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Lambert v. State (4/26/2002) ap-1800
Lambert v. State (4/26/2002) ap-1800
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
RODNEY GENE LAMBERT, )
) Court of Appeals No.
A-8221
Petitioner, )
Trial Court Nos. 3AN-97-3553 Cr
) and 3PA-97-
742 Cr
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Respondent. )
[No. 1800 April 26, 2002]
)
Original Application for Relief from the
Superior Court, Third Judicial District,
Anchorage, Eric Smith, Judge.
Appearances: John C. Pharr, Anchorage, for
Petitioner. James L. Hanley, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau,
for Respondent.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
In June 2001, the superior court revoked Rodney Gene
Lamberts probation and sentenced him to serve an additional 2
years in prison. Lambert did not appeal this sentence. But
seven months later, in January 2002, Lambert filed the present
original application for relief under Alaska Appellate Rule 404,
asking us to declare that his sentence is excessive. The
question is whether Lambert is entitled to challenge his sentence
by pursuing an original application for relief under Appellate
Rule 404. For the reasons explained here, we hold that Appellate
Rule 404 can not be used as a vehicle for pursuing an untimely
appeal. We therefore deny Lamberts application.
Underlying facts: why Lamberts normal avenue for
relief would have been a sentence appeal, and why we
can not deem Lamberts petition to be a late-filed
sentence appeal
In December 1997, Lambert was convicted of
four crimes: felony driving while intoxicated (case
number 3PA-97-742 Cr), and driving with a revoked
license, resisting arrest, and making a false report
(case number 3AN-97-3553 Cr). Lambert received a
composite sentence of 6 years imprisonment with 2 years
suspended 4 years to serve. The written judgements in
both cases were distributed on January 13, 1998.
Lambert did not appeal.
Lambert served his prison sentence and was
released on probation. However, in early 2001, the
State filed a petition to revoke Lamberts probation.
On May 21, 2001, the court held a hearing on the States
allegations and found that Lambert had violated the
conditions of his probation. The court then concluded
that Lambert was not amenable to probation and that
Lambert should be ordered to serve all of his remaining
suspended time (2 years) to satisfy [the sentencing
goals of] community condemnation and general deterrence
and isolation. The two sentencing orders (one for each
underlying case) were distributed on June 6, 2001.
Again, Lambert did not appeal.
Seven months later, on January 17, 2002,
Lambert filed the present original application for
relief under Appellate Rule 404. In this application,
Lambert contends that his composite sentence (which now
amounts to 6 years to serve) is excessive.
Alternatively, Lambert argues that the court failed to
support the sentence with the finding required by
Mutschler v. State, 560 P.2d 377, 381 (Alaska 1977) a
finding that a sentence in excess of 5 years
imprisonment (the maximum term of imprisonment for
Lamberts most serious offense) was needed to protect
the public.
The State opposed Lamberts application,
arguing that Lambert was improperly trying to use
Appellate Rule 404 as a means of filing a late sentence
appeal. After we received the States response, we
directed Lambert to reply to the States argument.
In his reply, Lambert first argues that he
should be allowed to pursue an original application for
relief because he had no right to appeal the superior
courts imposition of the remaining 2 years of
imprisonment in June 2001. This is not correct.
Revocation of probation is a final judgement for
purposes of appeal. As the Alaska Supreme Court stated
in State v. Devoe, 560 P.2d 12, 14 n.9 (Alaska 1977),
There is no question that [an] order [deciding a]
petition to revoke probation is a final judgment and
[is], therefore, ... appealable.1 Thus, Lambert had a
right to appeal the superior courts probation
revocation sentencing decision.
Under Alaska Appellate Rule 215(c), Lamberts
sentence appeal had to be filed within 30 days from the
superior courts distribution of the written judgement.
The superior courts judgement was distributed on June
6, 2001, so Lamberts sentence appeal was due on or
before Friday, July 6, 2001.
Lambert argues that even if he had the right
to appeal the probation revocation sentencing decision,
we should now allow him to file a late sentence appeal.
Citing Alaska Appellate Rule 502(b) and our decision in
Ozenna v. State, 921 P.2d 640 (Alaska App. 1996),
Lambert argues that there is good cause to allow him to
file a late appeal a purported breakdown in
communication between [Lambert] and his prior counsel.
The problem with Lamberts argument is that,
following our decision in Ozenna, the legislature
amended Appellate Rule 502(b) to forbid us from
extending a filing deadline by more than 60 days. See
1998 SLA, ch. 95, 10. Appellate Rule 502(b) now ends
with the following sentence:
In a matter requesting review of or appealing
a criminal conviction or sentence, this rule
does not authorize an appellate court ... to
validate the filing of a notice of appeal,
petition for review, or petition for hearing
more than 60 days after the expiration of the
time specified [by] rule or statute or in the
last extension of time previously granted.
Lamberts sentence appeal was due on or before
July 6, 2001. Appellate Rule 502(b) declares
that we can not relax that deadline by more
than 60 days. The extra 60 days expired on
Tuesday, September 4, 2001. Thus, we are
without authority to grant Lamberts request
to accept a late-filed sentence appeal.
