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Pitka v. State (3/16/01) ap-1728
Pitka v. State (3/16/01) ap-1728
NOTICE
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opinion is published in the Pacific Reporter. Readers are
encouraged to bring typographical or other formal errors to the
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
MICHAEL R. PITKA, )
) Court of Appeals No. A-7598
Appellant, ) Trial Court No. 4FA-99-2066 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1728 March 16, 2001]
)
Appeal from the Superior Court, Fourth Judicial
District, Fairbanks, Alan T. Compton, Mary E. Greene, and Ralph R.
Beistline, Judges.
Appearances: Marcia E. Holland, Assistant
Public Defender, Fairbanks, and Barbara K. Brink, Public Defender,
Anchorage, for Appellant. W. H. Hawley, Jr., 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.
This case raises an issue concerning the proper
application of Criminal Rule 45(c)(1). This rule governs
calculation of the time for bringing a defendant to trial on
additional charges that are filed after the initial complaint or
indictment. The rule states that the same Rule 45 calculation
governs all charges arising out of the "same criminal episode" unless
the later charges are based on newly-discovered evidence.
Pitka was initially charged with two crimes, and then
later indicted for a third. He argues that, even though the third
charge was filed many months later, the speedy trial clock started
running for this third charge on the same day that the initial two
charges were filed meaning that the time for bringing Pitka to
trial on this third charge had already expired by the time it was
filed. For the reasons explained here, we conclude that the third
charge was not part of the same criminal episode as the initial two
charges, and thus the third charge was governed by its own separate
Rule 45 calculation.
Pitka also raises a sentencing issue: he contends that
the superior court committed error when it found that the State had
proved an aggravating factor. Based on our review of the record,
we conclude that the superior court was not clearly erroneous in
finding this aggravator.
The Rule 45 issue
On December 13, 1998, State Trooper Dane Gilmore was
dispatched to a reported domestic disturbance in a Fairbanks
apartment. Gilmore found a man and a woman in the apartment. The
woman, Alexa Crow, told Gilmore that the man the Appellant,
Michael R. Pitka had come to the apartment in violation of a
restraining order. Crow said that when she directed Pitka to leave,
Pitka overturned the kitchen table, causing damage of about $100.
Upon receiving this information, Gilmore arrested Pitka for the
offenses of criminal trespass and criminal mischief.
When Gilmore arrested Pitka, he searched the inside pocket
of Pitka's vest and found a baggie containing a little less than one
ounce of white powder. A field test of this powder indicated that
it was cocaine. Three months later, on March 22, 1999, the State
Crime Lab reported that this substance was indeed 21.1 grams of
cocaine.
On the day following Pitka's arrest (i.e., on December 14,
1998), the State filed a complaint charging Pitka with criminal
trespass and criminal mischief. However, the State did not indict
Pitka for possession of cocaine (third-degree misconduct involving
a controlled substance) until half a year later, on July 14, 1999.
Criminal Rule 45(c)(1) states that the time for bringing
a defendant to trial begins to run "from the date the charging
document is served upon the defendant". Thus, with regard to Pitka's
charges of criminal trespass and criminal mischief, Rule 45
commenced running on December 14, 1998. The question presented in
this appeal is whether Rule 45 also commenced running on December
14th with respect to the yet-to-be-filed possession of cocaine
charge. The answer to this question turns on the proper application
of Criminal Rule 45(c)(3).
Criminal Rule 45(c)(3) deals with the issue of later-filed
charges. The first sentence of this subsection states:
New Charges. The Rule 45 commencement
date for a new charge arising out of the same criminal episode shall
be the same as the commencement date for the original charge, unless
the evidence on which the new charge is based was not available to
the prosecution on the commencement date for the original charge.
Under this rule, calculation of the Rule 45 commencement date for
Pitka's cocaine charge hinges on whether that cocaine charge "[arose]
out of the same criminal episode" as Pitka's criminal trespass and
criminal mischief charges. If so, then the Rule 45 commencement
date for the cocaine charge would be the same as the commencement
date for the other two charges December 14, 1998 unless the
cocaine charge was based on previously unavailable evidence. But
if the cocaine charge did not arise from the "same criminal episode",
then the State was free to file the cocaine charge later, without
regard to the Rule 45 deadline for bringing Pitka to trial on the
criminal trespass and criminal mischief charges.
