Touch N' Go®, the DeskTop In-and-Out Board makes your office run smoother. Visit
Touch N' Go's Website to see how.
Lampley v State (10/12/2001) ap-1768
Lampley v State (10/12/2001) ap-1768
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
JIMMY A. LAMPLEY, )
) Court of Appeals No. A-7539
Appellant, ) Trial Court No. 3AN-98-397 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1768 October 12, 2001]
)
Appeal from the District Court, Third Judicial
District, Anchorage, Natalie K. Finn, Judge.
Appearances: Michael Dieni, Assistant Public
Defender, and Barbara K. Brink, Public Defender, Anchorage, for
Appellant. Michael T. Burke, Assistant District Attorney, Susan A.
Parkes, District Attorney, Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Appellee.
Before: Mannheimer and Stewart, Judges, and
Andrews, Superior Court Judge.
[Coats, Chief Judge, not participating.]
MANNHEIMER, Judge.
Jimmy A. Lampley appeals his thirteen convictions for
violating a domestic violence protective order that prohibited him
from contacting his girlfriend, D.M.. [Fn.
1] Lampley first contends that his trial judge violated his
constitutional right to a jury trial, by preventing Lampley from
arguing to the jury that he was not actually subject to the
protective order on the particular days when he contacted his
girlfriend. Lampley next contends that the trial judge violated his
constitutional right to represent himself, by refusing to allow
Lampley to discharge his court-appointed attorney and proceed pro
se. Finally, Lampley argues that his composite sentence (20 months
to serve) is excessive.
For the reasons explained here, we uphold the trial
judge's decisions and we therefore affirm Lampley's convictions and
sentence.
The controversy as to whether the protective order
governed Lampley's conduct for 20 days in January 1998 or 20 days
in January 1997
The major question in this appeal concerns a defect in the
wording of the initial 20-day domestic violence protective order
issued against Lampley. That protective order was issued on January
7, 1998. It prohibited Lampley from contacting his girlfriend for
20 days, and it also informed Lampley that the court would hold a
hearing on January 26, 1998 to decide whether to issue a longer-term
protective order. But when Magistrate Brian Johnson signed the
order and entered the date on the line labeled "effective date", he
mistakenly wrote "1/7/97" i.e., January 7th of the previous year.
No one noticed this inconsistent date until the middle of
Lampley's trial, when a police officer referred to the protective
order during his testimony and mentioned that the effective date was
off by one year. After the error was discovered, Lampley's attorney
told the trial judge that she wanted to argue to the jury that the
protective order was effective for 20 days in January 1997 and
that Lampley was not subject to this order when he repeatedly
contacted his girlfriend in January 1998.
The trial judge, District Court Judge Natalie K. Finn,
told the defense attorney that Lampley was free to argue that he was
misled by the 1997 date and that he mistakenly believed that the
protective order governed his conduct for 20 days during the
previous January. However, Judge Finn prohibited the defense
attorney from arguing that the true effect of the order was to
restrain Lampley's conduct for 20 days in January 1997 (and not 20
days in January 1998).
To prove that Lampley had violated AS 11.56.740(a), the
State was required to prove that Lampley was "subject to" a domestic
violence protective order when he contacted his girlfriend. [Fn.
2] Lampley contends that the trial judge's ruling amounted to a
directed verdict in favor of the government on this element of the
offense.
Whether Judge Finn's ruling constituted a "directed
verdict" hinges on whether she precluded Lampley from raising a
factual issue or a legal issue. In a jury trial, factual questions
must be resolved by the jury, but the trial judge gives the jury
binding instructions on the proper legal characterization or effect
of the facts as the jury views them.
If Lampley had argued that Magistrate Johnson actually
issued the protective order on January 7, 1997 (instead of January
7, 1998), this would have been a factual issue that the jury should
have decided. Similarly, if Lampley had argued that Magistrate
Johnson issued the protective order in January 1998 but intended the
order to retroactively govern Lampley's conduct during 20 days in
January 1997, this too would have been a factual issue that the jury
should have decided.