Is Lambert entitled to pursue his excessive sentence
claim as an original application for relief under
Appellate Rule 404?
The remaining question is whether Lambert is
entitled to pursue relief under Appellate Rule 404
because he has allowed his normal right of appeal to
lapse. Rule 404(a)(1) states that an original
application for relief is available whenever relief ...
cannot be obtained through the process of appeal,
petition for review, or petition for hearing. In
Lamberts case, relief was earlier available through the
process of appeal, but Lambert can no longer pursue an
appeal because he waited too long. Does this fact now
give Lambert the right to pursue an original
application for relief? We conclude that it does not.
Appellate Rule 404 was intended to establish
a procedure for the appellate courts to exercise their
plenary power of supervision over all matters within
their jurisdiction (even when relief is not available
through appeal or petition for review). This plenary
power was originally codified in Supreme Court Rule 23,
enacted as part of Supreme Court Order No. 1 (September
25, 1959). The last paragraph of former Supreme Court
Rule 23 authorized litigants to file petitions for
review seeking any [r]elief heretofore available by
writs of review, certiorari, mandamus, prohibition, and
other writs necessary or appropriate to the complete
exercise of this courts jurisdiction.
In 1973, when the Supreme Court extensively
revised the rules of appellate procedure (and changed
their name from the Rules of the Supreme Court to the
Rules of Appellate Procedure), this concept of plenary
supervisory power was codified in a new Appellate Rule
25. Appellate Rule 25(a) created a new procedural
vehicle: the original application for relief
heretofore available by writs authorized by law.2
Seven years later, when the Appellate Rules
were recodified in 1980 (see Supreme Court Order No.
439, effective November 15, 1980), Appellate Rule 25(a)
was superseded by Appellate Rule 404(a). Appellate
Rule 404(a) no longer refers to writs; instead, the
rule simply states that an appellate court (or any
judge of that court) can grant relief ... in any matter
within [the courts] jurisdiction. The revisor of the
rules, Clerk of Court Robert D. Bacon, stated that he
chose to delete the phrase writs authorized by law
because he viewed this language as merely exemplary of,
and not a limitation on, the appellate courts plenary
power to supervise all matters within their
jurisdiction. See Revised Rules of Appellate Procedure
(1980), Comment to Rule 404, third paragraph.
Thus, Appellate Rule 404 recognizes an
appellate courts authority to fashion wide-ranging or
extraordinary relief. But Appellate Rule 404(a) echoes
its predecessor, former Appellate Rule 25(a), in
declaring that this plenary authority is to be
sparingly exercised. One of the principal limitations
is that an original application for relief is not to be
used as a substitute for other appellate procedures.
This limitation was implicit in former
Appellate Rule 25(a)(2), which declared that a litigant
pursuing an original application for relief had to set
forth with particularity why the relief sought [was]
not available in any other court, or [could not] be had
through appellate processes of appeal or petition for
review. The limitation is now explicit in Appellate
Rule 404(a)(1), which states that original relief is
appropriate only when[] relief ... cannot be obtained
through the process of appeal, petition for review, or
petition for hearing.
(Similar language was suggested by Mr. Bacon
in his 1980 draft revision of the appellate rules. Mr.
Bacon noted that this limitation was implicit in the
supreme courts prior discussions of its plenary power
in State v. Clayton, 584 P.2d 1111, 1111-12 n.1 (Alaska
1978), and Continental Insurance Companies v. Bayless &
Roberts, Inc., 548 P.2d 398, 401 n.3 (Alaska 1976).
See Revised Rules of Appellate Procedure (1980),
Comment to Rule 404, fourth paragraph.)
The Alaska Supreme Court has consistently
applied this limiting principle when deciding whether a
party has properly invoked its authority under
Appellate Rule 404 (or Rule 404s predecessor, Appellate
Rule 25). In Surina v. Buckalew, 629 P.2d 969 (Alaska
1981), Carr v. Thomas, 586 P.2d 622 (Alaska 1978), and
Alaska Public Defender Agency v. Superior Court, First
Judicial District, 584 P.2d 1106 (Alaska 1978), the
court allowed litigation to proceed as an original
application for relief when, because of the issue
presented or the parties involved in the dispute,
relief was not available through the normal processes
of appeal or petition.3
There is no Alaska appellate decision that
deals directly with the situation presented in Lamberts
case: an original application for relief brought by a
litigant who has allowed the time for filing an appeal
to expire. But there are federal decisions on this
subject.
Alaska Appellate Rule 404 is a close cousin
of the federal All Writs Act, 28 U.S.C. 1651(a), which
provides:
The Supreme Court and all courts
established by Act of Congress may issue all
writs necessary or appropriate in aid of
their respective jurisdictions and agreeable
to the usages and principles of law.
