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NOTICE
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opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
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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
| JIMMY A. LAMPLEY, | ) |
| ) Court of Appeals No. A-8994 | |
| Appellant, | ) Trial Court No. 3AN-04-3441CR |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| MUNICIPALITY OF ANCHORAGE, | ) |
| ) | |
| Appellee. | ) No. 2095 May 4, 2007 |
| ) | |
Appeal from the District Court, Third Judi
cial District, Anchorage, Nancy J. Nolan,
Judge.
Appearances: David R. Weber, Vasquez & Weber,
P.C., Anchorage, for the Appellant. Rachel
Plumlee, Assistant Municipal Prosecutor, John
E. McConnaughy III, Deputy Municipal
Attorney, and Frederick H. Boness, Municipal
Attorney, Anchorage, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Jimmy A. Lampley was convicted of violating the
Anchorage ordinances that prohibit driving under the influence
(DUI), refusal to submit to a chemical test, and driving while
ones license is suspended or revoked.1 In this appeal, Lampley
challenges various aspects of his trial, his sentencing, and his
re-sentencing.
As we explain in this opinion, we reject most of
Lampleys claims of error. However, we agree with Lampley with
respect to two claims. First, Lampleys jury was misinstructed
regarding the culpable mental state that the Municipality had to
prove to establish the municipal offense of driving with a
suspended or revoked license. Second, the district court
violated the Alaska Constitutions guarantee against double
jeopardy when, at Lampleys second sentencing, the court increased
Lampleys time to serve.
For these reasons, we affirm Lampleys convictions for
DUI and for breath-test refusal, but we reverse his conviction
for driving with a suspended or revoked license. In addition,
regardless of whether Lampley is re-tried and re-convicted of
this latter crime, the district court must reduce Lampleys
sentence so that it does not exceed the composite sentence he
originally received.
Underlying facts and proceedings
In the early morning of April 10, 2004,
Anchorage Police Sergeant Robert Glen (driving an
unmarked police car) found himself stopped behind
Lampley at a red light at the corner of Concrete Street
and Fifth Avenue. While the light was still red,
Lampley spun his tires and made a left turn onto Fifth
Avenue. Sergeant Glen followed and caught up with
Lampley. Because Lampley was speeding and driving
aggressively, Glen turned on his flashing lights and
pulled him over. Glen also summoned a backup officer,
and Officer Michael E. Wisel responded.
During their contact with Lampley, both Glen
and Wisel observed that Lampley had watery eyes, that
his speech was slurred, and that he had an odor of
alcoholic beverages. Lampley admitted to drinking at
several bars, and he also said he was taking medication
for back pain.
Wisel administered field sobriety tests to
Lampley, and Lampley did poorly on these tests. At
this point, Wisel placed Lampley under arrest for
driving under the influence.
Wisel drove Lampley to the Fourth Avenue
Police Substation for DUI processing. At the
substation, Wisel waited for fifteen minutes (the
prescribed observation period), and he then notified
Lampley that Lampley was required to submit to a breath
test. When Wisel asked Lampley if he would submit to
the test, Lampley first refused to respond, and then he
shook his head to indicate that he would not submit to
the test. Based on this conduct, Lampley was charged
with breath-test refusal.
At the time of these events, Lampleys drivers
license was suspended. Kerry Hennings from the Alaska
Division of Motor Vehicles testified at trial that
Lampleys drivers license had expired on June 10, 1995,
and that his license was suspended on September 2,
1999.
The Division of Motor Vehicles mailed a
notice of suspension to the address that they had for
Lampley in their records, but this notice was returned
to them as undeliverable. However, Alaska State
Trooper David Herrell testified at Lampleys trial that,
on July 6, 2003, he advised Lampley that his drivers
license was suspended.
Lampley took the stand at his trial and
testified that he was incarcerated at the Spring Creek
Correctional Center when his license was suspended,
which would potentially explain why the DMVs written
notice of suspension was returned to them. Lampley
also denied that Trooper Herrell had ever told him that
his license was suspended. Lampley conceded that he
had been cited for driving with a suspended license in
September of 2003, but he claimed that someone at the
Anchorage Municipal Attorneys office told him that this
charge was dismissed because he in fact had a valid
license.
