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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
ENGELS A. FERMIN, )
) Court of Appeals No. A-6138
Appellant, ) Trial Court No. 3AN-93-9647 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1623 - February 26, 1999]
______________________________)
Appeal from the Superior Court, Third Judicial
District, Anchorage, Elaine M. Andrews, Judge.
Appearances: Rex Lamont Butler, Anchorage,
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.
We are presented with a motion to reinstate an appeal
that was earlier dismissed because the defendant fled Alaska. As
explained below, a defendant's flight does not constitute a waiver
of their right to appeal, but a fleeing defendant has no right to
automatic reinstatement of the appeal upon their return to Alaska.
Rather, it is the defendant's burden to demonstrate good cause for
reinstating the appeal. Because the defendant in this case has
failed to show good cause for reinstating his appeal, we deny his
motion for reinstatement and we close this case.
In February 1996, Engels A. Fermin was convicted of
third-degree misconduct involving a controlled substance
(possession of cocaine with intent to distribute). Fermin appealed
his conviction, arguing that all of the State's evidence should be
suppressed because of a purported Miranda violation.1 In Fermin v.
State2, we concluded that we could not resolve Fermin's claim until
the superior court made additional findings of fact; we therefore
remanded Fermin's case to the superior court.
In October 1997, Superior Court Judge Elaine M. Andrews
held a hearing on Fermin's suppression motion, but Fermin was not
present. Fermin's defense attorney announced that Fermin had left
Alaska; the attorney did not know his client's whereabouts.
Despite the defense attorney's objection that Fermin should be
present for any hearing, Judge Andrews proceeded to take testimony
and make supplemental findings of fact concerning Fermin's
suppression motion.
Judge Andrews transmitted her findings to this court, but
we never took action on those findings. Instead, when we
discovered that Fermin had left this jurisdiction, we dismissed
Fermin's appeal. In our order of May 6, 1998, we "express[ed] no
opinion on whether Fermin [might] be entitled to reinstatement of
his appeal if he later submit[ted] himself to, or [was] returned
to, this court's jurisdiction".
Fermin has now returned to Alaska - or rather, he has
been returned to Alaska. It appears that Fermin was arrested on a
federal warrant when he attempted to enter the United States
through customs at the Newark, New Jersey airport. Now that Fermin
has returned to Alaska (in federal custody), he asks us to
reinstate his appeal. He also asks us to vacate Judge Andrews's
supplemental findings and order her to hold the hearing again;
Fermin contends that Judge Andrews violated his due process rights
when she held the renewed hearing on his suppression motion in his
absence.
In White v. State3, the Alaska Supreme Court rejected the
notion that a defendant's flight or escape from custody necessarily
constitutes an abandonment of their right to appeal their criminal
conviction.4 At the same time, however, the supreme court also
rejected the notion that a defendant who absconds and later returns
(or is recaptured) has a right to automatic reinstatement of their
appeal. Rather, an appellate court should allow reinstatement of
the appeal if the defendant demonstrates good cause for doing so.
Specifically, the supreme court said:
Because White's appeal was once properly
dismissed, our holding that escape in and of
itself does not constitute waiver of the right
of appeal is not dispositive of this motion to
reinstate. As in other similar motions, there
must be a showing of good cause for the
exercise of the court's discretion.
White, 514 P.2d at 816 (footnote omitted).
In White, the supreme court
concluded that there was good reason for
reinstating the defendant's appeal: the
appeal raised an arguably meritorious issue of
statutory construction, and there was no
showing that the State's case had been
prejudiced by the delay.5
Only once before - in Ewers v.
State6 - has this court been required to
address the White decision and the question of
whether an absconding defendant's appeal
should be reinstated. Like Fermin, the
defendant in Ewers was convicted of a felony,
filed an appeal based on claims that the
evidence against him was obtained illegally,
and then fled Alaska.7 Because Ewers was no
longer present in this jurisdiction, his
appeal was dismissed. Over two years later,
Ewers was arrested in another state and
extradited to Alaska. Upon his return, he
asked this court to reinstate his appeal, and
we granted the motion.8
However, when we later issued our
opinion deciding the case, Judge Bryner
expressed second thoughts about reinstating
Ewers's appeal. In a footnote that was, in
effect, a concurrence, Judge Bryner stated
that he would affirm Ewers's conviction
without reaching the merits of Ewers's
appellate claims:
Implicit in the supreme court's
disposition in White is its recognition that
the accused may suffer substantial prejudice
from an appellate court's refusal to review
potentially meritorious claims implicating the
fairness of a conviction or sentence. But
absent exceptional circumstances, claims such
as the ones Ewers asserts here - search and
seizure arguments and purported Miranda
violations - implicate neither the fairness
of a conviction nor the fairness of a
sentence. An appellate court's refusal to
decide the merits of such claims based on a
procedural default ordinarily poses no danger
of substantial prejudice to the accused. Cf.
