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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
| MATTHEW MARK MOORE, | ) |
| ) Court of Appeals No. A-8584 | |
| Appellant, | ) Trial Court No. 2NO-02-454 CR |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) [No. 2016 November 4, 2005] |
| ) | |
Appeal from the Superior Court, Second Judi
cial District, Nome, Ben J. Esch, Judge.
Appearances: Averil Lerman, Assistant Public
Advocate, and Joshua P. Fink, Public
Advocate, Anchorage, for the Appellant. W.
H. Hawley, 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.
STEWART, Judge.
MANNHEIMER, Judge, concurring.
Matthew Mark Moore was convicted by a jury of attempted
first-degree sexual assault, attempted second-degree sexual
assault, and first-degree burglary.1 Moore appeals, contending
that the trial court erred in denying his request for another
attorney and claiming that the evidence was insufficient to
establish the burglary charge. Because we reject these claims,
we affirm Moores convictions. Moore claims his sentence is
excessive and illegal. We reject most of Moores attacks on his
sentence but we conclude that Moores convictions for attempted
first-degree sexual assault and attempted second-degree sexual
assault must merge. Accordingly, we affirm Moores conviction,
but we must remand for re-sentencing.
Background facts
July 9, 2002 was Carie Currans birthday. Curran and
her friend, T.F., planned to celebrate Currans birthday with
drinks at T.F.s apartment. T.F. was twenty-years-old, and Curran
was in her late twenties.
Early in the evening, T.F. and Curran were shopping for
work supplies at a local store in Nome and happened to meet
Moore. T.F. knew Moore because she and her boyfriend, who was
out of town, had previously rented a room from Moores step-
father, and because T.F.s boyfriend and Moore used to work
together. July 9th was also Moores birthday, his eighteenth.
When T.F. and Curran learned that it was Moores birthday, they
invited him to T.F.s apartment to have a drink with them.
Moore stopped by some time later and they all drank
until Curran decided she wanted to go to a bar for awhile. T.F.
dropped Curran off at the bar, then stopped for gas; she did not
have any money with her so she returned to her apartment to get
her wallet. As T.F. and Moore were leaving the apartment to pay
for the gas, they ran into Raquel Thurman and Daniel Cortez, and
invited them over for drinks at T.F.s apartment. Thurman and
Cortez followed T.F. and Moore to the gas station, then drove
their car home so they would not have to drive home after
drinking. T.F. dropped Moore off at her apartment, then picked up
Thurman and Cortez at their home and drove back to her apartment.
Everyone talked and drank for several hours. Moore and
T.F. became extremely intoxicated. According to Thurman, T.F.
had no clue what she was doing. T.F. could not sit up straight
and she was hitting her head on the walls. Cortez had to carry
her to the bathroom two or three times so she could vomit, then
carried her to her bed.
Cortez and Thurman left T.F. on the bed with an empty
bowl and a glass of water beside her. T.F. was wearing pants, a
tank top, a button-up shirt, and a long sweater coat. Cortez
announced that he and Thurman were leaving, and that Moore was
leaving with them because he (Cortez) was not going to leave
anyone with T.F. when she was passed out. Cortez tried to lock
the door on the way out, but could not.
The three left in a cab and Thurman and Cortez got out
at their residence. Moore told the cab driver to return to T.F.s
apartment, and said that he had not wanted to leave in the first
place. The driver took Moore back to T.F.s apartment.
T.F.s neighbors, Tory and Gypsy Maul, returned from
work between 1:30 and 2:00 a.m. on the morning of July 10th in
the same taxi that came to pick up Thurman, Cortez, and Moore.
The Mauls were watching television when they heard yelling and
loud music coming from T.F.s apartment. Tory Maul knocked on
T.F.s door to ask that they quiet down. Moore answered the door,
said he was alone in the apartment, and promised to turn down the
music.
Maul returned to his apartment, but soon after, he saw
T.F.s dog being thrown out the door of her apartment. Through
the open door, Maul heard T.F. screaming, Help me. Somebody help
me get him off me. Maul forced his way into T.F.s apartment in
time to see Moore slap T.F., tell her to [s]hut the fuck up, and
shove her to the floor. Moore, wearing only boxers and a t-
shirt, attacked Maul. Maul restrained Moore and told his wife,
who was now standing at the door, to take T.F. to their apartment
and call the police. T.F. was hysterical and was wearing a bra
and a torn tank top; she was naked from the waist down. T.F.
told Gypsy that Moore was trying to have sex with her and she
didnt want to.
Maul restrained Moore until the police arrived. Moore
was very drunk and was threatening Maul and swearing. When Moore
seemed to calm down, Maul told him he could get up if he waited
for the police. Moore grabbed his bag and said he was leaving,
but Maul stopped him.
Officers William Droke and Byron Redburn arrived at
T.F.s apartment. Officer Droke interviewed T.F., who was sobbing
on the Mauls couch and was still very sick. T.F. told Officer
Droke that Moore touched her on her chest and stomach and would
not leave her alone. Officer Redburn took custody of Moore, who
remained combative as the two officers escorted him to the patrol
car.
At trial, two young men testified that a few days
before his birthday, Moore was camping with friends outside of
Nome. He mentioned two or three times that he was going to get
laid on his birthday. The young men who heard these comments
testified that Moore was intoxicated, and that this kind of
discussion was normal guy talk.
