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Hurd v. State (02/11/2005) ap-1973
Hurd v. State (02/11/2005) ap-1973
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
LEONARD P. HURD, )
) Court of Appeals No.
A-8112
Appellant, )
Trial Court No. 4FA-98-201 Cr
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. ) [No.
1973 February 11, 2005]
)
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Charles R.
Pengilly, Judge.
Appearances: Robert M. Herz, Anchorage, for
the Appellant. Timothy W. Terrell, 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.
This case presents two significant issues. The first
issue concerns the double jeopardy doctrine announced by our
supreme court in Whitton v. State, 479 P.2d 302 (Alaska 1970).
In Whitton, the supreme court held that even though a jury has
found a defendant guilty of violating two separate criminal
statutes, the sentencing court should impose only one conviction
and sentence if the two statutory offenses are so closely related
that there are no significant differences between them as to the
conduct proscribed and the societal values protected.1
The present appeal requires us to clarify the legal
effect of a sentencing judges ruling that, under Whitton, one
count against a defendant should be merged or dismissed because
it is duplicative of another count for which the defendant will
be convicted and sentenced. We hold that if a defendant pursues
an appeal and succeeds in obtaining reversal of the count on
which they were sentenced, but if the defendant does not attack
the validity of the other count that was merged or dismissed on
Whitton grounds, then the sentencing court is authorized to enter
judgement and impose sentence on the remaining count that was
previously merged or dismissed as duplicative (unless the
defendant affirmatively shows that, for some reason, entry of
judgement on the remaining count would be demonstrably unfair).
The second issue presented in this appeal concerns the
legal doctrine that requires litigants to present all of their
claims in a single legal proceeding, rather than litigating these
claims piecemeal in different proceedings.
The defendant in this case, Leonard P. Hurd, was
convicted of kidnapping and third-degree assault (in the sense
that the jury found him guilty of both crimes), but the
sentencing judge dismissed the assault charge as duplicative of
the kidnapping charge under Whitton. Hurd then pursued an appeal
to this court. In that previous appeal, Hurd attacked his
kidnapping verdict on two grounds (insufficient evidence, and
faulty jury instructions on the elements of kidnapping), but Hurd
did not attack the third-degree assault verdict.
In that previous appeal, we concluded that the jury had
not been properly instructed on the elements of kidnapping, and
we therefore reversed Hurds kidnapping conviction. When Hurds
case returned to the superior court, the State announced that it
did not intend to pursue the kidnapping charge any further.
Instead, the State asked the superior court to enter judgement
against Hurd on the third-degree assault charge (the charge that
had earlier been dismissed under Whitton as duplicative of the
kidnapping charge). The superior court did this, and Hurd is now
pursuing a second appeal.
In this second appeal, Hurd argues (on various legal
theories) that the superior court had no authority to enter
judgement against him on the assault charge, even though the jury
had found him guilty of this offense at his trial. We address
these contentions below.
But in addition, Hurd argues for the first time that
the jurys verdict on the third-degree assault charge is flawed in
various ways. Specifically, Hurd asserts that the evidence at
his trial was insufficient to establish two of the elements of
third-degree assault, that the jury received incomplete
instructions on one of these elements, and that the trial judge
made an erroneous evidentiary ruling that prevented Hurd from
presenting evidence relevant to the assault charge.
For the reasons explained here, we hold that it is too
late for Hurd to raise these attacks on the jurys verdict. Hurd
should have presented these claims in his first appeal and,
because he did not, he is estopped from presenting them now.
Underlying facts: Hurds offenses, his sentencing, and
his first appeal
Leonard P. Hurd was in debt to Dennis
Schlotfeldt for several thousand dollars. Hurd invited
Schlotfeldt to his house and then held him captive for
thirty to forty-five minutes. Hurd refused to let
Schlotfeldt leave the house until Schlotfeldt signed
documents (1) acknowledging full satisfaction of Hurds
debt, (2) transferring several parcels of land to Hurd,
(3) agreeing to give Hurd $25,000 in cash, and
(4) acknowledging that he had received a non-existent
coin collection from Hurd valued at a quarter of a
million dollars. Hurd threatened Schlotfeldt with
immediate injury (by threatening to sic his Rottweiler
dog on Schlotfeldt) if Schlotfeldt tried to leave the
house without signing these documents.
Based on this episode, Hurd was indicted for
three felonies: coercion (i.e., compelling another
person to engage in acts that they have a right to
refrain from doing, by threatening to inflict physical
injury on any person), kidnapping (i.e., restraining
another person with intent to facilitate the commission
of a felony, to wit, coercion), and third-degree
assault (i.e., threatening to imminently inflict
serious physical injury by means of a dangerous
instrument, to wit, the Rottweiler).2 A jury found
Hurd guilty of all three crimes.
Superior Court Judge Charles R. Pengilly
ruled that, under the facts of Hurds case, the third-
degree assault (Hurds act of threatening Schlotfeldt
with a dog attack if he tried to leave) was so closely
related to the restraint component of the kidnapping
that, under the rule announced by our supreme court in
Whitton v. State,3 Hurd could not be separately
convicted and sentenced for both offenses. Based on
this Whitton ruling, Judge Pengilly entered a
conviction on the kidnapping charge (the more serious
offense4), and he dismissed the third-degree assault
charge as duplicative of [the kidnapping charge].
Thus, Hurds judgement reflected convictions for
kidnapping and coercion, but not third-degree assault.
After Hurd was sentenced, he filed an appeal
to this Court. See Hurd v. State, 22 P.3d 12 (Alaska
App. 2001). In that appeal, Hurd argued that the State
presented insufficient evidence to justify his
kidnapping conviction. Specifically, Hurd argued that,
to the extent he restrained Schlotfeldt, that restraint
was only incidental to the crime of coercion, and thus
the restraint would not support a separate conviction
for kidnapping. In the alternative, Hurd argued that
even if the States evidence was legally sufficient to
support the kidnapping conviction, his trial jury had
not been properly instructed on the degree of restraint
required to support a separate conviction for
kidnapping.5 We ultimately held that the States
evidence established the type of restraint that would
support a separate conviction for kidnapping, but we
agreed that the jury had not been properly instructed
on the type of restraint required to support a separate
kidnapping conviction. (The State conceded error on
this issue.)6 We therefore reversed Hurds kidnapping
conviction, but we ruled that [t]he State [could] try
Hurd again for this crime.7
For present purposes, not only is it
important to note the issues that Hurd raised in this
prior appeal, but it is also important to note the
issues that Hurd failed to raise in the prior appeal.
In particular, Hurd did not challenge his coercion
conviction, nor did he raise any claim of error with
respect to the procedures, the evidence, or the jury
instructions that led to the jurys finding him guilty
of third-degree assault.
Underlying facts: the proceedings in the superior
court following our decision of Hurds first appeal
After we decided Hurds first appeal, his case
returned to the superior court. At a status conference
on June 12, 2001, the prosecutor announced that the
State did not intend to re-try Hurd for kidnapping.
Instead, the prosecutor asked Judge Pengilly to
reinstate the previously dismissed third-degree assault
conviction, and then sentence Hurd for that offense.
Hurds attorney responded that this proposed course of
action ma[de] sense, especially since it appeared
likely that, given this reduction of the offense, Hurd
would receive a sentence of imprisonment equal to the
time he had already served.
Hurd did not hear this initial conversation
between Judge Pengilly and the attorneys. Hurd was
scheduled to participate in the status conference by
telephone, but the in-court clerk had not yet placed
the call. A few minutes later, the call was made and
Hurds telephonic presence was secured. Judge Pengilly
then announced to Hurd:
The Court: Were back on record in the
matter of State v. Hurd. Mr. Hurd, your
attorney, Mr. Covell, is present [in the
courtroom].
We are trying to [schedule] a re-
sentencing [hearing]. The State has
indicated that its not going to re-try the
kidnapping case, and it just wants to rely on
the lesser included offense ... of Assault
III, and it wants to go forward with
sentencing on that [count].
Mr. Covell, as I look at my calendar,
... it looks like August 13th is the best I
can do.
Defense Attorney: Thats fine, Judge.
. . .
The Court: [W]e do need to talk about
getting Mr. Hurd released [on bail]. Mr.
Covell?
