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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
PHILLIP BOBBY, )
) Court of Appeals No. A-6212
Appellant, ) Trial Court No. 3PA-94-401 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1563 - December 19, 1997]
______________________________)
Appeal from the Superior Court, Third Judicial
District, Palmer, Beverly W. Cutler, Judge.
Appearances: Scott A. Sterling, Wasilla, for
Appellant. James L. Hanley, Assistant Attorney General, Office of
Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
Phillip Bobby asks us to decide three issues in this case.
The first issue involves the calculation of time under Alaska's
speedy trial rule, Criminal Rule 45, when a defendant faces trial
after withdrawing a previous plea of guilty or no contest. The
second issue is whether the ex post facto clause prohibits the State
from enforcing certain portions of Alaska's sex offender
registration law, AS 12.63.010 et seq., against defendants who
committed their crimes before the effective date of the law. The
third issue is whether the judge who sentenced Bobby was clearly
mistaken to put him on probation for 5 years following his release
from prison. As explained more fully below, we hold that Rule 45
was not violated, that Bobby has failed to preserve his ex post
facto attack on the sex offender registration law, and that the
sentencing judge was not clearly mistaken to place Bobby on
probation for 5 years.
Facts of the case
In March 1994, Phillip Bobby attacked a woman: he beat
her on the head several times with a fire extinguisher, then raped
her. Based on this incident, a grand jury indicted Bobby for first-
degree sexual assault, AS 11.41.410(a)(1), first-degree assault,
AS 11.41.200(a), and third-degree assault, AS 11.41.220(a)(1)(A).
Six months later (on September 19, 1994), Bobby pleaded
no contest to the count of the indictment charging first-degree
assault and to a reduced charge of second-degree sexual assault,
AS 11.41.420(a)(1). Because Bobby pleaded no contest to second-
degree sexual assault, he was subject to the sex offender
registration law, AS 12.63.010 et seq. This law had taken effect
the previous month (on August 10, 1994).
When Bobby entered his plea to second-degree sexual
assault, the superior court failed to inform him that his conviction
of this offense would make him subject to the sex offender
registration law. [Fn. 1] However, a few days later, the court
resummoned the parties and explained this requirement to Bobby.
Following this hearing, Bobby spoke to his attorney about the sex
offender registration law. According to the affidavit and the
testimony later offered by one of Bobby's attorneys, Bobby and his
attorney discussed their options, including the possibility of
filing a motion to withdraw Bobby's plea, but Bobby was undecided
as to what he wished to do.
While this issue remained unresolved, Bobby's sentencing
was continued several times at his request. Then, on May 24, 1995,
Bobby filed a motion to withdraw his pleas; the basis for this
motion was Bobby's lack of awareness, when he entered the pleas,
that he would be subject to the sex offender registration law. The
superior court granted Bobby's motion on June 2, 1995; Bobby's
former pleas of "not guilty" were reinstated, and his case was set
for trial.
When Bobby's case was called for trial on August 9, 1995,
Bobby asked for a continuance until September 7th. Then, on
September 7th, Bobby asked the superior court to dismiss his case;
he argued that the speedy trial provisions of Criminal Rule 45 had
been violated.
Bobby conceded that Rule 45 had not been violated at the
time he entered his no contest pleas in September 1994 an event
that stopped the running of the speedy trial "clock". See Criminal
Rule 45(f). Bobby also conceded that, under Rule 45(c)(6), the
speedy trial clock is reset to Day 1 whenever the court allows a
defendant to withdraw pleas of guilty or no contest. However, Bobby
asserted that he instructed his attorneys to file a plea-withdrawal
motion in October 1994 (that is, a short time after he learned about
the sex offender registration law), and he further asserted that his
attorneys had inexplicably and incompetently failed to file this
motion until seven months later (in May 1995). Bobby contended that
this delay resulted in a violation of Rule 45: he argued that if
his attorneys had acted with diligence in filing the plea-withdrawal
motion, the court would have allowed him to withdraw his pleas
several months earlier, and thus the Rule 45 clock would have
restarted several months earlier, and thus his current trial date
of September 7, 1995 would be in violation of Rule 45.
