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Ashenfelter v. State (9/24/99) ap-1647
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers are
encouraged to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JASON GERALD ASHENFELTER, )
) Court of Appeals No. A-7016
Appellant, ) Trial Court No. 3AN-97-6351 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1647 September 24, 1999]
)
Appeal from the Superior Court, Third Judicial
District, Anchorage, Eric T. Sanders, Judge.
Appearances: Leslie A. Hiebert, Assistant
Public Advocate, and Brant G. McGee, Public Advocate, Anchorage, for
Appellant. John Skidmore, Assistant District Attorney, Susan A.
Parkes, District Attorney, Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
COATS, Chief Judge, concurring.
In this appeal, we are required to interpret and apply the
legal doctrine announced in Hamilton v. State [Fn. 1] the doctrine
that defendants have a conditional right to confront the witnesses
against them at sentencing. Under Hamilton, this right comes to
fruition if a defendant takes the stand, denies the government's
factual allegations under oath, and submits to cross-examination.
[Fn. 2]
The defendant in this case, Jason Gerald Ashenfelter,
pleaded no contest to third-degree assault. He was subject to
presumptive sentencing because he was a second felony offender. The
State announced that it would rely on hearsay evidence (grand jury
testimony and the pre-sentence report) to establish that
Ashenfelter's crime was aggravated under AS 12.55.155(c)(10).
(Proof of this aggravating factor would subject Ashenfelter to
increased penalties.) In response, the defense attorney invoked
Hamilton: she declared that her client would take the stand to
refute the State's allegations, and she insisted that the State
produce live witnesses to substantiate its proposed aggravating
factor.
To this end, Ashenfelter took the stand, ostensibly to
oppose the State's hearsay evidence that his crime was aggravated.
But Ashenfelter proceeded to deny that he had committed any crime;
he testified to a completely exculpatory version of events. The
sentencing judge concluded that Ashenfelter's testimony was totally
unbelievable, and the judge therefore ruled that, despite this
testimony, the State would be allowed to rely on hearsay evidence
to prove its proposed aggravating factor. Based on the State's
hearsay evidence, the judge found that Ashenfelter's crime was
aggravated, and the judge sentenced Ashenfelter to a term of
imprisonment greater than the presumptive term.
Ashenfelter now appeals the sentencing court's decision
to allow the State to rely on hearsay when it litigated aggravating
factor (c)(10). As explained here, we conclude that the State was
not entitled to rely on the hearsay evidence, and therefore we
vacate the superior court's finding of aggravator (c)(10) and remand
this case to the superior court for renewed sentencing proceedings.
Background facts and procedural history
According to the State's evidence at grand jury, Jason
Ashenfelter and a companion, Ronald Harold Mahle, Jr., broke into
a man's house and assaulted him. Mahle fired a handgun at the
victim, wounding him severely in the arm and slightly in the head.
Then Ashenfelter, using a baseball bat, struck the victim in the
head. Both Ashenfelter and Mahle were indicted for attempted murder
and first-degree assault.
The State ultimately dropped the attempted murder charges.
Mahle (the shooter) pleaded no contest to the remaining count of
first-degree assault. In Ashenfelter's case, the State lowered the
assault charge from first-degree to third-degree. [Fn. 3] The
amended charging document alleged that Ashenfelter, acting either
"as principle [sic] or accomplice, recklessly caused physical injury
to [the victim] by means of a dangerous instrument". Ashenfelter
pleaded no contest to this reduced charge.
Because Ashenfelter had a prior felony conviction, he was
subject to presumptive sentencing. [Fn. 4] The legal issues in this
case arose when the State asked the superior court to find that
Ashenfelter's offense was aggravated under AS 12.55.155(c)(10)
i.e., that Ashenfelter's conduct "was among the most serious conduct
included in the definition" of third-degree assault.
The State characterized Ashenfelter's conduct as "among
the most serious" based on two factors. First, the State alleged
that Ashenfelter's conduct "was purposeful accomplice behavior, not
just reckless". Second, the State alleged that Ashenfelter "struck
a person who already had been shot in the head by his co-defendant".