Defense Attorney: Yes, Your Honor. As
[I] previously stated, ... it appears [that]
Mr. Hurd is likely to be in a time served
situation. ... Wed ask that he be released
[on his own recognizance].
And, Mr. Hurd, would you rather come
back [to Fairbanks] on your own, on a States
ticket, or come back in custody?
Mr. Hurd: Id rather come back on my on
a States ticket.
Defense Attorney: Okay. So wed ask
[that] he be ordered released in Seward, with
return transportation [paid] to Fairbanks.
. . .
The Court: [Mr. Prosecutor, does the
State request] any additional conditions [of
release]?
Prosecutor: ... Not to have any
contact with the victim in this case, or the
victims family. [And] he is to contact his
attorney every Wednesday, no later than 3:00
p.m.. And that [he] will give permission to
Mr. Covell to call [the district attorneys]
office if, in fact, [Mr. Hurd] does not call
him, and that we can call Mr. Covells office
and check [to] see whether or not [Mr. Hurd]
has maintained that contact.
The Court: Mr. Covell?
Defense Attorney: [Are] those
conditions okay with you, Leonard?
. . .
Mr. Hurd: Id request one modification.
... And that would be that ... if you were
not in the office, ... Id be allowed to check
in with your secretary.
Defense Attorney: Thats fine.
Prosecutor: Thats fine.
The parties returned to court on
August 13, 2001 for the scheduled sentencing
hearing. Judge Pengilly announced that he
intended to enter a conviction against Hurd
on the third-degree assault charge. The
judge asked Hurds attorney if he agreed that
it was legitimate to enter a conviction as to
[this] charge. The defense attorney agreed
that this should be done, and he stated that
it was Mr. Hurds intention to proceed with
sentencing.
The prosecutor asked Judge Pengilly
to impose a sentence of 5 years imprisonment,
but to suspend the portion of this sentence
that exceeded the time Hurd had already
served. (Hurd had served 23 months in prison
at this point.)
Judge Pengilly noted that, because
Hurd had already served 23 months in prison,
it appeared that Hurd [had] already served a
sentence that exceeds the Austin limit.8
(Apparently, Judge Pengilly was working under
the assumption that a person sentenced to 2
years imprisonment the Austin ceiling for a
class C felony would normally accumulate
their full quota of good time credit and be
released after serving 16 months.) However,
Judge Pengilly also noted that the State
could legitimate[ly] argu[e] that Hurds
conduct was among the worst within the
definition of the offense an aggravating
factor under AS 12.55.155(c)(10) that would
allow the court to exceed the Austin
ceiling.9
Hurds attorney initially told Judge
Pengilly, [W]ere not here to decide whether
its a worst offense within its category.
That [aggravating factor] wasnt noticed up,
and its not what were here for today. Judge
Pengilly responded:
The Court: [Are you] saying that, for
some procedural reason, [the prosecutor] cant
argue that this is a worst offense?
Defense Attorney: Judge, I [pause] If
there is a procedural defense there, Im going
to waive it, because we want to get
sentenced.
The Court: Right. I mean, if you want
to continue [the sentencing], we could [do
that].
Defense Attorney: No, we dont want we
definitely dont want [that].
The Court: All right. So [then] I need
to hear your response to the merits of [the]
argument [that Mr. Hurds conduct was among
the most serious within the definition of the
offense].
Defense Attorney: All right, Your
Honor, ... Ill make my argument[.]
After hearing argument on this
issue, Judge Pengilly found (based on the
evidence presented at Hurds trial) that Hurd
was factually guilty of kidnapping. And
based on this finding, Judge Pengilly
concluded that Hurds offense was among the
most serious third-degree assaults, and that
the court was therefore authorized to impose
a sentence above the normal Austin limit.10
Judge Pengilly then sentenced Hurd to 5 years
imprisonment, with all of this sentence
suspended except for the 23 months that Hurd
had already served.
After Hurd was convicted and
sentenced for third-degree assault, he hired
a new attorney and then filed the present
appeal.
Synopsis of the issues raised in Hurds present appeal
In this appeal, Hurd raises four categories
of arguments.
Hurds first category deals with the superior
courts legal authority to enter the conviction for
third-degree assault. In a series of arguments
based on constitutional law, statutory law, and
the common law, Hurd contends that even though the
jury found him guilty of third-degree assault,
Judge Pengilly had no authority to enter a
conviction against Hurd for this crime following
our resolution of Hurds first appeal. In the
alternative, Hurd argues that he could not be
convicted of third-degree assault unless the State
took him to trial again on that charge (or unless
he knowingly waived a second trial and pleaded
guilty).
Hurds second category actually comprises a
single argument. Hurd maintains that even if Judge
Pengilly did have the authority to enter a conviction
against Hurd for third-degree assault, the judge
violated Alaska Criminal Rule 38(a) by making the
decision to enter the third-degree assault conviction
during the initial portion of the status conference of
June 12, 2001 the conversation between the judge and
the attorneys that took place before Hurd began his
telephonic participation in the conference.
Hurds third category of arguments involves
alleged substantive and procedural errors at his trial.
Hurd argues that the evidence at his trial was
insufficient to establish the offense of third-degree
assault. Specifically, Hurd contends that even if the
evidence was sufficient to establish that Hurd
threatened to sic his Rottweiler on Schlotfeldt, the
State failed to prove that Hurds Rottweiler was a
dangerous instrument, or that Schlotfeldt was placed in
reasonable fear of imminent serious physical injury by
Hurds actions. Alternatively, Hurd argues that even if
the evidence presented at his trial was legally
sufficient to support a conviction for third-degree
assault, the jury instructions were inadequate to
explain the concept of dangerous instrument as applied
to the facts of Hurds case. In addition, Hurd argues
that Judge Pengilly made an erroneous evidentiary
ruling at trial a ruling that prevented Hurd from
presenting evidence that the defense attorney had
offered the prosecutor an opportunity to have a dog
expert examine Hurds Rottweiler, and the prosecutor had
declined this opportunity.
Hurds fourth category of arguments comprises
attacks on his sentence for third-degree assault. Hurd
argues that Judge Pengilly violated the double jeopardy
clause by imposing a sentence that included suspended
imprisonment and a term of probation, when Hurds
original sentence (i.e., his sentence for kidnapping
and coercion) did not include any suspended
imprisonment or probation. And Hurd argues that even
if Judge Pengilly could lawfully impose suspended jail
time and a term of probation, the sentence chosen by
Judge Pengilly 5 years imprisonment, with all of it
suspended except for the time Hurd had already served
is excessive.
The State acknowledges that Hurd is entitled
to raise his first, second, and fourth categories of
arguments. That is, the State agrees that Hurd is
entitled to attack Judge Pengillys legal authority to
enter a conviction for third-degree assault, that Hurd
is entitled to argue that Judge Pengilly violated
Criminal Rule 38(a) during the court proceedings that
occurred after our decision of Hurds first appeal, and
that Hurd is entitled to challenge his sentence for
third-degree assault.
However, the State contends that Hurd is not
entitled to pursue his third category of arguments the
arguments in which Hurd challenges the procedures and
the evidentiary rulings at his trial, and in which Hurd
attacks the sufficiency of the evidence presented at
that trial to support a conviction for third-degree
assault. The State argues that it is too late for Hurd
to raise these arguments now that Hurd was obliged to
raise these claims in his prior appeal, and that Hurds
failure to do so means that he is estopped from
presenting these claims in his current appeal.
Part A
Hurds arguments that the superior
court had no legal authority to
enter judgement against him for
third-degree assault
Did Judge Pengilly violate Hurds constitutional
protection against double jeopardy, or his
constitutional right to jury trial, by entering a
conviction against Hurd for third-degree assault
following our resolution of Hurds first appeal?
As explained above, Hurds trial jury found
him guilty of all three counts of the indictment:
coercion, kidnapping, and third-degree assault.
However, Judge Pengilly later ruled that, under the
facts of Hurds case, the conduct comprising the third-
degree assault charge (i.e., Hurds threat to sic his
Rottweiler on Schlotfeldt) was, in essence, a component
of the restraint underlying the kidnapping charge.
Based on this analysis, Judge Pengilly ruled that Hurds
crimes of kidnapping and third-degree assault
constituted the same offense for purposes of a Whitton
analysis. And based on this ruling, Judge Pengilly
dismissed the third-degree assault count because it was
duplicative of [the kidnapping count].
