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Martin v State (09/21/2001) ap-1765
Martin v State (09/21/2001) ap-1765
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
STATE OF ALASKA, )
)Court of Appeals Nos. A-8040 & 8051
Appellant, )Trial Court Nos. 3KN-98-246 & 684 Cr
)
v. )
) O P I N I O N
JOHN MARTIN, JR., )
)
Appellee. ) [No. 1765 September 21, 2001]
)
Appeal from the District Court, Third Judicial
District, Kenai, David Landry, Magistrate.
Appearances: Kenneth M. Rosenstein, Assistant
Attorney General, Office of Special Prosecutions and Appeals,
Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for
Appellant. Arthur S. Robinson, Robinson & Beiswenger, Soldotna, for
Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
The State, having filed this appeal, now proposes to
dismiss it. Ordinarily, we would grant such a request without
comment. However, the State also asks this court to vacate the
action of the district court that prompted the State to file the
appeal in the first place. This request raises a jurisdictional
problem, and it therefore requires separate, detailed attention.
History of this litigation, and the problem presented by
the State's motion to dismiss its appeal
This litigation arises from the State's attempt to
prosecute Martin for failing to register as a sex offender. In
1982, Martin pleaded no contest to incest and received a suspended
imposition of sentence. He later successfully completed his
probation, and his conviction was set aside. But in 1998, the
Department of Public Safety promulgated a regulation that expressly
defined "sex offender" to include people whose convictions had been
set aside following a suspended imposition of sentence. Based on
this new definition of "sex offender", the State charged Martin with
failing to register in two separate years.
The district court dismissed these two charges because the
court concluded that the Department of Public Safety had exceeded
its authority when it redefined "sex offender". The State appealed
the district court's decision. While that appeal was pending, we
decided State v. Otness [Fn. 1], in which we upheld the Department
of Public Safety's authority to redefine "sex offender". Based on
our decision in Otness, we reversed the district court's ruling in
Martin's case and reinstated the charges against Martin. See State
v. Martin, 17 P.3d 72, 73 (Alaska App. 2001).
We issued our decision in Martin on January 26, 2001.
Because neither party filed a petition for hearing within the
ensuing 15 days, jurisdiction over Martin's case returned to the
district court on February 12, 2001. See Appellate Rules 507(b) and
512(a)(2).
But two months later, the supreme court allowed Martin to
file a late petition for hearing. And two months after that, on
July 20, 2001, the supreme court granted hearing. That litigation,
File No. S-10139, is currently pending before the supreme court.
In the meantime, the district court had already renewed
its consideration of Martin's case. On May 22, 2001 that is,
after the supreme court decided to let Martin file a late petition
for hearing, but before the supreme court granted the petition
the district court again dismissed the charges against Martin. This
time, the district court ruled that the prosecution against Martin
was barred by the ex post facto clause of the federal Constitution
as interpreted by the Ninth Circuit in Doe v. Otte, 248 F.3d 832
(9th Cir. 2001). [Fn. 2]
The State has appealed the district court's new decision,
and that is the appeal that the State now wishes to dismiss. The
State asserts that no appeal is necessary because the district
court's underlying action is void. The State argues that, because
of Martin's pending petition for hearing in the supreme court, the
district court has no jurisdiction over Martin's case and thus
no authority to dismiss the charges against Martin. For this
reason, the State asks us to vacate the district court's order of
dismissal and then dismiss the State's appeal (because the appeal
would be moot).
Did the district court have jurisdiction to dismiss
Martin's case in May?
The filing of an appeal vests the appellate court with
jurisdiction over the case "supervision and control of the
proceedings" for most purposes. See Appellate Rule 203. And when
a timely petition for hearing is filed, jurisdiction does not return
to the trial court until the petition is decided. See Appellate
Rule 512(a)(2)-(3).