Pitka asserts that his cocaine charge arose from the same
criminal episode as his criminal trespass and criminal mischief
charges. He points out that Trooper Gilmore found the cocaine while
he was arresting Pitka for criminal trespass and criminal mischief.
That is, the cocaine would not have been discovered had the troopers
not been summoned to deal with Pitka's other two crimes. Moreover,
the fact that the cocaine was found in Pitka's pocket at the time
of his arrest indicated that Pitka was in possession of the cocaine
while he was committing the other two crimes. Based on these
factors, Pitka contends that his possession of cocaine was part of
the "same criminal episode" as his acts of trespass and criminal
mischief. But this court's decision in State v. Dunten [Fn. 1]
shows that Pitka's interpretation of "same criminal episode" is
mistaken.
The defendant in Dunten shot and killed her husband while
she was driving him home from a bar. She then drove to a nearby
home and reported the homicide to the Alaska State Troopers. [Fn.
2] When the troopers arrived to investigate, they gave Dunten a
breath test and found that she was intoxicated. Based on the breath
test result, the troopers placed Dunten under arrest for driving
while intoxicated before questioning her further about the homicide.
[Fn. 3] The State filed no other charge against Dunten until
eighteen months later, when Dunten was indicted for second-degree
murder. [Fn. 4]
After she was charged with murder, Dunten asked the
superior court to dismiss this charge for violation of Criminal Rule
45. She argued that the murder charge arose from the same criminal
episode as the DWI charge, that the Rule 45 commencement date for
both charges was therefore the same, and thus the time for bringing
her to trial on the murder charge had already expired. [Fn.
5] The superior court was persuaded by this argument and dismissed
the murder charge [Fn. 6], but this court reversed the superior
court and reinstated the murder charge. [Fn. 7]
We held that "temporal proximity" does not, by itself,
establish that two charges arise from the "same criminal episode"
for purposes of Criminal Rule 45:
[S]eparate charges [do not] arise from the same
criminal episode merely because they occurred simultaneously or at
closely related times. ... [S]ome additional [factor] either
a causal link or a close evidentiary or elemental nexus [is needed
to justify] the finding of a single criminal episode.
Dunten, 785 P.2d at 909. We then explained why, in Dunten's case,
the DWI charge and the murder charge did not constitute the "same
criminal episode":
Dunten's case involves two charges that are
related almost exclusively by their temporal proximity. The
statutory elements of the two offenses are entirely different. The
homicide charge is not causally related to the earlier DWI charge.
The evidence necessary to establish the initial charge of DWI
certainly differs significantly from that which would be necessary
to establish the subsequent charge of second-degree murder.
Id. at 911.
We reached this conclusion even though Dunten's
intoxication arguably played a role in her decision to shoot her
husband, or arguably was important to a proper assessment of her
culpable mental state at the time of the shooting:
Even though proof of Dunten's intoxication may
be a cornerstone of the state's proof of her culpable mental state
in the homicide case, intoxication is not an essential element of
the murder charge, as it is in the case of DWI. Moreover, proof
that Dunten was driving shortly before and after the homicide has
virtually no bearing on the murder charge. Assuming a causal
relationship existed between Dunten's intoxication and her decision
to shoot her husband, it seems clear that no similar relationship
exists with regard to the DWI charge[.]
Id.
Our analysis in Dunten applies with equal force to the
facts of Pitka's case. Pitka violated a restraining order by
returning to Crow's residence, and he damaged her property when she
asked him to leave. When Trooper Gilmore arrived and arrested Pitka
for these two crimes (criminal trespass and criminal mischief),
Gilmore discovered cocaine in Pitka's vest pocket. This cocaine had
"virtually no bearing" on the trespass and criminal mischief charges.
Possession of cocaine is not an element of those charges. Pitka has
not suggested that his acts of trespass and criminal mischief were
motivated by a desire to obtain or sell cocaine, or that these acts
were related in any other way to his possession of cocaine.
There is evidence that Pitka was intoxicated when he came
to Crow's residence. Although Pitka has not argued this, it is
possible to infer that Pitka's intoxication was due, at least in
part, to his earlier consumption of cocaine. Thus, the fact that
cocaine was found in Pitka's pocket shortly after his arrest may
arguably have some relevance to his prosecution for criminal
trespass and criminal mischief.