As we pointed out in Kailukiak v. State, 959
P.2d 771, 774 n. 1 (Alaska App. 1998), it is
technically incorrect for a sentencing court to dismiss
a count on Whitton grounds. Even though the Alaska
double jeopardy clause, as construed in Whitton,
prevents a sentencing court from entering separate
convictions and sentences on two counts that constitute
the same offense, a Whitton ruling does not impugn the
validity of the jurys underlying verdicts. That is, a
Whitton ruling that two counts are duplicative casts no
doubt on the validity of the jurys fact-finding or its
conclusion that the defendant is guilty of the conduct
alleged in both counts.11 For this reason, even though
this Court has occasionally spoken of dismissal of the
duplicative count, we have most often (and most
correctly) described the proper course of action as a
merger of the two counts into a single conviction
i.e., the entry of one conviction and sentence premised
on both jury verdicts.12
In Hurds first appeal, he challenged the
sufficiency of the evidence at his trial to support a
conviction for kidnapping. In particular, Hurd argued
that the State failed to prove that he restrained
Schlotfeldt to any significant degree apart from the
restraint inherent in the crime of coercion. We
rejected this contention, holding instead that the
evidence of restraint was sufficient to support a
separate conviction for kidnapping. However, we
concluded that Hurds jury had not been properly
instructed on the degree of restraint required for a
kidnapping conviction, and so we ruled that Hurd was
entitled to a new trial on the kidnapping charge.
In the current appeal, Hurd argues that our
decision entitled him to a new trial on the third-
degree assault charge as well. He reasons as follows:
(1) the kidnapping count and the third-degree assault
count constituted the same offense for Whitton
purposes; (2) we ruled that Hurd was entitled to a new
trial on the kidnapping count; therefore (3) he was
entitled to a new trial on the third-degree assault
count, too.
But as we just explained, the fact that two
counts may be the same offense for Whitton purposes has
nothing to do with the validity of the jurys verdicts
finding the defendant guilty of both counts. Whitton
addresses the question of how many convictions and
sentences may properly be entered based on those
verdicts; it does not address the question of whether
those verdicts were arrived at lawfully.
In Hurds earlier appeal, he attacked the
validity of the kidnapping verdict, and we agreed that
the jury had not been properly instructed on the
restraint element of kidnapping. But this flaw in the
jury instructions defining the elements of kidnapping
had nothing to do with the validity of the jurys
verdict on the third-degree assault charge. (Indeed,
Hurd did not even purport to attack the validity of
that verdict.) Thus, our decision of Hurds earlier
appeal did not impugn or affect the validity of the
jurys verdict that Hurd was guilty of third-degree
assault.
When Hurds case returned to the superior
court, and the prosecutor declared that the State no
longer wished to pursue the kidnapping charge, Judge
Pengilly was authorized to enter judgement against Hurd
based on the jurys verdict that Hurd was guilty of
third-degree assault. The validity of this verdict had
never been challenged, and the former impediment to
entry of judgement on the assault count was now
removed, because the State was renouncing its legal
right to try Hurd a second time for kidnapping.
In analogous situations, when we have found a
flaw in the evidence or procedures leading to a
defendants conviction for a greater offense, but when
this flaw did not affect the validity of the jurys
finding or the defendants plea with regard to a lesser
offense, we have authorized the State to forego further
prosecution of the greater offense and simply ask the
trial court to enter judgement on the lesser offense.13
(For a similar decision by the United States
Supreme Court, in a case where prosecution of the
greater offense was barred by the double jeopardy
clause but prosecution of the lesser offense was not,
see Morris v. Mathews, 475 U.S. 237, 106 S.Ct. 1032, 89
L.Ed.2d 187 (1986). The Supreme Court held that it was
proper for the state appellate court to amend the
defendants judgement to reflect a conviction for the
lesser, non-jeopardy-barred offense, because the
defendant failed to demonstrate a reasonable
probability that the inclusion of the greater, jeopardy-
barred charge tainted the jurys consideration of the
lesser offense.14)
We reach the same result in the Whitton
situation presented in Hurds appeal. Hurd never
claimed, much less demonstrated, that there was any
infirmity in the jurys verdict finding him guilty of
third-degree assault. Because Hurd no longer faced
conviction and sentencing on the kidnapping charge,
Judge Pengillys Whitton ruling no longer prevented the
entry of judgement against Hurd for third-degree
assault. And finally, Hurd did not assert that it
would be unfair, for any other reason, to enter
judgement against him on the assault charge. We note
that Hurds attorney that is, his attorney at that time
announced that this course of action ma[de] sense.
In his brief to this Court, Hurd argues that
the entry of judgement for third-degree assault was a
successive prosecution barred by the double jeopardy
clause. This is incorrect. Hurd was tried but once,
and the judgement that Judge Pengilly entered against
him was premised on the jurys verdict from that trial.
Hurd also argues that the entry of this
judgement deprived him of the constitutional right to
jury trial. This, too, is incorrect. Hurd was tried
by a jury for the offense of third-degree assault, the
jury found him guilty, and his assault conviction is
based on the jurys verdict.
Was Hurds third-degree assault conviction barred by the
combination of AS 12.20.020 and AS 12.20.050?
Hurd argues that, because Judge Pengilly
previously dismissed the third-degree assault count,
that count can not be revived. As the basis for this
argument, Hurd relies on two Alaska statutes, AS
12.20.020 and AS 12.20.050. There are two flaws in
Hurds argument.
First, by their wording, neither of these
statutes applies to the circumstances of Hurds case.15
Indeed, Hurds opening brief expressly concedes that
[n]one of [the three] situations [addressed in
AS 12.20.020] apply to [his] case. And we recently
rejected Hurds proposed interpretation of the second
statute, AS 12.20.050. See Schouten v. State, 77 P.3d
739, 742-45 (Alaska App. 2003).
Second, as we explained above, the dismissal
of the third-degree assault count was done on Whitton
grounds. This count was not dismissed for any
procedural irregularity, legal insufficiency, or flaw
in the jurys verdict. Instead, it was set aside
because Judge Pengilly concluded that Hurd could not
lawfully be convicted and sentenced for the third-
degree assault if Hurd was to be convicted and
sentenced for the related kidnapping.
As we also explained above, the third-degree
assault count should not have been dismissed under
these circumstances (at least, as that term is usually
understood); rather, it should have been merged with
the kidnapping count. We must categorize and give
effect to Judge Pengillys action in its rightful legal
context i.e., a merger of counts based on a Whitton
ruling regardless of the label that Judge Pengilly
attached to his action.16
Was the State estopped from asking the superior court
to enter judgement against Hurd for third-degree
assault?
Hurd also argues that, under the doctrine of
res judicata, or under related doctrines of estoppel,
the State was barred from asking Judge Pengilly to
enter judgement against Hurd for third-degree assault.
As we explained earlier, after the jury found
Hurd guilty of both kidnapping and third-degree
assault, Judge Pengilly ruled that these two counts
constituted the same offense for Whitton purposes. The
judge therefore convicted and sentenced Hurd for
kidnapping (the more serious charge), but he declined
to enter judgement against Hurd for third-degree
assault.
The State could have asked this Court to
review Judge Pengillys Whitton ruling,17 or the State
might have filed a cross-appeal after Hurd filed his
appeal of the kidnapping conviction, but the State did
not pursue either of these options. Hurd now argues
that, because of the States inaction, the State was
estopped from asking Judge Pengilly to enter judgement
against Hurd for third-degree assault after Hurds case
returned to the superior court following our decision
of Hurds first appeal.
Hurds argument is based on a misunderstanding
of the nature of Judge Pengillys Whitton decision. As
we explained in the preceding section of this opinion,
Judge Pengilly ruled that, under Whitton, Hurd could
not lawfully be convicted and sentenced for the third-
degree assault if Hurd was to be convicted and
sentenced for the factually related kidnapping. In
other words, Judge Pengilly ruled that Hurd could be
convicted and sentenced for one count or the other, but
not both and, therefore, the judge convicted and
sentenced Hurd for the more serious offense,
kidnapping.
