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Tyler v State (05/18/2001) ap-1743
Tyler v State (05/18/2001) ap-1743
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:
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
DAVID A. TYLER, )
) Court of Appeals No. A-7779
Appellant, ) Trial Court No. 3AN-99-6645 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1743 May 18, 2001]
)
Appeal from the Superior Court, Third Judicial
District, Anchorage, Sigurd E. Murphy, Judge.
Appearances: Eugene B. Cyrus, Eagle River, for
Appellant. Douglas H. Kossler, 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.
David A. Tyler was convicted of felony DWI i.e., driving
while intoxicated after having been twice before convicted of DWI
and/or breath-test refusal within the preceding five years. [Fn.
1] He now appeals his conviction to this court. Tyler concedes
that he is guilty of driving while intoxicated on the date alleged
in the indictment, but he asserts that his two prior convictions are
invalid and, thus, his present offense should be a misdemeanor
rather than a felony.
Tyler's opening brief has been filed, and the State's
brief is pending. But the State now asks us to dismiss Tyler's
appeal for lack of jurisdiction. The State contends that Tyler's
appeal is based on an invalid Cooksey plea. [Fn. 2]
Attorney Eugene B. Cyrus represents Tyler. In his opening
brief, Mr. Cyrus declared that Tyler went to trial on stipulated
facts in order to preserve his attacks on his two prior convictions.
[Fn. 3] Mr. Cyrus stated the same thing in paragraphs 4-6 of an
affidavit that he previously filed in this case. [Fn. 4]
But the State contends that this is false that there
was no trial. Rather, Tyler entered a Cooksey plea a plea of no
contest to the felony DWI charge, reserving Tyler's right to attack
his prior convictions on appeal. The State declares that Mr. Cyrus
convinced the superior court to accept this Cooksey plea over the
express objection of the prosecuting attorney. The State further
contends that Tyler's Cooksey plea is invalid because the issue
preserved for appeal the validity of Tyler's prior convictions
is not dispositive of whether Tyler could lawfully be convicted
of felony DWI. (The State's argument on this point is explained in
more detail below.)
Mr. Cyrus has filed an opposition to the State's motion
to dismiss. However, Mr. Cyrus concedes that the State's version
of events is correct that there was no trial, and that Tyler
entered a Cooksey plea over the objection of the prosecutor. Mr.
Cyrus nevertheless argues that, even though Tyler was convicted
based on a Cooksey plea rather than a trial verdict, the Cooksey
plea was valid and thus Tyler's appeal should not be dismissed.
The jurisdictional issue confronting this Court: whether
an attack on a defendant's prior, foundational convictions is
"dispositive" for purposes of entering a plea under Cooksey v. State
In Cooksey, the Alaska Supreme Court announced an
exception to the normal rule that a plea of guilty or no contest
waives all non-jurisdictional defects in the prosecution. The court
held that a criminal defendant need not go to trial to preserve an
appellate issue that is dispositive of the defendant's case.
Instead, the defendant and the State (with the trial court's
approval) can stipulate that the defendant will enter a special kind
of no contest plea a plea that preserves the defendant's right
to litigate the dispositive issue on appeal. [Fn. 5]
But in Oveson v. Anchorage [Fn. 6], the supreme court
declared that the validity of a Cooksey plea and, thus, the
appellate court's jurisdiction to hear the defendant's appeal
hinges on (1) whether the parties followed correct procedure in the
trial court and (2) whether the issue preserved for appeal is
in fact dispositive of the charge against the defendant.
[A]ppeals under the Cooksey doctrine will not
be approved unless it is clearly shown, and the parties have
stipulated with trial court approval, that [the appellate court's]
resolution of the issue reserved for appeal will be dispositive of
the entire case.
Oveson, 574 P.2d at 803 n.4.
