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Haynes v. State (1/19/01) ap-1714
Haynes v. State (1/19/01) ap-1714
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
JAMES HAYNES, )
) Court of Appeals No. A-7457
Appellant, ) Trial Court No. 4FA-S98-2918 CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1714 - January 19, 2001]
)
Appeal from the Superior Court, Fourth Judicial
District, Fairbanks, Mary E. Greene, Judge.
Appearances: Marcia E. Holland, Assistant
Public Defender, Fairbanks, and Barbara K. Brink, Public Defender,
Anchorage, for Appellant. Eric A. Johnson, 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.
COATS, Chief Judge.
James Haynes was convicted of misconduct involving a
controlled substance in the third degree, a class B felony, for
selling cocaine to an undercover police officer. Haynes contends
that Superior Court Judge Mary E. Greene erred in failing to allow
him to introduce evidence that a confidential informant, who had
introduced the undercover officer to Haynes, had later been indicted
for possession of cocaine. Haynes also contends that Judge Greene
erred in ordering him to pay $220 in restitution to the state for
the money that the state used to buy the cocaine from him.
Additionally, Haynes argues Judge Greene erred when she found that
he was a third felony offender for presumptive sentencing purposes
instead of a second felony offender. Haynes also argues that his
seven-year sentence is excessive. We affirm.
As part of an undercover drug investigation in Fairbanks,
Alaska State Trooper Investigators Rodney Pucak and Gary Johnson
used informant James Moran to identify individuals who were selling
cocaine and to introduce Investigator Pucak to these individuals.
After Moran identified an individual who was selling cocaine, he
would introduce Pucak to the individual so Pucak could purchase the
cocaine.
Moran arranged to introduce Pucak to James Haynes, who was
allegedly going to sell him an eightball (one eighth of an ounce)
of cocaine. On August 10, 1998, Johnson and Pucak picked up Moran
at his apartment and drove to Haynes's apartment building. When they
arrived, Moran and Pucak left the vehicle; Moran went into Haynes's
apartment building while Pucak waited outside. After a few minutes
Moran came out of the building and told Pucak he had obtained the
cocaine from Haynes. Pucak told Moran "that we would not be doing
the transaction that way." Pucak still had the buy money on him.
Pucak accompanied Moran into the apartment building and
waited in the hallway outside the apartment while Moran went into
Haynes's apartment. After about one minute, Haynes opened the door
and invited Pucak into the apartment. Haynes immediately took Pucak
into the apartment's bathroom and closed the door. Moran did not
enter the bathroom with them he waited outside the bathroom in
the apartment hall.
Inside the bathroom, Haynes handed Pucak a small ziplock
baggie containing a white substance. Pucak questioned whether the
amount was an eightball and Haynes told him the quantity in the
baggie was all he was going to get for $220. Pucak handed Haynes the
money and they left the bathroom. Pucak and Moran left the
apartment and joined Johnson in the parked vehicle. Subsequent tests
revealed that the white substance in the baggie was .5 or .7 grams
of cocaine.
A Fairbanks grand jury indicted Haynes on one count of
misconduct involving a controlled substance in the third degree. A
jury convicted Haynes on this charge. Superior Court Judge Mary E.
Greene found that Haynes was a third felony offender and sentenced
him to an aggravated presumptive term of seven years. Judge Greene
also ordered Haynes to pay $220 to the statewide drug enforcement
unit as restitution for the buy money that the police used to
purchase the cocaine.
Haynes contends that Judge Greene erred in refusing to
allow him to introduce evidence that the day following Haynes's sale
of cocaine to Investigator Pucak, the informant James Moran was
arrested for possession of cocaine. During Haynes's cross-
examination of Investigator Johnson, Haynes asked him if he was
aware that Moran had been indicted for a crime. Johnson
acknowledged that he was aware of this. But when Haynes tried to
establish that Moran had been indicted for possession of cocaine,
the state objected. Judge Greene directed the parties to go to the
anteroom to allow Haynes to make an offer of proof. After the state
represented that Moran was alleged to have possessed cocaine the day
after Haynes's sale to Pucak, the following exchange occurred:
Haynes: I think [that evidence of Moran's
indictment for possessing cocaine is] relevant because it goes to
his connection with the police and with the state.
The Court: How?
Haynes: Well, he hasn't been sentenced yet in
that case.
The Court: Okay. So you're trying to
impeach somebody
else's statements . . . .
Prosecutor: Trying to impeach . . . .
The Court: . . . about whether or not he
had anything any
possible reason to curry favor, is that it?
Haynes: I think it goes to his relationship
with the state,
Judge.
The Court: Well, tell me how?
Haynes: Well, it obviously he hasn't been
sentenced yet in the case.
The Court: You still have to make a better
argument than that.
Haynes: I think that it goes to show that he
had a relationship with the authorities that . . . .
The Court: But it happened after [this]
case.
Haynes: I still think it goes to show that
he's within the state's control still.
The Court: So what[?] I mean he's not a
witness. It happened after this event. So what does it matter if
he's still in control?
Haynes: Well, he's not available I don't
think.
The Court: Why?