Because the State failed to seek appellate
review of Judge Pengillys decision, the State is
arguably now estopped from contending that Judge
Pengillys Whitton ruling was wrong i.e., estopped from
arguing that Hurd actually could have been convicted
and sentenced separately for both kidnapping and third-
degree assault. But the State has never argued this.
Instead, after this Court reversed Hurds
kidnapping conviction, the State asked Judge Pengilly
to take an action that was wholly consistent with his
earlier ruling. The judge had ruled that Hurd could
not be convicted and sentenced for assault if he was
going to be convicted and sentenced for kidnapping.
But after our reversal of Hurds kidnapping conviction,
and after the States decision not to seek a re-trial of
the kidnapping charge, Hurd was no longer going to be
convicted and sentenced for kidnapping. This meant
that there was no longer a Whitton impediment to Hurds
conviction and sentencing for third-degree assault.
Because entry of judgement against Hurd for
third-degree assault was consistent with Judge
Pengillys earlier Whitton ruling, the State was not
estopped from asking Judge Pengilly to take this
action.
(It may go without saying, but we express no
opinion on the correctness of Judge Pengillys Whitton
ruling.)
Did the superior court exceed this Courts mandate (from
our decision of Hurds previous appeal) when the
superior court entered judgement against Hurd for third-
degree assault?
Finally, Hurd argues that Judge Pengillys
entry of judgement against him for third-degree assault
constituted an unlawful deviation from the instructions
this Court gave to the superior court when we decided
Hurds first appeal.
Under Alaska law, when an appellate court
remands a case to a lower court with a specific mandate
i.e., specific directions to do something the lower
court must obey the appellate courts directions.18 But
we issued no mandate to the superior court when we
decided Hurds previous appeal.
In our previous decision, we held that Hurds
kidnapping conviction had to be reversed because the
jury was not adequately instructed on the element of
restraint.19 However, we also held that the evidence
presented at Hurds trial was sufficient to support a
conviction for kidnapping, and thus the State remained
free to try Hurd again for this crime.20 Finally, we
held that Hurd had been properly indicted for
kidnapping, and thus the State did not have to re-
indict Hurd on this charge.21
Hurd asserts that, in our previous decision,
we ordered a retrial on [the] kidnapping [charge].
Hurd is incorrect, at least to the extent he claims
that our decision constituted a mandate to the superior
court or to the Alaska Department of Law.
Attorneys and judges often say that an
appellate court has ordered a new trial in a civil or
criminal case. But this is a shorthand description of
the appellate courts true ruling: that the complaining
litigant is entitled to a new trial if the plaintiff
chooses to pursue the litigation. This Court has never
ordered the State to re-try a criminal case regardless
of the States wishes. Indeed, such an order might
exceed this Courts lawful powers.22
When we said, in our previous decision, that
[t]he State may try Hurd again (emphasis added), we
meant just that. The State was authorized to bring
Hurd to trial again for kidnapping if the State chose
to do so. We did not bar the State from pursuing other
courses of action, such as foregoing further
prosecution of the kidnapping charge and asking the
superior court to enter judgement against Hurd based on
the jurys verdict that Hurd was guilty of third-degree
assault. Moreover, we had no instructions for the
superior court, apart from the implicit instruction to
wait to see what the State chose to do with regard to
re-trying Hurd for kidnapping.
As we pointed out earlier in this opinion
(see the text on page 15 and the cases cited in
footnote 13), Judge Pengillys decision to enter
judgement based on the jurys remaining verdict was
wholly consistent with our decisions in this area of
the law.
For these reasons, we reject Hurds suggestion
that Judge Pengilly unlawfully deviated from our
mandate when he entered judgement against Hurd for
third-degree assault.
Conclusion of Part A
For the reasons explained here, we reject
Hurds several arguments that the superior court had no
authority to enter judgement against him for third-
degree assault. We conclude that the superior court had
this authority.
Part B
Hurds argument that the superior
court violated his right to be
present at all substantive
proceedings following our remand of
his case to the superior court
Did Judge Pengilly violate Hurds right under Alaska
Criminal Rule 38(a) to be present at all substantive
stages of a criminal proceeding when, before Hurd
joined the status conference of June 12, 2001 by
telephone, Judge Pengilly spoke with the prosecutor and
Hurds attorney concerning the judges intention to enter
judgement against Hurd for third-degree assault?
Hurd argues that Judge Pengilly violated
Alaska Criminal Rule 38(a) by conversing with the
attorneys at the beginning of the status conference of
June 12, 2001, before Hurd was present i.e., before
the in-court clerk placed the telephone call to Hurd,
allowing Hurd to participate in the hearing.
Hurd further asserts that he was prejudiced
by his absence from the first part of the status
conference because, during this part of the conference,
Judge Pengilly decided to enter judgement against Hurd
on the third-degree assault count. Hurd concedes that
his attorney did not object to the proposed entry of
judgement; in fact, the defense attorney declared that
this action made sense under the circumstances. But
Hurd argues that, had he been telephonically present
when this discussion occurred, he would have asked his
attorney to review the file and to research the
pertinent law before agreeing that the superior court
could enter judgement against Hurd for third-degree
assault.
The State does not contest Hurds assertion
that, under Criminal Rule 38(a), Hurd was entitled to
participate in this discussion. However, the State
argues this violation of the rule was harmless beyond a
reasonable doubt. We agree.
The matter being discussed in Hurds absence
was the States right to forego further prosecution of
the kidnapping charge and to have the superior court
enter judgement against Hurd on the remaining jury
verdict the verdict declaring Hurd guilty of third-
degree assault. Even if we assume that Hurd could have
convinced his attorney to oppose this course of action,
and even if we assume that Hurds attorney would have
raised the same legal objections that Hurd has
presented in this appeal, this would not have affected
the outcome of the proceeding because we have just
concluded that all of Hurds objections are meritless,
and that the superior court properly entered judgement
against Hurd for third-degree assault.
We also note that, even though Hurd missed
the first part of the June 12th status conference, Hurd
clearly knew by the end of that conference that Judge
Pengilly intended to enter judgement against him for
third-degree assault and to sentence him for that
offense. However, the sentencing hearing did not take
place until two months later, on August 13th. Thus, if
Hurd thought that his attorney had agreed too quickly
to the proposed entry of judgement on the assault
charge, or if Hurd wanted his attorney to research the
issue and then potentially ask Judge Pengilly to
reconsider, there was plenty of time for this to
happen. (Moreover, under the terms of Hurds bail
release, he was obliged to contact his attorneys office
on a weekly basis.) But when Hurd and his attorney
appeared in court for sentencing on August 13th,
neither of them voiced any objection to the entry of
judgement on the third-degree assault charge.
We therefore conclude that if the superior
court violated Criminal Rule 38(a) by holding this
discussion before Hurd joined the status conference by
telephone, the violation was harmless beyond a
reasonable doubt.
Part C
The States argument that Hurd can
no longer attack his third-degree
assault conviction by challenging
the procedures, evidentiary
rulings, and jury instructions at
his trial
Introduction
In his brief to this Court, Hurd contends
that the evidence presented at his trial was
insufficient to support the jurys verdict finding Hurd
guilty of third-degree assault. In addition, Hurd
argues that his assault conviction should be reversed
for alleged flaws in the evidentiary rulings and jury
instructions at his trial.
In particular, Hurd argues that the State
presented insufficient evidence that Hurds Rottweiler
qualified as a dangerous instrument under
AS 11.81.900(b)(15).23 In a related argument, Hurd
also contends that the State presented insufficient
evidence that Hurds actions caused Schlotfeldt to
reasonably fear imminent serious physical injury. In
addition, Hurd asserts that his jury should have
received a particularized, case-specific instruction on
the meaning of dangerous instrument. And, finally,
Hurd argues that Judge Pengilly abused his discretion
under Evidence Rule 403 when the judge refused to let
Hurd present evidence that the defense had offered to
allow the State (or, more precisely, a canine expert
employed by the State) to examine Hurds Rottweilers,
but the prosecutor declined this opportunity.
The State responds to Hurds arguments by
asserting that it is too late for Hurd to raise these
contentions. The State asserts that Hurd could have
raised these arguments in his first appeal and that,
because he did not, he is estopped from presenting
these arguments now.