Moore testified that he remembered drinking with T.F.,
Thurman, and Cortez, but remembered little else of the evening.
He remembered going outside to smoke a cigarette and splashing
water on his face. Moore testified that after that, he
remembered being choked by Maul, and waking up in jail. He did
not remember riding in the cab or fighting with the police.
According to Moore, T.F. had told him that he could sleep on her
couch if he got too drunk to drive home. Moore also testified
that he regularly slept in boxers. Moore denied assaulting T.F.
T.F. testified that the last thing she remembered was
sitting on the couch and talking with Thurman. The next thing
she remembered was waking up in her bed and struggling with
Moore, who was trying to have sex with her. T.F. testified that
she was fighting and screaming, and that Moore ripped her clothes
off. Officer Droke testified that he retrieved a pair of torn
pants on July 10th that T.F. identified as the ones she was wore
the previous evening. T.F. further testified that she did not
remember Moore asking at any point in the evening if he could
stay on her couch if he drank too much.
The jury convicted Moore of attempted first-degree
sexual assault, attempted second-degree sexual assault, and first-
degree burglary. Judge Ben J. Esch sentenced Moore to a term of
12 years with 4 suspended. Moore appeals.
Moores claim that his attorney should have been
replaced
At the calendar call the day before trial was scheduled
to start, Moores public defender presented the court with an
unsigned document authored by Moores father, Mark Moore. In this
document, Moores father asked to participate in his sons defense,
and also made broad allegations that Michelle Hall, his public
defender, in collusion with local criminals/elements, had lied to
the Moores and to the court, and had maliciously refused to
properly defend his son. While Judge Esch assured Moore that he
could talk with his father about his defense, the judge said that
Moores father could not act as co-counsel because he was not
admitted to practice law.
Moore told the court that his attorney had flat told me
no when Ive requested things. She flat told me no, I will not do
that. Judge Esch told Moore that while a defendant has control
over some aspects of trial strategy, there were some things an
attorney could not ethically do. Moore stated that he had asked
his attorney three times to discuss the particulars of his case
with his father, who said he was not willing to put up money for
bail without knowing what was going on with the case. Judge Esch
reiterated that Moores father could not act as co-counsel, and
asked the parties if they were ready for trial.
The prosecutor said that he was ready, and Moores
attorney said that while she was ready, she was not sure if Moore
was ready. Moore said, Im not prepared. My constitutional
rights have been violated by [my attorney] and by the State. ...
I need a new public defender. Moore complained that Hall had
waived more time than he had agreed to before the indictment and
that he was incarcerated the whole time.
Moores public defender said that she had explained to
Moore that he could not have another public defender, because if
there was an ethical conflict, it would apply to the whole
agency. Judge Esch advised Moore that any delay arising from the
substitution of counsel would not be counted for purposes of
Criminal Rule 45, the speedy trial rule. Moore indicated that he
understood this.
The prosecutor objected to a continuance because two of
his witnesses were moving out of state in three weeks. He argued
that people like Mr. Moore, as long as theyre listening to bad
advice from family members, theyre never going to get along with
whatever attorney theyve got, assuming the attorneys competent.
Asserting that no competent attorney would follow Moores fathers
advice, the prosecutor urged the court to proceed to trial as
scheduled.
Judge Esch, noting that it was pretty clear there is a
significant difference of opinion between counsel and the
defendant in this case, inquired further, asking Moore if there
were other problems beside the issue of waiving time. Moore
alleged that Hall had lied to him on two or three occasions,
saying things he later found out just were not true from other
people in the community. He also said that although he had told
her several times what he thought his defense should be, he still
did not know what her plan was, as he had only seen a couple of
handwritten notes on a legal pad.
Moores public defender stated that she was not sure if
this is the forum to sort these things out. She said she had
prepared the case as she normally prepared cases. She met with
Moores father twice, and visited Moore numerous times. She asked
Moore if he wished to pursue his claim that the waiver of time
was unconstitutional, but he declined. She discussed the
defenses suggested by Moore and his father, and told them what
would and would not work. She stated that as far as she knew,
she had neither lied to Moore nor provided him with incorrect
information. She noted that it was a difficult situation and
expressed concern about how far the court might go in examining
the attorney-client relationship. Judge Esch replied that he did
not plan to ask about the attorney-client conversations. Rather,
Judge Esch indicated that Im just trying to find out what
[particular complaints he has].
Judge Esch asked Moore if he had discussed the defense
with his attorney. Moore acknowledged that his attorney had
shown him some handwritten stuff that I cant read, and told him
what she thought the prosecutor might do. He insisted that this
was inadequate, however:
But its not a defense that I put forth that
is my defense. She has told me that Im wrong
and that this and that isnt admissible, when
I know it is. And my defense, what I am
defending myself against, the accusations
that the State has made, she just flat told
me Im wrong and that thats not right.
Moore also said that the reason he had not raised the issue of
the time waiver was that his attorney had told him it would not
make any difference.
Judge Esch noted that while Moore certainly had some
dissatisfaction with Hall, general dissatisfaction was
insufficient to disqualify an attorney. The judge denied Moores
request for a new attorney, [a]bsent some more specific
information about why theres an incompatibility between the two
of you. The court confirmed that trial would begin the next day,
as scheduled.