According to the State, these aspects of Ashenfelter's conduct were
"consistent" with the more serious crimes of first- and second-
degree assault. [Fn. 5]
As factual support for its assertions, the State announced
that it would rely on hearsay specifically, the testimony
presented to the grand jury and the descriptions of the offense
contained in the pre-sentence report. When Ashenfelter was apprised
of this, he chose to take the stand to contest the State's hearsay
evidence.
Testifying under oath and submitting himself to cross-
examination, Ashenfelter declared that, when he accompanied Mahle
to the victim's house, he did not know that Mahle intended to
assault anyone. According to Ashenfelter, Mahle told him that he
wanted to go to the victim's house to try to smooth over a prior
dispute and effect a reconciliation. Ashenfelter testified that he
waited outside while Mahle went into the house. He did not know
that Mahle was armed.
A few moments later, when Ashenfelter heard gunshots, he
thought that Mahle was being attacked. Fearing for Mahle's safety,
Ashenfelter picked up a baseball bat that was lying outside the
house, and then he went inside to retrieve Mahle. Ashenfelter
stated that, after he entered the house, he "grabbed [Mahle] and
took him out of there". Ashenfelter declared that, even though he
carried the bat into the house, he never swung the bat and he never
hit the victim (or anyone else) with it.
Based upon Ashenfelter's testimony, and relying on this
court's decision in Hamilton, the defense attorney asked Superior
Court Judge Eric T. Sanders to ignore any contrary hearsay
assertions contained in the grand jury testimony and the pre-
sentence report.
Judge Sanders acknowledged the Hamilton issue, but he
concluded that the Hamilton rule did not apply to Ashenfelter's case
because, after listening to Ashenfelter's testimony, the judge found
it unbelievable. Judge Sanders concluded that "[Ashenfelter's]
testimonial denial [had] zero impact [on] the truth-finding process"
and that, therefore, Ashenfelter's testimony was not legally
sufficient to place the State's hearsay allegations in dispute.
Having reached this conclusion, Judge Sanders ruled that, despite
Hamilton, he could rely on the State's hearsay allegations when he
sentenced Ashenfelter and, specifically, when he decided whether
the State had proved aggravating factor (c)(10).
Based on the grand jury testimony and the pre-sentence
report, Judge Sanders found that the State had proved aggravator
(c)(10). And based on that aggravating factor, the judge increased
Ashenfelter's 2-year presumptive term by adding 1 year of suspended
imprisonment. That is, Judge Sanders sentenced Ashenfelter to
3 years' imprisonment with 1 year suspended.
In this appeal, Ashenfelter renews his claim that, once
he took the stand and denied wrongdoing, he became entitled to the
right of confrontation described in Hamilton. Accordingly,
Ashenfelter argues, the State could no longer rely on hearsay
evidence to establish the facts of the case and, in particular, to
establish aggravating factor (c)(10) (conduct among the most serious
within the definition of third-degree assault).
The State offers two responses. First, the State argues
that Ashenfelter could no longer contest his guilt once he pleaded
no contest. Second, the State argues that even if Ashenfelter was
entitled to assert his factual innocence, it was up to Judge Sanders
to evaluate the credibility of Ashenfelter's testimony. According
to the State, once Judge Sanders concluded that Ashenfelter's
testimony was false, the Hamilton rule no longer applied, and the
judge was authorized to ignore Ashenfelter's testimony and rely on
the State's hearsay evidence.
Ashenfelter was not entitled to assert his factual
innocence of third-degree assault after he pleaded no contest, but
he was still entitled to dispute the State's assertion that his
offense was aggravated.
