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THE COURT OF APPEALS OF THE STATE OF ALASKA
VIOLA JERREL, )
) Court of Appeals No. A-2740
Appellant, ) Trial Court No. 3KN-S87-1037CR
)
v. ) O P I N I
O N
)
STATE OF ALASKA, )
) [No. 1295 - May 14, 1993]
Appellee. )
______________________________)
Appeal from the Superior Court, Third
Judicial District, Anchorage and Kenai, James
A. Hanson and Charles K. Cranston, Judges.
Appearances: William K. Walker, Anchorage,
for Appellant. John A. Scukanec, Assistant
Attorney General, Office of Special Prosecu-
tions 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.
Viola Jerrel was convicted, following a jury trial, of
two counts of perjury, in violation of AS 11.56.200. Superior
Court Judge Charles K. Cranston sentenced Jerrel to consecutive
terms totalling three years with two years suspended. Jerrel
thereafter filed an application for post-conviction relief,
claiming ineffective assistance of counsel. Judge Cranston
summarily dismissed the application. In this appeal, Jerrel
challenges her conviction on various grounds, contends that her
sentence is excessive, and claims that the superior court erred
in summarily dismissing her application for post-conviction
relief. We affirm.
FACTS
In October of 1985, vandals spray-painted over a mural
on the wall of a grocery store in Homer. Jerrel's son, Dan
Jerrel, Jr., was arrested in connection with the crime. On
January 20, 1986, Jerrel attended a bail hearing in her son's
case at the Homer courthouse. Homer Police Officer William
Walters transported Dan Jerrel to and from the courthouse for the
hearing. After the hearing, Jerrel approached Walters and her
son just outside the courthouse doors, as Walters led Dan Jerrel
toward the patrol car for the return trip to jail. Jerrel
conversed briefly with Walters; she then broke off contact and
walked away from the courthouse. Walters led Dan Jerrel in the
opposite direction to the patrol car and left.
Several weeks later, on February 13, 1986, Jerrel filed
a criminal complaint purporting to charge Walters with fourth-
degree assault, a misdemeanor. In the complaint, Jerrel alleged
under oath that Walters placed her and her son Dan in fear of
imminent physical injury by threatening "to get" Dan. According
to the complaint, Walters uttered this threat to Jerrel outside
the Homer courthouse immediately after the January 20 bail
hearing.
The Alaska State Troopers investigated Jerrel's
complaint during the spring and summer of 1986. In the course of
this investigation, the troopers learned that Walters, using a
microcassette recorder that he carried on his person, had tape
recorded the January 20 bail hearing and his ensuing encounter
with Jerrel. According to Walters, he had turned on the recorder
at the outset of the bail hearing and had not turned it off until
he and Dan Jerrel were both seated in the patrol car. Physical
analysis of the tape itself by the FBI confirmed this claim. A
review of the recording disclosed that Walters had made no
threats against Jerrel or her son.
On November 12, 1986, Jerrel's complaint against
Walters was scheduled for a hearing in District Court to
determine whether her charge of assault was supported by probable
cause. The results of the troopers' investigation had not yet
been disclosed to Jerrel, and she evidently remained unaware that
Walters had recorded the events of January 20. At the hearing,
Jerrel repeated under oath her allegation that Walters had
threatened her son outside the Homer courthouse immediately after
the January 20 bail hearing. In response, Walters took the stand
and, in the course of his testimony, revealed that he had
recorded the conversation.
The state subsequently indicted Jerrel, charging her
with two counts of perjury:1 one for her false statements in her
February 13 criminal complaint, and the other for her false
testimony at the November 12 probable cause hearing.
DISMISSAL OF INDICTMENT
During the grand jury proceeding, Walters testified
that he had spoken with Jerrel just outside the Homer courthouse
doors as he and Dan Jerrel exited the building after the January
20, 1986, bail hearing. Walters stated that Jerrel then left,
and he and Dan Jerrel walked to the patrol car. Walters denied
making any threats to Jerrel. Walters further testified about
recording the encounter with Jerrel, stating that the entire
conversation was recorded and that he did not turn his recorder
off until "[a]fter I had gotten in the patrol car and prepared to
leave the parking lot." Although the state relied on the
recording to corroborate Walter's claim that no threats had been
made, it did not introduce the FBI report dealing with the
analysis of the tape. Deputy Magistrate Anna Creasy also
testified that she recalled seeing Jerrel walk away from the
courthouse in a different direction than Walters and Dan Jerrel.
