
STATE OF ALASKA, )
) [No. 1284 - February 19,
1993]
Appellee. )
________________________________)
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Richard D. Savell,
Judge.
Appearances: Richard Keck, Assistant Public
Defender, Fairbanks, and John B. Salemi,
Public Defender, Anchorage, 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, and Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
John B. Monroe pled no contest to a charge of second-
degree murder, in violation of AS 11.41.110(a)(1). Following a
sentencing hearing, Superior Court Judge Richard D. Savell found
Monroe guilty but mentally ill (GBMI) and sentenced him to serve
sixty years in prison. Monroe appeals, arguing that: (1) the
superior court violated his privilege against self-incrimination
at the GBMI hearing by allowing the state to present testimony
from a psychologist who had examined Monroe for the purpose of
determining his competency to stand trial; (2) the court violated
Monroe's right to have his plea of no contest accepted
unconditionally by adjudicating him GBMI; (3) the state presented
insufficient evidence to support a finding of GBMI; and (4) the
mandatory restriction on parole set forth in the GBMI statute
violates Monroe's right to equal protection. Monroe further
raises a number of sentencing issues. We affirm.
FACTS
At 2:27 a.m. on June 5, 1990, the Alaska State
Troopers' office in Fairbanks received a telephone call from a
man who stated, "We have a stiff on our hands," and, "I [or we]
need medical attention." The call was traced to John Monroe's
residence, and three troopers were sent to investigate. When the
troopers arrived, they were met by Monroe, who had blood on his
hands and clothing. Monroe stated that he "wanted to make sure
. . . that he got a decent burial." Monroe then led the troopers
to the body of his father, Gilbert Monroe. The body was lying on
the ground near the cabin in which Monroe's father had lived.
The body was covered in blood; two bloody knives had been placed
on its chest.
Inside Gilbert Monroe's cabin, the troopers discovered
signs of a struggle. Patterns of blood found in the cabin
indicated that the struggle began inside the home and then
proceeded outside. An autopsy revealed that Gilbert Monroe died
from approximately thirty-three stab wounds to his head and neck.
Both the victim's jugular veins and the left carotid artery had
been severed. In addition, Gilbert Monroe had defensive stab
wounds on his hands.
Monroe was arrested and charged with first-degree
murder. At Monroe's arraignment, the state moved to have him
undergo a court-ordered competency evaluation. The motion was
based on the state's awareness that Monroe had a history of
paranoid schizophrenia. Monroe's attorneys informed the court
that they wished to seek an independent evaluation of Monroe by
Drs. Rothrock and Parker. The trial court agreed to allow Monroe
to seek an independent evaluation prior to intervention from the
court.
After Drs. Rothrock and Parker had completed their
competency evaluations, Monroe's counsel informed the court that
they had found Monroe incompetent to proceed. The court then sua
sponte ordered an independent competency evaluation, indicating
in its order that Monroe's counsel could be present and could
record the examination. Pursuant to court order, Monroe was
examined by Dr. David Sperbeck on August 3, 1990.
Dr. Sperbeck determined that Monroe was not competent,
but suggested that Monroe could attain competency through treat
ment. After a period of treatment, Monroe was re-examined by Dr.
Rothrock, who concluded that Monroe was now able to assist his
attorneys and was therefore competent to proceed. The trial
court accepted Dr. Rothrock's finding of competency.
Monroe eventually entered into a plea agreement with
the state. The agreement, which called upon Monroe to plead no
contest to the reduced charge of murder in the second degree,
expressly contemplated that, for sentencing purposes, the state
would be allowed to attempt to establish that Monroe was GBMI.1
At the change of plea hearing, counsel for Monroe indicated that
Monroe would contest the GBMI issue. Prior to sentencing, the
state filed formal notice of its intent to have Monroe found
GBMI. The state further filed a motion to allow Dr. Sperbeck to
testify telephonically on the GBMI issue at the sentencing
hearing. Monroe apparently did not object, and the motion was
granted.