In Scott v. State [Fn. 6], this court held that defendants
who plead no contest can no longer contest their factual guilt for
sentencing purposes. Rather, a defendant's plea "is an admission
of every essential element of the offense well pleaded in the
charge". [Fn. 7] When a judge sentences a defendant who has pleaded
no contest, the judge "is entitled to treat each element of the
offense as having been proved, despite the defendant's protestations
of innocence." [Fn. 8]
As explained above, Ashenfelter testified that he did not
know that Mahle was armed and did not know that Mahle was going to
commit an assault. He testified that he entered the victim's house
only because he heard gunshots and feared that Mahle was being
attacked. Further, Ashenfelter testified that he armed himself with
a baseball bat only for defensive purposes and that he never used
the bat as a weapon. In sum, Ashenfelter declared that he was
completely innocent of wrongdoing.
Under Scott, Ashenfelter was not entitled to dispute his
guilt of third-degree assault under AS 11.41.220(a)(1)(B) as alleged
in the charging document. Judge Sanders could properly disregard
Ashenfelter's protestations of innocence, even though these
protestations were made under oath.
But, as explained earlier, the State alleged that
Ashenfelter's offense was aggravated because, even though it was
charged as a third-degree assault, it really amounted to a higher
degree of assault. Ashenfelter's no contest plea did not constitute
a concession that he had committed a more serious offense.
By pleading no contest to third-degree assault,
Ashenfelter conceded that he recklessly inflicted physical injury
on another person. But he did not concede the elements that
distinguish third-degree assault from the higher degrees of assault.
In particular, all forms of first-degree assault defined
in AS 11.41.210(a) require proof that the defendant caused serious
physical injury (not just physical injury). [Fn. 9] And of the
three forms of second-degree assault defined in AS 11.41.220(a), two
likewise require proof that the defendant inflicted serious physical
injury. [Fn. 10] The charge against Ashenfelter did not include
an allegation of serious physical injury, and thus Ashenfelter's
plea did not concede this element. He was entitled to dispute it
at sentencing.
This leaves second-degree assault as defined in
AS 11.41.210(a)(1). Under this subsection of the statute, second-
degree assault is committed if a defendant, acting "with intent to
cause physical injury to another person, ... causes physical injury
to another person by means of a dangerous instrument". Thus, this
form of second-degree assault requires a more blameworthy culpable
mental state than the culpable mental state that Ashenfelter
conceded when he pleaded no contest to third-degree assault under
AS 11.41.220(a)(1)(B). Although both offenses require proof that
the defendant inflicted physical injury on another person by means
of a dangerous instrument, the crime is second-degree assault only
if the State proves that the defendant intended to inflict physical
injury. The crime is third-degree assault if the State proves the
lesser culpable mental state of "recklessly" that is, proves that
the defendant recklessly ignored the possibility that their conduct
might cause physical injury.
The charging document in this case does not allege that
Ashenfelter intentionally caused physical injury to the victim;
instead, the charge states that Ashenfelter "recklessly" inflicted
injury on the victim. Thus, by pleading no contest to this charge,
Ashenfelter did not concede the element of intent to cause physical
injury.
The State implicitly acknowledges that this is true with
respect to the allegation that Ashenfelter, as a principal,
recklessly caused physical injury to the victim by using a baseball
bat. But the State points out that Ashenfelter was also charged
with participating in the shooting as Mahle's accomplice. Based on
this allegation (and Ashenfelter's subsequent plea of no contest to
that allegation), the State asserts that Ashenfelter's conduct was
"purposeful accomplice behavior, not just reckless".
The State assumes that, if Ashenfelter purposely aided or
abetted his co-defendant's assault on the victim with the handgun,
this fact aggravates Ashenfelter's offense. It does not.
Aggravating factor (c)(10) and all the other aggravating
factors listed in AS 12.55.155(c) are intended to be criteria for
assessing whether a defendant's conduct and background make their
offense more serious than a typical offense committed by a typical
first, second, or third felony offender. [Fn. 11] Although
Ashenfelter engaged in "purposeful" behavior that rendered him
liable as an accomplice for his co-defendant's assault, this fact
does not make Ashenfelter's crime atypically blameworthy. Under
AS 11.16.110(2), all accomplice behavior must be "purposeful".