Prior to trial, Jerrel moved to dismiss the indictment,
claiming that the state had failed to present exculpatory
evidence and had relied on perjured testimony. Specifically,
Jerrel alleged that the state breached its duty of presenting
exculpatory evidence to the grand jury by withholding the FBI
report, which established that Walters had turned his recorder
off after entering his patrol car. Jerrel further alleged that
Walters had perjured himself before the grand jury in denying
that he had turned off his tape recorder prior to his
conversation with Jerrel.
Jerrel and her son testified in support of the motion
to dismiss Jerrel's indictment. Both claimed, apparently for the
first time, that Walters and Jerrel spoke twice outside the
courthouse following the January 20 bail hearing. According to
this version, after the initial (recorded) conversation, Walters
walked Dan Jerrel to the patrol car (presumably turning off his
recorder at that time) and then returned to the courthouse, where
he spoke with Jerrel again and uttered the alleged threat. At
the conclusion of the evidentiary hearing, Superior Court Judge
James Hanson denied Jerrel's motion, expressly finding that the
testimony of Jerrel and her son was not believable.
On appeal, Jerrel argues that the superior court erred
in denying her motion to dismiss the indictment. The viability
of Jerrel's theory, however, hinges entirely on the version of
events disclosed for the first time by Jerrel and her son in
their testimony on the motion to dismiss. The superior court
expressly found this version of events incredible. Issues of
witness credibility are primarily trial court matters. Anthony
v. State, 521 P.2d 486, 492 (Alaska 1974); Long v. State, 772
P.2d 1099, 1101 (Alaska App. 1989). We cannot say that the
superior court was clearly erroneous in denying Jerrel's motion
to dismiss.
CHANGE OF VENUE
Jerrel moved to change venue for her trial from Homer
to Kenai. She claimed that it would be impossible for her to
obtain a fair and impartial jury in Homer, due to publicity
concerning the December 1985 incident in which Dan Jerrel defaced
a mural, as well as more recent publicity concerning a September
1987 incident in which her husband and her son David had become
involved in a gunfight with, and had shot, another man. Superior
Court Judge Charles K. Cranston denied Jerrel's motion without
prejudice to renewal if efforts to select a jury in Homer
indicated possible jury bias. Jerrel renewed her motion upon
completion of jury selection in Homer. Judge Cranston denied the
renewed motion, finding that the jury selected would be capable
of rendering an impartial decision. Judge Cranston nevertheless
allowed Jerrel four additional peremptory challenges. Jerrel
claims on appeal that the trial court erred in failing to order
venue changed.
A defendant who seeks to change venue based on
potentially prejudicial pretrial publicity must ordinarily
establish actual bias on the part of the jurors finally selected
to sit on the case. Newcomb v. State, 800 P.2d 935, 937-38
(Alaska App. 1990). This rule is relaxed, however, "when a case
generates `intensive pretrial publicity' that results in `a
substantial number of venirepersons [who] appear to have been
prejudiced . . . .'" Id. at 938 (quoting Mallott v. State, 608
P.2d 737, 748 (Alaska 1980)). In such cases, the trial court
must order venue changed if it finds a substantial likelihood
that unrevealed jury prejudice will preclude a fair trial by an
impartial jury. Newcomb v. State, 800 P.2d at 938.
Although relevant, "naked statistics" alone cannot
determine the existence of a substantial likelihood of unrevealed
jury bias; the issue is one for the sound discretion of the trial
court. Id. at 938-39. Relevant factors for the court to
consider in exercising its discretion include the recency of the
publicity, its potential for inflaming jurors, and the nature of
the jury panel's familiarity with the trial participants. Id. at
939. On appeal, this court must independently evaluate the
circumstances surrounding the denial of a motion to change venue,
but we may reverse the trial court's decision only for an abuse
of discretion. Id. at 937.
In the present case, Jerrel has made no showing of
actual bias on the part of the jurors who sat in judgment of her.
Jerrel can prevail on her change of venue claim only if her case
is governed by the more relaxed Mallott standard for cases in
which intensive pretrial publicity results in disqualification of
a "substantial number of venirepersons." Mallott v. State, 608
P.2d at 748.
Here, juror questionnaires revealed that approximately
two-thirds of Jerrel's panel -- thirty-seven of forty-seven
prospective jurors -- had at least some knowledge of past charges
against members of the Jerrel family. Of the thirty-seven,
eleven -- less than a quarter of the entire panel -- were
eventually disqualified for cause due to adverse information
concerning the Jerrels.