Superior Court Judge Beverly W. Cutler held a hearing to
investigate Bobby's allegation of incompetent representation. At
the conclusion of the evidence, Judge Cutler found that Bobby's
attorneys had shown diligence and had acted reasonably. In
particular, Judge Cutler credited the evidence that Bobby had
remained undecided for several months up through April 1995 as
to whether he should seek withdrawal of his no contest pleas. She
found that Bobby's testimony to the contrary was not credible.
In addition, Judge Cutler ruled that even if Bobby had
unambiguously asked his attorneys to file the plea-withdrawal
motion, and even if the attorneys had incompetently failed to file
the motion for several months, Rule 45 would still not be violated
because, under Rule 45(c)(6), the clock was reset to Day 1 when
the court allowed Bobby to withdraw that plea, regardless of the
procedural history that preceded that event.
Following Judge Cutler's ruling, Bobby again decided to
plead no contest to first-degree assault and second-degree sexual
assault. He entered his pleas pursuant to Cooksey v. State, 524
P.2d 1251 (Alaska 1974), preserving his right to appeal the superior
court's denial of his Rule 45 motion.
Judge Cutler subsequently sentenced Bobby to a 7-year
presumptive term for first-degree assault [Fn. 2], and she imposed
a consecutive term of 4 years' imprisonment with 3 years suspended
for the offense of second-degree sexual assault. Thus, Bobby's
composite sentence is 11 years with 3 years suspended (8 years to
serve). Judge Cutler placed Bobby on probation for 5 years
following his release from prison.
Bobby's Rule 45 claim
On appeal, Bobby renews his argument that the Rule 45
clock should have restarted when his attorneys unreasonably delayed
filing the plea-withdrawal motion. Bobby completely neglects to
mention Judge Cutler's findings of fact her findings that Bobby
could not decide for several months whether to withdraw his pleas,
that Bobby's attorneys acted competently during this time, and that
Bobby's assertions to the contrary were unbelievable. We must
accept the superior court's findings of fact unless Bobby shows that
they are clearly erroneous. Wilburn v. State, 816 P.2d 907, 911
(Alaska App. 1991). Bobby's failure to address those findings means
that he has failed to meet this burden.
Additionally, we uphold Judge Cutler's ruling that even
if Bobby had proved his factual assertions, Rule 45 would still not
be violated. In essence, Bobby contends that, because of his
attorneys' lack of diligence in filing the plea-withdrawal motion
something that could not be known to the court or the State until
it was alleged and litigated the speedy trial clock started
running, unannounced, at some undetermined time during the winter
or spring of 1995, when the court and the State were preparing for
Bobby's sentencing. In Coffey v. State, 585 P.2d 514, 520-21
(Alaska 1978), and in State v. Jeske, 823 P.2d 6, 9-10 (Alaska App.
1991), the supreme court and this court considered and rejected
analogous arguments that Rule 45 should be calculated based on
mental states, decisions, or events unknown to the trial court. We
likewise reject Bobby's argument.
When Bobby entered his no contest pleas (the first time),
Rule 45 was satisfied; no speedy trial issue remained. See Rule
45(f); see also Minch v. State, 934 P.2d 764, 767 (Alaska App.
1997); Morris v. State, 734 P.2d 1012, 1014 (Alaska App. 1987)
(holding that Rule 45 is a speedy trial rule, not a speedy
sentencing rule). As far as the superior court knew, the next event
in Bobby's case would be the sentencing. Judge Cutler was entitled
to assume that Bobby's case presented no speedy trial issue "until
an event or circumstance altering that status was affirmatively
brought to the judge's attention. A contrary rule would leave Rule
45 calculations unsettled and tentative until the day of trial."
Jeske, 823 P.2d at 9-10.