Later cases have clarified that the appellate court has
an independent duty to assess whether the issue preserved in a
Cooksey plea is dispositive of the litigation. If it is not, then
the appellate court has no jurisdiction to hear the defendant's
appeal. [Fn. 7]
There are two potential jurisdictional defects in Tyler's
appeal.
First, Tyler's attorney convinced the superior court to
accept a Cooksey plea over the objection of the prosecuting
attorney. We have serious doubts whether this is legal.
As explained above, a defendant who pleads no contest
normally waives all non-jurisdictional defects in the prosecution.
Cooksey is an exception to this rule. Both this court and the
supreme court have repeatedly stated that a Cooksey plea requires
the consent of both the government and the defendant. Although we
have never had to articulate the precise reasons for requiring the
consent of both parties, it appears that one major reason for
requiring the consent of the State is that a Cooksey plea gives the
defendant a right of appeal that the defendant otherwise would not
enjoy.
If this is the reason (or a primary reason) for requiring
the State's consent to a Cooksey plea, then the superior court
probably has no right to accept a Cooksey plea over the prosecutor's
objection. Compare State v. Carlson [Fn. 8], where the supreme
court held that a trial judge has no authority to accept a guilty
plea to a lesser included offense over the objection of the
prosecutor.
However, we need not decide this issue in Tyler's case
because there is a second defect in the Cooksey plea: the issue
that Tyler has preserved for appeal is not dispositive of the felony
charge against Tyler.
As explained above, Tyler preserved one issue for appeal:
he argues that he should have been convicted of misdemeanor DWI
rather than felony DWI because his two prior DWI convictions are
invalid. Tyler asserts that his prior convictions are invalid
because, in both cases, he did not knowingly waive his right to
counsel when he entered his pleas to those convictions.
In its motion to dismiss this appeal, the State argues
that Tyler's felony conviction might still be upheld even if we
found that Tyler's pleas to the two prior DWIs were invalid. The
State points out that even if Tyler is allowed to withdraw his
pleas, the State would still be able to re-prosecute Tyler for DWI
in those two prior cases. Potentially, the State could again obtain
convictions for those crimes. And the State argues that if it
succeeds in re-convicting Tyler of those two prior crimes, Tyler's
current felony DWI conviction would still be valid.
In his opposition to the State's motion to dismiss, Tyler
argues that the State's reasoning is flawed. Tyler contends that
even if he is again convicted of the two misdemeanor DWIs, those
convictions would be new that is, they would no longer be "prior"
to his current DWI conviction. Thus, Tyler asserts, even if he is
ultimately re-convicted of the two earlier DWIs, his felony DWI
conviction would still have to be reduced to a misdemeanor
conviction.
Tyler cites three supreme court cases in support of his
argument. [Fn. 9] However, Tyler fails to cite the supreme court
decision that appears to govern his case: McGhee v. State, 951 P.2d
1215 (Alaska 1998).
In McGhee, the Division of Motor Vehicles revoked the
defendant's driver's license following his arrest for DWI. [Fn. 10]
This period of revocation was increased because McGhee had two prior
DWI convictions. [Fn. 11]
After his license was revoked, McGhee filed a motion in
district court attacking one of his prior DWI convictions. McGhee
argued that he should be allowed to withdraw his plea because the
judge failed to expressly advise him of his right to jury trial.
McGhee was successful; the court allowed him to withdraw his plea.
After obtaining this favorable ruling, McGhee immediately re-entered
a no contest plea, and he was again convicted of the charge. [Fn.