Moreau v. State, 588 P.2d 275, 279-80 (Alaska
1978) [(holding that search and seizure claims
ordinarily can not be raised for the first
time on appeal because such errors do not
affect the fundamental fairness of the fact-
finding process)]. Thus, in an appeal
reinstated, pursuant to White, solely on the
basis of potentially meritorious issues and an
apparent absence of prejudice to the state,
review on the merits should ordinarily be
denied as to claims involving the exclusionary
rule that have no bearing on the fairness of
the conviction or sentence.
Ewers, 909 P.2d at 374 n.1.
When Judge Bryner spoke of
reinstating a defendant's appeal but then
refusing to reach the merits of any search-
and-seizure and Miranda issues, he implicitly
declared that there is no point in
reinstating a defendant's appeal if the only
issues raised on appeal are search-and-seizure
and Miranda issues. As explained above, when
Fermin filed the present appeal, he raised
only one issue: a purported Miranda
violation. Although that issue remains
undecided, if we followed Judge Bryner's
analysis we should not allow Fermin to renew
his litigation of this Miranda issue. Rather,
we should deny Fermin's motion to reinstate
this appeal. The State urges us to do just
that.
We conclude, however, that the facts
of Fermin's case do not require us to decide
whether to follow Judge Bryner's approach. As
explained above, the supreme court said in
White that absconding defendants do not have
an absolute right to reinstatement of their
appeals upon their return; rather, such
defendants must demonstrate good cause for
reinstating their appeals. In White, the
supreme court found the requisite good cause
because White raised an arguably meritorious
issue in his appeal. But, as explained in
more detail below, Fermin has failed to raise
an arguably meritorious appellate issue. We
therefore conclude that Fermin has failed to
demonstrate good cause for reinstatement of
his appeal.
As we already noted, Fermin's appeal
is before us for the second time. In our
first decision, we analyzed Fermin's Miranda
arguments and concluded that they were
"questionable"9, but we decided to err on the
side of caution and remand Fermin's case to
the superior court so that the superior court
could make explicit findings on certain
contested issues of fact.10 Judge Andrews made
the additional findings of fact, and she again
rejected Fermin's Miranda claim.
Based on Judge Andrews's
supplemental findings, it is clear that
Fermin's Miranda claim is meritless. In
Fermin's motion to reinstate this appeal, he
does not assert that Judge Andrews's findings
of fact are clearly erroneous (that is,
unsupported by the evidence presented at the
hearing), nor does he assert that his Miranda
claim remains meritorious despite the judge's
findings. Indeed, Fermin's motion to
reinstate his appeal omits any discussion of
the merits of his suppression motion.
Instead, Fermin argues that his
appeal should be reinstated because of
procedural unfairness during the remand
proceedings. Specifically, Fermin contends
that he was denied due process when the
superior court held the remand hearing without
him. For this reason, Fermin asks us not only
to reinstate his appeal but also to vacate
Judge Andrews's findings and direct her to
hold the remand hearing again.
Fermin's due process claim is
meritless. Courts have repeatedly held that
defendants who voluntarily absent themselves
from court hearings have no right to complain
when the hearings proceed without them. See
Illinois v. Allen11, Snyder v. Massachusetts12,
Diaz v. United States13, and Brewer v. Raines
14.
In Brewer v. Raines, the Ninth
Circuit wrote:
It is true that one of the most basic of the
rights guaranteed by the Confrontation Clause
is the accused's right to be present at every
stage of his trial. [citation omitted] It is
equally true, however, that this right is a
right that can be waived. The notion that a
trial may never proceed in the defendant's
absence has been expressly rejected.
[citations omitted]
The discussion of the Supreme Court in
Diaz seems particularly appropriate here. The
Court quoted with approval from Falk v. United
States, 15 App.D.C. 446, appeal dismissed 180
U.S. 636, 21 S.Ct. 922, 45 L.Ed. 709 (1901).
In Falk, the defendant had been present when
the trial had begun, but fled the jurisdiction
during the presentation of the government's
case. The trial proceeded in his absence, and
the defendant was convicted. In affirming the
conviction, the appeals court stated:
"It does not seem to us to be consonant
with the dictates of common sense that an
accused person, being at large upon bail,
should be at liberty, whenever he
pleased, to withdraw himself from the
courts of his country and to break up a
trial already commenced. The practical
result of such a proposition, if allowed
to be law, would be to prevent any trial
whatever until the accused person himself
should be pleased to permit it.... This
would be a travesty of justice which
could not be tolerated; and it is not
required or justified by any regard for
the right of personal liberty."