In our view, the disqualification of eleven jurors from
a panel of forty-seven due to adverse pretrial publicity falls
somewhere near the border of the "substantial number" required to
trigger the relaxed change of venue standard. Cf. Newcomb v.
State, 800 P.2d at 938 (deeming the "substantial member"
requirement satisfied where twenty-eight of seventy-eight
venirepersons -- more than one-third -- were disqualified due to
pretrial publicity). For purposes of this decision, even if we
assume that the number of jurors disqualified in this case falls
on the side of the border favoring Jerrel and is a "substantial
number," the fact that it is only marginally substantial suggests
only a minimal danger of prejudice resulting from unrevealed jury
bias.
Other relevant circumstances do little to fortify the
anemic inference of bias that arises from the naked statistics.
The pretrial publicity at issue in this case dealt almost
exclusively with members of the Jerrel family other than Jerrel
herself. It was primarily factual in nature, divulged no
inadmissible evidence relating to Jerrel, and contained nothing
particularly inflammatory, especially insofar as Jerrel's case
was concerned. Cf. Jerrel v. State, 756 P.2d 301, 303 (Alaska
App. 1988). Most of the publicity dealt with Dan Jerrel's
offense and was published long before Jerrel's case came to
trial.
While Jerrel's case was tried in Homer, a relatively
small community, the record does not indicate that Jerrel was a
particularly prominent member of the community; neither do the
other principal participants in the case appear to fall into such
a category. See, e.g., Oxereok v. State, 611 P.2d 913, 918
(Alaska 1980); Nicholai v. State, 708 P.2d 1292, 1292-93 (Alaska
App. 1985). Of the jurors actually seated to hear Jerrel's case,
four knew nothing of Jerrel or her family, six had
inconsequential knowledge of other Jerrel family members'
involvement in the vandalism or gunfight incidents or were aware
of the Jerrel family generally, and only two knew anything about
Jerrel herself.
Although denying Jerrel's motion to change venue, Judge
Cranston allowed her four additional peremptory challenges.
Notably, Jerrel used only three. Considering the totality of the
circumstances, we conclude that Judge Cranston did not abuse his
discretion in failing to find a substantial likelihood that
Jerrel would not receive a fair trial by an impartial jury. The
trial court did not err in denying Jerrel's motion.
CROSS-EXAMINATION OF TROOPER JOHNSTON
At trial, Alaska State Trooper Randy Johnston, who had
investigated Jerrel's criminal complaint against Walters,
testified for the state that he had determined Jerrel's charge
unfounded after reviewing Walters' tape and interviewing Walters
and Jerrel. On cross-examination, Jerrel's counsel attempted to
ask Johnston:
And did [Jerrel] tell you that the reason
that -- one of the reasons that she was
concerned was because she had heard of
another person that she thought Walters had
threatened?
Judge Cranston sustained the state's objection to this question
on hearsay grounds. On appeal, Jerrel argues that the court
erred in its ruling, thereby depriving her of her
constitutionally guaranteed right of confrontation.
The ruling of the trial court on an evidentiary matter
will not be overturned absent an abuse of discretion. Hawley v.
State, 614 P.2d 1349, 1361 (Alaska 1980). While Jerrel claims
that she was denied the opportunity to challenge the soundness of
Johnston's basis for concluding that her criminal charge against
Walters was unfounded, the question precluded by the trial court
had no bearing on this issue except to the extent that it called
for hearsay. An affirmative answer to the question might have
helped Jerrel, but only insofar as the substance of the out-of-
court statement attributed to Jerrel in the question -- that
Walters had been accused of other similar misconduct -- were
taken to be true.
Jerrel offers no hearsay exception that could
conceivably have justified the admission of this evidence. She
relies instead on the assertion that her constitutional right to
confrontation entitled her to cross-examine Johnston fully. No
matter how broadly the fabric of the confrontation clause may be
cut, however, it does not clothe the accused with the right to
introduce evidence to the jury in a form that is legally
inadmissible. See Larson v. State, 656 P.2d 571, 575 (Alaska
App. 1982). We find no abuse of discretion in the trial court's
refusal to permit the disputed question.
