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Sheridan v. Municipality of Anchorage (10/29/2004) ap-1952
Sheridan v. Municipality of Anchorage (10/29/2004) ap-1952
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
PHILIP P. SHERIDAN, )
) Court of Appeals No.
A-8617
Appellant, )
Trial Court No. 3AN-02-3079 Cr
)
v. )
) O P I N
I O N
MUNICIPALITY OF ANCHORAGE, )
)
Appellee. )
[No. 1952 October 29, 2004]
)
Appeal from the District Court, Third Judi
cial District, Anchorage, Gregory J. Motyka,
Judge.
Appearances: Andrew J. Lambert, Kalamarides
& Lambert, for the Appellant. John E.
McConnaughy III, Assistant Municipal
Prosecutor, and Frederick H. Boness,
Municipal Prosecutor, Anchorage, for the
Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Philip P. Sheridan was convicted of misdemeanor driving
while intoxicated in 2003.1 Because Sheridan had two prior
convictions for this offense, he faced a mandatory minimum
sentence of 60 days imprisonment.2 But Sheridan argued that his
prior convictions were constitutionally invalid and that, for
this reason, they should not be counted when determining his
mandatory minimum sentence.
The district court held that, whatever the potential
flaws in Sheridans prior convictions, he had no right to attack
those prior convictions at the sentencing proceedings 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). Sheridan now appeals the district courts ruling.
For the reasons explained here, we conclude that
Sheridans briefing of his underlying claim of error is so
inadequate that it must be deemed a waiver of the claimed error.
Moreover, even if Sheridan had adequately briefed his underlying
claim of error, he would still not be entitled to the relief he
seeks in this appeal i.e., to be sentenced without his prior
convictions counting toward the calculation of his mandatory
minimum sentence. For these two reasons, we affirm the decision
of the district court.
Sheridans underlying claim of error, and why we
conclude that it is inadequately briefed
Sheridans attack on his prior convictions is
based on the Alaska Supreme Courts decision in
Williford v. State, 674 P.2d 1329 (Alaska 1983). At
the time that Williford was litigated, AS 28.35.030(a)
the Alaska statute defining the offense of driving
while intoxicated had three clauses. Subsection
(a)(1) prohibited a person from driving while under the
influence of intoxicating liquor or any of the
controlled substances listed in AS 17.10.230(13) and
AS 17.12.150(3). Subsection (a)(2) prohibited a person
from driving when their blood alcohol content was 0.10
percent or more. Finally, subsection (a)(3) prohibited
a person from driving if they were under the combined
influence of intoxicating liquor and another
substance.3
The defendant in Williford challenged this
third clause of the statute, arguing that its reference
to the combined influence of intoxicating liquor and
another substance was unconstitutionally vague.4 The
supreme court agreed, and struck down subsection
(a)(3).5
Sheridans two prior convictions were entered
in 1982 and 1983, when the Alaska DWI statute contained
this invalid subsection (a)(3). Sheridan argues that,
because this portion of the statute was declared
unconstitutional in Williford, we must conclusively
presume that his prior convictions are invalid.
Sheridans arguments falter on the fact that
his two prior DWI convictions were not prosecuted under
this state statute, but rather under the Anchorage DWI
ordinance, AMC 9.28.020(B). It is true that, at the
time of Sheridans convictions in 1982 and 1983, the
Anchorage ordinance did contain a third clause
020(B)(3) that was facially similar to AS
28.35.030(a)(3). But this third clause of the
municipal ordinance was worded in a way that
potentially saved it from the constitutional infirmity
discussed in Williford. The third clause of the
ordinance prohibited a person from driving
while ... under the combined influence
of intoxicating liquor and ... another
substance, to a degree which renders [the
person] incapable of driving safely.
Former AMC 9.28.020(B)(3) (1983) (emphasis
added).
This italicized language mirrors
the wording of the Uniform Vehicle Code.6
In Williford, our supreme court
conceded that a statutory provision
containing this language that is, a
statutory provision expressly focus[ing] on
driving impairment was distinguishable from
the portion of AS 28.35.030 that was under
attack in Williford.7
Indeed, the supreme court rejected
a series of cases cited by the State in
support of AS 28.35.030(a)(3) because the
court concluded that the States cases were
inapposite to the question at hand. The
supreme court concluded that the States cases
were not pertinent to the constitutionality
of AS 28.35.030(a)(3) because those cases
dealt with statutes [that] focus on how
substances affect a [drivers] ability, rather
than on what substances a driver has
consumed.8 As an example of such an
inapposite statute, the supreme court cited
California Vehicle Code 312, which defined
the term drug as:
any substance or combination of substances,
other than alcohol, which could so effect the
nervous system, brain, or muscles of a person
as to impair, to an appreciable degree, his
ability to drive a vehicle in the manner that
an ordinarily prudent and cautious man, in
full possession of his faculties, using
reasonable care, would drive a similar
vehicle under like conditions.
Williford, 674 P.2d at 1331 (emphasis in the
original).