AS 11.16.110(2) declares that a defendant can be held
criminally responsible for another person's conduct if the State
proves two things. First, the State must prove the specified actus
reus that the defendant "solicit[ed] the other [person] to commit
the offense" or "aid[ed] or abet[ted] the other [person] in planning
or committing the offense". Second, the State must prove mens rea
that the defendant engaged in this conduct "with [the] intent to
promote or facilitate the commission of the offense". Because this
mens rea element requires proof that the accomplice acted with the
intent to promote or facilitate the offense, there is no such thing
as "reckless" accomplice behavior. All accomplice behavior must be
intentional (or, using the adjective from the State's pleading,
"purposeful"). Under the complicity statute, there is no criminal
liability if the State can prove only that the defendant recklessly
disregarded the possibility that their conduct might promote or
facilitate a crime. [Fn. 12]
Moreover, in Echols v. State [Fn. 13], this court
construed AS 11.16.110(2) to mean that, when a defendant is charged
as an accomplice to a crime requiring proof of a specific result
(such as the infliction of injury), the defendant's complicity is
not established unless the State proves that the defendant acted
with intent to bring about the specified result, even though a
principal could be convicted upon proof of some lesser culpable
mental state (i.e., recklessness or negligence). [Fn. 14]
Thus, the State is correct that, when Ashenfelter chose
not to contest accomplice responsibility for the shooting committed
by his co-defendant Mahle, Ashenfelter effectively conceded that he
acted with "intent to promote or facilitate" that assault i.e.,
that he purposefully aided or abetted (encouraged) Mahle in planning
or committing the assault, and that he intended the victim to suffer
physical injury. Without proof of these culpable mental states,
there could be no complicity. But because the State had to prove
these culpable mental states as an element of its case, the
existence of these culpable mental states could not serve as an
aggravating factor. AS 12.55.155(e) declares that "[i]f a factor
in aggravation is a necessary element of the present offense, ...
that factor may not be used to aggravate the presumptive term."
By taking the stand and denying under oath that he acted
with intent to cause physical injury, Ashenfelter became entitled
to the right of confrontation recognized in Hamilton v. State.
In Hamilton v. State [Fn. 15], this court addressed the
use of hearsay evidence at sentencing. We recognized that, under
federal law, a defendant has no right to confront and cross-examine
adverse witnesses at sentencing. [Fn. 16] We further recognized
that, pursuant to Alaska Evidence Rule 101(c)(2), the rules
restricting the admission of hearsay evidence do not apply at
sentencing. [Fn. 17] At the same time, however, we noted that both
the Alaska Supreme Court and the Alaska Legislature had shown a
preference for live testimony at grand jury proceedings. [Fn. 18]
We also noted our own prior decisions dealing with motion practice:
when motions are litigated, the government can not rely on
affidavits to rebut a defendant's sworn testimony. [Fn. 19] After
reviewing these authorities and the policies they embody, we
concluded that the risks of hearsay evidence were substantial enough
that the use of hearsay should be restricted at sentencing.
Accordingly, we adopted the rule that when a defendant denies the
State's allegations under oath and submits to cross-examination, the
State should then be required either to produce its witnesses in
court or prove that the witnesses are unavailable and that the
circumstances tend to confirm the witnesses' veracity. [Fn. 20]
In the present case, Ashenfelter took the stand at
sentencing for the express purpose of rebutting the State's hearsay
evidence (the grand jury testimony and the pre-sentence report), so
as to trigger the State's obligation under Hamilton to produce live
witnesses to support its factual assertions. As already described,
Ashenfelter testified to a version of events that completely
exculpated him. He was not entitled to do this. By pleading no
contest, Ashenfelter conceded (for sentencing purposes) that he
recklessly caused physical injury to his victim.
But despite his no contest plea, Ashenfelter retained the
right to contest the two elements that distinguished his offense
(third-degree assault) from the higher degrees of assault that the
State was trying to prove in order to establish aggravator (c)(10).