Because Appellate Rule 512(a) specifies that the filing
of a timely petition for hearing delays the return of jurisdiction
to the trial court, this suggests that the filing of an untimely
petition has no effect on jurisdiction i.e., jurisdiction over
the case returns to the trial court on the scheduled day, and the
trial court's jurisdiction is not affected by the filing of an
untimely petition. But the Appellate Rules do not explain what
happens when, as in Martin's case, the supreme court elects to
accept and later grant an untimely petition for hearing.
Potentially, one could argue that the supreme court's
decision to accept a late petition for hearing deprives the trial
court of jurisdiction and vests jurisdiction in the supreme court.
Conversely, one could argue that the supreme court's acceptance of
a late-filed petition creates concurrent jurisdiction in both the
supreme court and the trial court similar to what happens when
a petition for review or an original application for relief is
filed. See Appellate Rule 405(b), which specifies that proceedings
in the trial court are not stayed by the filing of a petition for
review or an original application for relief unless the appellate
court orders otherwise.
But the State does not address this issue. Instead, the
State focuses on the supreme court's subsequent decision to grant
Martin's petition for hearing. The State argues that this action
divested the district court of jurisdiction over Martin's case (and
vested jurisdiction in the supreme court).
Even if we accepted the State's premise, this would not
necessarily mean that the district court lacked authority to dismiss
the charges against Martin for, as explained above, the district
court issued its order of dismissal on May 22nd, two months before
the supreme court granted Martin's petition for hearing. The
State's argument hinges on one additional assertion: that the
supreme court's decision to grant Martin's petition had the effect
of retroactively divesting the district court of jurisdiction thus
invalidating the district court's order of dismissal (and any other
orders that the district court might have issued between February
12th and July 20th, with the possible exception of orders related
to bail release or enforcement of probation). [Fn. 3]
There is surprisingly little authority on this issue. In
part, this may be due to the fact that many states view the time
limits for seeking discretionary appellate review as
"jurisdictional". That is, if the petitioner fails to meet the
deadline, the court has no authority to take the case. We assume
that our supreme court would follow the lead of the United States
Supreme Court in Schact v. United States, 398 U.S. 58, 90 S.Ct. 1555
(1970), and hold that the time limit for filing a petition for
hearing is not jurisdictional that the court retains the authority
to relax the deadline and accept the petition. [Fn. 4]
We were able to find only one case arguably relevant to
the question of whether the filing of an untimely petition for
discretionary review affects a trial court's jurisdiction. That
case is United States v. Gonzalez-Perez, 629 F.2d 1081 (5th Cir.
1980). The defendant, Gonzalez-Perez, had been a fugitive from
justice for eight years; he was then captured and returned to the
United States. Federal Criminal Rule 35 declares that a defendant
can petition the sentencing court to modify a sentence within
120 days of the Supreme Court's denial of certiorari. In order to
trigger this provision, Gonzalez-Perez filed a very untimely
petition for writ of certiorari, which the Supreme Court denied
without comment. Then, relying on Criminal Rule 35, Gonzalez-Perez
petitioned the federal district court to modify his sentence. The
Fifth Circuit concluded that Criminal Rule 35 presupposes a timely
petition for certiorari. The court noted that if an untimely
petition were sufficient to trigger the 120-day window, defendants
could manipulate the rule in a way that would effectively negate the
intended time limit. [Fn. 5]
There are clearly good reasons to have sole jurisdiction
vest in the supreme court when that court grants an untimely
petition for hearing. Normally, the issue(s) on which hearing has
been granted will be dispositive of the litigation or, at least,
crucial to the course of any continued litigation. But as explained
above, the State is not just arguing that the supreme court
currently has sole jurisdiction over Martin's case. Rather, the
State is arguing that the supreme court's decision to grant Martin's
petition retroactively deprived the district court of the
jurisdiction that, earlier, it had lawfully exercised thus
invalidating any orders issued by the district court in the interim.