That afternoon, Judge Esch called a status hearing to
reconsider whether Moores father could participate in Moores
defense. The judge had reviewed some cases and concluded that he
might have the discretion to allow Moores father to assist Moore
in a limited fashion.2 However, the court confirmed that Moores
father did not wish to represent his son alone, and the court
asked Moores attorney if she was willing to have Moores father
act as co-counsel with her.
The attorney expressed concern that the defense
theories offered by Moore and his father were almost polar
opposites to her own theories of defense. She worried that if
she presented the defense Moore suggested she would be committing
malpractice. She also said that Moore did not want her to be his
attorney, and told him to ask the court again for new counsel, as
maybe another lawyer could do that. The attorney thought she
might need to withdraw, because she was concerned that she could
not zealously represent Moore the way he wanted her to.
Judge Esch found that the attorney and Moores father
could not viably serve as co-counsel. He asked Moore if he
wanted to represent himself or have his father represent him, but
Moore declined. Moore wanted an attorney, he just did not want
the one assigned to his case. Judge Esch asked if Moore could
provide any more details explaining why he wanted new counsel.
Moore responded that its really the same as what I told you
earlier this morning. Moore repeated that his attorney had lied
to him, had waived more time than he had agreed to, and had
intimidated him out of raising the waiver issue before the court.
He stated, I dont feel safe going into a trial to defend myself
with [her] as my lawyer.
Judge Esch denied Moores request for a new attorney,
reasoning that under Mute v. State,3 Moore had not provided
sufficient reason for substitution of counsel. Because Moores
father indicated that he did not want to act as Moores sole
counsel, Moore did not want to proceed without a trained
attorney, and his attorney could not work with Moores father,
Judge Esch denied Moores request that his father act as lay
counsel. The court concluded, Mr. Moore, youve made it clear that
you want a different lawyer and Im sure well revisit this issue
again before the jury is called, but at this point, I cant find
that theres adequate grounds to replace [your attorney] in this
case.
Later that night, Moores attorney, Hall, requested a
hearing before jury selection began. At the hearing, the
attorney told the court she had made a huge error she had
incorrectly identified the culpable mental state for the three
charges as knowingly, rather than intentionally. She hoped to
have a few days to explore the defense of intoxication before
trial began. But that morning, Moore told her he was not willing
to waive his rights under Rule 45, the speedy trial rule.
Although the judge estimated that the 120 days would not expire
until November 7th, sixteen days later, Moores attorney said that
Moore did not want a continuance.
Halls revelation was significant because Moores
intoxication supported a potential tactic to defend the charges
of attempted sexual assault. The culpable mental state for an
attempt to commit a crime is intentionally.4 Under AS 11.81.630,
a defendants intoxication may be relevant to negate an intent to
cause a result.5
Moore told the court that his attorneys new view of the
case has almost everything to do with my position against the
States allegations. But Moore announced that because it was her
mistake, he was not willing to agree to a continuance.
The attorney expressed concern that she could not
present an intoxication defense without more time to prepare and
to locate an expert. The prosecutor objected to a continuance,
arguing that the attorney would have sufficient time during jury
selection and the States case to prepare the defense. The
prosecutor did not claim any prejudice because of the timing of
the notice.
Moores attorney was not convinced that she would have
sufficient time to prepare. Judge Esch stated, Its difficult but
all right. Then I guess were ready to go. Well start at 9:00
oclock. Jury selection began soon after. During this hearing,
no one discussed changing Moores attorney.
Before opening statements the next morning, Moores
attorney filed a document that read as follows:
I, Matt Moore, understand that intoxication
may be a defense in the charges against me in
case number 2NO-S02-454 CR. I just learned
on the evening of trial that intoxication may
be a defense. My attorney has recommended
that we request a continuance in the trial to
explore this possible defense. Requesting a
continuance would require me to waive my
right to a speedy trial under Criminal Rule
45 for a period time [sic]. I am not willing
to waive my right to a speedy trial under
Criminal Rule 45 and am choosing to go
forward with trial without exploring
intoxication as a defense to any of my
charges.
The signature line was blank. Moore had declined to sign. The
note was signed by Moores attorney and another public defender as
witness. Judge Esch made no comment about the note or its
contents, and called the jury in for opening statements.
We review the superior courts denial of a defendants
motion to change his attorney for abuse of discretion.6 When, as
here, a dispute arises between a defendant and an attorney, we
advised judges, in Mute, to inquire into the nature of the
dispute between attorney and client with caution.7
The facts in Mute are similar to those in this case.
Mute asked for a new attorney a week before his trial, stating
that he had lost confidence in his attorney and did not feel
comfortable with him.8 Because the trial judge thought that
Mutes complaints did not represent sufficient reason to remove
the attorney, the judge denied the motion.9 Mute renewed his
motion, complaining that his attorney believed Mute was guilty,
had not filed pre-trial motions Mute had requested, and had not
discussed his strategy for Mutes defense.10 When the court asked
for further details, however, Mute was unable to elaborate.11
The judge denied Mutes motion, reasoning that Mutes
allegations did not rise to the level of ineffective assistance
of counsel.12 We upheld the trial courts decision, noting that
indigent defendants are not constitutionally entitled to counsel
of their choice, and are not even guaranteed a meaningful
relationship with their attorneys.13 We advised trial judges to
exercise care in these situations:
Moreover, absent extraordinary circumstances,
[the trial judge] was rightfully hesitant to
enter into an extended examination of [the
attorneys] view of the case and his trial
strategy, or to otherwise insinuate herself
as referee in the attorney-client
relationship. [The judge] therefore did not
abuse her discretion when she denied Mutes
motion to discharge [his attorney].[14]
Moore was unhappy with his attorneys preparation of the
case and he disagreed with his attorneys evaluation of the merits
of his view of the case. However, Moores public defender was
representing Moore under court appointment. Moore did not have
the power to dismiss his attorney, nor did Moore have the right
to have his attorney discharged at will by the court. As the
supreme court ruled in Coleman v. State,15 [i]ndigent defendants
are not constitutionally entitled to counsel of their choice . .