PROOF OF INTENT -- CIRCUMSTANTIAL EVIDENCE INSTRUCTION
Over Jerrel's objection, the trial court gave the jury
an instruction telling it that Jerrel's mental state could be
proved by circumstantial evidence. Jerrel claims on appeal that
the court erred in giving this instruction. She argues that
"[n]owhere was the jury instructed that the state must prove
beyond a reasonable doubt that Viola Jerrel did not believe her
statements to be true. The state of mind by circumstantial
evidence instruction which was given wholly fails to advise the
jury of the separate element of the offense."
Jerrel's argument lacks merit. In fact, Jerrel's jury
received instructions covering the necessary elements of the
offense; these instructions expressly stated that, "[i]n order to
establish the crime of perjury . . . it is necessary for the
state to prove beyond a reasonable doubt . . . [that] the
defendant did not believe the sworn statement to be true," and
that, "[a] person commits the crime of perjury if the person
makes a false sworn statement which the person does not believe
to be true. In order to establish the crime of perjury . . . it
is necessary for the state to prove beyond a reasonable doubt . .
. that the defendant did not believe the sworn statement to be
true."
The challenged instruction on use of circumstantial evi-
dence to prove state of mind merely apprised the jury of the
forms of evidence that could be relied on to prove that Jerrel
acted knowingly. This instruction was taken verbatim from
Revised Alaska Pattern Criminal Jury Instruction 1.44 (1988), and
Jerrel cites no authority suggesting that it is either inaccurate
or inappropriate. Similar instructions have consistently been
approved. See, e.g., Gipson v. State, 609 P.2d 1038, 1042
(Alaska 1980); Eliason v. State, 511 P.2d 1066, 1072 (Alaska
1973); Hohman v. State, 669 P.2d 1316, 1323-24 (Alaska App.
1983); Bidwell v. State, 656 P.2d 592, 595-96 & n.3 (Alaska App.
1983). We find no error.
JERREL'S ABSENCE DURING PLAYBACK OF THE WALTERS TAPE
Upon submission of her case to the jury, Jerrel
indicated her willingness to waive the right to be personally
present during any playback of testimony the jury might request,2
but she did not waive her right to be present if the jury asked
to hear Exhibits 5 and 8 -- Walters' recordings. Judge Cranston
stated "that if either Exhibits 5 or 8 are requested, then I will
require the presence of counsel and the defendant."
In the course of its deliberations, the jury asked to
hear the two exhibits, and the court granted this request.
Although the record of proceedings affirmatively reflects that
Jerrel's counsel was present during the playback and did not
complain of Jerrel's absence, it is otherwise silent on the issue
of Jerrel's presence. At no later point in the trial did Jerrel
claim, either personally or through counsel, that she was absent
during the playback of Exhibits 5 and 8. Nor did Jerrel ever
assert such a claim before the superior court in the form of a
post-verdict motion for a new trial or an application for post-
conviction relief.
Jerrel now attempts to argue, for the first time on
appeal, that she was in fact absent during the playback and that
her absence warrants a new trial. In our view, the issue cannot
properly be presented on appeal in the first instance. At the
heart of Jerrel's claim is an unverified factual contention --
Jerrel's claim that she was absent during the playback -- that
was never asserted or litigated below and that is wholly
unsubstanti-ated by the trial record.
Jerrel claims that the silent record suffices to
establish her absence -- or at least raises a sufficient doubt to
warrant a remand for further proceedings on the issue. This
claim is unpersuasive. Judge Cranston affirmatively ruled that
no playback of Exhibits 5 and 8 would be allowed without Jerrel
being personally present; Jerrel's counsel agreed with this
ruling. The record contains no indication that the court ever
withdrew or modified its decision. Later, when the jury asked to
hear the exhibits, Judge Cranston granted the request, and
Jerrel's counsel voiced no objection.
Under the circumstances, the silence of the record
operates to defeat Jerrel's claim of absence, not to establish
it. The presumption of regularity attaches to this situation,
requiring this court to presume, in the absence of a contrary
showing, that the trial court acted in accordance with its
ruling: "When the jurisdiction of a competent court has attached,
every act is presumed to have been rightly done until the
contrary appears." United States v. Manthei's Bondsmen, 2 Alaska
459, 466 (D. Alaska 1905). See also Wright v. State, 501 P.2d
1360, 1372 (Alaska 1972); United Bonding Insurance Co. v. Castle,
444 P.2d 454, 457-58 (Alaska 1968); Houston-Hult v. State, 843
P.2d 1262, 1266 (Alaska App. 1992). Jerrel must assert her claim
in the trial court in the first instance.
