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State v. Simpson (07/23/2004) ap-1941
State v. Simpson (07/23/2004) ap-1941
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 No.
A-8582
Appellant, )
Trial Court No. 3AN-00-8352 Cr
)
v. )
) O P I N
I O N
BRIAN SIMPSON, )
)
Appellee. )
[No. 1941 July 23, 2004]
)
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Gregory J. Motyka,
Judge, pro tem.
Appearances: Kenneth M. Rosenstein, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Gregg D. Renkes, Attorney General, Juneau,
for Appellant. Quinlan Steiner, Assistant
Public Defender, and Barbara K. Brink, Public
Defender, Anchorage, for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
In State v. Simpson, 53 P.3d 165 (Alaska App. 2002), we
reversed the superior courts ruling that two 1999 Montana
convictions for driving under the influencedid not qualify as
prior convictions for purposes of AS 28.35.030(n), felony driving
while intoxicated.1 We decided that the elements of Montanas
driving under the influence charge were similar2 to the elements
of AS 28.35.030. Accordingly, we reinstated the indictment.
This case has returned to us because the superior court
again dismissed Simpsons indictment. The superior court ruled
that due process was violated by charging Simpson with felony
driving while intoxicated because Simpsons Montana convictions
arose from non-jury trials at which he was tried in absentia.
The record shows that Simpson was represented by
counsel in both of his Montana cases. The Montana court had
personally served Simpson with his trial notices and informed him
that he would be tried in absentia and without a jury if he did
not appear for the trials. (Article 2, section 26 of the Montana
Constitution provides that upon default of appearance..., all
cases may be tried without a jury or before fewer than the number
of jurors provided by law.) On the day set for each trial,
Simpson did not appear, although his counsel was present. The
court discharged the jury panel called for each case and
proceeded with bench trials. After each trial, the court entered
written findings convicting Simpson of driving under the
influence.
Simpson argues that these convictions cannot be used as
predicate convictions for felony DWI because the Montana
convictions are constitutionally infirm. Simpson relies on two
of our cases, State v. Peel3 and Pananen v. State.4
In Pananen, we addressed a prior out-of-state
conviction where the defendant had not been afforded a right to
counsel. Pananen was convicted of two counts of driving while
intoxicated.5 The trial court sentenced the defendant as a third
offender because he had two prior convictions for that offense in
Wisconsin.6 On appeal, Pananen argued that the first of the two
Wisconsin DWI convictions was invalid to enhance his sentence
because Wisconsin law did not afford the right to court-appointed
counsel in his first case.7 We concluded that an uncounseled
conviction is simply too unreliable to be depended on for
purposes of imposing a sentence of incarceration, whether that
sentence is imposed directly or collaterally.8 Based on this
conclusion, we held that [b]ecause Wisconsin law did not extend
to Pananen the right to court-appointed counsel for his first DWI
offense, Pananens first Wisconsin conviction should not have been
relied upon by the district court as a basis for determining the
applicable mandatory minimum sentence.9 In Peel, we
addressed whether a prior driving while intoxicated conviction,
obtained where the defendant had been denied the right to a jury
trial, could be used to support a mandatory minimum sentence
under Alaska law for driving while intoxicated. Peel had been
denied a jury trial because Louisiana law did not permit a jury
trial for the offense.10 The trial court decided that the
Louisiana conviction could not be used to trigger a mandatory
minimum sentence.11 The State attempted to distinguish Pananen
by arguing that the right to a jury trial was not as critical as
the right to counsel. We relied on Baker v. City of Fairbanks12
and ODonnell v. Municipality of Anchorage,13 Alaska decisions
that equated the right to counsel and the right to a jury trial,
and upheld the trial courts decision not to use the Louisiana
driving while intoxicated conviction to trigger the mandatory
minimum sentencing provisions.14
Simpsons case is distinguishable. In both Pananen and
Peel, state law categorically denied the defendant the right to a
jury trial or court-appointed counsel. But Simpson had counsel
in both Montana cases. In addition, the Montana court had
informed Simpson of his trial date and had told him that his
trial would proceed, without a jury, if he did not appear. Thus,
Simpson had the absolute right to a jury trial if he appeared.