But Lampley concedes that the protective order was issued
on January 7, 1998. Further, Lampley acknowledges that Magistrate
Johnson's intent, when issuing the order, was to restrain Lampley's
conduct for the 20 days commencing January 7, 1998. That is,
Lampley acknowledges that the magistrate made an inadvertent mistake
when he wrote "1/7/97". Lampley's argument is that, despite these
facts, the legal effect of the protective order was governed by the
written date of "1/7/97" and thus, as a matter of law, the order
restrained Lampley from contacting his girlfriend for 20 days during
the previous year from January 7 to January 26, 1997. Lampley's
opening brief declares:
The [domestic violence protective order]
served on Mr. Lampley on January 7, 1998 was
backdated by the issuing judge to January 7,
1997. By its own terms, the [order] expired
[on] January 27, 1997. ... [T]he order issued
by Magistrate Johnson was dead upon arrival.
Lampley concedes that, because the 1997 date was an
inadvertent mistake, it could have been corrected at any time under
Alaska Civil Rule 60(a), which authorizes a court to correct
clerical mistakes in judgements and orders. [Fn. 3] But Lampley
argues that, unless and until the mistaken date was corrected under
Civil Rule 60(a), the legal effect of the protective order was to
govern his behavior for 20 days in January 1997. Lampley contends
that a defendant can not be prosecuted under AS 11.56.740 "[for]
violating the intent of the magistrate", but only "for violating the
terms of [the] written order." Thus, Lampley asserts, he could not
be convicted of violating Magistrate Johnson's protective order
unless the district court took action to correct the effective date
of that order before Lampley committed the acts for which he is
charged.
Based on this argument about the legal effect of the
protective order, Lampley contends that Judge Finn should have
granted him a judgement of acquittal (because no reasonable person
could dispute his innocence). But Lampley's assertion about the
legal effect of the protective order is wrong. Because Magistrate
Johnson's act of writing "1/7/97" was a "slip of the pen" an
inadvertent, clerical mistake the protective order always governed
Lampley's behavior for 20 days starting January 7, 1998 (the date
the order was actually issued). This was true even before the
clerical error was caught and corrected.
Civil Rule 60(b) authorizes a court to correct "[c]lerical
mistakes in judgments [and] orders ... ." The term "clerical mistake"
encompasses not only errors of transcription or typing made by a
secretary or clerk, but also errors made by the judge when composing
the judgement or order. Indeed, relief is available under Civil
Rule 60(a) for mistakes made by the judge, a clerk, the jury, or a
party. [Fn. 4] Thus, in DeVaney v. Dept. of Revenue, Child Support
Enforcement Div., 928 P.2d 1198, 1200 (Alaska 1996), the court
rejected the argument that Rule 60(a) was unavailable to correct an
error in a child support decree "[when] the error in the [decree]
was judicial in character rather than clerical." The court stated:
Authorities agree that relief, pursuant to
Rule 60(a), is not limited to those errors made by clerks.
Allen v. Bussell, 558 P.2d 496, 501 n.8 (Alaska 1976). ... Here, the
clear intent of the parties was for William to pay child support of
$175.00 per month, per child, ... for a total of $700 per month[,
and the] court's clearly stated intent [in issuing the order] was
to give force to the "agreements of petitioners as outlined in the
petition." The court's order of $175.00 per month total child
support was in direct conflict with both the parties' and the
court's intent. It is properly characterized as a clerical error
[for purposes of Rule 60(a)].
DeVaney, 928 P.2d at 1200-01.
What makes a mistake "clerical" is not the identity of the
person who made the mistake, but rather the nature of the mistake
itself. As the supreme court stated in Jensen v. Froissart, 982
P.2d 263 (Alaska 1999), Civil Rule 60(a) allows a court to correct
an "objectively ascertainable error[] in form":
[T]he relevant test for the applicability
of Rule 60(a) is whether the change affects substantive rights of
the parties ... or is instead a clerical error, a copying or
computational mistake, which is correctable under the Rule.
Id., 982 P.2d at 267-68.
As indicated by these cases, a judge's authority to
correct a clerical mistake under Civil Rule 60(a) rests on the
proposition that the judge's act of correcting the mistake does not
alter the intended effect of the judgement or order. In other
words, an amendment to the text of an order under Rule 60(a) is
proper only when, from a legal standpoint, the intended operation
of the order remains the same as it was before the correction. As
our supreme court said in DeVaney, "The correction contemplated by
Rule 60(a) must be undertaken for the purpose of reflecting the
actual intention of the court ... ." [Fn. 5] If the intended effect
of the order is indeed altered by the "corrective" action, then, by
definition, the judge's act of amending the order exceeds the
authority granted by Civil Rule 60(a) to correct clerical errors.