But even if Pitka's possession of cocaine has some
arguable relevance to the trespass and criminal mischief charges,
the degree to which this evidence might be relevant is certainly
less than in Dunten. In that case, Dunten's intoxication had
obvious and substantial relevance to the second-degree murder charge
against her and even that degree of relevance was deemed
insufficient to make the second-degree murder charge part of the
"same criminal episode" as the DWI charge.
We reach a similar legal conclusion in Pitka's case.
Given the circumstances of Pitka's three offenses, the temporal
relationship between Pitka's acts of trespass and criminal
mischief, on the one hand, and Pitka's act of possessing cocaine,
on the other, "appears to be wholly fortuitous". [Fn. 8] Because
there was no nexus between these crimes other than their
simultaneity, we agree with the superior court that Pitka's crime
of possessing cocaine was not part of the "same criminal episode"
as his crimes of trespass and criminal mischief.
Accordingly, the Rule 45 commencement date for the cocaine
charge was the date on which that charge was served on Pitka not
the earlier time when he was served with the criminal trespass and
criminal mischief charges. The superior court correctly denied
Pitka's motion to dismiss.
The superior court's finding of aggravator AS
12.55.155(c)(10)
After the superior court denied Pitka's Rule 45 motion to
dismiss, Pitka pleaded no contest to possession of cocaine (fourth-
degree misconduct involving a controlled substance).
This offense is a class C felony. [Fn. 9] Pitka was a
first felony offender, so no presumptive term applied to his
sentencing. However, the superior court's sentencing discretion was
limited by the rule announced by this court in Austin v. State
the rule that, in the absence of statutory aggravating factors
defined in AS 12.55.155(c) or extraordinary circumstances defined
in AS 12.55.165(a), "a first offender should receive a more favorable
sentence than the presumptive sentence for a second offender". [Fn.
10] The presumptive term for a second felony offender convicted of
a class C felony is 2 years' imprisonment. [Fn. 11]
The State alleged two aggravating factors under AS
12.55.155(c). First, the State alleged aggravator (c)(10) that
Pitka's offense (simple possession of cocaine) was among the most
serious in its class because Pitka possessed so large an amount
(21.1 grams) that he must have intended to sell the drug.
(Possession for purposes of sale is a higher degree of crime. [Fn.
12]) Second, the State alleged aggravator (c)(21) that Pitka had
a criminal history of similar offenses, based on three prior
complaints for illegal possession of controlled substances
(marijuana and cocaine) with intent to deliver.
Superior Court Judge Mary E. Greene found that the State
had proved both of these aggravators. With particular respect to
aggravator (c)(10), Judge Greene concluded that although Pitka was
only charged with simple possession, Pitka was actually guilty of
a higher degree of crime because he possessed the cocaine for the
purpose of selling it. Having found these two aggravating factors,
the court sentenced Pitka to 2 years' imprisonment.
In keeping with Austin's requirement that a first felony
offender's term of imprisonment should ordinarily be "more favorable"
than the presumptive term that applies to second felony offenders,
we have consistently required the State to prove aggravating factors
or extraordinary circumstances whenever "the actual period of
imprisonment equals or exceeds the presumptive term for a second
offender". [Fn. 13] Because Pitka's sentence equals the presumptive
term for a second felony offender, the superior court's findings of
aggravators (c)(10) and (c)(21) are essential to the validity of
Pitka's sentence under the Austin rule.
On appeal, Pitka challenges the superior court's finding
of aggravator (c)(10). He argues that the court was clearly
erroneous in finding that he possessed the cocaine with intent to
sell it. Pitka further contends that, because aggravating factor
(c)(10) was not adequately proved, we should direct the superior
court to reconsider his sentence.
The State responds that Pitka's claim is moot. The State
contends that it does not matter whether aggravator (c)(10) was
supported by the evidence because no aggravator was required.
The State's argument is based on the legislature's
enactment of AS 12.55.125(k). [Fn. 14] This statute is seemingly
a codification of the Austin rule, but it differs from Austin in one
respect: Austin requires proof of aggravating factors or
extraordinary circumstances if the defendant's sentence equals or
exceeds the presumptive term for a second felony offender, but the
statute requires aggravating factors or extraordinary circumstances
only if the defendant's sentence exceeds the presumptive term for
a second felony offender.