Haynes: I'll just withdraw it, Your Honor.
The Court: Okay.
On appeal, Haynes argues that he did not withdraw his
question and that because, at the conclusion of the anteroom
conference, Judge Greene told the jury that she sustained the
state's objection, she ruled against him. Regardless of Judge
Greene's remark to the jury, the record shows that Haynes withdrew
his question, apparently conceding that he could not establish a
reason why the evidence was admissible. [Fn. 1]
Furthermore, the offer of proof that Haynes did make, that
the evidence was relevant to show Moran's connection with the police
and the state, did not appear to offer relevant evidence because
Moran was not a witness in the trial and the case against Haynes
turned on the testimony of Investigator Pucak rather than Moran.
Therefore, Haynes failed to make an offer of proof that established
that the evidence he sought to have admitted was relevant. [Fn. 2]
Had Haynes not withdrawn his question, Judge Greene would not have
erred in excluding the evidence.
Haynes next argues that Judge Greene erred in ordering
Haynes to pay restitution in the amount of $220 to the statewide
drug enforcement unit in order to repay the state for the money that
it spent when it bought the cocaine from Haynes. Haynes supports his
argument with citations to cases from other jurisdictions holding
that restitution for buy money cannot be ordered at sentencing. [Fn.
3] However, the cases Haynes cites involve interpretations of law
from other states. In this state, the Alaska Supreme Court's
decision in Gonzales v. State [Fn. 4] is controlling.
Title 12 of the Alaska Statutes authorizes courts to award
restitution both as a component of the sentence and as a term of
probation. Under AS 12.55.015(a)(5) and 12.55.045(a), in fashioning
a sentence,
[t]he court may order a defendant convicted of
an offense to make restitution . . . to the victim or other person
injured by the offense, to a public, private, or private nonprofit
organization that has provided or is or will be providing
counseling, medical, or shelter services to the victim or other
person injured by the offense, or as otherwise authorized by
law.
Under AS 12.55.100(a)(2), in fashioning conditions of probation,
(a) [w]hile on probation and among the
conditions of
probation, the defendant may be required
(1) to pay a fine in one or several sums;
(2) to make restitution or reparation to
aggrieved parties for actual damages or loss caused by the crime for
which
conviction was had.
In Gonzales v. State, the Alaska Supreme Court interpreted
AS 12.55.100(a)(2), the restitution statute that applies to
conditions of probation. [Fn. 5] Gonzales conceded that the court
could order him to repay the state for money that the state spent
to purchase cocaine from him. But Gonzales argued that the court
should require him only to repay the profits he made from the drug
transactions. The supreme court disagreed with Gonzales's
contention, and concluded that the court could require him to pay
back all of the money that the state had used to purchase cocaine
from him:
The restitution statute . . . allows the court
to order restitution "for actual damages or loss caused by the crime
for which conviction was had." In construing a similar statute, the
Oregon Supreme Court defined restitution as "the return of a sum of
money . . . which a defendant wrongfully obtained in the course of
committing the crime." Here it seems clear that Gonzales wrongfully
obtained $10,175.00 from the state in the course of his drug
transactions, and that this sum represented "actual damages or loss"
to the state. [Fn. 6]
It is true that Gonzales did not challenge whether the
court could require him to pay drug buy money to the state as
restitution. But the supreme court's language appears to make it
clear that the court found that the state was an aggrieved party
that had suffered actual damages because it had paid drug buy money
to Gonzales and was therefore entitled to restitution for this loss.
Gonzales establishes that a court can order a defendant to pay
restitution to the state for money that state used to buy drugs from
a defendant when the restitution is fashioned as a condition of
probation.
But Judge Greene ordered Haynes to pay restitution not as
a condition of probation, but as part of his sentence. The statutes
that govern awards of restitution as part of a sentence, AS
12.55.015(a)(5) and AS 12.55.045(a), authorize the court to order
restitution "to the victim or other person injured by the offense."
Haynes argues that the state is not a victim or other person who was
injured by his offense. We find the Gonzales decision persuasive
in interpreting these statutes. It seems anomalous to allow a court
to enter an order requiring a defendant to pay restitution for buy
money as a condition of probation but not to allow the court to
fashion a restitution remedy as part of a sentence. In its
decision, the court referred to the fact that Gonzales had
"wrongfully obtained" the buy money and that the state thereby
suffered "actual damages or loss." We accordingly conclude that the
superior court has the authority to award restitution for drug buy
money to the state both as a condition of probation and as part of
a sentence.
Haynes was convicted of misconduct involving a controlled
substance in the third degree, a class B felony. Haynes had two
prior felony convictions. Judge Greene found that Haynes was a
third felony offender, and therefore, faced the statutory
presumptive sentence of six years of imprisonment. [Fn. 7] Haynes
conceded that the state established two aggravating factors: that
Haynes was on probation or parole for another felony offense when
he committed his current felony and that Haynes had a history of
crimes similar to the offense for which he was being sentenced. [Fn.
8] The state conceded that a mitigating factor applied to Haynes's
offense: that his offense involved only a small quantity of drugs.
[Fn. 9] Judge Greene imposed an aggravated presumptive sentence
of seven years of imprisonment.