On April 12, 1991, Judge Savell conducted a sentencing
hearing in Monroe's case. The court first addressed the GBMI
issue. Dr. Sperbeck was called by the state and testified
without objection from Monroe. Dr. Sperbeck stated that Monroe
suffered from "one of the most severe cases of schizophrenia that
I've ever seen." He noted that Monroe's illness was "very
responsive to treatment," but emphasized that, in the past,
Monroe had not been reliable in taking medication: when allowed
to take oral medication voluntarily, Monroe would take less than
the prescribed dosage, or would manipulate his doctors into
prescribing smaller dosages than were necessary to treat his
condition.
Dr. Sperbeck also testified that, at the time of the
offense, Monroe had not had the proper amount of medication in
five weeks; the amount of medication Monroe was taking at the
time of the offense was "absolutely subtherapeutic." Dr.
Sperbeck concluded that it was more likely than not that on the
date of the offense Monroe was suffering from psychotic
delusions, and that, as a result of this mental state, he could
not appreciate the wrongfulness of his actions nor conform his
conduct to the requirements of the law.
Based on this and other evidence, Judge Savell found
Monroe GBMI. The court then proceeded to sentence Monroe under
the GBMI sentencing provisions. Finding that Monroe posed an
extreme danger to the community when off medication, that he had
little insight into his disease, and that he could not be relied
on to continue with appropriate medication, the court concluded
that Monroe needed to be isolated for the safety of the public.
The court sentenced Monroe to sixty years' imprisonment.
DISCUSSION
Monroe initially claims that the superior court erred
in allowing Dr. Sperbeck to testify on the GBMI issue. Monroe
contends that, since Dr. Sperbeck had been appointed by the court
to examine him solely on the issue of competency to proceed and
since Monroe had not been advised of his Miranda rights, allowing
Dr. Sperbeck to testify on the GBMI issue violated Monroe's
privilege against self-incrimination. Cf. Estelle v. Smith, 451
U.S. 454 (1981); R.H. v. State, 777 P.2d 204 (Alaska App. 1989).
Monroe raises this issue for the first time on appeal.
Because Monroe failed to object to Dr. Sperbeck's testimony
below, we review only for plain error. We will find plain error
only when an obvious mistake causes substantial prejudice to the
accused under circumstances establishing that the mistake did not
result from a tactical choice by the accused. Massey v. State,
771 P.2d 448, 453 (Alaska App. 1989); Potts v. State, 712 P.2d
385, 390 (Alaska App. 1985).
In the present case, the record discloses more than a
passive failure to object to Dr. Sperbeck's testimony. At the
outset of the GBMI hearing, Monroe's trial counsel expressly told
the court that he intended to rely on Dr. Sperbeck's cross-
examination to defend against the state's attempt to prove him
GBMI:
We're going to contest the finding of guilty,
but mentally ill, primarily through cross-
examination of Dr. Sperbeck, who examined
John about two months after John had been
incarcerated.
During cross-examination, defense counsel questioned Dr. Sperbeck
extensively regarding Dr. Sperbeck's conclusion that Monroe
willfully neglected to take his prescribed medication and schemed
to have his dosage amount reduced. During this line of question
ing, counsel specifically referred Dr. Sperbeck to portions of
the medical records that counsel now claims were improperly
relied upon.
Based on this record, it appears that Monroe's trial
counsel knowingly bypassed an objection to Dr. Sperbeck's
testimony for tactical reasons. Assuming arguendo that Dr.
Sperbeck should not have been allowed to testify had Monroe
objected, we find no plain error under the circumstances of this
case.2
Monroe next claims that, because he did not
affirmatively place his own mental state in issue, the superior
court's GBMI finding violated his right to the unconditional
acceptance of his no contest plea. In asserting this claim,
Monroe relies exclusively on State v. Ruby, 650 P.2d 412 (Alaska
App. 1982). That case, however, is inapposite. Ruby, like the
cases upon which it was based,3 stands for the limited
proposition that a court cannot reject a knowing and voluntary
plea of guilty or no contest and insist that the defendant stand
trial simply because the defendant insists on claiming innocence.