. .16 We also said in Monroe v. State17 that the right to
effective assistance of counsel does not include the right to
reject appointed counsel and have new counsel appointed in the
absence of any showing of cause for that change. The due process
clauses of the state and federal constitutions do not guarantee a
meaningful relationship between client and his appointed counsel.18
Moore argues that Judge Esch did not adequately inquire
into the dispute between Moore and his attorney. But Judge Esch
asked about the reasons for Moores dissatisfaction with his
attorney and probed for details. The judge listened to Moores
complaints, allowing him to speak as long as he chose. When
Judge Esch asked on the afternoon of October 21st if Moore could
provide any more details, Moore replied, Well, its really the
same as what I told you earlier this morning. Based on the
information that Moore provided, we conclude that Judge Esch
properly concluded on October 21st that Moore had not raised
grounds for removing his attorney.
Moore argues that Judge Esch should have conducted an
ex parte hearing, so that Moore and his attorney could speak more
freely about their respective theories of Moores defense without
divulging the particulars in front of the prosecutor. Moore
suggests that when his attorney said, I dont know that this is
the forum to sort these things out, she was alluding to the
presence of the prosecutor.
Moore also cites Huitt v. State,19 in which the trial
court judge held an ex parte hearing to determine whether the
defendant could have a new attorney.20 The court stated, The
hearing was [ex parte] so that Huitt could explain his grievances
to Judge Schulz without the prosecutor present. Huitt was
concerned that he might otherwise prejudice his case by revealing
his trial strategy to the prosecutor.21 In contrast, neither
Moore nor his attorney requested an ex parte hearing in this
case.
Following Mute, Judge Esch inquired into the nature of
the conflict between Moore and his attorney. From our
examination of the record, we conclude that Judge Esch did not
abuse his discretion on October 21st when he denied Moores
request for a different attorney.
Moore next argues that Judge Esch should have appointed
a new attorney on the morning of October 22nd. That is, when
Moores attorney told the court that she had made a huge error by
not previously identifying the correct culpable mental state and
the potential defense to that mental state. However, neither
Moore nor his attorney asked the court to again consider whether
to appoint new counsel. The issue of substituting Moores
attorney was not mentioned during this hearing.
Moore contends that the trial court was aware that
Moores request for new counsel was a continuing request. The
State denies that the trial court had any sua sponte duty to
return to the subject. Both briefs address this issue in a
single, conclusory sentence. Moores assertion seems to be based
on the judges final words in each of the hearings on October
21st. At the close of the calendar call that morning, Judge Esch
denied Moores initial request, stating, [a]bsent some more
specific information about why theres an incompatibility between
the two of you, Im not inclined to grant a new attorney at this
point. That afternoon, at the end of the status hearing, the
judge stated, Mr. Moore, youve made it clear that you want a
different lawyer and Im sure well revisit this issue again before
the jury is called, but at this point, I cant find that theres
adequate grounds to replace [the attorney] in this case.
Moore argues that his attorneys comments during the pre-
trial hearing on October 22nd provided evidence of her
incompetence, and the evidence of incompetence should have
triggered some action by the court. Moore argues that his
attorneys failings, in concert, should have alerted the court to
the attorneys incompetence and prompted the judge to appoint new
counsel. But Moores briefing points out that the case was
relatively simple with no scientific or technical evidence and
almost no case file to become familiar with.
Moore further argues that even if his attorney had been
aware of the viability of a diminished capacity defense by the
start of trial, her previous errors compromised her relationship
with her client in a manner that constituted a constructive
denial of the right to counsel. Moore contends that the document
his attorney submitted to the court on October 23rd illustrated
the breakdown in the relationship, as Moore refused to concede
that he would not agree to a continuance.
But Moore did not request new counsel on October 22nd.
Moore himself points out that the case was relatively simple.
Moore contends that Hall was incompetent because she did not
recognize the potential of a diminished capacity defense. But
before trial began, Hall realized that intoxication might be a
defense and agreed to rework her theories. The record does show
that she attacked the States case on the basis of Moores
intoxication and that Judge Esch instructed the jury on the
relationship of voluntary intoxication to the culpable mental
state intentionally. And Hall argued that Moores intoxication
negated his capacity to intend any of the crimes.
While Moore may still have wanted a new attorney, he
did not request any action from Judge Esch on October 22nd.
Judge Esch did not commit error when he failed to revisit this
issue sua sponte.
