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Brockway v State (12/21/2001) ap-1777
Brockway v State (12/21/2001) ap-1777
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
DAVID BROCKWAY, )
) Court of Appeals No. A-7786
Appellant, ) Trial Court No. 3PA-S99-1626 CR
) & 3AN-S96-8 CR
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1777 December 21, 2001]
)
Appeal from the Superior Court, Third Judicial
District, Palmer, Eric Smith, Judge.
Appearances: Eugene B. Cyrus, Law Offices of
Eugene B. Cyrus, P.C., Eagle River, for Appellant. Roman J.
Kalytiak, District Attorney, Palmer, and Bruce M. Botelho, Attorney
General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
STEWART, Judge.
David Brockway pleaded no contest to third-degree weapons
misconduct (felon in possession of a concealable firearm). [Fn. 1]
Because Brockway had two felony convictions from 1996, he faced a
2-year presumptive term for his current offense. [Fn. 2]
In anticipation of his sentencing, Brockway asked the
superior court to disregard the 1996 convictions and treat him as
a first felony offender. Brockway claimed that the superior court
had failed to fully comply with Alaska Criminal Rule 11(c) when the
court accepted Brockway's pleas to the 1996 charges, and thus his
prior convictions were flawed.
Superior Court Judge Eric Smith expressed doubt whether
Brockway was entitled to collaterally attack his 1996 convictions
in the current sentencing proceedings, but he nevertheless addressed
the merits of Brockway's arguments and rejected them.
In this appeal, Brockway again claims that his 1996
convictions should not be counted for sentencing purposes; he renews
his argument that his 1996 pleas were invalid. We conclude,
however, that Brockway had no right to collaterally attack his 1996
convictions during the sentencing proceedings for his current
conviction. For this reason, Judge Smith properly sentenced
Brockway as a second felony offender, subject to a 2-year
presumptive term.
Brockway also claims that the superior court erred by
rejecting his proposed statutory mitigating factor. We affirm the
superior court because the court's findings were not clearly
erroneous.
Finally, Brockway claims his composite sentence was
excessive. But the superior court imposed a term to serve that was
less than the agreed maximum term under the plea agreement.
Therefore, we have no jurisdiction to consider this claim.
Accordingly, we affirm Brockway's conviction and refer the case to
the supreme court for consideration of Brockway's excessive sentence
claim.
Facts and proceedings
On August 29, 1999, Brockway drove an all-terrain vehicle
on the Parks Highway in Wasilla. Officer Robert Dixon contacted
Brockway when Brockway stopped at a restaurant. Officer Dixon
observed that Brockway appeared to be intoxicated and had a large
bulge under his coat that turned out to be a loaded .44 magnum
revolver in a shoulder holster. Brockway also had a can of beer in
one of his coat pockets. After his arrest, Brockway provided a
breath sample with a .234% breath alcohol level. The State charged
Brockway with third-degree and fourth-degree misconduct involving
weapons, [Fn. 3] felony driving while intoxicated, [Fn. 4] and
driving while license revoked. [Fn. 5]
Brockway was subject to presumptive sentencing because,
in June of 1996, he was convicted of two counts of third-degree
assault [Fn. 6] after he pleaded no contest to those charges. In
that case, Brockway assaulted two individuals with his motor vehicle
by placing them in fear of imminent serious physical injury. The
charges arose from an event early on New Years Day in 1996 when
Brockway drove his vehicle into the yard of one of the victims and
eventually high-centered the vehicle on a flag pole. Brockway's
breath alcohol content was .225%. Brockway was represented by an
attorney and entered his no contest plea before Superior Court Judge
Milton M. Souter. Brockway was on probation in that case (and the
State filed a petition to revoke his probation) when he was charged
with the August 1999 criminal case.
As we noted above, the parties reached a plea agreement
that called for Brockway to plead no contest to third-degree
misconduct involving weapons and a new charge of reckless driving
[Fn. 7] and to admit the probation violation. All the other charges
would be dismissed, and the parties agreed to a three-year maximum
sentence to serve. The court accepted the plea and set the case for
sentencing.