We thus hold that it was irrelevant, for Rule 45 purposes,
what delayed the filing of Bobby's plea-withdrawal motion. Until
that motion was filed, Rule 45 was satisfied; after the motion was
granted, Rule 45 was restarted. Even if Bobby had proved that his
attorneys failed to diligently act on Bobby's request to withdraw
his plea, the Rule 45 clock would not have surreptitiously started
to tick before the plea-withdrawal motion was litigated.
Bobby's attack on the sex offender registration law
Having resolved Bobby's Rule 45 claim, we now turn to his
argument that parts of the sex offender registration law are
unconstitutional. Because Bobby has been convicted of second-degree
sexual assault under AS 11.41.420(a), and because he has been
sentenced to prison, he will be required to register with the
troopers or the local police within 7 days of his release. SeeAS 12.63.010(a) and AS 12.63.100(2)-(3). When he does, his address,
place of employment, date of birth, and photograph will be available
to the public, as will information identifying the crime for which
he was convicted, his date of conviction, and the length of his
sentence. See AS 18.65.087(b).
Bobby does not dispute the State's right to require him
to register with the police and provide the listed kinds of
information. However, Bobby contends that public disclosure of this
information will have severe adverse consequences on his relations
with others in the community and, perhaps, his personal safety. He
argues that these consequences are so severe that they constitute
an added punishment for his crime of second-degree sexual assault
and that, because he committed his crime before the sex offender
registration law took effect, the ex post facto clauses of the
federal and state constitutions prohibit the State from divulging
this information to the public.
We conclude that Bobby has failed to preserve this
constitutional claim. First, the claim was never litigated in the
superior court. Although Bobby asserted that he should be allowed
to withdraw his first no contest pleas because he had entered them
in ignorance of the sex offender registration law, Bobby never
argued in the superior court that application of the law to him
would be unconstitutional. Absent plain error, an appellate court
will not address claims that were not raised below. With courts
around the country divided on the issue of whether disclosure of a
sex offender's registration information constitutes "punishment"
[Fn. 3], Bobby's claimed error is not plain. See Hansen v. State,
845 P.2d 449, 457 (Alaska App. 1993); Marrone v. State, 653 P.2d
672, 676 (Alaska App. 1982) (holding that when there is no clear
legal answer to the defendant's claim, the defendant has failed to
establish plain error).
Second, even if Bobby had litigated this claim below, he
did not preserve it when he entered his Cooksey plea of no contest.
More to the point, Bobby could not have preserved this claim when
he entered his Cooksey plea.
A defendant who pleads guilty or no contest waives all
non-jurisdictional errors that may have been committed in the trial
court. Cooksey established an exception to this rule, allowing a
defendant to plead no contest and still preserve an issue for
appeal. 524 P.2d at 1256-57; Miles v. State, 825 P.2d 904, 905
(Alaska App. 1992). However, the issue must be explicitly preserved
for appeal when the plea is entered, and the issue must be
dispositive of the entire case. Oveson v. Anchorage, 574 P.2d 801,
803 n.4 (Alaska 1978); Miles, 825 P.2d at 905.
The issue of whether the sex offender registration law can
constitutionally be applied to Bobby is not dispositive of his case.
Resolution of this issue has no effect on the authority of the State
to prosecute Bobby for second-degree sexual assault, no effect on
the validity of his conviction, and no effect on the superior
court's authority to sentence Bobby for this crime (since
registration is not a part of the court's sentence).
In his reply brief, Bobby argues that, despite his failure
to raise or preserve this issue in the superior court, he is
nevertheless entitled to pursue his ex post facto claim because his
claim goes to the constitutionality of the sex offender registration
law (as applied to him), and because the constitutionality of a
statute is always jurisdictional. This is incorrect.
The cases that Bobby relies on, Gudmundson v. State, 822
P.2d 1328, 1330-31 (Alaska 1991), Crutchfield v. State, 627 P.2d
196, 199 (Alaska 1980), and Gray v. State, 525 P.2d 524, 527 (Alaska
1974), all involve constitutional challenges to the criminal
statutes that the defendants were charged with violating the
statutes that provided the legal authority for the defendants'
prosecution and punishment. Bobby was not prosecuted or sentenced
for violating the provisions of the sex offender registration law.