This statute authorizes the federal courts to
issue virtually any type of remedial order in
a case that is either currently or
prospectively within the courts
jurisdiction.4 However, the writs authorized
by this statute are not a mere substitute for
appeal, and relief by writ is not authorized
simply because ... review seems desirable to
the [appellate] court ... in a situation in
which there is no basis for [an appeal from
a] final judgment or [an] interlocutory
appeal.5
More specifically, the federal
courts hold that judicial review by writ is
not available when the petitioner could have,
but did not appeal the decision they are now
challenging.6 In Helstoski v. Meanor, 442
U.S. 500, 505-08; 99 S.Ct. 2445, 2448-49; 61
L.Ed.2d 30, 35-37 (1979), the Supreme Court
held that a writ of mandamus will not be
granted if the petitioning party could have
appealed the lower courts action but failed
to do so. And federal circuit courts of
appeal have reached similar conclusions: a
petition for writ of mandamus can not be used
as an alternative means for pursuing an
appeal that is time-barred.7
This court has adopted an analogous
rule in slightly different contexts. In
Hertz v. State, 8 P.3d 1144, 1147-49 (Alaska
App. 2000), we held that a defendant who was
procedurally barred from pursuing a petition
for post-conviction relief could not re-
package the same claims as a petition for
writ of habeas corpus. And in Higgins v.
Briggs, 876 P.2d 539, 543 (Alaska App. 1994),
we held that a prisoner who inexcusably
failed to appeal [could] not thereafter take
advantage of [their] own neglect to justify a
collateral attack on [the] conviction or
sentence (by arguing that the requested
collateral attack must be allowed since the
right to appeal has expired).8
Based on these prior decisions, and
on the federal decisions we have referred to,
we conclude that Lambert can not obtain
appellate review of his sentence by filing an
original application for relief. As
explained above, Lambert had the right to
appeal the sentence he received last year
when his probation was revoked and the
superior court imposed his previously
suspended jail time. But Lambert allowed his
right of appeal to lapse. Appellate Rule 404
was not intended to serve as a procedural
vehicle for pursuing an untimely appeal.
Lambert suggests that his failure
to file a sentence appeal can be attributed
to a breakdown in communication between
himself and his prior [attorney]. If so, and
depending on what Lambert means by breakdown
in communication, Lambert may have a claim
for post-conviction relief. But we hold that
Lambert can not obtain review of his sentence
under Appellate Rule 404.
Lamberts original application for
relief is DENIED.
_______________________________
1 See also Wallace v. State, 829 P.2d 1208, 1211 (Alaska
App. 1992) (referring to, and relying on, the fact that a
defendant can appeal the final judgement in a probation
revocation proceeding); Hoffman v. State, 404 P.2d 644, 647
(Alaska 1965) (allowing an appeal from a revocation of the
defendants probation).
2 See Supreme Court Order No. 160 (effective March 15,
1973).
3 In Surina v. Buckalew, 629 P.2d at 972-73, the court held
that an original application for relief was proper when the
State wished to challenge the superior courts ruling on the
type of immunity to be extended to a witness:
[W]e agree with the states position that[,] in view
of the fact that there is no formal proceeding in the
trial court against the witness John Doe, the real
party in interest, a petition for review pursuant to
former Alaska [Appellate Rules] 23 and 24 is
inappropriate. Further, the type of relief requested
is that formerly categorized under the writ of
mandamus. As such, the proper procedure to obtain our
discretionary review is, under former Alaska [Appellate
Rule] 25 (now Alaska [Appellate Rule] 404), an original
application for relief.
In Carr v. Thomas, 586 P.2d at 622-23, the supreme court
declared that Appellate Rule 25 was the proper means of
exercising the courts statutory power to review a decision
of the Lieutenant Governor to count certain questioned
ballots.
And in Public Defender Agency v. Superior Court, 584 P.2d
at 1109, the court held that, because the indigent defendant
involved in the underlying litigation did not wish to
appeal, the Public Defender Agency properly pursued an
original application for relief to challenge the superior
courts ruling that the Agency had no authority to provide
representation to an indigent charged with violating a
municipal ordinance.
4 See Charles Alan Wright, Arthur R. Miller, & Edward H.
Cooper, Federal Practice and Procedure (2nd ed. 1996),
Jurisdiction, 3932, Vol. 16, p. 471.
5 Id.
6 See id., 3932.1, Vol. 16, p. 497.
7 See Calderon v. District Court, 137 F.3d 1420, 1422 (9th
Cir. 1998); Demos v. District Court, 925 F.2d 1160,
1161 & n.3 (9th Cir. 1991); and In re Adams, 686 F.2d
108, 110 (2nd Cir. 1982).
8 See also Stone v. Powell, 428 U.S. 465, 477 n.10; 96
S.Ct. 3037, 3044 n.10; 49 L.Ed.2d 1067, 1077 n.10
(1976) ( [N]onconstitutional claims that could have
been raised on appeal, but were not, may not be
asserted in collateral proceedings.); Sunal v. Large,
332 U.S. 174, 182-84; 67 S.Ct. 1588, 1593; 91 L.Ed.
1982, 1989 (1947) (absent exceptional circumstances,
the remedy of habeas corpus is not available to
defendants who accept the judgment of [the trial court]
and do not appeal); Billings v. Maass, 738 P.2d 222,
223 (Or. App. 1987) (The remedy of habeas corpus is not
available to parties who neglect to seek appellate
review of the challenged decision.).