Sufficient evidence supports the burglary conviction
Moore argues that there was insufficient evidence to
support the burglary conviction. In particular, he contends that
there was insufficient evidence supporting the elements of
unlawful entry and intent to commit a crime. Because Moore
mistakenly views the evidence in the light most favorable to
himself, this argument is without merit. To convict
Moore of first-degree burglary, the jury had to find that Moore
unlawfully entered or remained in T.F.s apartment.22 Unlawful
entry means to enter or remain in or upon premises ... when the
premises ... , at the time of the entry or remaining, [are] not
open to the public and when the defendant is not otherwise
privileged to do so.23
At trial, Moore testified that T.F. had told him that
he could sleep on her couch if he got too drunk to drive home.
Moore argues that this testimony proves he had a reasonable
belief that he was privileged to return to T.F.s apartment, and
that his entry was therefore lawful.
Moore relies on Robey v. Commonwealth,24 in which the
Supreme Court of Kentucky ruled that the defendant was entitled
to a directed verdict on a burglary charge when he entered an
apartment with permission but then raped the woman who lived
there.25 In Robey, however, there was no dispute that the victim
had invited Robey to sleep on her couch.26 In contrast, T.F.
denied giving Moore permission to sleep on her couch. While she
could not recall Moore asking to stay, she testified that she
would never have given him permission, because she wouldnt just
have some guy stay there in my place. She testified that they
were not that good of friends and she did not know him that well.
Viewing the evidence in the light most favorable to upholding the
verdict, the evidence of unlawful entry was sufficient.
Moore separately argues that the jury instructions
should have included a definition of the phrase privileged to do
so. But Moore did not object to the lack of this definition and
we do not find plain error.
Moore also argues that there was insufficient evidence
that he entered T.F.s apartment with the intent to sexually
assault her. The jury heard testimony that Moore returned to
T.F.s apartment and assaulted her soon after; Tory Maul estimated
that roughly ten minutes passed from the time Moore left the
apartment with Thurman and Cortez until T.F. started to scream.
Two witnesses also testified that a few days before the assault,
Moore repeatedly stated that he was going to get laid on his
birthday. Viewing this evidence in the light most favorable to
upholding the verdict, the jury could conclude that Moore entered
T.F.s apartment with the intent to commit a crime.27 From our
examination of the record, we conclude that sufficient evidence
supports the burglary conviction.
Moores attacks on his sentence
Judge Esch sentenced Moore to 10 years with 4 suspended
for Count I, attempted first-degree sexual assault. For Count
II, attempted second-degree sexual assault, the court sentenced
Moore to 1 year, with 6 months concurrent to Count I. The
sentence for Count III, burglary, was 2 years, with 6 months
concurrent to Count I. The composite sentence was 12 years with
4 years suspended, 8 years to serve. On appeal, Moore argues
that the sentence for Count I was excessive, that the two sexual
assault charges should have merged at sentencing, and that the
court erroneously failed to find a statutory mitigating factor.
Moore also claims that the court increased his sentence based on
finding a statutory aggravating factor in violation of Blakely v.
Washington.28 Finally, Moore contends that the composite sentence
he received was excessive.
Judge Esch found that two statutory aggravating factors
from AS 12.55.155 applied at sentencing: (c)(5) (Moore knew that
T.F. was a vulnerable victim) and (c)(8) (Moore had a criminal
history of aggravated or repeated instances of assaultive
behavior).29 The judge stated that he would place no weight on
the vulnerable victim factor. Moore conceded that the prior
assaultive conduct aggravator applied because Moore had a history
of assaultive conduct as a juvenile. The presumptive term for
attempted sexual assault in the first degree was 5 years.30 The
court applied the assaultive behavior aggravator to Count I and
imposed a sentence of 10 years, with 4 years suspended, 6 years
to serve.
Moore argues that the courts reliance on this
aggravator violated his sixth amendment right to trial by jury as
interpreted by Blakely. Blakely relies on a principle that the
Supreme Court recently repeated in United States v. Booker:31 Any
fact (other than a prior conviction) which is necessary to
support a sentence exceeding the maximum authorized by the facts
established by a plea of guilty or a jury verdict must be
admitted by the defendant or proved to a jury beyond a reasonable
doubt.32 When a judges sentencing authority is restricted absent
proof of aggravating factors, the defendant has a right to demand
a jury trial on those aggravating factors (unless the aggravator
is established by a prior conviction or convictions), and they
must be proved beyond a reasonable doubt.33 If the defendant is
denied this right, then the sentencing judge cannot exceed the
prescribed statutory ceiling.34
We recognize that Alaskas pre-2005 presumptive
sentencing laws are directly affected by the Blakely decision
because under those laws, sentencing judges ruled on aggravators
themselves and applied a clear and convincing evidence standard
of proof.35 Under Blakely, several aspects of the pre-2005
presumptive sentencing laws are unconstitutional.36
Moore faced a 5-year presumptive term for attempted
first-degree sexual assault. Based on aggravator (c)(8), a
criminal history of conduct involving repeated instances of
assaultive behavior, Moore received a sentence of 10 years with 4
suspended. The superior court added 1 year to serve and 4 years
suspended to the presumptive term.
