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Brodigan v. State (07/30/2004) ap-1943
Brodigan v. State (07/30/2004) ap-1943
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
DANIEL R. BRODIGAN, )
) Court of Appeals No.
A-8597
Appellant, )
Trial Court No. 3SW-01-293 Cr
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1943 July 30, 2004]
)
Appeal from the District Court, Third Judi
cial District, Seward, George P. Peck,
Magistrate.
Appearances: Carmen E. Clark, Law Offices of
Pamela Dale, Anchorage, for the Appellant.
Nancy R. Simel, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Gregg D. Renkes, Attorney
General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Daniel R. Brodigan was convicted of misdemeanor driving
while intoxicated in 2003.1 Because Brodigan had six prior
convictions for this offense, he faced a mandatory minimum
sentence of 360 days imprisonment under AS 28.35.030(b)(1)(F).
But Brodigan argued that five of his prior convictions were
constitutionally invalid and that, for this reason, these five
convictions should not be counted when determining his mandatory
minimum sentence.
The district court held that, whatever the potential
flaws in Brodigans prior convictions, Brodigan had no right to
attack those prior convictions in connection with his sentencing
for his current offense. See Brockway v. State, 37 P.3d 427, 429-
430 (Alaska App. 2001) (holding that a defendant generally has no
right to collaterally attack prior convictions at the sentencing
hearing for a new crime, even if the defendants sentence for the
new crime is being enhanced on account of those prior
convictions). Brodigan now appeals the district courts ruling.
For the reasons explained here, we conclude that
Brodigan failed to present any reason to doubt the constitutional
validity of his prior convictions. Thus, regardless of whether
Brodigan would have been entitled to attack his prior convictions
if he had presented some evidence that these convictions were
constitutionally invalid, the district court in this case could
properly refuse to hear Brodigans claims.
Brodigans argument
Brodigan argues that his DWI convictions from
1974 through 1980 are invalid because those
prosecutions were brought under an unconstitutional
statute. Relying on the Alaska Supreme Courts decision
in Crutchfield v. State, 627 P.2d 196 (Alaska 1980),
Brodigan asserts that the version of the Alaska DWI
statute that was in effect between 1974 and 1980 was
unconstitutionally vague, at least in part. Brodigan
further asserts that, because the written judgements in
his five prior cases do not affirmatively specify that
those prosecutions were not pursued under the
unconstitutionally vague provision of the DWI law, we
must now conclusively presume that those five prior
convictions were premised on the unconstitutional part
of the law.
To explain why we reject Brodigans arguments,
we must first examine the supreme courts decision in
Crutchfield.
The Alaska Supreme Courts decision in Crutchfield
In Crutchfield, our supreme court held that
one clause of an administrative regulation implementing
Alaskas DWI statute was unconstitutionally vague.
At the time that Crutchfield was litigated,
Alaskas DWI statute forbade a person from operating a
motor vehicle if they were under the influence of
intoxicating liquor, [or] depressant, hallucinogenic or
stimulant drugs or narcotic drugs as defined in
AS 17.10.230(13) and AS 17.12.150(3).2 The defendant
in Crutchfield was prosecuted for operating a motor
vehicle under the combined influence of alcohol and one
of the depressant, hallucinogenic, or stimulant drugs
codified in AS 17.12.150(3).
The first three paragraphs of AS 17.12.150(3)
listed specific substances and chemicals that were
declared to fall within the category of depressant,
hallucinogenic or stimulant drugs. But the fourth
paragraph of the statute, AS 17.12.150(3)(D),
authorized the commissioner of health and social
services to enact regulations expanding this category
of regulated substances if the commissioner found that
additional substances had a potential for abuse because
of their depressant, stimulant, or hallucinogenic
effect.