In other words, the supreme court
in Williford carefully distinguished former
AS 28.35.030(a)(3) (the statute under attack
in Williford) from provisions such as the one
found in the Uniform Vehicle Code and in
Anchorage Municipal Ordinance 9.28.020(B)(3)
provisions which expressly focus on proof of
a drivers impairment. One might reasonably
argue that the supreme court invalidated AS
28.35.030(a)(3) precisely because this
statute was not worded like the Uniform
Vehicle Code and the Anchorage municipal
ordinance. But even construing Williford in
the light most favorable to Sheridan, the
most that can be said is that, when the
supreme court declared that
AS 28.35.030(a)(3) was unconstitutionally
vague, the supreme court expressly declined
to rule on the constitutionality of statutes
worded like the Anchorage ordinance.
In his brief to this Court,
Sheridan mentions the fact that his two prior
DWI convictions were prosecuted under the
Anchorage ordinance. But then Sheridan
conclusorily declares, AMC 9.28.020(A)(3)
[sic: 020(B)(3)] was found to be void for
vagueness in Williford v. State. As we have
just explained, this is not true.
Sheridans discussion of this point
of law is confined to the single sentence we
have just quoted. He offers no analysis of
Williford, and no explanation of why he
believes that Williford invalidated the
municipal ordinance under which he was
prosecuted. Accordingly, we conclude that
Sheridan has waived his underlying claim of
error because of inadequate briefing.9
Even if Sheridan had adequately briefed his underlying
claim of error, he would still not be entitled to the
relief he seeks
Even if Sheridan had adequately briefed his
claim that there was a constitutional flaw in
subsection (B)(3) of Anchorages former DWI ordinance,
and even assuming (for purposes of argument) that there
was indeed a constitutional flaw in that subsection,
Sheridans case would still be controlled by our recent
decision in Brodigan v. State, 95 P.3d 940 (Alaska App.
2004).
Sheridan does not assert that he was
prosecuted under the challenged subsection of the
ordinance, subsection (B)(3). Instead, he simply
points out that the two judgements entered against him
do not refer to a specific subsection of the DWI
ordinance. These judgements merely state that Sheridan
was convicted of driving while intoxicated under
Anchorage Municipal Ordinance 9.28.020(A). Because the
two judgements do not specify the Municipalitys theory
of prosecution that is, because the two judgements
fail to expressly disclaim any reliance on the another
substance clause of subsection (B)(3) that was
ostensibly invalidated in Williford Sheridan argues
that we must presume that both of Sheridans prior
prosecutions were pursued under the invalid subsection
of the statute.
We rejected the same argument in Brodigan,
and we do so again in Sheridans case. The Williford
decision did not strike down Alaskas DWI law in its
entirety. Rather, Williford held that one alternative
theory of prosecution subsection (a)(3) of the statute
was unconstitutionally vague. To determine whether
Williford undermines the validity of a DWI conviction,
one must know and evaluate the facts of that particular
case.
Sheridan presumably knows the facts of his
prior cases, and knows whether the supreme courts
ruling in Williford potentially applies to his prior
cases. But Sheridan has never asserted that he himself
was prosecuted under former AMC 9.28.020(B)(3) for
being under the combined influence of intoxicating
liquor and another substance. Indeed, when we examine
the written complaints that initiated Sheridans prior
DWI prosecutions, we see that both of them alleged that
Sheridan drove with a blood alcohol level of 0.10
percent or more. (One complaint alleges that Sheridans
blood alcohol level was 0.29 percent, while the other
alleges that his blood alcohol level was 0.30 percent.)
In other words, even if we construed
Williford as invalidating subsection (B)(3) of the
former Anchorage municipal ordinance, Sheridan has
presented nothing to suggest that he was prosecuted
under that subsection of the ordinance, or that the
supreme courts holding in Williford undermined the
validity of either of his prior convictions.
In Brodigan, we held that a defendants prior
DWI convictions are presumed to be valid and that,
therefore, a defendant who asserts that there is a
constitutional infirmity in a prior conviction is
obliged, at the very least, to present some affirmative
evidence that the prior conviction is indeed
constitutionally infirm.10 Under Brodigan, Sheridan
was obliged to present the district court with some
good reason to believe that the Williford decision
undermined the validity of his prior convictions that
is, some evidence that he was prosecuted under the
allegedly invalid clause of the ordinance. Because
Sheridan did not do so, the district court could
properly reject his attack on those convictions.
Conclusion
The judgement of the district court is
AFFIRMED.
_______________________________
1 Anchorage Municipal Code 9.28.020(A).
2 AMC 9.28.020(C)(1)(c).
3 The former version of AS 28.35.030(a) is quoted in
Williford, 674 P.2d at 1330 n.1.
4 Williford, 674 P.2d at 1330.
5 Id. at 1331-32.
6 National Commission on Uniform Traffic Laws and
Ordinances, Uniform Vehicle Code: Rules of the Road
with Statutory Annotations, 54 (1979 Supp.). This
uniform law is cited in Williford, 674 P.2d at 1331.
7 Williford, 674 P.2d at 1331.
8 Id.
9 See Katmailand, Inc. v. Lake and Peninsula Borough, 904
P.2d 397, 402 n.7 (Alaska 1995); Petersen v. Mutual
Life Ins. Co. of New York, 803 P.2d 406, 410 (Alaska
1990); Wren v. State, 577 P.2d 235, 237 n.2 (Alaska
1978); Kristich v. State, 550 P.2d 796, 804 (Alaska
1976); Lewis v. State, 469 P.2d 689, 691-92 (Alaska
1970).
10 Brodigan, 95 P.3d at 943-44.