The States argument rests on the concept of
claim preclusion and the related prohibition against
claim splitting. The gist of the States argument is
that when Hurd pursued his earlier appeal, he had the
opportunity to attack the sufficiency of the evidence
and the validity of the procedures and legal rulings at
his trial that led to his conviction for third-degree
assault. Instead, Hurd attacked only (1) the
sufficiency of the States evidence to support a
kidnapping conviction, and (2) the adequacy of the jury
instructions pertaining to the restraint element of
kidnapping. The State argues that Hurd should not now
be allowed to raise new challenges to the procedures
and evidence underlying the jurys third-degree assault
verdict.
Hurd replies that the doctrine of claim
preclusion, and the related prohibition on claim
splitting, do not apply to situations like his case
situations in which there has been an earlier appeal in
the same case, followed by renewed litigation in the
trial court and a subsequent appeal.
Hurd also argues, in the alternative, that
even if the prohibition on claim splitting applies to
situations like his (an appeal, followed by renewed
proceedings in the lower court, followed by another
appeal), the doctrine nevertheless should not be
applied to him under the facts of his case. Hurd notes
that the prohibition on claim splitting applies only to
claims that could have been raised earlier, and Hurd
contends that he could not have attacked the validity
of his third-degree assault conviction in his prior
appeal.
Under Alaska law, litigants are required to present all
of their ripe claims of error when they appeal a lower
courts decision
Alaska law recognizes three distinct but
related doctrines that prohibit or limit repetitive
litigation.
Under the doctrine of res judicata, once a
court has entered a final judgement on the merits of
litigation between parties, those parties (and those
who share their interests) are barred from pursuing
subsequent litigation concerning the same cause of
action.24 The doctrine of res judicata not only
prohibits re-litigation of already litigated claims,
but it also bars the parties from raising new claims or
defenses that could have been raised in the prior
litigation.25 In other words, res judicata prevents
claim splitting: all claims arising out of a single
transaction must be presented in a single lawsuit, and
any claims that were not presented become extinguished
by the final judgement in that lawsuit.26
Under the related doctrine of collateral
estoppel, even when the new litigation between the
parties is not barred by the doctrine of res judicata,
the parties are nevertheless prohibited from re-
litigating factual or legal issues that were essential
to the decision of a previous lawsuit between the
parties.27
Finally, the doctrine of law of the case
applies to parties attempts to re-open issues that were
decided in earlier stages of the same lawsuit. This
doctrine requires a lower court to follow an appellate
courts prior decision, and it prohibits re-litigation
of issues that were decided in an earlier appeal in the
case.28
Hurds case presents a situation that does not
fit comfortably within any of these three doctrines.
The State asks us to apply a rule of claim preclusion
or claim splitting to Hurds case. But as Hurd
correctly points out, of the three doctrines we have
mentioned, only the doctrine of res judicata has a
claim-splitting component and res judicata applies
only to subsequent lawsuits between the parties, not
later stages of the same lawsuit that take place
following earlier appeals.29
The doctrine that applies to subsequent
stages of the same lawsuit is law of the case. But
that doctrine limits the parties right to re-open
previously decided issues; it does not address the
question of whether parties can take advantage of
subsequent stages of the litigation to raise previously
undecided claims.
Nevertheless, Alaska law prohibits parties
from splitting their claims among different appeals in
the same lawsuit. There may be no neat label for this
doctrine, but both the Alaska Supreme Court and this
Court have recognized the doctrine and have applied it.
In Alaska Commercial Fisheries Entry Commn v.
Carlson, 65 P.3d 851 (Alaska 2003), our supreme court
confronted a lawsuit for the third time after two
prior decisions and two prior remands. In this third
appeal, the State attempted to inject a new defense
sovereign immunity for the first time. The supreme
court held that the State had no right to raise this
new claim:
Successive appeals should narrow the
issues in a case, not expand them. Other
jurisdictions have explicitly ruled that all
matters that were or might have been
determined in a former appeal may not be
presented in a subsequent appeal of the same
case. The basis for this rule is that
[j]udicial economy and the parties interests
in the finality of judgments are in no way
furthered if parties are allowed to engage in
piecemeal appeals. We have expressed a
similar rule in the context of res judicata,
which involves subsequent suits rather than
subsequent appeals. Because [the States
claim] could have been raised in earlier
appeals but was not, and because it therefore
falls outside the scope of our specific
remand in Carlson II, we decline to address
the States sovereign immunity defense ... .
Carlson, 65 P.3d at 873-74.30
Twenty years earlier, in Nix v.
State, 690 P.2d 745 (Alaska App. 1984), this
Court applied this same doctrine a
prohibition on claim splitting to prevent a
criminal defendant from raising new issues in
his third appeal, following proceedings on
remand from our earlier two decisions in his
case.
The facts of Nix bear some
resemblance to the facts of Hurds case. A
jury convicted Nix of two counts of burglary
arising from the same criminal episode; each
count alleged a different theory of how Nixs
conduct amounted to burglary. In Nixs first
appeal, this Court held that both of the
States theories of burglary were flawed, and
that Nixs conduct had not (as a legal matter)
amounted to burglary.31 However, we also
concluded that the allegations in the
purported burglary counts were legally
sufficient to charge Nix with two
misdemeanors: one of the counts was adequate
to charge Nix with unlawful entry of a
residence, while the other was adequate to
charge him with committing an assault.32 For
this reason, we remanded Nixs case to the
superior court with directions to enter
convictions for these two misdemeanors,
unless Nix demonstrated that he would be
unfairly prejudiced by this procedure.33
The superior court ultimately
entered the two misdemeanor convictions
against Nix, and Nix appealed the superior
courts decision.34 In this subsequent
appeal, Nix not only attacked the actions
taken by the superior court during the remand
proceedings, but he also argued for the
first time that his original trial
proceedings were flawed because the
prosecutor had engaged in improper argument
during the States summation to the jury.
This Court held that it was too late for Nix
to attack the validity of the jury verdicts:
In his appeal from the judgment entered
on remand, Nix raises three issues for the
first time. He argues that the prosecutor
committed plain error in mentioning to the
jury [Nixs] post-arrest silence, and in
arguing that Nix entered his victims trailer
for the purpose of raping her. Finally, Nix
argues that his counsels failure to object to
the prosecutors argument constituted
ineffective assistance of counsel. None of
these errors, if established, is
jurisdictional. While a finding of plain
error would justify this courts recognizing
an issue for the first time on appeal even
though it was not preserved at the trial
level, it does not justify raising an issue
for the first time in an appeal from a
judgment on remand after two prior appeals.
We therefore decline to consider these
additional issues.
Nix, 690 P.2d at 746 n.1.
Based on the decisions in Carlson
and Nix, we conclude that Alaska (in accord
with many other states) has grafted a
prohibition on claim splitting onto the law
of the case doctrine. Not only are parties
prohibited from re-litigating issues that
were decided in earlier appeals, but they are
also prohibited from raising claims in later
appeals if those claims could have been
raised in earlier appeals.
Whatever term the supreme court may
ultimately adopt to describe this rule, the
rule itself is clear: If Hurd could have
presented his attacks on the procedures,
evidence, and jury instructions relating to
his third-degree assault conviction when he
pursued his earlier appeal, then his failure
to do so at that time will bar him from
pursuing those attacks now.
Could Hurd have challenged the procedures, evidence,
and jury instructions relating to his third-degree
assault conviction when he litigated his prior
appeal?
Hurds trial was over when Hurd pursued his
first appeal; the jury had found him guilty of all
three charges contained in the indictment: coercion,
kidnapping, and third-degree assault. Thus, if Hurd
believed that the States evidence was insufficient to
support the jurys verdict on third-degree assault, or
if Hurd thought that the superior court had made
erroneous rulings concerning the evidence relevant to
the third-degree assault charge, or if Hurd thought
that the superior court had failed to give the jurors
adequate instruction on the elements of third-degree
assault, then Hurd seemingly could have raised these
issues in his earlier appeal.
Hurd argues, however, that this is not so.
He points out that, after Judge Pengilly ruled in his
favor on the Whitton issue, the judge dismissed the
third-degree assault count as duplicative of the
kidnapping count. Thus, Judge Pengilly entered
judgement only on the coercion and kidnapping counts.