Exercising this authority, the commissioner
enacted 7 AAC 32.010(b), a regulation that expanded the
category of depressant, hallucinogenic, or stimulant
drugs. Under this regulation, the list of controlled
substances was declared to include any combination of
depressant, stimulant, or hallucinogenic drugs, not
listed by name or trade name in this chapter [i.e., 7
AAC 32] that is of a composition substantially similar
to any of the drugs or substances listed in this
chapter.3 (Emphasis added)
The defendant in Crutchfield was prosecuted
based on evidence that he had consumed alcoholic
beverages and had ingested the drug tranxene a drug
that had been prescribed for him by his physician.4
Tranxene was nowhere listed as a regulated substance in
the statutes or the regulations, but the State
presented expert testimony at Crutchfields trial that
tranxene was of a substantially similar composition to
valium a drug that was specifically listed.5 The
State therefore contended, based on the substantially
similar composition language of 7 AAC 32.010(b), that
it was illegal for a person to operate a motor vehicle
while under the influence of tranxene (either alone or
in combination with alcohol).
The supreme court held that the phrase of a
composition substantially similar to any of the drugs
or substances listed in this chapter was
unconstitutionally vague because it failed to give
people reasonable notice of what substances were
regulated or prohibited:
[M]ost people are not familiar with
scientific technology and molecular
chemistry. ... The drug tranxene was given
to Crutchfield by his physician. He had no
notice that [tranxene] was a drug whose use
while driving was prohibited under AS
28.35.030. Moreover, he had no way of
discovering the prohibited character of the
drug until [he heard the] expert testimony at
[his] trial indicat[ing] that it had a
composition similar to valium, a drug
specifically prohibited by regulation. Under
these circumstances, it appears that
Crutchfield could not reasonably understand
that his contemplated conduct [i.e.,
operating a motor vehicle after ingesting
tranxene] was prohibited.
Crutchfield, 627 P.2d at 200.
The supreme court therefore held
that the challenged regulation, 7 AAC
32.010(b), was unconstitutionally vague.6
And because the regulation was unconstitu
tional, the court declared that Crutchfields
conviction, to the extent that it [was] based
on [that] regulation, was unlawful.7
(Emphasis added)
Because Crutchfields jury returned
a single verdict finding him guilty of
driving under the influence of alcohol and/or
stimulant, depressant or hallucinogenic
drugs, the supreme court was unable to
determine whether the jurys decision was
based on a finding that Crutchfield was
impaired by the ingestion of alcohol, or by
the ingestion of tranxene, or both. The
court therefore reversed Crutchfields
conviction but the court allowed the
government to retry Crutchfield on the theory
that Crutchfield was impaired by his
consumption of alcoholic beverages alone.8
Brodigans argument concerning the meaning of
Crutchfield
As just explained, Crutchfield holds that a
defendant can not fairly be expected to know what
chemical substances are substantially similar to the
controlled substances expressly listed in the pertinent
statutes and regulations and thus, a regulatory clause
that purported to include all substantially similar
substances was unconstitutionally vague.
The supreme court reversed Crutchfields
conviction because the court could not determine
whether the jury thought that Crutchfields ability to
operate a motor vehicle was impaired by the consumption
of alcohol, or the ingestion of tranxene (a non-listed
substance), or both. But the supreme court did not
invalidate the DWI statute as a whole; the court only
invalidated prosecutions brought under the offending
clause of the regulation. This is obvious from the
supreme courts disposition of Crutchfields case: the
court remanded the case to the district court for a new
trial based on the States alternative theory of
impairment (impairment based solely on alcohol
consumption).
Examination of the reported case law suggests
that prosecutions under the offending regulatory clause
were quite rare. We are aware of no other case in
which a DWI defendant was charged with impairment
arising from ingestion of a non-listed controlled
substance.
Indeed, when we examine the written
complaints that initiated Brodigans five challenged DWI
prosecutions, we see that all five complaints alleged
that Brodigan drove while under the influence of
intoxicating liquor. Brodigan presented no evidence to
the district court suggesting that he was ever
prosecuted for DWI based on an impairment allegedly
arising from his ingestion of a non-listed controlled
substance. In other words, Brodigan has presented
nothing to suggest that the supreme courts holding in
Crutchfield undermines the validity of any of his prior
convictions.