APPOINTMENT OF CONFLICT COUNSEL
After the jury returned its verdicts convicting Jerrel,
but prior to the sentencing hearing, Jerrel's trial counsel, who
was privately retained, withdrew from Jerrel's case. The court
appointed the Alaska Public Defender Agency (PDA). Jerrel
objected, claiming that she had conflicts with both the PDA and
the Office of Public Advocacy (OPA), the agency normally
responsible for public representation when a conflict precludes
representation by the PDA. Jerrel accordingly asked the court to
appoint private counsel to either handle her case or advise her
on the issue of conflict.
Jerrel was vague as to the nature of the purported
conflicts. She maintained that the OPA had mishandled representa-
tion of one of her sons in a criminal matter. She also claimed
that the PDA's handling of Dan Jerrel's case involving the mural
had been incompetent. Neither the PDA nor the OPA acknowledged
any conflict, and the OPA affirmatively opposed reassignment of
the case to it from the PDA, arguing that the PDA had no
conflict. Judge Cranston ultimately declined to order the
appointment of private conflict counsel, and Jerrel was
represented at her sentencing hearing by the PDA.
On appeal, Jerrel argues that Judge Cranston erred in
failing to appoint a private attorney to assist her in
establishing the existence of a conflict. She cites cases
upholding the right to effective assistance of counsel at all
stages of a criminal proceeding and claims that the trial court
had judicial power to require a private attorney to represent
her. She argues, finally, that since she had no working
relationship with the PDA and claimed to have a conflict with the
OPA, only a private attorney could consult with her on whether a
conflict existed.
We will reverse a trial court's refusal to appoint
independent counsel only for abuse of discretion. Cf. Ortberg v.
State, 751 P.2d 1368, 1375 (Alaska App. 1988). An indigent
defendant who cannot retain counsel has no right to an appointed
counsel of choice or to the appointment of private counsel.
Coleman v. State, 621 P.2d 869, 878 (Alaska 1980). Moreover,
"[t]he right to effective assistance of counsel does not
encompass the right to reject appointed counsel and have new
counsel appointed in the absence of any showing of cause for such
change. The due process clauses of the state and federal
constitutions do not guarantee a `meaningful relationship'
between [a] client and his appointed counsel." Monroe v. State,
752 P.2d 1017, 1020 (Alaska App. 1988) (citing Morris v. Slappy,
461 U.S. 1, 13-14, 103 S.Ct. 1610, 1617, 75 L.Ed.2d 610 (1983)).
Apart from establishing Jerrel's obstinate resolve to
avoid cooperating with counsel from either the PDA or the OPA,
Jerrel's allegations of conflict revealed nothing more than her
vague dissatisfaction with the level of representation she
believed those agencies had provided her sons in other matters.
Because Jerrel failed to articulate or substantiate any colorable
ground for a legal conflict between her own interests and other
interests actively advocated by either the PDA or the OPA, she
was not entitled to the appointment of private counsel, either
for purposes of representing her interests generally or for
purposes of counseling her on the existence of potential
conflicts.
The trial court did not abuse its discretion in denying
Jerrel's request for appointment of private counsel.
APPLICATION FOR POST-CONVICTION RELIEF
Following her conviction, Jerrel filed an application
for post-conviction relief, alleging ineffective assistance of
counsel by her trial and sentencing attorneys. After affording
Jerrel an opportunity to amend her application, Judge Cranston
dismissed it, concluding that Jerrel had "fail[ed] to meet
threshold showing of ineffective assistance [of counsel]" by not
"demonstrating that the acts of counsel fell below minimum level
of competence or that the decisions of counsel were not
tactical." Jerrel now challenges this ruling.
The trial court's denial of post-conviction relief is
reviewed for abuse of discretion. Hensel v. State, 604 P.2d 222,
235 & n.55 (Alaska 1979). Jerrel's application set forth
conclusory allegations concerning purportedly ineffective actions
by her trial and sentencing counsel. However, the application
recited no facts to rebut the presumption of competence or to
establish that the purportedly incompetent actions of counsel did
not reflect sound tactical choices; nor did the application
include affidavits of counsel or any averment that Jerrel's
counsel were unwilling to provide affidavits.