Hurd contends that, under these circumstances, he could
not be expected to raise issues on appeal pertaining to
the validity of the third-degree assault verdict
because that count was now dismissed, making all of his
arguments moot.
But as we explained in Part A of this
opinion, a merger of counts under Whitton or, as in
Hurds case, the dismissal of a count under Whitton
does not mean that there is any legal infirmity in the
jurys verdict on either count. The judge has simply
ruled that the two counts are so closely related that
the defendant can not be convicted and sentenced for
both.
In Hurds case, Judge Pengilly ruled that Hurd
could not lawfully be convicted and sentenced for third-
degree assault if Hurd was to be convicted and
sentenced for kidnapping. In other words, the sole
impediment to Hurds conviction for third-degree assault
was the fact that he had also been found guilty of the
related kidnapping, and that he would be convicted and
sentenced for this kidnapping.
In Hurds first appeal, he argued that the
States evidence was insufficient, as a matter of law,
to establish the offense of kidnapping. If Hurd had
been successful in this claim, the kidnapping charge
would have been dismissed with prejudice but the third-
degree assault verdict would have remained. Hurds
appellate attorney knew or reasonably should have known
that if we granted Hurds request for dismissal of the
kidnapping charge, then, in the absence of any attack
on the third-degree assault count, the superior court
would have the authority to enter judgement against
Hurd for third-degree assault because our dismissal of
the kidnapping charge would have removed the only legal
impediment to the entry of judgement on that assault
count.
Hurds fall-back position in his first appeal
was that, even if the States evidence was legally
sufficient to support a kidnapping conviction, Hurd was
nevertheless entitled to a new trial because the jury
had not been properly instructed on the type of
restraint needed to establish the offense of
kidnapping.
As we explained in Part A of this opinion,
this Court has long applied the rule that if there is a
flaw in the evidence or procedures leading to a
defendants conviction for a greater offense, but if
this flaw did not affect the validity of the jurys
finding or the defendants plea with regard to a lesser
offense, then (in the absence of demonstrable prejudice
to the defendant) the State is authorized to forego
further prosecution of the greater offense and simply
ask the trial court to enter judgement on the lesser
offense.35 Thus, Hurds appellate attorney knew or
reasonably should have known that if we agreed with
Hurd that he was entitled to a new trial on the
kidnapping charge, there was a chance that the State
would decide not to re-try Hurd on kidnapping and would
instead ask the superior court to enter judgement
against Hurd for third-degree assault.
Under either scenario, Hurds appellate
attorney knew or reasonably should have known that one
potential outcome of Hurds first appeal was the
disappearance of the kidnapping charge and the
reinstatement of the third-degree assault charge.
Thus, Hurds attorney knew or reasonably should have
known that if the jurys third-degree assault verdict
could be challenged on any ground, it was time to raise
those challenges.
But in that first appeal, Hurd raised no
issue concerning the validity of the third-degree
assault verdict. Instead, he allowed that verdict to
go unchallenged with the foreseeable consequence that,
when Hurds case returned to the superior court and the
State decided to forego further prosecution of the
kidnapping charge, Judge Pengilly concluded that he
should enter judgement against Hurd based on the
assault verdict.
At this point, Hurd is not entitled to go
back and challenge the validity of the procedures, the
evidence, or the jury instructions underlying that
verdict. As we explained earlier in this opinion,
Alaska law prohibits this type of piecemeal litigation
of a litigants appellate claims.
We therefore agree with the State that, at
this stage of the case (i.e., a second appeal following
proceedings on remand), Hurd is estopped from arguing
that the jurys third-degree assault verdict is not
adequately supported by the evidence, or that this
verdict was based on faulty or incomplete jury
instructions, or that the verdict is flawed because of
purported mistakes in Judge Pengillys evidentiary
rulings at Hurds trial.
Moreover, Hurd has failed to demonstrate plain error
with respect to the procedures, evidence, and jury
instructions relating to his third-degree assault
conviction
The particular facts of Hurds case provide a
second obstacle to the litigation of his attacks on the
third-degree assault verdict. From the record of the
proceedings on remand in the superior court, it appears
that Hurds attorney consciously refrained from
objecting to the entry of judgement on that verdict.
As we explained earlier in this opinion, when
Hurds case returned to the superior court and the
prosecutor announced that the State would not re-try
the kidnapping charge, the parties and Judge Pengilly
discussed what should happen next. During that
discussion at the status conference (on June 12, 2001),
and again two months later at Hurds sentencing hearing
(on August 13, 2001), Hurds attorney explicitly told
Judge Pengilly that Hurd did not object to the entry of
judgement on the third-degree assault charge.
At the June status conference, Hurds attorney
declared that entry of judgement on the assault charge
ma[de] sense, given the States decision not to re-try
Hurd for kidnapping. And at the August sentencing
hearing, when Judge Pengilly asked the defense attorney
if he believed that it was legitimate to enter a
conviction as to [the third-degree assault] charge, the
defense attorney agreed that this should be done.
In other words, the attacks on the third-
degree assault verdict that Hurd raises in his present
appeal were not preserved in the superior court.
Rather, these claims of error are a result of Hurds
post-sentencing change of attorney and change of
litigation strategy. This being so, then even if Hurds
challenges to the third-degree assault verdict were not
barred by the prohibition on claim splitting, Hurd
would have to show plain error.
Hurd has not shown plain error. The record
demonstrates that Hurds previous attorney made a
conscious decision not to object to the States request
for entry of judgement on the third-degree assault
charge. Hurds previous attorney had ample opportunity
to object: at both the June status conference and the
August sentencing hearing, Judge Pengilly explicitly
asked Hurds attorney to state his position on this
issue. Both times, the attorney declared that the
superior court should proceed to convict Hurd of third-
degree assault and sentence him for this crime.
Indeed, at the sentencing hearing, when it
appeared that Hurd had a valid procedural objection to
the late-announced aggravating factor of most serious
conduct, Hurds attorney told Judge Pengilly that he
wished to waive any procedural objection to the courts
consideration of this sentencing factor because we want
to get sentenced.
To establish plain error, the party claiming
error must establish that their attorney had no
tactical reason to refrain from objecting.36 Here, the
record of the remand proceedings in the superior court
indicates that Hurd and his attorney consciously
desired to bring Hurds case to a close as quickly as
possible, by having Judge Pengilly enter judgement and
impose sentence for third-degree assault.
We additionally note that, had Hurd actively
opposed the entry of judgement on the third-degree
assault charge if he had claimed a right to a new
trial on the assault charge he would have run the risk
that the State would re-evaluate its decision not to
pursue the kidnapping charge. That is, if Hurd had
convinced the superior court that a re-trial was
required, even for the assault charge, the district
attorneys office might have decided that if a second
trial had to be held, it might as well include the
kidnapping charge.
For these reasons, Hurd has failed to
establish that his previous attorney had no tactical
reason for refraining from raising potential attacks on
the jurys verdict.
Hurd now has a new attorney, and Hurd and his
new attorney apparently believe that his case should
have been handled differently in the superior court.
But absent clear proof of incompetence on the part of
Hurds previous attorney (and the record contains no
such proof), Hurd can not establish plain error by
pointing out that he might have chosen to object to the
superior courts entry of judgement on the third-degree
assault charge, or that he might have raised attacks on
the evidence or the procedures underlying the jurys
verdict on that charge.
Conclusion of Part C
We have discussed the legal prohibition on
claim splitting among different appeals in the same
case. We have also discussed Hurds apparent tactical
reasons for failing to object to the entry of judgement
on the third-degree assault charge when his case was
remanded to the superior court. For both of these
reasons, we conclude that Hurd can not now attack the
evidentiary basis of the jurys third-degree assault
verdict, or attack the jury instructions relating to
that charge, or attack Judge Pengillys evidentiary
rulings at Hurds trial.
Part D
Hurds argument that the double
jeopardy clause prohibited the
superior court from sentencing him
to suspended jail time and placing
him on probation, and Hurds attack
on the severity of his overall
sentence
Did the superior court violate the constitutional
guarantee against double jeopardy by imposing a
sentence for third-degree assault that included
suspended imprisonment and an accompanying term of
probation, when Hurds original kidnapping sentence
contained no suspended portion, and thus no component
of probation?