And in both cases, the Montana judgment reflects that a jury was
available for Simpsons trial.
Although Montana afforded Simpson the right to a jury
trial, the Montana Constitution provides that a defendant may be
tried without a jury if the defendant does not appear.15 And
Montana statutory law provides that if a defendant does not
appear for a scheduled trial, the court may proceed with the
trial after finding that the defendant had knowledge of the trial
date and is voluntarily absent.16 The record shows that Simpson,
who was represented by counsel, and who had been warned that the
trial would proceed without a jury if he did not appear for
trial, failed to appear for both trials. The court found in each
case that he had notice of the trial date, and elected to
discharge the jury and proceed with trial, a procedure that was
permitted by Montana law and, as the Montana judgments reflect,
had been explained to Simpson by the judge. The court implicitly
found that Simpsons failure to appear was voluntary. We conclude
that Simpson, by his conduct, waived his right to a jury trial.
Simpson also claims that his Montana convictions cannot
be used as predicate convictions for felony DWI because he was
tried in absentia. Simpson maintains that a defendant has a
fundamental right to be present at all stages of the proceedings
and that this right is implemented procedurally in Alaska by
Criminal Rule 38. Simpson argues that Criminal Rule 38(b)
permits a trial to proceed with the defendant absent only when
the defendant was initially present.
But Criminal Rule 38(c)(2) allows a defendant, by
written consent, to waive his or her appearance at arraignment,
plea, trial, and imposition of sentence in a misdemeanor case.
Even though our criminal rules permit an entire trial to proceed
without the defendants presence, Simpson argues that his conduct
in failing to appear at his Montana trials should not operate as
a waiver of his right to be present at trial. But in Gottschalk
v. State,17 the Alaska Supreme Court concluded that a defendants
conduct in failing to retain counsel in the months that lapsed
between his mistrial and retrial constituted a waiver.18 And
waiver by conduct underlies Criminal Rule 38(b)(1), because that
rule provides that a trial may continue when a defendant is
absent voluntarily after the trial commenced. Thus, we conclude
that the Montana courts reliance on Simpsons conduct to establish
his waiver of his right to be present at trial satisfies Alaskas
concepts of due process such that the convictions obtained in
absentia can be used as prior convictions for purposes of
charging Simpson with felony DWI.
Therefore, we conclude that due process was not
violated, and we reinstate Simpsons indictment. The State can
rely on Simpsons Montana convictions as qualifying convictions to
charge felony DWI.
Conclusion
The decision of the superior court is REVERSED. The
indictment is reinstated, and this case is remanded to the
superior court for further proceedings on the indictment.
_______________________________
1 Simpson, 53 P.3d at 170.
2 See former AS 28.35.030(o)(4) (amended 2002).
3 843 P.2d 1249 (Alaska App. 1992).
4 711 P.2d 528 (Alaska App. 1985).
5 See Pananen, 711 P.2d at 529.
6 Id.
7 Id. at 530 (Under Wisconsin law, a first-offense DWI is
treated as a civil forfeiture, not as a crime. The offense is
not punishable by imprisonment... . Accordingly, an indigent
person charged with a first-offense DWI in Wisconsin is not
entitled to court-appointed counsel.).
8 Id. at 532.
9 Id.
10 Peel, 843 P.2d at 1250.
11 Id.
12 471 P.2d 386 (Alaska 1970).
13 642 P.2d 835, 836 n.2 (Alaska App. 1982).
14 Peel, 843 P.2d at 1251.
15 Montana Constitution, Article II, 26; State v. Kempin,
38 P.3d 859, 863 (Mont. 2001).
16 Montana Statute 46-16-122(2)(d).
17 602 P.2d 448 (Alaska 1979), cert. denied, 447 U.S.
920, 100 S.Ct. 3010, 65 L.Ed.2d 1112 (1980).
18 Id. at 451.