Pitka's case presents a situation in which this
distinction makes a difference. If we apply the Austin rule, the
superior court's finding of aggravator (c)(10) is necessary to the
validity of his sentence. But if we apply AS 12.55.125(k), then the
State is correct the aggravator is not required to support the
sentence, and thus it does not matter whether the record supports
the superior court's finding.
The State presents a colorable argument that the Austin
rule has been superseded by AS 12.55.125(k). However, to decide
Pitka's case, we do not have to resolve this discrepancy between the
Austin rule and AS 12.55.125(k). We need not decide this issue
because the record supports the superior court's finding of
aggravator (c)(10).
As explained above, Judge Greene actually found two
aggravating factors: (c)(10) and (c)(21). On appeal, Pitka does
not challenge the finding of aggravator (c)(21), but Pitka argues
that Judge Greene erred in finding aggravator (c)(10).
When Judge Greene found that the State had proved
aggravator (c)(10), she relied primarily on two factors: the amount
of cocaine found in Pitka's possession, and Pitka's statement in the
pre-sentence report about his personal drug use.
As noted above, Pitka had 21.1 grams of cocaine in his
pocket. According to the testimony presented at grand jury, this
amount of cocaine had a "street value" of approximately $2000. Pitka
told the pre-sentence investigator that he used cocaine "mostly on
weekends, when he might consume up to a gram." The pre-sentence
investigator noted that, given Pitka's self-declared rate of
consumption, the amount in his vest pocket represented "a 21-week
supply". Judge Greene concluded that Pitka would not carry such a
large amount unless he intended to sell it.
When a defendant challenges a sentencing judge's findings
concerning the existence of aggravating and mitigating factors, we
are to uphold the judge's findings unless they are shown to be
clearly erroneous. [Fn. 15] Having examined the record, we conclude
that it supports Judge Greene's finding of aggravator (c)(10).
(As explained above, Judge Greene found that the State had
proved two aggravators: (c)(10) and (c)(21). Because we conclude
that the record supports Judge Greene's finding of aggravator
(c)(10), we need not resolve whether the other aggravator, (c)(21),
would independently support Pitka's sentence of 2 years to serve.)
Pitka's claim that his sentence is excessive
Pitka contends that, even if his 2-year sentence was
lawfully imposed, the sentence is excessive. Because Pitka's term
of imprisonment does not exceed 2 years, this court has no
jurisdiction to decide Pitka's claim. [Fn.
16] Pursuant to Appellate Rule 215(k), we refer Pitka's excessive
sentence claim to the supreme court.
Conclusion
Pitka's excessive sentence claim is referred to the
supreme court. In all other respects, the judgement of the superior
court is AFFIRMED.
FOOTNOTES
Footnote 1:
785 P.2d 907 (Alaska App. 1990).
Footnote 2:
See id. at 907.
Footnote 3:
See id.
Footnote 4:
See id. at 908.
Footnote 5:
See id.
Footnote 6:
See id.
Footnote 7:
See id. at 911.
Footnote 8:
Id.
Footnote 9:
AS 11.71.040(d).
Footnote 10:
627 P.2d 657, 657-58 (Alaska App. 1981). See Brezenoff v.
State, 658 P.2d 1359, 1362 (Alaska App. 1983) (holding that the
Austin ceiling can be exceeded only when the State proves statutory
aggravating factors or extraordinary circumstances).
Footnote 11:
AS 12.55.125(e)(1).
Footnote 12:
AS 11.71.030(a)(1).
Footnote 13:
Brezenoff v. State, 658 P.2d 1359, 1362 (Alaska App. 1983)
(emphasis added).
Footnote 14:
This statute reads: "A first felony offender convicted of an
offense for which a presumptive term of imprisonment is not
specified ... may not be sentenced to a term of unsuspended
imprisonment that exceeds the presumptive term for a second felony
offender convicted of the same crime unless the court finds by clear
and convincing evidence that an aggravating factor under AS
12.55.155(c) is present, or that circumstances exist that would
warrant a referral to the three-judge [sentencing] panel under AS
12.55.165."
Footnote 15:
See Lepley v. State, 807 P.2d 1095, 1099 n.1 (Alaska App.
1991).
Footnote 16:
AS 22.07.020(b).
