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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).