Here, the superior court did not purport to reject
Monroe's plea; to the contrary, the court accepted the plea,
convicted Monroe on the basis of it, and sentenced him. Although
the court applied the GBMI statute in imposing Monroe's sentence,
this did not alter the fact that Monroe was convicted on his no
contest plea. The statutory provisions applicable to findings of
GBMI are essentially dispositional in nature: apart from differ
ences in post-sentencing treatment, the consequences of being
found GBMI, on the one hand, or merely guilty, on the other, are
essentially the same.
Monroe cites no authority for the proposition that a
defendant who is convicted on a plea of guilty or no contest is
entitled to any particular form of sentence or disposition.
Moreover, in this case, Monroe expressly entered into a plea
agreement (and thereby secured a dismissal of the original first-
degree murder charge) with the express understanding that the
state would be entitled to claim that he was GBMI. Under these
circumstances, we find that Monroe's claim lacks merit.
Monroe further argues that the evidence was
insufficient to support the trial court's finding of GBMI. The
adjudication of a person as GBMI is governed by AS 12.47.030(a),
which provides, in relevant part:
A defendant is guilty but mentally ill if,
when the defendant engaged in the criminal
conduct, the defendant lacked, as a result of
a mental disease or defect, the substantial
capacity either to appreciate the
wrongfulness of that conduct or to conform
that conduct to the requirements of law.
In the present case, the state presented overwhelming
evidence that Monroe was suffering from schizophrenia at the time
he stabbed his father, and Monroe concedes in his brief that
"[he] did not contest that he had a `mental disease or defect.'"
Dr. Sperbeck, who had access to Monroe's prior medical records,
testified that Monroe "has been consistently diagnosed as
suffering from a schizophrenic disorder, paranoid type, which is
chronic, and frequently becomes acute, either under stress or
when the defendant discontinues his medications." Dr. Sperbeck
further testified that "[Monroe] has one of the most severe cases
of schizophrenia that I've ever seen." The state also presented
the testimony of several mental health counselors who had worked
with Monroe in the past, who all supported the conclusion that
Monroe had been a longtime sufferer of schizophrenia.
Evidence that Monroe's conduct was the result of his
schizophrenia, and that he met the remaining two prongs of the
GBMI statute, was derived chiefly from Dr. Sperbeck's testimony.
Dr. Sperbeck believed that, at the time of the assault, Monroe
was suffering from an active psychosis generated by his
schizophrenia. This belief stemmed from Dr. Sperbeck's knowledge
of the amount of medication that Monroe had been taking in the
few weeks prior to the incident, an amount the doctor described
as "absolutely subtherapeutic."
Dr. Sperbeck noted that Monroe had been isolated with
his father for some time prior to the attack, and that Monroe had
a history of delusions encompassing those who were closest to
him. Dr. Sperbeck testified that Monroe was probably acting out
of fear and rage generated by a delusional conspiracy theory: "I
cannot imagine that [Monroe] was capable of understanding and
weighing and judging the effects of his behavior . . . . He must
have believed that killing his father was more important than
protecting himself." Thus Dr. Sperbeck concluded that Monroe
could not appreciate the wrongfulness of his conduct.
Dr. Sperbeck also forcefully concluded that Monroe
could not conform his conduct to the requirements of law. [Tr.
31]. In support of this conclusion, Dr. Sperbeck stated:
I believe that he was probably so distracted
by his mistaken beliefs about his father and
his father's intentions towards him or
(indiscernible) and treatment towards him
that even if a policeman had been standing at
his side, I doubt he would have been able to
control his rage.
Dr. Sperbeck added that Monroe's actions after the murder,
particularly his placing the telephone call to the state
troopers, added credence to the notion that Monroe could not
control his conduct.
When viewed in the light most favorable to the state,
this evidence is sufficient to support the trial court's
conclusion that the state met its burden of proof under AS
12.47.030(a).
Monroe also claims that the statutory parole
restriction applicable to persons found GBMI denies him equal
protection. Alaska Statute 12.47.050 states, in relevant part:
(a) If the trier of fact finds that a
defendant is guilty but mentally ill, the
court shall sentence the defendant as
provided by law and shall enter the verdict
of guilty but mentally ill as part of the
judgment.