12]
Following this series of events, McGhee returned to the
Division of Motor Vehicles and challenged the term of his license
revocation. McGhee argued that he should not be subjected to the
same revocation enhancement because, now, one of his "prior"
convictions was no longer prior. McGhee asserted that even though
he had been re-convicted of this offense, the conviction was now new
and, therefore, it could not be used to trigger the enhanced
suspension period. [Fn. 13]
After the Division of Motor Vehicles refused to modify the
term of McGhee's license revocation, McGhee pursued an appeal to the
supreme court. The supreme court rejected McGhee's argument and
affirmed the enhanced license revocation period: "Because McGhee
remains convicted of the same DWIs that subjected him to an enhanced
revocation [in the first place], the temporary set-aside of the
prior DWI requires no alteration of the original [license]
revocation." [Fn. 14]
Based on the supreme court's decision in McGhee, we
conclude that Tyler's Cooksey plea is not valid because the issue
he preserved for appeal is not dispositive. Even if Tyler succeeds
in convincing us that one or both of his prior DWI convictions
should be overturned, the State will be entitled to re-prosecute
Tyler for those crimes and if Tyler is again convicted of those
earlier DWIs, his felony DWI conviction will stand.
Because Tyler did not enter a valid Cooksey plea, we must
dismiss his appeal for lack of jurisdiction. This case is remanded
to the superior court for further proceedings on the indictment.
Because Tyler has not received the anticipated benefit of his plea
(i.e., the opportunity to litigate the validity of his prior
convictions on appeal), he must be allowed an opportunity to
withdraw his plea and go to trial. [Fn. 15]
This appeal is DISMISSED.
FOOTNOTES
Footnote 1:
See AS 28.35.030(n).
Footnote 2:
See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).
Footnote 3:
Tyler's opening brief states: "At a court trial, Tyler admitted
to driving and being intoxicated at the time of driving. The sole
issue was the validity of [Tyler's] prior misdemeanor convictions."
Opening Brief of Appellant (filed March 5, 2001), page 3.
Footnote 4:
Mr. Cyrus's affidavit states:
[A]t trial, [Mr.] Tyler was in custody ... .
The trial was a "walk-through" trial. The facts were stipulated to;
there was no witness testimony. The trial was to preserve the issue
that [Tyler] should not be convicted of a felony [because] his two
prior misdemeanor DWI [convictions] were invalid. After the trial,
I assumed that there would be an appeal.
Affidavit of September 18, 2000, 4-6.
Footnote 5:
Cooksey, 524 P.2d at 1255-57
Footnote 6:
574 P.2d 801 (Alaska 1978).
Footnote 7:
See Heuga v. State, 609 P.2d 547, 548 (Alaska 1980); Miles v.
State, 825 P.2d 904, 905 (Alaska App. 1992); Cronin v. Anchorage,
635 P.2d 840, 842 (Alaska App. 1981).
Footnote 8:
555 P.2d 269 (Alaska 1976).
Footnote 9:
Department of Public Safety v. Fann, 864 P.2d 533, 537 (Alaska
1993) (holding that the superior court is empowered to consider the
underlying validity of a prior DWI conviction that is being used as
the basis for enhancing a period of license revocation); Wik v.
Department of Public Safety, 786 P.2d 384, 387 (Alaska 1990)
(holding that, for purposes of determining whether a DWI defendant
is subject to an enhanced sentence or an enhanced period of license
revocation, the number of a defendant's prior convictions should be
assessed as of the date of the defendant's latest arrest, not the
date of the defendant's latest conviction); and Tulowetzke v.
Department of Public Safety, 743 P.2d 368, 371 (Alaska 1987)
(holding that, for purposes of determining whether a DWI defendant
is subject to an enhanced sentence or an enhanced period of license
revocation, prior convictions arising from separate incidents must
be counted as separate convictions, even though the trial court may
have entered these convictions at the same time).
Footnote 10:
See id. at 1217. McGhee took and failed a breath test; see AS
28.15.165.
Footnote 11:
See McGhee, 951 P.2d at 1217. AS 28.15.165(d) incorporates the
escalating suspension periods set forth in AS 28.15.181(c).
Footnote 12:
See McGhee, 951 P.2d at 1217.
Footnote 13:
See id. at 1218.
Footnote 14:
Id. at 1217.
Footnote 15:
See Miles v. State, 825 P.2d 904, 907 (Alaska App. 1992).