Conversely, if correction of the mistake is proper under Civil Rule
60(a), then, from a legal viewpoint, the corrected text of the order
now only states what the order always meant.
Lampley concedes that the text of Magistrate Johnson's
protective order could properly be amended under Civil Rule 60(a)
to accurately reflect the intended effective date of January 7,
1998. It therefore follows that, despite the magistrate's erroneous
entry of the date "1/7/97", the protective order always restrained
Lampley's conduct from January 7, 1998 to January 26, 1998.
Lampley is wrong in asserting that, initially, the
protective order governed his conduct for 20 days in 1997 and only
later, after the text of the order was corrected, did it govern his
conduct for 20 days in 1998. Despite Magistrate Johnson's mistake
in writing a 1997 effective date, the protective order always
restrained Lampley's conduct from January 7 to January 26, 1998.
Judge Finn therefore correctly denied Lampley's motion for a
judgement of acquittal based on the mistaken date.
Lampley alternatively contends that Judge Finn at least
should have allowed him to argue this theory of innocence to the
jury and that her refusal to let him raise this argument amounted
to a directed verdict. But Lampley's proposed argument is not an
assertion about the facts of his case. He and the State agree that
Magistrate Johnson inadvertently wrote a mistaken effective date of
"1/7/97" on a protective order that was actually issued on January
7, 1998 and was intended to take effect on that same day. Instead,
Lampley's argument is an assertion about the legal meaning or effect
of the magistrate's mistake.
Issues of law are decided by the court, not the jury.
Because the facts were undisputed and the only question was the
proper legal characterization of those facts, Judge Finn acted
correctly when she decided this question herself and stopped
Lampley's attorney from suggesting that the jurors were free to
reach a different decision.
(As explained above, Judge Finn did allow Lampley to argue
that, even though he was served with the protective order on January
7, 1998, the "1/7/97" notation misled him into thinking that the
order governed his conduct for 20 days in 1997 (i.e., one year
earlier). Lampley's subjective understanding of the order was, of
course, a factual issue. Had this issue been raised, it would have
been for the jury to resolve. But Lampley ultimately chose not to
present this argument to the jury.)
For these reasons, we uphold Judge Finn's handling of the
issues raised by the mistaken date.
Judge Finn's refusal to allow Lampley to represent himself
Lampley was represented by the Public Defender Agency.
At the beginning of trial, Lampley's assistant public defender
informed Judge Finn that Lampley wished to discharge her and
represent himself. In response to questions from Judge Finn,
Lampley explained at length (and often in a rambling fashion) that
he wished to represent himself because he believed that his
assistant public defender was manipulating him (i.e., counseling him
to do things that he did not wish to do), and was refusing to accede
to his wishes about how to litigate the case.
The assistant public defender then told the court:
Defense Attorney: [It has become] clear
to me in the last several weeks that Mr.
Lampley does not trust me ... . [T]here's
really not anything that I can do about that.
That doesn't affect my ability to represent
him, but I think it is impacting his ability to
listen to me.
We have a fundamental disagreement on
which witnesses to call, what line of defense
to use, what he should say, what he should not
say, [whether] he should testify on all those
points. And it's not because we haven't
discussed them ... . We've discussed them ad
infinitum, and we are never going to agree on
these things. [But as far as] manipulation, I
do not believe that I have manipulated Mr.
Lampley in any way. I gave my opinion on
things. [In particular,] my very, very, very
strong opinion was that he should take the deal
[offered by the State]. ... [And] we disagreed
as to whether [particular evidence] was
relevant or useful in any manner. And when he
continued to go on and on and on about it, [I
told him], "If you really feel that I did
something wrong, then you have the remedy of
filing [an] ineffective assistance of counsel
[claim]." [But] I do not believe that I did
anything wrong ... , nor do I believe that [Mr.
Lampley's requested evidence] would have been
relevant[.]
Judge Finn ruled that Lampley could be co-counsel, so that
he would have the right to speak, but she told Lampley that his
assistant public defender would be lead counsel, "your co-counsel,
and your advisor, and your spokesperson, so that we can keep going
[in] a fairly professional format". Judge Finn explained to Lampley
that she was basing her ruling on her past experiences with him:
The Court: You know, you're a really
smart guy, and you have a lot of [courtroom] experience and a lot
of ability. But the reason why [your proceeding] pro se does not
strike me as a very good idea is that you tend to get a little wound
up in your own matters. And I don't think, frankly, that you would
be very effective in representing yourself in a jury trial. ...