(b) The Department of Corrections shall
provide mental health treatment to a
defendant found guilty but mentally ill. The
treatment must continue until the defendant
no longer suffers from a mental disease or
defect that causes the defendant to be
dangerous to the public peace or safety. . .
.
(c) When treatment terminates under (b)
of this section, the defendant shall be
required to serve the remainder of the
sentence imposed.
(d) Notwithstanding any contrary provi-
sion of law, a defendant receiving treatment
under (b) of this section may not be released
(1) on furlough under AS 33.30.101 -
33.30.131, except for treatment in a secure
setting; or
(2) on parole.
Based on testimony indicating that he will always
require treatment from schizophrenia, and assuming that no "cure"
for chronic paranoid schizophrenia will be discovered in the
forthcoming years, Monroe maintains that this statutory provision
will deny him any opportunity for release on parole. Building on
this premise, Monroe argues that he and other defendants found
GBMI have been unfairly singled out for harsher treatment than
defendants who are simply found "guilty."
Monroe admits that the parole restriction statute seeks
to further a legitimate and substantial state interest: to
protect society from offenders who pose a continuing danger to
the community. Monroe nevertheless asserts that the statutory
scheme infringes on the right to individual liberty. Since this
is a fundamental right, argues Monroe, the state must show that
the parole restriction serves a compelling interest and is the
least restrictive means to further the statute's goal. See
Patrick v. Lynden Transport, Inc., 765 P.2d 1375, 1377 (Alaska
1988)(citing Shapiro v. Thompson, 394 U.S. 618, 634 (1969)).
However, a person who stands to be sentenced upon
conviction of a crime has no fundamental right to liberty. In
such cases, "the individual interest affected . . . is the
relatively narrow interest of a convicted offender in minimizing
the punishment for an offense." Maeckle v. State, 792 P.2d 686,
689 (Alaska App. 1990).
In Barrett v. State, 772 P.2d 559, 573-74 (Alaska App.
1989), we rejected an equal protection challenge to the
restrictions on furloughs and parole inherent in the GBMI
statutory scheme where the GBMI finding resulted from the
defendant's having placed his mental state in issue. See AS
12.47.010; AS 12.47.020. We found that, as a practical matter,
"[n]o responsible correctional official or parole board member
would release a person into the community if he or she felt that
that person was dangerous." Barrett, 772 P.2d at 573. We then
stated that when a defendant has asserted a relationship between
mental illness and criminal behavior, such an assertion justifies
treating the defendant differently from the public at large. Id.
at 574.
We noted in Barrett that the statutory provision
allowing a GBMI finding to be made regardless of whether the
defendant placed mental health in issue, AS 12.47.060, did not
"figure in this appeal." Id. at 574 n.16. Monroe's equal protec
tion claim is arguably distinguishable from that defeated in
Barrett, since the GBMI finding in Monroe's case was entered
pursuant to AS 12.47.060, over Monroe's objection. Indeed,
Monroe relies on this distinction.
However, Monroe fails to specify why a finding of GBMI
under AS 12.47.060 would make his equal protection claim any more
tenable than that rejected in Barrett, and he cites no persuasive
authority to support his claim. We note that the finding of GBMI
in this case resulted from Monroe's election to enter into a plea
agreement whose terms expressly contemplated that the state would
argue for this disposition. Under the circumstances, we find no
merit to Monroe's equal protection claim.4
Monroe lastly challenges his sentence as excessive.
Second-degree murder is an unclassified felony, punishable by a
term of imprisonment ranging from five to ninety-nine years. AS
11.41.110(b); AS 12.55.125(b). In imposing Monroe's sixty-year
sentence, Judge Savell found that Monroe lacked insight into the
nature of his illness and into the need for medication. The
court found that Monroe had an "on-going resistance to voluntary
medication" and that "Monroe is a very dangerous person because
of his inclination to refuse medicine." The court then concluded
that "[i]t is necessary at the present time to isolate Mr. Monroe
from society to prevent repeated instances of conduct consistent
with his disease and that which brings him before the court at
this time."
In addition to the need to isolate Monroe, the court
noted that Monroe apparently could not be deterred from dangerous
conduct and that his prospects for rehabilitation were "shak[y]."