Under the circumstances, Judge Cranston did not abuse
his discretion in concluding that Jerrel had failed to make out a
prima facie case of ineffective assistance of counsel and in
dismissing Jerrel's application on that ground. State v. Jones,
759 P.2d 558, 570 (Alaska App. 1988).
SENTENCING
Jerrel was convicted of two counts of perjury. The
offense is a class B felony, AS 11.56.200(c), and, as such, is
punishable by a maximum term of ten years and by presumptive
terms of four and six years for second and subsequent felony
offenders. AS 12.55.125(d). As a first felony offender, Jerrel
was not subject to a presumptive sentence. Judge Cranston
sentenced Jerrel to one and one-half years with all but six
months suspended on each count. Because the two counts involved
offenses committed on clearly separate occasions and involved
distinct acts, Judge Cranston imposed the sentences
consecutively, for a total of three years with two years
suspended.
On appeal, Jerrel contends that the court erred in
imposing consecutive sentences. Citing Griffith v. State, 675
P.2d 662 (Alaska App. 1984), she argues that under the
circumstances of her case, AS 12.55.025(g) did not require the
imposition of consecutive sentences. This argument, however,
misses the mark, since the permissibility of imposing concurrent
sentences is not at issue here. Griffith was overruled by State
v. Andrews, 707 P.2d 900, 908 (Alaska App. 1985), aff'd, 723 P.2d
85 (Alaska 1986), which held that AS 12.55.025(g) does not
mandate consecutive sentencing under any circumstances.
The sentencing record reveals that Judge Cranston
understood that he had discretion to impose Jerrel's sentences
either consecutively or concurrently and that he elected to
exercise his sentencing discretion by imposing consecutive terms.
The judge's explanation of his sentencing decision establishes
good cause for imposing consecutive sentences. The decision was
not clearly mistaken.
Jerrel further maintains that her composite sentence is
excessive. She cites the sentencing benchmarks prescribed in
State v. Jackson, 776 P.2d 320, 326-27 (Alaska App. 1989),
claiming that she deserves to be placed in the lowest benchmark
range -- which calls for a probationary term -- because her
conduct was significantly mitigated and her prospects for
rehabilitation are significantly better than average for a
typical first offender.
The one-year unsuspended portion of Jerrel's composite
sentence falls on the border between the low end of the Jackson
benchmark range for a typical first offense class B felony and
the high end of the benchmark range for a moderately mitigated
case. Id. Jerrel would have deserved a sentence within the
lowest Jackson category only if her case had been exceptionally
mitigated in terms of both the conduct involved in the offenses
and Jerrel's prospects for rehabilitation. Id. at 327.
Judge Cranston determined that Jerrel's separate acts
of perjury were not particularly mitigated, since they exposed
Officer Walters to "some potential for harm." Jerrel complains
that her conduct should nevertheless be viewed as mitigated
because her sole motivation was to help her son. It is entirely
unclear, however, how Jerrel's knowingly false charges against
Walters would have been of practical assistance to Dan Jerrel in
his then-pending case. In context, Jerrel's motivation might as
readily be characterized as vindictiveness or spite on behalf of
her son as a misguided desire to help him.
Nor do Jerrel's prospects for rehabilitation appear
more favorable than those of a typical first offender convicted
of similar misconduct. Jerrel persisted in her false claims
against Walters throughout the course of the proceedings, showing
little insight into the wrongfulness of her conduct. As noted in
the presentence report, "there is little reason to believe
[Jerrel] has learned anything from experience with the criminal
justice system. She continues to deny her guilt and project
blame. This would imply her chances for rehabilitation are
small."
Jerrel's composite sentence is comparable to or more
favorable than sentences that we have approved for other first
offenders convicted of perjury. See Esmailka v. State, 740 P.2d
466, 471 (Alaska App. 1987) (sentence of three years with two and
one-half years suspended); DeMan v. State, 677 P.2d 903, 910-12
(Alaska App. 1984) (concurrent four-year sentences for seven
counts of perjury); Boyles v. State, 647 P.2d 1113, 1119-20
(Alaska App. 1982) (three-year sentence affirmed for first
offender, convicted of one count of perjury, who also suborned
perjury by another witness).
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).
CONCLUSION
The conviction and sentence are AFFIRMED.
_______________________________
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1. AS 11.56.200(a) reads:
A person commits the crime of perjury if the
person makes a false sworn statement which
the person does not believe to be true.
2. The purported waiver was made on the record by defense
counsel in the presence of Jerrel, who voiced no objection. The
parties dispute whether the waiver was sufficient under the
standard set out in Lee v. State, 509 P.2d 1088, 1093 (Alaska
1973). Since no playback of testimony was ever requested,
however, we need not resolve the dispute.