"The question is one of broad public
policy, whether an accused person, placed
upon trial for crime and protected by all
the safeguards with which the humanity of
our present criminal law sedulously
surrounds him, can with impunity defy the
processes of that law, paralyze the
proceedings of courts and juries and turn
them into a solemn farce, and ultimately
compel society, for its own safety, to
restrict the operation of the principle
of personal liberty. Neither in criminal
nor in civil cases will the law allow a
person to take advantage of his own
wrong. And yet this would be precisely
what it would do if it permitted an
escape from prison, or an absconding from
the jurisdiction while at large on bail,
during the pendency of a trial before a
jury, to operate as a shield." 223 U.S.
at 457-58, 32 S.Ct. at 254-255.
We echo these finely articulated
concerns. A defendant's knowing, intelligent
and voluntary absence from his trial acts as a
waiver of his Sixth Amendment right to
confrontation. ... When, after sufficient
notice, a defendant voluntarily absents
himself from any proceeding, he waives any
right he has to be present at that proceeding.
The record shows that the petitioner was
informed of his original trial date and that
his trial could be held in absentia if he
voluntarily failed to appear. This notice was
sufficient to evoke a knowledgeable waiver of
petitioner's right to be present. Brewer's
failure to know of the continued dates of his
trial and his date of sentencing is directly
attributable to his failure to keep in contact
with the court and his attorney. A defendant
cannot be allowed to keep himself deliberately
ignorant and then complain about his lack of
knowledge.
Brewer, 670 F.2d at 118-19.
The Arizona Court of Appeals reached
a similar ruling in State ex rel. Romley v.
Superior Court.15 In Romley, the defendant
fled to Colombia while awaiting trial. The
defendant was aware of his scheduled trial
date when he left Arizona, but he did not
learn that his trial was later rescheduled.
The defendant argued that, because he was
unaware of the new trial date, he could not be
deemed to have knowingly absented himself from
the trial. The Arizona court disagreed:
[The record] point[s] to a compelling
conclusion that, on the date of his escape, it
hardly mattered to this defendant whether his
trial was set for a few days or a few months
away; the fact of his escape itself provided
evidence of his intent not to appear at trial
no matter when it was held.
Romley, 901 P.2d at 1175.
One might argue that Fermin's case
is factually distinguishable from Brewer and
Romley for two reasons: first, the defendants
in Brewer and Romley knew of their original
trial dates (even if they were ignorant of the
continuances granted after their flight), and
second, the defendant in Brewer at least was
specifically told that the trial might be held
in his absence if he willfully failed to
appear. Although Fermin does not discuss
Brewer or Romley in his brief, he does raise a
similar contention: Fermin argues that it is
impossible to conclude that he knowingly
waived his right to be present at the remand
hearing when he did not even know that a
remand hearing would be held.
We disagree. The question is
whether Fermin knowingly stayed away from the
remand hearing. Obviously, if Fermin knew of
the remand hearing and the date it was to
occur, it would be easier to prove that he was
knowingly absent from that hearing. But
courts have found knowing waivers of the right
to be present even when an absconding
defendant did not know for certain that a
particular judicial proceeding would be held.
For example, in State v. Anderson16,
the defendant disappeared before trial. The
trial was held in his absence, and he was
convicted. The court later sentenced Anderson
in absentia. When Anderson was apprehended,
he conceded that he had waived his right to
attend his trial. But he argued that he had
no way of knowing whether he would be
convicted, and so he could not be deemed to
have voluntarily waived his right to attend
his sentencing and to present allocution. The
Utah Supreme Court saw the matter otherwise:
Anderson knew of the date of his trial and
had, in fact, been in contact with pretrial
services up to a few days before [trial]. ...
Had he maintained contact with pretrial
services and with his attorney, as was his
duty, he would have known of [his conviction
and] the sentencing date. Therefore, his
voluntary absence operated as a waiver of his
right to be present. ...
Practical considerations also [militate]
in favor of an in absentia sentencing in this
case. As the State points out, [a] defendant
might possibly absent himself for years.
Meanwhile, the judge [assigned to the case]
could go on to other responsibilities or
retire, and the eventual sentencing would have
to be performed by a judge who was unfamiliar
with the case[.] At the very least, it would
be a waste of judicial resources to repeat a
sentencing hearing simply due to [a]
defendant's caprice.
Anderson, 929 P.2d at 1111.
In United States v. Mera17, the
defendant fled to Colombia before his trial
date was set. He failed to maintain contact
with his attorney, and so he remained ignorant
of the trial date. He was tried in absentia
and convicted. Later, the defendant was
apprehended in Colombia and extradited to the
United States. Upon his return, he challenged
the federal district court's decision to try
him in his absence. The Second Circuit held
that, under these circumstances, the federal
district judge could properly conclude that
Mera had voluntarily absented himself from the
trial even though Mera had never learned of
his trial date.18
The Arizona Court of Appeals adopted
similar reasoning in State v. Cook19:
[A]n accused who does not know of and fails to
appear at a proceeding against him may be
found to have waived his right to be present
there if the record [demonstrates that]
criminal proceedings commenced in his
presence, that he absconded knowing of his
right to attend future proceedings, and that
his disappearance has made it impossible to
contact him with reference to these [later]
proceedings.