In fact, because he has not completed his sentence, he is under no
obligation to honor those provisions yet. Rather, Bobby was
prosecuted and sentenced for second-degree sexual assault. If Bobby
attacked the constitutionality of the second-degree assault statute,
that would be a jurisdictional issue. However, Bobby's attack on
the public disclosure provisions of the sex offender registration
law is not.
For these reasons, we conclude that Bobby is not entitled
to pursue his ex post facto claim on appeal.
Bobby's attack on his 5-year period of probation
Finally, Bobby contends that Judge Cutler was clearly
mistaken when she placed him on probation for 5 years following his
release from prison. [Fn. 4] Bobby argues that, because the
offenses in this case are his first criminal offenses, Judge Cutler
acted unreasonably in setting such a long period of probation; Bobby
suggests that his probation should extend no more than 2 years.
Having examined the record, we conclude that Judge
Cutler's decision was not clearly mistaken. State v. Wentz, 805
P.2d 962, 964 (Alaska 1991); McClain v. State, 519 P.2d 811, 813-14
(Alaska 1974). Bobby's victim suffered substantial injuries, and
Bobby was ordered to pay several thousand dollars in restitution.
[Exc. 14-15] One justification for setting Bobby's period of
probation at 5 years would be to insure that he complies with this
obligation. More important, however, is the fact that Bobby's
violent physical and sexual assault on his victim was apparently
inexplicable. The victim is Bobby's cousin, and the attack occurred
without warning while Bobby was paying a social visit to her house.
Under these circumstances, Judge Cutler was not obliged to adopt a
sanguine view of Bobby's prospects for speedy rehabilitation. The
judge could reasonably conclude that Bobby should be placed on
probation supervision for 5 years to help insure the public safety
and to reinforce the deterrent aspects of the sentence.
Conclusion
The judgement of the superior court is AFFIRMED.
FOOTNOTES
Footnote 1:
When the legislature enacted the sex offender registration
law, they also amended Alaska Criminal Rule 11(c) to require that
when a court accepts a plea of guilty or no contest to one of the
sex offenses listed in AS 12.63.100(3), the court must advise the
defendant of the duty to register. See SLA 1994, ch. 41,  10. This
new requirement took effect on August 10, 1994, a few weeks before
Bobby's sentencing.
Footnote 2:
First felony offenders convicted of a class A felony (such
as first-degree assault) face either a 7-year or a 5-year
presumptive term, depending on the circumstances of the offense.
See AS 12.55.125(c)(1)-(2). One circumstance that triggers a 7-year
presumptive term under AS 12.55.125(c)(2) is the defendant's use of
a dangerous weapon. However, in Pruett v. State, 742 P.2d 257, 262-
63 (Alaska App. 1987), this court held that defendants charged with
first-degree assault under subsection (a)(1) of AS 11.41.200 are
subject to only a 5-year presumptive term, even if they used a
dangerous instrument to commit the assault. Pruett did not resolve
whether defendants convicted of first-degree assault under the other
two subsections of the statute would face a 7-year or a 5-year
presumptive term. Id. at 263, n.7. Bobby was convicted under
subsections (a)(2) and (a)(3); he stipulated that he was subject to
a 7-year presumptive term.
Footnote 3:
Compare Doe v. Poritz, 662 A.2d 367 (N.J. 1995), State v.
Ward, 869 P.2d 1062 (Wash. 1994), and Doe v. Pataki, 120 F.3d 1263
(2nd Cir. 1997) with State v. Myers, 923 P.2d 1024 (Kan. 1996),
cert. denied 117 S.Ct. 2508, 138 L.Ed.2d 1012 (1997).
Footnote 4:
Currently, AS 12.55.090(c) authorizes a sentencing judge to
place a defendant on probation for up to 10 years. At the time of
Bobby's offenses, however, the maximum term of probation was
5 years.