Moore conceded the history of repeated instances of
assaultive behavior aggravator at trial. Nevertheless, this new
constitutional rule applies retroactively to cases pending on
direct review.37 Because Moore did not object to the sentencing
procedure at trial, he must now show plain error.38
We held in Milligrock v. State39 that, consistent with
Blakely, a sentencing court can rely on prior convictions to
establish aggravator (c)(8).40 And in Greist v. State,41 we ruled
that because a juvenile has the right to demand that the State
prove a delinquency petition beyond a reasonable doubt to a jury,
an adjudication of delinquency qualifies as a prior conviction
for Blakely purposes.42 But it is not clear from the record
whether Moore has more than one juvenile adjudication for
assaultive conduct. If Moore does have two or more juvenile
adjudications for assaultive conduct, that would prove the (c)(8)
aggravator in a manner consistent with Blakely. Because Moore
must be resentenced, as we discuss below, the superior court can
revisit the question of aggravator (c)(8).
Moore argues separately that the sentence for Count I,
attempted first-degree sexual assault, was excessive. The
presumptive sentence for a first-felony offender was 5 years;43
relying on aggravator (c)(8), Judge Esch sentenced Moore to 10
years with 4 years suspended.
Moore argues that this increase from the presumptive
term was erroneous because Moore had no prior felonies, his prior
criminal history was not so extreme as to indicate sociopathic
tendencies, and he was young and intoxicated when he committed
the offense. Moore further argues that the offense itself was
not heinous, there was no penetration, and the evidence of intent
was very weak.
Assuming that Judge Esch properly relied on the prior
criminal history aggravator, Moores argument fails. Judge Esch
was free to adjust the presumptive term upon finding an
aggravator, and the sentence of 6 years to serve added only 1
year to the presumptive term.
Judge Esch found that while Moore was young, he was
already a serious offender. The court was especially concerned
that Moore had violated his juvenile probation on several
occasions. The judge was also concerned that Moore refused to
accept responsibility for his crimes. Finally, Judge Esch found
that Moores actions had a significant psychological impact on
T.F.
Given Judge Eschs findings regarding Moores previous
behavior, Moores refusal to accept responsibility for these
offenses, and the traumatic effect the crimes had on the victim,
an increase in 1 year to serve was not clearly mistaken.
Judge Esch found that Moore had not proved by clear and
convincing evidence that the conduct underlying Count I,
attempted sexual assault in the first degree, was among the least
serious conduct included in the definition of the offense.44
Moore argues that this ruling was clearly erroneous because
[t]here was no claim of any actual penetration, nor even any
claim of an attempt to achieve penetration. Moore is certainly
correct that there was no charge of actual penetration, because
he was not convicted of sexual assault, but of attempted sexual
assault. He was, however, convicted of an attempt to achieve
penetration, namely, attempted sexual assault in the first
degree.
Moore further argues that his conduct was not serious
because both he and T.F. were intoxicated and could not remember
exactly what happened. Still, Moore ripped off T.F.s clothing,
tearing her tank top and pants, and continued to attack her while
she struggled and tried to fight him off. Tory Maul testified
that Moore slapped T.F. and shoved her to the floor after Maul
entered the apartment to intervene, and Moore threatened Maul and
his family. We conclude that Judge Eschs rejection of the least-
serious-offense mitigator was not erroneous.
At sentencing, Judge Esch rejected the defense request
to merge the convictions for Counts I and II, attempted sexual
assault in the first and second degree, respectively. We
conclude that this was error.
In Whitton v. State,45 our 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 one sentence if the two statutory
offenses are so closely related that there are no significant
differences between the conduct proscribed and the societal
values protected by each statute.46 If a trial court decides to
impose multiple sentences, the record must reflect why this
decision does not violate double jeopardy.47 Judge Esch ruled
that the two attempted sexual assault convictions are separate
and apart from each other.
But that was not the States theory of the case. In
opening statement, the prosecutor described the evidence that
would prove that Moore committed both first- and second-degree
attempted sexual assault.
Prosecutor: Hes charged with a crime
called attempted sexual assault in the second
degree, attempting to have sex with a passed
out person. He started to do something to
[T.F.], which she woke up in the middle of
it. And at that point, it became a more
serious offense, attempted sexual assault in
the first degree.
In final argument, the prosecutor contended that the evidence
established that scenario.
Moore argues that the two attempted sexual assaults
should have merged at sentencing because he was convicted of two
offenses that arose out of an uninterrupted course of conduct,
with no intervening activity, and because the societal interests
underlying the two statutes are closely related. Moore contends
that both statutes seek to protect the same societal interest.
We previously held that convictions for first-degree
sexual assault and first-degree sexual abuse of a minor must
merge because the statutes both aim to protect victims from
socially unacceptable sexual contact.48 The fact that one crime
requires an affirmative lack of consent while the other
substitutes age for lack of consent does not affect the
underlying purpose of the statutes.49 In that case, however, the
two convictions resulted from a single act of penetration;
multiple convictions were upheld for separate acts of
penetration.50 Moore argues that lack of consent due to
incapacitation and lack of consent that is verbally communicated
are so closely related that separate sentences cannot stand in
his case.
When Judge Esch rejected Moores merger request, Judge
Esch stated only that the two crimes were separate and apart from
each other. But it is clear from our review of the record that
the State contended that Moore engaged in a continuous course of
conduct that supported both convictions.
In Whitton, the supreme court described the analysis as
follows:
The trial judge first would compare the
different statutes in question, as they apply
to the facts of the case, to determine
whether there were involved differences in
intent or conduct. He would then judge any
such differences he found in light of the
basic interests of society to be vindicated
or protected, and decide whether those
differences were substantial or significant
enough to warrant multiple punishments. The
social interests to be considered would
include the nature of personal, property or
other rights sought to be protected, and the
broad objectives of criminal law such as
punishment of the criminal for his crime,
rehabilitation of the criminal, and the
prevention of future crimes.