The court also noted the particular seriousness of Monroe's
conduct, which involved the murder of his own father. In summa
tion, the court said:
[A]t the present time, applying the Chaney
criteria, as the court has articulated,
considering the seriousness of the offense,
the danger that Mr. Monroe presents at this
time; the fact that a prior felony probation
was not adequate to protect him or his family
or members of the public; the fact that this
kind of offense rears its head against those
in close association with Mr. Monroe -- there
fore, to endanger family members or work
associates, as Dr. Sperbeck indicated, all
cause the court to conclude that the sentence
recommended by the court is right on the
mark.
In contending that his sentence is excessive, Monroe
first argues that the superior court erred in failing to take
into account the fact that he would likely be ineligible for
parole throughout his entire term.
At sentencing, Monroe urged the court to impose a
sentence within the twenty- to thirty-year benchmark range that
this court has established for second-degree murder. See Page v.
State, 657 P.2d 850, 855 (Alaska App. 1983). Monroe maintained
that a term exceeding the benchmark range would be particularly
harsh because the statutory restriction on parole eligibility for
persons found GBMI made it virtually certain that he would
actually serve his entire term.
In response to Monroe's argument on this point, the
sentencing judge expressed doubt as to whether Monroe's potential
ineligibility for parole was a legitimate sentencing
consideration:
Aren't I prohibited . . . in imposing a
sentence from considering likely and
anticipated release dates, either, because of
parole or good time? . . . I've been
disallowed to do what you are inviting me to
do.
Relying on this comment, Monroe contends on appeal that
the sentencing judge erred in failing to consider Monroe's
probable release date in fashioning his sentence. Monroe cites
AS 12.55.115, which permits a sentencing judge to "further
restrict the eligibility of a prisoner for discretionary parole
for a term greater than that required under AS 33.16.090 and
33.16.100." Monroe reasons that, since "[a] sentencing court may
restrict a prisoner's eligibility for discretionary parole beyond
the time otherwise statutorily mandated[,] . . . [t]his clearly
means that a sentencing judge can consider actual release dates
in fashioning a sentence."
The Alaska Supreme Court has observed, however, that
predicting parole eligibility is at best an uncertain process;
for this reason, the court has stated that "the correct approach"
to sentencing should normally be "to impose an appropriate term
of incarceration, considering the Chaney criteria, on the
assumption that the entire term may be served." Jackson v.
State, 616 P.2d 23, 24-25 (Alaska 1980)(footnotes omitted).
In the present case, the sentencing court's inquiry
reflects its understanding of this precedent, and the sentencing
record reflects that the court properly relied on it in
fashioning Monroe's sentence. The court's sentencing remarks
establish that its decision to exceed the twenty- to thirty-year
benchmark for second-degree murder was based not on any
misapprehension about Monroe's eligibility for parole, but rather
on Monroe's history of violence (which included a prior felony
conviction for a life-threatening assault), the seriousness of
Monroe's conduct in the current case, and on the exceptional
danger Monroe poses by virtue of his resistance to appropriate
treatment.
Nothing in the record indicates that the court decided
to impose a term of sixty years on the unfounded assumption that
Monroe would actually be released on discretionary parole at some
earlier point. Instead, it appears that the court determined
that the sixty-year term it imposed would be appropriate "on the
assumption that the entire term may be served." Jackson, 616
P.2d at 25 (footnote omitted).
Monroe nevertheless maintains that the evidence fails
to support the court's finding that he has had continuing
problems with treatment and cannot be counted on to take
appropriate medication in the future. In advancing this
argument, Monroe mistakenly construes the sentencing record in
the light most favorable to himself. While there is some
evidence indicating that other persons may have contributed to
Monroe's ongoing problems with receiving appropriate medication,
there is also abundant evidence that Monroe was himself the chief
source of the difficulty.
Dr. Sperbeck testified that Monroe was intelligent and
adroit at convincing his care providers to reduce his medication
until he was actually taking less than was necessary. Dr.
Sperbeck testified that when given medication to be taken orally,
Monroe would refuse to take it: in February of 1991, Dr.