Brockway then filed his motion to "preclude use of prior
conviction for sentence enhancement" on the felon-in-possession
charge even though Brockway's felony conviction was an element of
the felon-in-possession charge. Brockway filed nothing in the 1996
third-degree assault case and did not file an application for post-
conviction relief attacking that conviction. [Fn. 8]
Brockway's motion claimed several deficiencies in the 1996
case: the trial court in the 1996 case did not comply with Criminal
Rule 11 because it did not advise Brockway of the potential maximum
license revocation period; the court did not advise Brockway of the
potential for substance abuse treatment; there was no mention of the
minimum sentence possible; there was no mention of the Austin rule;
[Fn. 9] the court did not assure itself that Brockway understood the
applicable culpable mental state of "recklessly;" and the trial
court erred in not asking him if he agreed with the State's factual
basis for his plea.
From these claims, Brockway argued three legal points:
(1) his plea was unknowing and unintelligent, (2) he did not
understand the charge, and (3) the trial judge did not substantially
comply with Criminal Rule 11. As part of his argument that he
entered an unknowing and unintelligent plea, Brockway included one
line in which he asserted, "Moreover, it must also be questioned
whether Brockway received effective assistance of counsel."
Brockway himself filed no affidavit or any affidavit from his 1996
trial counsel.
Judge Smith expressed doubt whether Brockway could
collaterally attack his prior convictions in his 1996 case by motion
in the new case. Even so, Judge Smith reviewed the transcript of
Brockway's change of plea and ruled that Judge Souter complied with
Rule 11. Thus, Judge Smith denied the substance of Brockway's
motion on its merits.
Next, Brockway claimed that his conduct for the third-
degree misconduct involving weapons charge was among the least
serious within the definition of the offense. [Fn. 10] Judge Smith
ruled that Brockway's possession of a loaded .44 magnum pistol when
he was "roaring drunk" was not among the least serious conduct
within the definition of the offense.
Judge Smith sentenced Brockway to serve a presumptive 2-
year term for misconduct involving weapons and a consecutive 60 days
for reckless driving. He also revoked six months that were
suspended in his 1996 assault convictions and imposed those months
consecutively. Thus, Brockway received a composite 32-month term
to serve.
Discussion
The primary issue presented in this appeal is whether
Brockway could collaterally attack his 1996 felony convictions as
part of the sentencing proceedings in the present case. The great
weight of authority holds that such a collateral attack is not
permitted. If a defendant wishes to collaterally attack prior
convictions, the defendant must pursue a petition for post-
conviction relief. [Fn. 11] Such an attack cannot be raised at or
before sentencing in another criminal case.
The only recognized exception to this rule is that a
defendant can attack a prior conviction if the defendant was
completely denied the right to counsel in the prior proceeding
either because the defendant asked for counsel and was denied one
or (more likely) because the defendant proceeded without counsel and
the trial judge did not obtain a knowing waiver of the right to
counsel. All courts allow this kind of collateral attack because,
as we recognized in Flanigan v. State, [Fn. 12] when a defendant is
completely deprived of the right to counsel, it is equivalent to a
lack of jurisdiction. [Fn. 13] However, this exception is strictly
construed it does not apply to instances where the defendant had
counsel but now claims that his attorney was ineffective. [Fn. 14]
We now adopt the majority view and hold that Brockway had
no right to collaterally attack his 1996 convictions in the current
proceedings. This does not necessarily foreclose all relief.
Subject to the limitations codified in AS 12.72.020(a), Brockway may
be entitled to attack his 1996 convictions by filing a petition for
post-conviction relief. And, if Brockway is successful, he may be
entitled to resentencing in the present case. [Fn. 15] But because
Brockway did not claim that he was completely deprived of counsel,
he had no right to attack his 1996 convictions in the present case.
Alternatively, even assuming that Judge Smith was obliged
to hear and adjudicate Brockway's attacks on his 1996 convictions,
we conclude that the record supports Judge Smith's ruling that the
superior court substantially complied with Criminal Rule 11(c) and
that Brockway's pleas were valid.
Next, we address Brockway's argument that Judge Smith
erroneously rejected the proposed statutory mitigating factor that
Brockway's conduct was among the least serious within the definition
of third-degree misconduct involving weapons. [Fn. 16] Judge Smith
found that Brockway had been intoxicated and that the .44 magnum
concealed under his clothing was loaded. From our review of the
record, we conclude that Judge Smith's findings regarding his
rejection of the proposed mitigating factor were not clearly
erroneous. [Fn. 17]
Finally, Brockway contends the 32-month composite term
imposed by Judge Smith is excessive. But the plea agreement
specified that the superior court could not impose more than a
three-year term to serve, and Judge Smith imposed a composite term
less than that maximum. Alaska Statute 12.55.120(a) provides that
a defendant may not appeal a sentence that was imposed "in
accordance with a plea agreement ... and that agreement provided for
imposition of a specific sentence or a sentence equal to or less
than a specified maximum sentence." Accordingly, we do not have
jurisdiction to consider Brockway's excessive sentence claim. [Fn.