If such differences in intent or conduct
are significant or substantial in relation to
the social interests involved, multiple
sentences may be imposed, and the
constitutional prohibition against double
jeopardy will not be violated.[51]
The societal interest protected by the two statutes is
fundamentally the same, protecting an individual from sexual
penetration achieved without the individuals consent, whether
there was a lack of consent from a conscious victim or whether
there was no consent because the victim was incapacitated.
Because there was no significant or substantial
difference in Moores intent or conduct in the two crimes in
relation to the societal interests protected by both, we conclude
that separate sentences may not be imposed for the two attempted
sexual assault convictions. Accordingly, we must remand the
case for re-sentencing and Judge Esch must merge the two counts
for purposes of conviction and sentencing. We recognize that
when a judge imposes a composite sentence for multiple
convictions, the judge might not have individually crafted each
of the defendants sentences. A judge is often more concerned
with the composite sentence imposed rather than the precise term
imposed for each separate count.52 In addition, when a defendant
is sentenced for multiple convictions, this court reviews the
composite sentence as a whole; the sentence for any particular
count is not viewed individually.53
Next we address the issue of whether Moores composite
sentence is excessive. Moore received a composite sentence of 12
years, with 8 years to serve and 4 years suspended. The
presumptive term for the most serious crime for which he was
convicted, attempted sexual assault in the first degree, was 5
years.54 Moore argues that this sentence is excessive because the
presumptive term for the most serious offense is a benchmark that
should not be exceeded without good reason.55
In this case, Judge Esch found good reason to exceed
the 5-year presumptive term for the most serious offense. The
court found evidence of a serious substance abuse problem, for
which Moore had never completed a long-term treatment program.
Judge Esch was concerned that Moore had previously violated his
probation, and that he refused to accept responsibility for his
current crimes. The court imposed a partially suspended sentence
to encourage Moore to focus on rehabilitation and to act as a
deterrent in the future.
Moores composite sentence included only 3 years to
serve beyond the presumptive term for Count I. We conclude that
Moores composite term to serve was not clearly mistaken.56
Conclusion
We affirm Moores convictions with the proviso that
Moores convictions for attempted first-degree sexual assault and
attempted second-degree sexual assault must be merged.
Accordingly, we vacate Moores sentence for second-degree sexual
assault. The superior court must re-sentence Moore. We do not
retain jurisdiction.
MANNHEIMER, Judge, concurring.
I write separately to clarify the reasons why I join my
colleagues in affirming Judge Eschs handling of the dispute
between Moore and his attorney, Assistant Public Defender
Michelle Hall.
The record amply demonstrates that the relationship
between the two was marked by frustration and (on Moores part)
distrust. The record also demonstrates that Moore and Hall had
very different ideas about how Moores case should be defended.
But, as Judge Esch correctly perceived, it was not his job to
referee this dispute between lawyer and client. Moreover, as
Judge Esch also correctly perceived, Moores frustration with
Hall, his distrust of Hall, and his disagreement with Hall
concerning litigation strategy, singly or in combination, did not
constitute a basis for removing Hall from the case.
An indigent defendant who has court-appointed counsel
has a very limited right to demand a change of attorney. As we
stated in Mute v. State, 954 P.2d 1384, 1385 (Alaska App. 1998),
the test is whether relations between attorney and client [have]
deteriorated to the point where [the attorney is] incapable of
effective communication [with the client] or objective decision-
making [about the case].
Despite the antagonism and distrust that Moore felt
toward Hall, the record does not show that communication between
attorney and client had completely broken down, or that Hall had
lost her ability to objectively evaluate and pursue Moores
interests. Thus, Judge Esch correctly refused Moores demands for
a new lawyer.
Moores case is complicated by the fact that, just
before Moores trial was to begin, and in the middle of the
dispute about whether Hall should continue to serve as Moores
attorney, Hall discovered and announced to Judge Esch that she
had been laboring under a major misunderstanding of the law
applicable to Moores case.
Moore was charged with attempted first-degree sexual
assault, attempted second-degree sexual assault, and first-degree
burglary. All three of these charges require proof of a
defendants specific intent to commit an ulterior crime.1 As to
the burglary charge, the State was obliged to prove that Moore
entered T.F.s apartment with the intent of sexually assaulting
her. As to the sexual assault charges, the State had to prove
that Moore assaulted T.F. with the intent of achieving sexual
penetration.
Because all three charges required proof of the
culpable mental state intentionally as defined in AS
11.81.900(a)(1), intoxication was a potential defense to these
charges.2 And, as explained in the lead opinion, the evidence
suggested that Moore had been very intoxicated when he returned
to T.F.s apartment and assaulted her.
But Hall had been preparing for trial under the
mistaken assumption that the relevant culpable mental state for
the three charges against Moore was knowingly as defined in AS
11.81.900(a)(2) a culpable mental state that is not negated by
intoxication.3 Thus, Hall had not been pursuing an intoxication
defense.
When Hall discovered her error, she confessed the
problem both to Moore and to the superior court. But when Hall
explained that she wanted to delay the trial so that she could
have more time to plan and assemble an intoxication defense,
Moore adamantly refused to agree to any delay. He insisted that
his trial begin as scheduled.