I think there are ... times when you are going to be best off having
somebody speak for you, because you can't stick to the topic
sometimes. ... When you get wound up, you tend to go astray. And
you can't do that in a jury trial. So I'm not going to let you
[represent yourself].
Lampley continued to argue that he should be allowed to
represent himself because many of his previous lawyers had violated
his constitutional rights and had acted dishonestly. Judge Finn
told Lampley that if he could not behave, she would have him removed
from the courtroom and taken to a place where he could participate
in the trial by telephone. This led to the following colloquy:
Lampley: [Then] I can guarantee you
[that] I'll spend the rest of my life in jail,
because I will start stopping where the problem
starts. [sic] That is a threat to the court.
... Note that for the record.
The Court: Mr. Lampley, hang on a minute.
I'm counting on the fact that you're going to
continue to behave the way you have behaved the
last several times that you've been in court
which is to listen, to be cooperative, to be
agreeable, and to have the process go as court
proceedings are supposed to go. But in case
you can't, you need to have an attorney. [Your
assistant public defender] is a competent
attorney, and she will represent you. ...
Lampley: Well, if the court is going to
impose punishments like that upon me because
... I feel strongly against her representing
me, then I have no choice but to act upon what
I have to do. I mean ...
The Court: I didn't say [that] I am doing
[this] because you disagree with her
representation. ... This has to do with your
behavior, Mr. Lampley. ...
Lampley: ... I've been forgiving for too
long. It's time for me, for Jim Lampley, to
stay the hell out of jail. Period. I do not
like prison, okay? I don't deserve it.
And if my actions go a certain way and get
me in trouble, why is this happening? And if
I can't have counsel to help defend me on that,
because they won't discuss the issues to help
me think of a better way for a defense, I'm
denied effective assistance of counsel. Then
I've got the court saying [that] if I acted
because I feel a certain way, [the court is]
going to ... conduct a jury trial without my
presence. Then I'm going to be screwed out of
my freedom.
And when I'm screwed out of my freedom,
I'm going to do what every American soldier
does to fight for our country: I'm going to
start killing people. I'm going to fight for
what's mine. I have a constitutional right,
and you, Your Honor, are not going to take that
from me.
As he spoke these last two paragraphs, Lampley's voice rose to a
crescendo. At this point, Judge Finn acted to defuse the situation:
The Court: Pull yourself together here
for a minute. ... [I]f you behave calmly and
quietly, you get to sit [in the courtroom] and
watch your trial and participate in it. If you
can't behave calmly and quietly and you are
working yourself up here to [the point] where
I'm wondering if you can ... , if you can't
behave calmly and quietly, [I can't allow you]
to be in here making noise. ... So it's your
call on that. ... [But your assistant public
defender] is going to represent you.
On appeal, Lampley renews his argument that Judge Finn
should have allowed him to discharge his assistant public defender
and represent himself at trial. Criminal defendants have a
constitutional right to represent themselves. [Fn. 6] However, this
is a conditional right. The court can deny a defendant's request
for self-representation if the defendant is not minimally capable
of presenting their case in a coherent fashion. [Fn. 7] And even
if the defendant is capable of presenting a coherent case, a court
can nevertheless deny a request for self-representation if the
defendant is not capable of conducting their defense without being
unusually disruptive. [Fn. 8]
Lampley's behavior during the above-quoted discussion
illustrates the basis of the trial judge's concerns about letting
Lampley proceed pro se. When Lampley was unable to convince the
court to discharge his assistant public defender, he uttered two
threats against the trial judge within the space of a few minutes.
Although it is clear that Judge Finn was able to deal with Lampley's
behavior and keep the proceedings on track, she was justifiably
concerned that Lampley would later be disruptive in front of the
jury, and that the jury would not be able disregard Lampley's
behavior when deciding the case.
For these reasons, we uphold Judge Finn's decision not to
let Lampley discharge his assistant public defender and represent
himself.
Lampley's sentence appeal
For thirteen counts of violating a domestic violence
protective order, Judge Finn sentenced Lampley to a composite term
of 6 years, 4 months' imprisonment with 4 years, 8 months suspended
i.e., 20 months to serve.