Cook, 564 P.2d at 100.
Returning to Fermin's case, we
conclude that Judge Andrews was authorized to
hold the remand hearing in Fermin's absence.
The remand hearing was, in effect, a
continuation of Fermin's suppression motion -
a motion that was initially litigated in the
superior court before Fermin's trial (when
Fermin was present). After Fermin was
convicted and appealed the suppression issue
to this court, we concluded that the superior
court had failed to make needed findings of
fact, so we remanded Fermin's case for further
proceedings. Thus, the remand hearing was a
renewal of the proceedings on Fermin's
suppression motion.
During the time his appeal was
pending, Fermin voluntarily left the State of
Alaska. The record supports the conclusion
that he knowingly ignored (or, more precisely,
he knowingly chose to remain ignorant of) the
events occurring in his case. Thus, when the
superior court held the renewed evidentiary
hearing on Fermin's suppression motion, Fermin
failed to attend.
The question confronting the
superior court was this: could Fermin stymy
the judicial process by simply ignoring his
case and refusing to return to Alaska? Judge
Andrews ruled that the answer was "no", and we
agree.
Fermin's situation is analogous to
the cases discussed above. As in Brewer,
Romley, Anderson, Mera, and Cook, Fermin's
failure to learn of the renewed proceedings on
his suppression motion was directly
attributable to his failure to keep in contact
with the court and his attorney. From the
record before her, Judge Andrews could
justifiably conclude that Fermin did not
intend to return to Alaska even if another
hearing was required to resolve his
suppression motion.
Here, Fermin absconded knowing of
his right to attend future proceedings; his
disappearance (and his concomitant failure to
stay in touch with his attorney) made it
impossible to apprise him of the remand
hearing ordered by this court. As the Brewer
court said, "A defendant cannot be allowed to
keep himself deliberately ignorant [of a
proceeding] and then complain about his lack
of knowledge."20
Fermin has failed to offer any
exonerating explanation of why he left the
State of Alaska, why he failed to return, and
why he failed to maintain contact with his
attorney or the court system. He therefore
has failed to show that Judge Andrews
committed error when she held the renewed
suppression hearing without him. Based on the
authorities discussed above, we hold that
Judge Andrews was authorized to proceed with
the evidentiary hearing in Fermin's absence.
As explained above, Judge Andrews
considered the evidence presented at the
remand hearing and again concluded that
Fermin's suppression motion was meritless.
Based on Judge Andrews's findings, we share
that view. Fermin does not argue that the
evidence fails to support Judge Andrews's
findings of fact, nor does Fermin argue that
his suppression motion should be granted even
given Judge Andrews's findings. Fermin
presents only one argument for reinstating his
appeal: his contention that he was denied due
process when the remand hearing took place in
his absence.
Under the Alaska Supreme Court's
decision in White, it is Fermin's burden to
demonstrate a good reason for reinstating his
appeal. Because the alleged due process error
is the sole reason Fermin gives for
reinstating his appeal, and because no due
process error in fact occurred, Fermin has
failed to present any good reason for
reinstating his appeal.
Fermin's motion to reinstate this
appeal is DENIED. The Clerk of the Appellate
Courts is directed to close this file.
Footnotes
1 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d
694 (1966).
2 Memorandum Opinion No. 3601 (Alaska App; May 7, 1997).
3 514 P.2d 814 (Alaska 1973).
4 See id. at 815.
5 See id. at 816 (footnotes omitted).
6 909 P.2d 373 (Alaska App. 1996).
7 See id. at 374.
8 See id.
9 Fermin, Memorandum Opinion No. 3601, page 4.
10 See id., page 5.
11 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970).
12 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934), overruled
in part by Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d
653 (1964).
13 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912).
14 670 F.2d 117, 118-19 (9th Cir. 1982).
15 901 P.2d 1169 (Ariz. App. 1995).
16 929 P.2d 1107 (Utah 1996).
17 921 F.2d 18 (2nd Cir. 1990).
18 See id. at 20-21.
19 564 P.2d 97 (Ariz. App. 1977), overruled in part by State
v. Fettis, 664 P.2d 208 (Ariz. 1983) (affirming the rule that an
absconding defendant may be tried in absentia, but holding that
such a defendant normally can not be sentenced in absentia).
20 Brewer, 670 F.2d at 119.
-10- 1623