That is, Ashenfelter was still entitled to deny that he caused
serious physical injury to his victim. And, with respect to his
actions as a principal (that is, as the wielder of the baseball
bat), Ashenfelter was still entitled to deny that he acted with
intent to cause physical injury. With respect to these elements,
Ashenfelter's testimony triggered the Hamilton rule.
The prosecutor announced that, notwithstanding
Ashenfelter's testimony, she did not intend to produce live
witnesses to support the aggravating factor. She contended instead
that, even under Hamilton, the State had no obligation to produce
live witnesses unless Ashenfelter's testimony "undermine[d] the
information set forth in the grand jury testimony and ... the pre-
sentence report". Specifically, the prosecutor argued that if Judge
Sanders found that Ashenfelter's testimonial denial was not
credible, then the situation was the same as if Ashenfelter had
never taken the stand, so the State could still rely on hearsay
evidence to establish aggravator (c)(10).
Judge Sanders adopted the State's position. He declared
that he found Ashenfelter's testimony to be unbelievable. Judge
Sanders then ruled that, because Ashenfelter's testimony had "zero
impact in terms of the truth-finding process", he could rely on the
hearsay contained in the grand jury testimony and the pre-sentence
report to decide whether the State had established the aggravator.
There had been no trial, so Judge Sanders presumably had
no knowledge of Ashenfelter's offense except from the attorneys'
descriptions (which are not evidence) and from the hearsay accounts
offered at grand jury and contained in the pre-sentence report.
Thus, the record strongly suggests that, when Judge Sanders
concluded that Ashenfelter was an unbelievable witness, he did so
because Ashenfelter's account varied so greatly from the hearsay
accounts offered by the State. Hamilton forbids this. Once
Ashenfelter testified and submitted to cross-examination, the
sentencing judge could no longer rely on the State's contrary
hearsay assertions (unless the State affirmatively proved that its
witnesses were unavailable and that the circumstances indicated that
these witnesses were trustworthy).
More important, even if we assume that Judge Sanders
evaluated Ashenfelter's credibility based solely on his demeanor,
and quite apart from the content of his testimony, this would not
alter the application of the Hamilton rule. It must be remembered
that the underlying question facing Judge Sanders was whether the
State had proved aggravator (c)(10) by showing that Ashenfelter's
conduct actually amounted to either first- or second-degree assault.
Even though Judge Sanders concluded that Ashenfelter's version of
events was completely untrustworthy, the State still bore the burden
of proof. [Fn. 21] Thus, the real issue was whether the State's
version of events was trustworthy. Because of this, we hold that
Hamilton continues to apply to a defendant's sentencing even though
the sentencing judge may conclude that the defendant's testimony is
unbelievable.
Conclusion
The State bore the burden of proving aggravator (c)(10).
Under Hamilton, Ashenfelter's decision to take the stand changed the
procedural rules at sentencing, restricting the ways in which the
State could meet this burden. The State could no longer rely on the
hearsay that is normally offered at sentencing hearings. Instead,
the State either had to produce its witnesses or show that these
witnesses were unavailable and that there was good reason to credit
their out-of-court statements.
Because the State presented no witnesses in court, and
because Judge Sanders was not authorized to consider the State's
hearsay evidence, there is no evidence to support Judge Sanders's
finding of aggravator (c)(10). We accordingly hold that the judge's
finding is clearly erroneous. [Fn. 22]
The State did not propose any other aggravating factors,
and Judge Sanders found no others. Thus, in the absence of
aggravator (c)(10), Judge Sanders had no authority to increase
Ashenfelter's presumptive term.
The superior court's sentencing decision is therefore
VACATED, and the superior court is directed to re-sentence
Ashenfelter. If the State fails to prove aggravator (c)(10) under
the rules established in Hamilton, then the superior court shall
sentence Ashenfelter to the 2-year presumptive term specified in
AS 12.55.125(e)(1), deleting the additional year of suspended
imprisonment that was imposed at Ashenfelter's original sentencing.