Lampley has a lengthy criminal history encompassing some
twenty prior convictions, including three convictions for assault.
One of these assaults was committed on D.M., the girlfriend who was
the victim in this case.
In our 1995 decision, Lampley v. State, Memorandum Opinion
No. 3224, we summarized Lampley's criminal history at that point.
Lampley had pleaded no contest to an information charging three
counts of violating a domestic violence protective order. Those
three counts represented a consolidation of what were originally
thirty-three counts of violating a protective order, plus one count
of harassment. At the time of his sentencing on those charges,
Lampley had fourteen prior misdemeanor convictions, including a
prior assault on the woman, M.B., who obtained the domestic violence
protective order, as well as prior violations of domestic violence
protective orders in 1992 and 1993.
Based on Lampley's criminal history, we upheld the
district court's finding that Lampley was a "worst offender" for
sentencing purposes. [Fn. 9] We also upheld Lampley's composite
sentence of 3 years (1080 days) with 1« years (540 days) suspended.
[Fn. 10] We stated:
The [district] court ... did not expressly find
that a sentence of more than one year was
necessary to protect the public, but such a
conclusion is implicit in the court's findings
that Lampley still felt possessive toward M.B.,
that in his mind he still had a relationship
with her, and that he would not be deterred
from future offenses without a substantial
period of incarceration.
Id. at 2.
Lampley demonstrated similar behavior in this case. On
December 30, 1997, he was arrested for assaulting his girlfriend,
D.M.. One week later, on January 7, 1998, while Lampley was still
being held in the Cook Inlet Pre-Trial Facility, D.M. obtained a
domestic violence protective order against him. This protective
order was served on Lampley later that same day. Even though this
order prohibited Lampley from contacting D.M. in any fashion,
Lampley proceeded to write eleven letters to D.M.. In many of these
letters, Lampley openly acknowledged that he knew he was violating
the protective order. On January 26, 1998, the district court
granted D.M. a long-term protective order. Lampley wrote two more
letters to D.M. after being served with this order. After Lampley
was charged with these offenses and was awaiting trial, he made 50
to 60 telephone calls to D.M..
In her sentencing remarks, Judge Finn concluded that
Lampley was a worst offender and that Lampley needed to be confined
for a substantial length of time to protect the public, because "only
time in jail will deter this defendant." Lampley's conduct in this
case, combined with his lengthy record of similar offenses, amply
supports the judge's findings. In 1995, we upheld Lampley's
sentence of 18 months to serve for several counts of violating a
domestic violence protective order. Lampley has now received a
composite sentence of 20 months to serve for similar conduct
(involving a different victim). We conclude that Lampley's
composite sentence is not clearly mistaken. [Fn. 11]
Conclusion
The judgement of the district court is AFFIRMED.
FOOTNOTES
Footnote 1:
AS 11.56.740(a).
Footnote 2:
AS 11.56.740(a) reads: "A person commits the crime of violating
a [domestic violence] protective order if the person is subject to
a protective order containing a provision listed in AS
18.66.100(c)(1) (7) and knowingly commits or attempts to commit
an act in violation of that provision."
Footnote 3:
Civil Rule 60(a) reads: "Clerical mistakes in judgments,
orders[,] or other parts of the record and errors therein arising
from oversight or omission may be corrected by the court at any time
of its own initiative or on the motion of any party and after such
notice, if any, as the court orders."
Footnote 4:
See Babinec v. Yabuki, 799 P.2d 1325, 1337 (Alaska 1990)
(citing J. Moore, Federal Practice and Procedure (1986),
sec. 60.06[3],
Vol. 6A, p. 60-43).
Footnote 5:
928 P.2d at 1200.
Footnote 6:
See Faretta v. California, 422 U.S. 806, 821; 95 S.Ct. 2525,
2534; 45 L.Ed.2d 562 (1975); Ramsey v. State, 834 P.2d 811, 814
(Alaska App. 1992).
Footnote 7:
See Ramsey v. State, 834 P.2d 811, 814 (Alaska App. 1992).
Footnote 8:
See Adams v. State, 829 P.2d 1201, 1205 (Alaska App. 1992).
Footnote 9:
See id. at 2.
Footnote 10:
See id. at 1, 3.
Footnote 11:
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (an
appellate court is to uphold a criminal sentence unless the sentence
is clearly mistaken).