Nevertheless, Brodigan argues that we must
conclusively presume that all five of his prior
convictions are invalid under Crutchfield that he was
prosecuted each time for an impairment that stemmed
from ingestion of a non-listed substance. Brodigan
points out that the five written judgements merely
state that he was convicted of violating AS 28.35.030,
without specifying the theory of prosecution. Brodigan
argues that, because these judgements fail to expressly
disclaim any reliance on the non-listed but similar
substance theory that was struck down in Crutchfield,
we must conclusively presume that all five of these
prior prosecutions were pursued under this invalid
theory.
We use the phrase conclusively presume to
describe Brodigans argument because Brodigan asserts
that a sentencing judge can consider nothing other than
the judgement itself when the judge tries to determine
the basis of a prior conviction. Thus, even though all
of the complaints in Brodigans prior cases specify
intoxicating liquor and make no mention of controlled
substances (listed or otherwise), Brodigan insists that
we must ignore these documents (and any other available
information about those five cases), and that we must
focus instead solely on the generic citation to the
statute (AS 28.35.030) contained in the written
judgements.
Brodigans suggested rule makes little sense
and would lead to unfair results. The supreme courts
decision in Crutchfield affected only a very small
number of DWI prosecutions those in which the
government relied on the theory that the defendant was
impaired from ingesting an unlisted controlled
substance. The ruling left the great majority of DWI
convictions intact. Yet Brodigan would have us
declare, as a matter of law, that most (if not all) DWI
convictions entered before Crutchfield are
constitutionally invalid because the judges who issued
those judgements did not think to address an issue
(impairment arising from ingestion of an unlisted
substance) that was not presented in their case.
Brodigan argues that his approach to this
problem is required by prior decisions of this Court
decisions in which we held that, when a court assesses
whether a defendants prior conviction should be deemed
a prior felony conviction for purposes of Alaskas
presumptive sentencing laws (see
AS 12.55.145(a)(1)(B)), or whether a defendants prior
conviction for DWI or breath-test refusal should be
deemed a prior conviction for purposes of sentence
enhancement in a DWI or breath-test refusal prosecution
(see AS 28.35.030(r)(4) and AS 28.35.032(t)(2)), the
sentencing court should not conduct an inquiry into the
particular facts of the prior case but should instead
simply examine the elements of the prior offense to see
whether those elements are sufficiently similar to the
elements of a pertinent crime defined by Alaska law.9
But in these prior decisions, we were
applying the tests specified by the legislature in
AS 12.55.145(a)(1)(B) and AS 28.35.030(r)(4) tests
that explicitly hinge on the statutory definition of an
offense rather than on the specific facts of a
particular defendants prior case. Application of
Crutchfield demands a different, fact-specific test.
As we explained above, the supreme court did not strike
down Alaskas DWI law in Crutchfield. Rather, the
supreme declared that that law could not
constitutionally be applied to a defendant whose
impairment arose from ingestion of a non-listed
substance. Thus, to determine whether Crutchfield
undermines the validity of a DWI conviction, one must
know and evaluate the facts of that particular case.
Brodigan presumably knows the facts of his
prior cases, and knows whether the supreme courts
ruling in Crutchfield potentially applies to those
prior cases. But Brodigan has never asserted that he
himself was prosecuted for ingestion of a non-listed
substance. Rather, he asks us to presume, as a matter
of law, that his five prior convictions are all invalid
under Crutchfield and he asks us to prohibit the State
from presenting any information about those five prior
cases, thus foreclosing the sentencing court from
finding out whether the Crutchfield decision had any
relevance at all to those prior DWI prosecutions.