Haynes contends that Judge Greene erred in sentencing him
as a third felony offender. He contends that Judge Greene should
have found that his two prior felony convictions should have been
considered as a single conviction. Haynes's argument rests on AS
12.55.145(a)(1)(C), which states that "two or more convictions
arising out of a single continuous criminal episode during which
there was no substantial change in the nature of the criminal
objective are considered a single conviction unless the defendant
was sentenced to consecutive sentences for the crimes."
The history of Haynes's prior felony convictions
illustrates that he committed his two prior felony offenses several
months apart. On November 17, 1996, Haynes sold .3 grams of cocaine
to a consumer. On June 4, 1997, Haynes pled no contest to one
charge of misconduct involving a controlled substance in the third
degree [Fn. 10] for this activity. The court sentenced Haynes to
three years with eighteen months suspended and placed him on
probation for four years following his jail time.
On February 5, 1996, Haynes was contacted by the police
on an outstanding traffic warrant. After the police arrested him in
his hotel room, they searched his room pursuant to a warrant and
found cocaine. Haynes was convicted of misconduct involving a
controlled substance in the fourth degree, [Fn. 11] a class C
felony. On June 27, 1997, the court sentenced Haynes to serve
eighteen months for this conviction, concurrent with his former
conviction.
The legislative commentary to AS 12.55.145 makes it clear
that Haynes's prior convictions do not qualify as "a single
continuous criminal episode." According to the legislative
commentary:
The phrase "single, continuous episode" is
intended to limit the applicability of this provision to a single
criminal event out of which a number of offenses could be charged.
For example, the breaking and entering of a building with the intent
to commit theft, which can be charged as burglary, and the taking
of property in the building which can be charged as theft. In such
an instance, conviction for both burglary and theft would be
considered a single conviction under this section. However, the
commission of three burglaries involving three buildings in a single
day, would not be considered part of a "single, continuous criminal
episode". Similarly, the phrase "substantial change in the nature
of the criminal objective" is intended to limit the applicability
of the provision to a single criminal objective. In the preceding
example, the criminal objective is to obtain property and the
breaking and entering is an incident of that objective. However,
assume that the defendant takes a hostage to facilitate his flight,
then decides to commit a sexual assault on the hostage. He is
subsequently convicted of burglary, theft, kidnapping and sexual
assault. In such a circumstance the defendant would have been
convicted of three prior offenses for purposes of this section,
burglary-theft, kidnapping and sexual assault. [Fn. 12]
Haynes's two prior convictions were for crimes that he
committed in November of 1996 and February of 1996. One charge
involved the sale of cocaine; the other possession of cocaine.
Other than the fact that both convictions involved cocaine, there
is simply no reason to find that both convictions should be
considered to be part of a "single continuous criminal episode."
Had Haynes sold cocaine and then, pursuant to a reasonably
contemporaneous search, been found in possession of more cocaine,
the convictions for sale of cocaine and possession of cocaine might
be considered part of a "single continuous criminal episode." But
given the passage of time and the lack of connection between the two
offenses, Haynes has not established that his convictions should
have merged into a single conviction for purposes of presumptive
sentencing.
Haynes argues that the seven-year sentence that Judge
Greene imposed is excessive. But, as a third felony offender,
Haynes faced a presumptive sentence of six years of imprisonment.
In sentencing Haynes, Judge Greene placed great weight on the fact
that Haynes had just recently been released from prison on his
former drug offenses and was on probation on his former drug
offenses when he committed his present offense. She concluded from
Haynes's past record of offenses, his failures on probation, and his
violation of prison rules that Haynes was a poor candidate for
probation and had poor prospects for rehabilitation. Judge Greene's
findings are supported by the record and support the sentence she
imposed. We conclude that the sentence is not clearly mistaken.
AFFIRMED.
FOOTNOTES
Footnote 1:
See Napier v. State, 887 S.W.2d 265, 266-67 (Tex. App. 1994).
Footnote 2:
See Alaska Evidence Rule 103(a)(2); Wasserman v. Bartholomew,
987 P.2d 748, 754 (Alaska 1999).
Footnote 3:
See, e.g., People v. Chupp, 503 N.W.2d 698 (Mich. App. 1993);
State v. Murray, 529 N.W.2d 453 (Minn. App. 1995); Igbinovia v.
State, 895 P.2d 1304 (Nev. 1995); State v. Newman, 623 A.2d 1355
(N.J. 1993).
Footnote 4:
608 P.2d 23 (Alaska 1980).
Footnote 5:
See id. at 26.
Footnote 6:
Id. (citations omitted).
Footnote 7:
See AS 12.55.125(d)(2).
Footnote 8:
See AS 12.55.155(c)(20), (21).
Footnote 9:
See AS 12.55.155(d)(14).
Footnote 10:
AS 11.71.030(a).
Footnote 11:
AS 11.71.040(a)(3)(A).
Footnote 12:
Linn v. State, 658 P.2d 150, 152 (Alaska App. 1983) (quoting
2 Senate Journal Supplement No. 47, at 157-58 (June 12, 1978)).