COATS, Chief Judge, concurring.
I have no quarrel with the application of the Hamilton
rule in this case. [Fn. 1] However, I wish to repeat the position
which I took in my concurring opinion in Hamilton:
I am not confident, however, that in every case
where the defendant denies a material matter we should require the
state either to call a witness to testify at the sentencing hearing
or to prove the unavailability of a witness before using hearsay
statements. I would prefer to resolve this issue on a case-by-case
basis. It is important for the trial court to have as much reliable
information as possible when sentencing a defendant. I am concerned
that the rule which the court announces in this case may unduly
restrict that information in other cases.[ [Fn. 2] ]
FOOTNOTES
Footnote 1:
771 P.2d 1358 (Alaska App. 1989).
Footnote 2:
See id. at 1362.
Footnote 3:
AS 11.41.220(a)(1)(B).
Footnote 4:
See AS 12.55.125(e)(1).
Footnote 5:
See Benboe v. State, 698 P.2d 1230, 1231 n.2 (Alaska App. 1985)
(a defendant's conduct is "among the most serious" when it would
support the defendant's conviction for a higher degree of the same
crime).
Footnote 6:
928 P.2d 1234 (Alaska App. 1996).
Footnote 7:
Id. at 1237 (quoting Charles A. Wright, Federal Practice and
Procedure (Criminal) (1982), sec. 177, Vol. 1, p. 663-64).
Footnote 8:
Id. at 1238.
Footnote 9:
See AS 11.41.200(a)(1)-(4).
Footnote 10:
See AS 11.41.210(a)(2)-(3).
Footnote 11:
Cf. Looney v. State, 826 P.2d 775, 780 (Alaska App. 1992) (When
aggravating and/or mitigating factors are proved, a defendant's
presumptive term should be adjusted to "the degree to which [those]
factors ... , evaluated in light of the Chaney criteria, distinguish
the defendant or the defendant's conduct from the typical offender
and offense envisioned by the legislature when it established the
presumptive terms.")
Footnote 12:
See, e.g., Bowell v. State, 728 P.2d 1220, 1222-23 (Alaska App.
1986), overruled on other grounds, Echols v. State, 818 P.2d 691
(Alaska App. 1991).
Footnote 13:
818 P.2d 691 (Alaska App. 1991).
Footnote 14:
See id. at 694-95.
Footnote 15:
771 P.2d 1358 (Alaska App. 1989).
Footnote 16:
See id. at 1361 (citing Williams v. New York, 337 U.S. 241, 69
S.Ct. 1079, 93 L.Ed. 1337 (1949)).
Footnote 17:
See id. Evidence Rule 101(c)(2) states: "The [evidence]
rules, other than those with respect to privileges, do not apply in
... sentencing [proceedings.]"
Footnote 18:
See id. at 1362.
Footnote 19:
See id.; see also Alexander v. State, 611 P.2d 469, 474-75
(Alaska 1980); Boggess v. State, 783 P.2d 1173, 1180 (Alaska App.
1989) (holding that when disputed factual issues are presented in
competing affidavits, a court can not resolve the disputes without
hearing from the witnesses personally); Adams v. State, 704 P.2d
794, 797-98 (Alaska App. 1985).
Footnote 20:
See Hamilton, 771 P.2d at 1362-63.
Footnote 21:
See AS 12.55.155(f) ("Factors in aggravation and factors in
mitigation must be established by clear and convincing evidence[.]")
Footnote 22:
See Lepley v. State, 807 P.2d 1095, 1099 n.1 (Alaska App. 1991)
(a sentencing judge's decisions as to the existence of proposed
aggravators and mitigators are to be affirmed unless they are
clearly erroneous).
FOOTNOTES (Concurrence)
Footnote 1:
See Hamilton v. State, 771 P.2d 1358 (Alaska App. 1989).
Footnote 2:
Id. at 1364.