Sperbeck discovered that rather than taking the 20 milligram oral
dosage of Prolixin he had prescribed Monroe, Monroe was biting
the pills in half, thereby reducing his dosage to five or ten
milligrams.
This testimony also finds support in medical records
maintained by Dr. Rothrock. In a letter to Monroe's counsel
dated October 12, 1990, Dr. Rothrock wrote that when he
interviewed Monroe the preceding June, Monroe "refused
medication, saying that he had not taken any for a long time and
did not want to now because `I have extreme difficulties taking
medicine.'" Dr. Rothrock wrote in another letter dated January
16, 1991: "Attempts to treat [Monroe] are not too successful
because [he] refuses to accept that he is ill and cooperate with
treatment."
Other medical records pertaining to Monroe's past
medical treatment indicate an unwillingness to comply voluntarily
with treatment regimens, or a tendency to downplay the need for
medication. Brian Chappell, a social worker who had worked with
Monroe in the past, testified at Monroe's sentencing hearing that
in March 1987, Monroe was taking his medications "sporadically."
Wanda Krahn-Tuttle, Monroe's case worker at the time of the
stabbing, testified that Monroe indicated to her on the day after
the stabbing that he had not been taking his medication.
Monroe's sister testified that, when searching Monroe's cabin
after the stabbing, her step-sister had found Monroe's bottle of
pills; the bottle was "full," indicating that Monroe had not been
in compliance with his prescription.
Finally, at his change of plea hearing Monroe testified
that just prior to his father's death, "I would take the pills
. . . under stress, but otherwise, I wouldn't need them. I would
take them if I had difficulty sleeping or that kind of thing."
We conclude that the totality of this evidence supports
the sentencing court's finding with respect to Monroe's
resistance to treatment; that finding was not clearly erroneous.
Monroe further contends that the court unjustifiably
ignored his prospects for rehabilitation and improperly focused
on isolation as a sentencing goal. The sentencing court,
however, bears primary responsibility for determining the
priority and relationship of the various sentencing goals in each
case. Asitonia v. State, 508 P.2d 1023, 1026 (Alaska 1973). We
will not disturb the sentencing court's decision unless it is
clearly mistaken. Nicholas v. State, 477 P.2d 447, 448-49
(Alaska 1970).
As we have indicated, the sentencing court's findings
with respect to Monroe's resistent attitude toward treatment are
well-supported by the record. As we have further noted, Monroe
had previously been convicted of a life-threatening, felony
assault -- an offense for which he was still on probation when he
committed the murder in this case. In the present case, the
court's decision to emphasize isolation was not clearly mistaken.
Monroe also claims that the sentencing court
unjustifiably ignored evidence that his conduct was mitigated
because he acted on provocation, or in imperfect self-defense.
Cf. Gregory v. State, 689 P.2d 508, 509 (Alaska App. 1984); Bell
v. State, 658 P.2d 787, 791 (Alaska App. 1983).
The record establishes, however, that the court did not
ignore this evidence; rather, it rejected the evidence as
unpersuasive. The court stated, in relevant part:
The physical evidence at the scene of the
murder provide[s] a reasonable basis to
reconstruct at least some things. It is
reasonable to conclude or infer from the
physical evidence that the attack began when
Mr. Monroe was seated at his desk or table.
It is there chairs overturned, it is there
that there is a smear on the left arm of the
chair. It is to the left side that the bulk
of the stab wounds were administered, and,
unlike those to the neck and throat, those in
the upper left area of the face and scalp,
ear and skull, appear to have been downwardly
inflicted. While these indicia of aggressive
attack at the commencement of the encounter
do not disprove possible verbal confrontation
or disagreement, they're consistent with a
evidence of . . . the anger, the violence,
the grossly impaired functioning consistent
with an acute psychotic break at that time.
The court went on to conclude that Monroe's conduct,
including statements given to the court during the plea colloquy,
"demonstrates, because of the paranoid and delusional thinking --
his continued belief that the conduct was appropriate, as
distinct from being justified in the beginning . . . but, later
becoming excessive in degree." The court found that the evidence
showed that the attack continued "and could well have gone [on]
in multiple stages," indicating that Monroe "demonstrated an
extended inability to control his actions."