Brodigans argument ignores the presumption of
regularity that attaches to a final judgement. As we
explained in Jerrel v. State, 851 P.2d 1365 (Alaska
App. 1993), if a court has subject-matter jurisdiction
over a criminal prosecution and personal jurisdiction
over the defendant, every act [of the court] is
presumed to have been rightly done until the contrary
appears.10 Here, Brodigan is challenging the validity
of criminal judgements that were entered between 24 and
30 years ago. Because of societys interest in the
finality of judgements, the law presumes the validity
of the judgements and imposes the burden on the party
raising the challenge.
In analogous circumstances, when defendants
have collaterally challenged their convictions, our
supreme court has placed the burden on those defendants
to produce evidence tending to prove the invalidity of
their convictions. See Department of Public Safety v.
Fann, 864 P.2d 533 (Alaska 1993), a drivers license
revocation case where the defendant attacked the
validity of a prior conviction that was being used to
enhance the term of his drivers license revocation.
The supreme court held that the defendant had the
burden, not just of producing some evidence that the
prior conviction was constitutionally flawed, but of
proving that flaw by a preponderance of the evidence.11
Moreover, Brodigans position has little to
recommend it from the perspective of the fair
administration of justice. If the supreme courts
decision in Crutchfield has no application to the facts
of Brodigans prior DWI prosecutions, then it is neither
unfair nor improper to allow the sentencing court to
count those prior convictions when the court evaluates
Brodigans mandatory minimum sentence under AS
28.35.030(b). Nor is it unfair to require Brodigan to
affirmatively present some good reason to believe that
the Crutchfield decision is relevant to his prior
convictions.
For these reasons, we reject Brodigans
contention that his five prior convictions must all be
conclusively presumed to rest on an unconstitutional
basis. Rather, even assuming for purposes of argument
that Brodigan would have the right to attack his prior
DWI convictions if he could establish a constitutional
flaw in those convictions, we hold that it was
Brodigans burden to present some evidence that his
prior convictions were constitutionally flawed.
(We are using the term some evidence in the
technical sense of evidence which, when viewed in the
light most favorable to the defendant, is sufficient to
support a finding in the defendants favor ... on each
element of the [defendants claim].12 We do not reach
the further question of whether, had Brodigan presented
some evidence that his prior convictions were
constitutionally invalid, he would bear the ultimate
burden of proof on this issue.)
Brodigan failed to meet this burden of
production. Brodigan relied on the supreme courts
decision in Crutchfield, but he did not present any
evidence that Crutchfield casts doubt on the validity
of his prior DWI convictions i.e., no evidence that he
was prosecuted under the invalid substantially similar
composition clause of the regulation. We therefore
hold that the district court could rely on Brodigans
prior convictions when assessing Brodigans mandatory
minimum sentence.
Conclusion
The judgement of the district court is
AFFIRMED.
_______________________________
1 AS 28.35.030(a).
2 The complete text of former AS 28.35.030(a) is found in
Crutchfield, 627 P.2d at 197 n. 1.
3 Quoted in Crutchfield, 627 P.2d at 198.
4 Crutchfield, 627 P.2d at 197, 200.
5 Id. at 198.
6 Id. at 201.
7 Id. at 199.
8 Id. at 201.
9 See, e.g., Burnette v. Anchorage, 823 P.2d 10, 12 (Alaska
App. 1991); Walsh v. State, 677 P.2d 912, 915-16 (Alaska
App. 1984).
10 Jerrel, 851 P.2d at 1372, quoting United States v.
Mantheis Bondsmen, 2 Alaska 459, 466 (D. Alaska 1905), and
citing Wright v. State, 501 P.2d 1360, 1372 (Alaska 1972);
Houston-Hult v. State, 843 P.2d 1262, 1266 (Alaska App.
1992).
11 Fann, 864 P.2d at 538.
12 Compare Hamilton v. State, 59 P.3d 760, 770 (Alaska
App. 2002), using this same test to evaluate whether a
defendant is entitled to a jury instruction on a proposed
defense.