Hall did in fact pursue an intoxication defense at
Moores trial. She did not present any expert testimony in
support of this defense, but (from the present record) it is not
clear what expert testimony would have been available if there
had been more time to prepare, or whether this expert testimony
would have added much to the evidence of Moores drinking and
behavior that was already before the jury. In any event, if
Moore wishes to pursue those issues, he must file a petition for
post-conviction relief.
The issue currently before this Court is whether Halls
incipient malpractice adds anything to Moores argument that Judge
Esch should have dismissed Hall from the case and given Moore a
new attorney. It does not.
Hall forthrightly admitted her mistake and advised
Moore of the things that might be done to recover from this
mistake. One of these things was to ask the superior court to
delay the trial. After receiving this advice, Moore refused to
take it.
It may be true that Moores decision was attributable,
at least in part, to his ill feelings toward Hall. But this does
not change the fact that Moore made a knowing decision to insist
that his trial begin as scheduled, even though Hall had told him
that the lack of additional time might prevent her from
investigating or presenting the intoxication defense to the
fullest extent.
This episode does not show that communication between
Hall and Moore had effectively ceased, or that Hall had lost the
ability to objectively evaluate Moores case and advise him
concerning trial strategy.
For these reasons, I join my colleagues in rejecting
Moores claim that Judge Esch should have dismissed Hall and
appointed another attorney.
_______________________________
1 AS 11.41.410(a)(1) & AS 11.31.100(a); AS 11.41.420(a)(3)(B)
& AS 11.31.100(a); and AS 11.46.300(a)(1), respectively.
2 See Skuse v. State, 714 P.2d 368, 370-72 (Alaska App. 1986)
(discussing but not deciding the issue of lay representation).
3 954 P.2d 1384 (Alaska App. 1998).
4 See AS 11.31.100(a).
5 See Neitzel v. State, 655 P.2d 325, 330-31 (Alaska App.
1982).
6 See Mute, 954 P.2d at 1386; Jerrel v. State, 851 P.2d 1365,
1372 (Alaska App. 1993).
7 See Mute, 954 P.2d at 1385-86.
8 Id. at 1385.
9 Id.
10 Id.
11 Id.
12 Id.
13 Id. (quoting Coleman v. State, 621 P.2d 869, 878 (Alaska
1980) and Monroe v. State, 752 P.2d 1017, 1020 (Alaska App.
1988), respectively).
14 Id. at 1385-86.
15 621 P.2d 869 (Alaska 1980).
16 Coleman, 621 P.2d at 878.
17 752 P.2d 1017 (Alaska App. 1988).
18 Monroe, 752 P.2d at 1020.
19 678 P.2d 415 (Alaska App. 1984).
20 Huitt, 678 P.2d at 420.
21 Id.
22 See AS 11.46.300(a) & AS 11.46.310(a).
23 AS 11.46.350(a)(1).
24 943 S.W.2d 616 (Ky. 1997).
25 Robey, 943 S.W.2d at 620.
26 Id. at 617.
27 See Dorman v. State, 622 P.2d 448, 453 (Alaska 1981).
28 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
29 AS 12.55.155(c)(5) and (c)(8), respectively.
30 Former AS 12.55.125(c)(1) (prior to 2003 amendment).
31 __ U.S. __, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
32 Booker, ___ U.S. at ___, 125 S.Ct. at 756.
33 Blakely, 542 U.S. at ___, 124 S.Ct. at 2537-38, 2542.
34 Id. at 2538.
35 Haag v. State, 117 P.3d 775, 782 (Alaska App. 2005).
36 Id. at 782.
37 Griffith v. Kennedy, 479 U.S. 314, 328, 107 S.Ct. 708, 716,
93 L.Ed.2d 649 (1987).
38 Haag, 117 P.3d at 783.
39 118 P.3d 11 (Alaska App. 2005).
40 Milligrock, 118 P.3d at 15.
41 ___ P.3d ___, Alaska App. Opinion No. 2014 (Oct. 7, 2005),
2005 WL 2471007.
42 Greist, Opinion No. 2014 at 8, 2005 WL 2471007 at * 4.
43 Former AS 12.55.125(c)(1) (prior to 2003 amendment).
44 See AS 12.55.155(d)(9).
45 479 P.2d 302 (Alaska 1970).
46 Whitton, 479 P.2d at 312-13.
47 Id.
48 Yearty v. State, 805 P.2d 987, 994 (Alaska App. 1991).
49 Id.
50 Id. at 994-95.
51 Whitton, 479 P.2d at 312.
52 See Allain v. State, 810 P.2d 1019, 1022 (Alaska App. 1991).
53 See Brown v. State, 12 P.3d 201, 210 (Alaska App. 2000).
54 Former AS 12.55.125(c)(1) (prior to 2003 amendment).
55 See Farmer v. State, 746 P.2d 1300, 1301 (Alaska App. 1987).
56 See 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).
1 See AS 11.31.100(a) (attempt); AS 11.46.300(a) (first-degree
burglary).
2 See Hutchison v. State, 27 P.3d 774, 775 (Alaska App. 2001).
3 AS 11.81.900(a)(2) states, in pertinent part: [A] person
who is unaware of conduct or a circumstance of which the person
would have been aware had that person not been intoxicated acts
knowingly with respect to that conduct or circumstance[.]
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