When Hurd was originally sentenced i.e.,
when he was sentenced for the offenses of coercion and
kidnapping Judge Pengilly imposed a 7-year sentence
(all to serve) for the kidnapping and a concurrent 1-
year sentence for the coercion.
Following our reversal of Hurds kidnapping
conviction, Judge Pengilly entered judgement against
Hurd for third-degree assault and sentenced him to 5
years imprisonment, with all of this 5-year term
suspended except for the 23 months that Hurd had
already served in jail. (Judge Pengilly again declared
that Hurds 1-year sentence for coercion would be
concurrent.)
Hurd argues that his new sentence is more
severe than his original sentence, and that the new
sentence therefore violates the double jeopardy clause
of the Constitution. At first blush, Hurds claim seems
peculiar. One would think that Hurds current composite
sentence of 5 years with all but 23 months suspended
(i.e., only 23 months to serve) is less severe than his
original composite sentence of 7 years to serve. But
Hurd argues that his current sentence is in fact more
severe than his original sentence because he now faces
a term of probation when, before, he did not.
Hurds argument overlooks the fact that, as a
matter of law, a sentencing judge who suspends any
portion of a defendants sentence must place the
defendant on probation. See AS 12.55.080; Figueroa v.
State, 689 P.2d 512, 514 (Alaska App. 1984). That is,
when a defendant receives a sentence of imprisonment
that is suspended in whole or part, probation is not
discretionary but rather is mandatory.
Because probation is mandatory when any
portion of a defendants sentence is suspended,
acceptance of Hurds argument would lead to the strange
result that, after a sentencing judge imposed a
sentence of straight time (i.e., a sentence requiring
the defendant to serve an entire specified term of
imprisonment), the judge would be constitutionally
barred from reconsidering the defendants sentence and
suspending a portion of the previously imposed term of
imprisonment, unless the defendant specifically waived
the guarantee against double jeopardy.
But we need not definitely resolve that issue
in Hurds case. All that we need decide is whether time
spent on probation is a lesser sentence, for
constitutional purposes, than time spent in prison.
Hurd originally received a composite sentence
of 7 years imprisonment, all to serve. Under Alaskas
corrections laws, Hurd was eligible to accumulate good
time credit equal to one-third of this sentence
(approximately 28 months).37 Thus, theoretically
(i.e., if Hurd did not forfeit any good time credit
because of misbehavior in prison38), Hurd could have
been released from prison after serving only two-thirds
of his 7-year sentence.39 However, Hurd would have been
on mandatory parole (i.e., supervised release) during
this final third of his sentence.40 Thus, under the
terms of Hurds original sentence, he would have
remained under state supervision either in prison or
on mandatory parole for a total of 7 years.
But when Hurd was sentenced the second time,
Judge Pengilly sentenced him to time served (23
months), followed by 3 years of probation. Thus, under
the terms of his current sentence, Hurd faces only 5
years (actually, 59 months) of state supervision 2
years less supervision than he faced under his original
sentence.
Hurds only potential complaint is that his 3
years (36 months) of supervised release under the
current sentence is somewhat longer than the 28 months
that he would have spent on mandatory parole under his
original sentence (if he had successfully held onto his
full 28-month complement of good time credit). Thus,
the real issue in Hurds case is whether, for double
jeopardy purposes, 8 months spent on probation is a
more severe sentence than the same 8 months spent in
prison. The answer, we believe, is self-evident.
We therefore reject Hurds contention that his
current sentence is harsher than his original sentence.
We also note that it was Hurds choice whether
to accept a partially suspended sentence and the
accompanying term of probation, or to insist on a
sentence consisting wholly of time to serve. Alaska
law allows a defendant to refuse probation and,
instead, demand imposition of a sentence that entails
solely time to serve. As we explained in State v.
Auliye, probation is a contract, and because this
contract allows a judge to control a defendants life in
ways that the defendant may deem more burdensome than
normal criminal penalties, a defendant is free to
refuse probation and to insist on a normal sentence.41
Thus, Hurds current sentence of suspended
jail time and probation is premised on Hurds choice to
accept probation rather than insisting that the
superior court sentence him to a wholly unsuspended
term of imprisonment.
Hurds claim that his sentence for third-degree assault
exceeds the Austin ceiling codified in AS
12.55.125(k)(2)
Hurd argues (based on Judge Pengillys comment
at the second sentencing hearing that Hurds 23 months
to serve exceeded the Austin ceiling) that he
unlawfully received a more severe sentence than a
second felony offender convicted of the same offense
(i.e., third-degree assault). The State takes issue
with this analysis.
Under the legislatures codification of the
Austin rule, AS 12.55.125(k)(2), a first felony
offender convicted of a class C felony (such as third-
degree assault) can not receive a sentence of
unsuspended imprisonment exceeding the 2-year
presumptive term that would apply to a second felony
offender convicted of the same offense unless the
sentencing judge finds one or more aggravating factors
under AS 12.55.155(c) or extraordinary circumstances as
defined in AS 12.55.165. Hurd received a sentence of
23 months to serve one month less than the 2-year
presumptive term for second felony offenders.
Judge Pengilly apparently believed that Hurds
sentence should be deemed to exceed the Austin ceiling
because, typically, a defendant sentenced to serve 2
years imprisonment would be entitled to 8 months of
good time credit and therefore would actually serve
only 16 months in prison. Judge Pengillys analysis is
plausible, but this an open question under Alaska law.
There are no cases on this topic. Thus, Judge
Pengillys Austin analysis of Hurds sentence is only
arguable.
This is fatal to Hurds claim in this appeal.
Both at the June 12th status conference and, later, at
the August 13th sentencing hearing, Hurds attorney
actively urged Judge Pengilly to sentence Hurd to time
served i.e., 23 months to serve. Thus, if Hurd is to
prevail in his argument that 23 months to serve
exceeded the Austin ceiling, he must show plain error.
But to show plain error, Hurd must show that any
competent judge or attorney would have recognized that
his sentence exceeded the Austin ceiling. As we
explained in the last paragraph, Hurds position is only
arguable. Thus, there was no plain error.42
Moreover, even if we assume for purposes of
argument that Hurds sentence did exceed the normal
Austin ceiling, Judge Pengilly found aggravator
AS 12.55.155(c)(10) that is, he found that Hurds
conduct was among the most serious in the definition of
third-degree assault.
Hurd argues that Judge Pengilly could not
lawfully rely on this aggravating factor because Hurd
had no notice of this proposed factor in advance of the
sentencing hearing. But, as we explained earlier in
this opinion, Hurds attorney raised this lack-of-notice
problem at the sentencing hearing. When he did so,
Judge Pengilly offered the defense attorney a
continuance, and the defense attorney refused. The
defense attorney declared that Hurd definitely did not
want a continuance; he told Judge Pengilly that if Hurd
had a procedural defense to the judges consideration of
the aggravating factor, they were going to waive that
defense because we want to get sentenced [today].
In Collins v. State, 816 P.2d 1383 (Alaska
App. 1991), we addressed situations like Hurds case
i.e., situations in which an aggravating factor is
proposed at the eleventh hour, without adequate pre-
sentencing notice to the defendant. We declared that,
in all future cases, we [would] strictly enforce the
contemporaneous objection rule: absent plain error, a
defendant will not be heard to complain on appeal that
he or she lacked advance notice of aggravating factors
unless the issue has been preserved by a timely
objection in the trial court.43
Given the fact that Hurds attorney expressly
waived any objection to the lack of advance notice, and
given our decision in Collins, Hurd can not now
challenge Judge Pengillys finding of aggravator
(c)(10).
Hurds claim that his composite sentence is excessive
Finally, Hurd argues that even if Judge
Pengilly could properly consider aggravating factor
(c)(10), the judge gave too much weight to this factor,
and he gave Hurd an excessive sentence for third-degree
assault.
As we explained above, because Hurd was
sentenced for two crimes arising from the same episode,
we do not consider Hurds sentence for third-degree
assault in isolation. Rather, we assess whether Hurds
composite sentence for coercion and third-degree
assault a total of 5 years imprisonment, with all but
23 months suspended is excessive.
Hurds conduct was summarized early in this
opinion. Given the totality of that conduct, and given
Judge Pengillys express finding that Hurd was factually
guilty of kidnapping, we conclude that Hurds sentence
is not clearly mistaken.44
Conclusion
The judgement of the superior court is
AFFIRMED.