18] Therefore, we refer that claim to the supreme court under
Alaska Appellate Rule 215(k).
Conclusion
Brockway's excessive sentence claim is referred to the
supreme court. In all other respects, the judgment of the superior
court is AFFIRMED.
FOOTNOTES
Footnote 1:
AS 11.61.200(a)(1).
Footnote 2:
Brockway was a second felony offender (rather than a third
felony offender) because his two 1996 convictions arose from a
single incident and because he received concurrent sentences for
these two offenses. See AS 12.55.145(a)(1)(C).
Footnote 3:
AS 11.61.210(a)(1).
Footnote 4:
AS 28.35.030(a), (n).
Footnote 5:
AS 28.15.291(a)(1).
Footnote 6:
AS 11.41.220(a)(1)(A).
Footnote 7:
AS 28.35.040(a).
Footnote 8:
Brockway asserts that he filed an application for post-
conviction relief in the 1996 case, but a review of the record shows
that he filed a pro se request for a sentence appeal and later a
request for appointed counsel. The court clerk apparently believed
Brockway might be pursuing post-conviction relief, but Brockway did
not file any of the court supplied forms.
Footnote 9:
See Austin v. State, 627 P.2d 657, 657-58 (Alaska App. 1981)
(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 term for a second offender.)
Footnote 10:
AS 12.55.155(d)(9).
Footnote 11:
See Custis v. United States, 511 U.S. 485, 490-97, 114 S.Ct.
1732, 1735-39, 128 L.Ed.2d 517 (1994); Daniels v. United States, 532
U.S. 374, 121 S.Ct. 1578, 1582-85, 149 L.Ed.2d 590 (2001); Garcia
v. Superior Court, 928 P.2d 572, 577-79 (Cal. 1997); State v.
Warren, 25 P.3d 859, 863-64 (Idaho 2001); People v. Ingram, 484
N.W.2d. 241, 243-45 (Mich. 1992); State v. Louthan, 595 N.W.2d 917,
924-26 (Neb. 1999); State v. McClintock, 732 S.W.2d 268, 271-72
(Tenn. 1987); State v. Duke, 2001 WL 1200841 at *3-4 (Tex. App.
2001); State v. Hahn, 618 N.W.2d 528, 529-30 (Wis. 2000). But see
Nash v. State, 519 S.E.2d 893, 895-96 (Ga. 1999); State v. Carlos,
738 So.2d 556, 558-59 (La. 1999).
Footnote 12:
3 P.3d 372, 376 (Alaska App. 2000).
Footnote 13:
See Flanigan, 3 P.3d at 376; see also Johnson v. Zerbst, 304
U.S. 458, 467-68; 58 S.Ct. 1019, 1024-25; 82 L.Ed. 1461 (1938).
Footnote 14:
See Custis, 511 U.S. at 486-96, 114 S.Ct. at 1738-39, 128
L.Ed.2d 517; Daniels, 532 U.S. at ___, 121 S.Ct. at 1583, 149
L.Ed.2d 590; Garcia, 928 P.2d at 577; Warren, 25 P.3d at 863;
Ingram, 484 N.W.2d at 863; Louthan, 595 N.W.2d at 924-26; Duke, 2001
WL 1200841 at *3-4 (Tex. App. 2001); Hahn, 618 N.W.2d at 529-30.
Footnote 15:
See Wright v. State, 656 P.2d 1226, 1229 (Alaska App. 1983)
(indicating, in analogous circumstances, that a defendant would be
entitled to resentencing if his pending appeal of a prior conviction
proved successful).
Footnote 16:
AS 12.55.155(d)(9).
Footnote 17:
See Lepley v. State, 807 P.2d 1095, 1099 n.1 (Alaska App. 1991)
(a sentencing judge's decisions on the existence of proposed
aggravating or mitigating factors are to be affirmed unless they are
clearly erroneous).
Footnote 18:
AS 22.07.020(b).