This is a harder issue. As suggested by the Fifth Circuit
in Gonzalez-Perez, such an interpretation of the law might allow a
party to unfairly manipulate the trial court proceedings by using
a late-filed petition for hearing as a tool for erasing unfavorable
trial court rulings after the fact.
(That is, even if the trial court's rulings had nothing
to do with the issue raised in the petition for hearing, the
granting of the petition would retroactively deprive the trial court
of the authority to issue those rulings. Thus, even if the supreme
court ultimately ruled against the petitioner and affirmed the
decision of the intermediate appellate court, the trial court would
arguably have to re-decide all of the issues it had ruled on during
the interim period before the supreme court granted hearing.)
Assuming that the district court lacked jurisdiction to
dismiss Martin's case, does this court have the authority to vacate
the district court's order? Or must the State seek relief from the
supreme court?
The questions we have discussed are difficult to answer.
Moreover, it appears that this court should not answer them.
As explained above, the State contends that the supreme
court's decision to grant Martin's petition for hearing means that,
in the eyes of the law, the district court never regained
jurisdiction over Martin's case. Thus, the district court had no
authority to dismiss the charges (for the second time) on May 22nd
because the supreme court granted Martin's petition for hearing
two months later, on July 20th.
Assuming that the State's position is correct (i.e.,
assuming that the supreme court's decision to grant Martin's
petition for hearing had the effect of retroactively divesting the
district court of jurisdiction over Martin's case), jurisdiction may
have returned to the appellate courts, but it certainly did not
return to this court. Rather, sole jurisdiction over Martin's case
would now be vested in the supreme court. So even if the State is
correct that the district court had no authority to dismiss Martin's
case on May 22nd, this court would have no authority to grant the
State's request to vacate the district court's order. Instead, the
State would have to seek relief from the supreme court.
This court arguably has the authority to grant the other
part of the State's request the State's motion to dismiss its
pending appeal. But it is obvious that the State's willingness to
abandon its appeal hinges on its assumption that the orders it is
appealing (the district court's dismissal of the charges against
Martin) are void. Since it is not clear that this assumption is
true, we decline to dismiss the State's appeal at this time.
We refer the State's motion to the supreme court
Under AS 22.05.015(b), this court is authorized to certify
a question to the supreme court if the issue is "of substantial
public interest" and should be determined by the supreme court. We
believe that the issue raised in the State's motion meets this test.
The question is important: What is the relationship between the
supreme court's jurisdiction and the trial court's jurisdiction when
an untimely petition for hearing is accepted for filing, or when
such a petition is later granted? And, because the supreme court
has granted hearing in Martin's case, it is quite probable that this
court has no jurisdiction to decide the question. For these
reasons, we certify this question to the supreme court.
We will stay our consideration of the State's motion to
dismiss its appeal until the supreme court rules on this certified
question (either by declining the certification or by deciding the
question).
FOOTNOTES
Footnote 1:
986 P.2d 890 (Alaska App. 1999).
Footnote 2:
The Ninth Circuit's original opinion in Doe v. Otte, 248 F.3d
832, has since been superseded by a revised opinion, ___ F.3d ___,
2001 WL 826671 (August 8, 2001). However, the court's conclusion
remains unaltered: Alaska's sex offender registration statute is
"punitive" for purposes of the ex post facto clause, and thus the
statute can not be enforced against persons whose offense predates
the enactment of the statute.
Footnote 3:
See Jackson v. State, 926 P.2d 1180, 1184-85 (Alaska App. 1996)
(recognizing that, despite a pending appeal, the trial court
retains jurisdiction to decide matters pertaining to the defendant's
bail release; and holding that, despite a pending appeal, the trial
court retains jurisdiction "to entertain and adjudicate a petition
to revoke [a defendant's] probation").
Footnote 4:
See Schact, 398 U.S. at 63-64, 90 S.Ct. at 1559 (holding that
the time limit for filing a petition for certiorari is not
jurisdictional).
Footnote 5:
See id. at 1083.