_______________________________
1 Whitton, 479 P.2d at 312-13.
2 AS 11.41.530(a)(1), AS 11.41.300(a)(1)(E), and, AS
11.41.220(a)(1)(A) respectively.
3 479 P.2d 302 (Alaska 1970).
4 Kidnapping is either an unclassified or a class A felony,
depending on whether the victim is released unharmed as
described in AS 11.41.300(d), while third-degree assault is
a class C felony. See AS 11.41.300(c) and AS 11.41.220(d).
5 Hurd, 22 P.3d at 14.
6 Id. at 19-20.
7 Id. at 20.
8 See Austin v. State, 627 P.2d 657, 657-58 (Alaska App.
1981) (holding that, normally, a first felony offender
convicted of a class B or C felony should receive a
more favorable sentence than a second felony offender
convicted of the same offense).
9 See AS 12.55.125(k)(2).
10 See Benboe v. State, 698 P.2d 1230, 1232 (Alaska App.
1985) (holding that an offense qualifies as among the
most serious for purposes of aggravator (c)(10) if the
defendants conduct factually constituted a higher
degree of offense).
11Allain v. State, 810 P.2d 1019, 1021 (Alaska App. 1991).
12See State v. McDonald, 872 P.2d 627, 660 & n. 14 (Alaska
App. 1994); Allain, 810 P.2d at 1021. See also Bachlet v.
State, 941 P.2d 200, 209 (Alaska App. 1997); Knix v. State,
922 P.2d 913, 923 (Alaska App. 1996); Yearty v. State, 805
P.2d 987, 995 (Alaska App. 1991); Machado v. State, 797 P.2d
677, 687 (Alaska App. 1990); Newsome v. State, 782 P.2d 689,
691-92 (Alaska App. 1989). And see Erickson v. State, 950
P.2d 580, 582 (Alaska App. 1997); Hathaway v. State, 925
P.2d 1343, 1345 n. 2 (Alaska App. 1996); Coleman v. State,
846 P.2d 141, 142 (Alaska App. 1993).
13See Atkinson v. State, 869 P.2d 486, 495-96 (Alaska App.
1994); Willett v. State, 836 P.2d 955, 960 n. 2 (Alaska App.
1992); S.R.D. v. State, 820 P.2d 1088, 1093 (Alaska App.
1991); Kennedy v. State, 786 P.2d 928, 930-31 (Alaska App.
1990); Nathaniel v. State, 668 P.2d 851, 857 n. 4 (Alaska
App. 1983); Nix v. State, 624 P.2d 823, 824-25 (Alaska App.
1981), appeal after remand, Nix v. State, 690 P.2d 745, 745-
46 (Alaska App. 1984).
14475 U.S. at 246-47, 106 S.Ct. at 1037-38.
15AS 12.20.020 reads:
When acquittal or dismissal is not a bar. If the defendant is
acquitted on the ground of a variance between the charge and
the proof, or the charge is dismissed upon an objection to
its form or substance, or discharged for want of
prosecution, without a judgment of acquittal or in bar of
another prosecution, it is not an acquittal of the crime and
does not bar a subsequent prosecution for the same crime.
AS 12.20.050 reads:
Dismissal as bar.
(a) It is a bar to another prosecution for the same crime if
the crime is a misdemeanor, but it is not a bar if the crime
charged is a felony when a person is
(1) held to answer to the grand jury and the court dismisses
the charge before the case is presented to the grand jury
upon the motion of the prosecuting attorney;
(2) held to answer to the grand jury and the court dismisses
the charge because the indictment is not found against the
person at the next session of the grand jury; or
(3) indicted for a crime and the indictment is dismissed
because the trial is not held within a reasonable period of
time, and there is not good cause shown for the delay, and
the delay was not upon the application of the defendant or
with the defendants consent.
(b) Unless the court directs a judgment of acquittal to be
entered, it is not a bar to another action for the same
crime if the court orders an indictment to be discharged
because the prosecuting attorney is not prepared to go to
trial when the indictment is called for trial and does not
show sufficient cause for postponing the trial.
16See Collins v. State, 977 P.2d 741, 751 (Alaska App. 1999);
State v. Martushev, 846 P.2d 144, 148 (Alaska App. 1993).
17See State v. Occhipinti, 562 P.2d 348, 349, 351 (Alaska
1977).
18See Alaska Commercial Fisheries Entry Commn v. Carlson, 65
P.3d 851, 873 (Alaska 2003); Gaudiane v. Lundgren, 754 P.2d
742, 744 (Alaska 1988); Cleary v. State, 564 P.2d 374, 377
(Alaska 1977); Preston v. State, 634 P.2d 550, 552 (Alaska
App. 1981).
19Hurd, 22 P.3d at 20.
20Id.
21Id.
22See Public Defender Agency v. Superior Court, 534 P.2d 947,
950-52 (Alaska 1975).
23Under this statute, dangerous instrument is defined as
anything that, under the circumstances in which it is used
... or threatened to be used, is capable of causing death or
serious physical injury.
24See Plumber v. University of Alaska Anchorage, 936 P.2d 163,
166 (Alaska 1997).
25McElroy v. Kennedy, 74 P.3d 903, 906 & n. 7 (Alaska 2003);
Robertson v. American Mechanical, Inc., 54 P.3d 777, 780
(Alaska 2002).
26Robertson v. American Mechanical, 54 P.3d at 780; Osborne v.
Buckman, 993 P.2d 409, 412 (Alaska 1999).
27Universal Motors, Inc. v. Neary, 984 P.2d 515, 518 n. 11
(Alaska 1999).
28Bauman v. Day, 942 P.2d 1130, 1132 n. 1 (Alaska 1997).
29See Commercial Fisheries Entry Commn v. Carlson, 65 P.3d
851, 874 (Alaska 2003) (res judicata ... involves subsequent
[law]suits rather than subsequent appeals).
30 Citing Bike Fashion Corp. v. Kramer, 46 P.3d 431, 436
(Ariz. App. 2002); Montgomery v. Trisler, 771 N.E.2d
1234, 1239 (Ind. App. 2002); Baker v. Natl State Bank,
801 A.2d 1158, 1167 (N.J. App. 2002); MacKay v. Hardy,
973 P.2d 941, 947 (Utah 1998); Penrich, Inc. v.
Sullivan, 669 A.2d 1363, 1367 (N.H. 1995); Hartford
Natl Bank & Trust Co. v. Tucker, 487 A.2d 528, 530
(Conn. 1985); First American Natl Bank v. Booth, 606
S.W.2d 70, 71 (Ark. 1980); Kazubowski v. Kazubowski,
259 N.E.2d 282, 288 (Ill. 1970); E.F. Prichard Co. v.
Heidelberg Brewing Co., 234 S.W.2d 486, 487-88 (Ky.
1950).
31 Nix v. State, 624 P.2d 823, 824-25 (Alaska App. 1981).
32 Id. at 824-25.
33 Id. at 825.
34 See Nix, 690 P.2d at 745.
35See the cases listed in footnote 13.
36See Jackson v. American Equity Ins. Co., 90 P.3d 136, 144
(Alaska 2004); Henry v. State, 861 P.2d 582, 589 (Alaska
App. 1993); Massey v. State, 771 P.2d 448, 453 (Alaska App.
1989); Potts v. State, 712 P.2d 385, 394 n.11 (Alaska App.
1985).
37See AS 33.20.010(a).
38See AS 33.20.050 060.
39See AS 33.20.030.
40See AS 33.20.040(a).
4157 P.3d 711, 717 (Alaska App. 2002), citing Brown v. State,
559 P.2d 107, 111 n. 13 (Alaska 1977); Bland v. State, 846
P.2d 815, 818 (Alaska App. 1993); Alfred v. State, 758 P.2d
130, 131 (Alaska App. 1988).
42See, e.g., Baker v. State, 22 P.3d 493, 503 (Alaska App.
2001): In the end, Baker has shown only that this issue
might be debatable. But this means that he has failed to
show plain error for if competent judges could differ on
the correct resolution of a legal issue, there is no plain
error.
43Collins, 816 P.2d at 1385.
44See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974)
(holding that an appellate court is to affirm a sentencing
courts decision unless the sentence is clearly mistaken).