The sentencing court's findings concerning the
circumstances surrounding the offense, and its consequent
rejection of the notion that Monroe's conduct was mitigated, are
not clearly erroneous.
Finally, Monroe advances a cursory argument that his
sixty-year term is generally excessive. The argument seems
largely predicated on the subordinate claims we have already
addressed. To the extent that it is not, we find it
unpersuasive. Although Monroe's mental illness was certainly a
relevant factor for the court's consideration, that factor did
not automatically entitle Monroe to a mitigated sentence.
Washington v. State, 828 P.2d 172, 175 (Alaska App. 1992).
Having independently reviewed the entire sentencing record, we
conclude that the sentence imposed below is not clearly mistaken.
McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
The judgment is affirmed.
_______________________________
1. The Memorandum Concerning Change of Plea, signed by
Monroe's counsel, contained the following passage:
[T]he defendant is aware, based upon
preparation with his attorneys, that either
the court or the prosecution may and likely
will raise the issue of whether the defendant
is guilty of unlawfully killing his father
but was mentally ill at the time of the
commission of the crime. The defendant has
been thoroughly advised by his attorneys of
the significance of a finding of "guilty but
mentally ill" and that sentencing may likely
occur in accordance with AS 12.47.050.
2. Monroe argues that his failure to object to Sperbeck's
testimony resulted not from a tactical decision, but from his
mistaken belief that he could not object. Monroe cites AS
12.47.100, which governs competency examinations in criminal
cases. The statute provides, in part:
No statement made by the accused in the
course of an examination into the mental
competency of the accused provided for by
this section . . . may be admitted in
evidence against the accused on the issue of
guilt in a criminal proceeding unless the
accused later relies on a defense under AS
12.47.010 or 12.47.020.
Monroe posits that trial counsel may have mistakenly believed
that this provision's reference to "the issue of guilt" applied
only to the determination of guilt proper. Monroe reasons that
counsel may thus have foregone an objection to Sperbeck's
testimony because counsel assumed that Monroe, having already
entered a plea of no contest, had no remaining grounds for
objection.
This argument, however, misconstrues the plain error
rule. Although the argument raises a possibility that trial
counsel's failure to object may not have been tactical, the plain
error rule applies only when the record as a whole negates the
possibility of tactical choice. If Monroe can establish, through
extrinsic evidence, that his trial counsel's failure to object
actually resulted from inadvertence or neglect, he is not
precluded from filing a post-conviction relief application
alleging ineffective assistance of counsel. See, e.g., Barry v.
State, 675 P.2d 1292, 1295-96 (Alaska App. 1984).
3. See Miller v. State, 617 P.2d 516, 518 (Alaska 1980)
(citing North Carolina v. Alford, 400 U.S. 25, 35 n.8 (1970)).
4. In his reply brief, Monroe raises a separate issue --
more akin to due process -- in connection with his claim of equal
protection. Monroe expresses concern that he may simply be
deemed under "treatment" within the meaning of AS 12.47.050, and
consequently be presumed dangerous and denied eligibility for
parole, as long as he continues to receive any form of medication
for his schizophrenia, which is a lifelong condition. Monroe
notes that the statutory restrictions on parole eligibility for
offenders who are found GBMI contain no procedural mechanism for
a future determination of dangerousness.
We agree with Monroe that he must be provided some
procedural mechanism to seek eligibility for parole or furlough
by demonstrating his lack of continued dangerousness. Cf. AS
12.47.090(e)(giving persons who have been committed for treatment
following a successful insanity defense the right to petition for
review of their need for continued institutionalization). An
attempt to determine the precise contours of such a mechanism at
this juncture would be premature, however. Regardless of his
mental condition, Monroe would be ineligible for discretionary
parole for an extended period of time. In the interim, the
Parole Board or the Department of Corrections may promulgate
regulations addressing the problem. Assuming no regulations are
enacted and there has been no intervening change in the law,
Monroe will be able to ask the courts at that point to provide
him a suitable procedural method to establish that he is no
longer dangerous on account of mental disease or defect.