Nevertheless, on cross-examination, Lampley
admitted that he had been convicted of driving with a
suspended license in 1992 and again in 1993, and that
he had never gone to get a new drivers license since
then. Further, Lampley admitted that he did not
possess a physical drivers license when he was pulled
over by Sergeant Glen on April 10, 2004.
With regard to the other two charges (driving
under the influence, and refusal to submit to a breath
test), Lampley denied that he had been under the
influence and he further denied that he had refused the
breath test. Lampley testified that he had been
driving normally and that he had only drunk half a
beer, several hours before he was pulled over. He
claimed that he had trouble performing the field
sobriety tests because of his bad back, and he
explained that he ran the red light because his
passenger pushed the gas pedal. In addition, Lampley
testified that he never entered the Fourth Avenue
police substation and that he was never offered and
thus, did not refuse a breath test.
The jury convicted Lampley on all three
counts.
Lampley was originally sentenced as a second
DUI offender. At that first sentencing, the district
court imposed a sentence of 200 days with 170 days
suspended (30 days to serve) for the DUI, a consecutive
sentence of 200 days with 170 days suspended (30 days
to serve) for the breath-test refusal, and a
consecutive sentence of 180 days with 150 days
suspended (30 days to serve) for driving with a
suspended license. All told, Lampley received 90 days
to serve.
Later, while this appeal was pending, the
Municipality discovered that Lampley had two prior
convictions for DUI or breath-test refusal, not just
one. This meant that Lampley was subject to a higher
mandatory minimum sentence 60 days imprisonment on
both the DUI and the breath-test refusal charges.2
Accordingly, the Municipality filed a motion asking us
to remand Lampleys case to the district court so that
his sentence could be corrected. We granted that
motion.
On remand, the district court sentenced
Lampley to consecutive sentences of 60 days to serve
(200 days with 140 days suspended) on both the DUI and
the breath-test refusal convictions. This meant that
Lampleys composite time to serve now equaled 150 days.
In other words, the district court increased Lampleys
time to serve by 60 days.
Lampleys Batson challenge during jury selection
During jury selection, Lampley raised a
Batson objection when the municipal prosecutor
exercised a peremptory challenge against a Native
American juror. In Batson v. Kentucky,3 the United
States Supreme Court held that the equal protection
clause of the federal constitution bars a prosecutor
from challenging a juror on the basis of the jurors
race.4 This juror stated during voir dire that he had
been convicted of DUI three times, and that he was
recovering from alcohol and drug abuse. The district
court rejected Lampleys Batson objection:
The Court: [T]he explanation that was
given to me [by the prosecutor] at the
sidebar [conference] was that [this juror]
has three prior DUIs, and this is a DUI
trial. I think thats a [race-]neutral
explanation. And thats why Im denying the
Batson challenge ... .
Lampley argues that the district
court erred by failing to decide whether the
prosecutor was being honest in offering this
explanation for the peremptory challenge.
But though the district judge did not
expressly state that she believed the
prosecutors explanation, we conclude that
this finding is implicit in her remarks. It
is undisputed that the prospective juror had
three prior convictions for DUI, and there is
no indication that the judge had any doubt as
to whether this was the honest reason for the
prosecutors peremptory challenge. We find no
error.
Lampleys challenges to the prosecutors statements
during the rebuttal portion of the States
summation
Lampley contends that he is entitled to a new
trial because the prosecutor engaged in improper
argument during the rebuttal portion of the
Municipalitys summation, and because the trial
judge failed to give curative instructions to the
jury.
A prosecutors statements to the jury during
summation will require reversal of a criminal
conviction only if the prosecutors comments so
infected the trial with unfairness as to make the
resulting conviction a denial of due process.5
Here, none of the prosecutors challenged comments
created or even threatened this level of
unfairness.
Lampley objects to the following statements
of the prosecutor, made in response to Lampleys
argument that much of the evidence against him had
been fabricated:
[I]f you ... find [that there has been] a
conscious effort to mislead you, [then you
should] find [Lampley] not guilty of all the
charges, because thats the right thing to do.
And I can stand here and say that, because
there is no misleading. This officer is not
misleading anybody.
A few minutes later, the prosecutor returned to this theme:
We ... know [that] there were other officers
[too]. That means all of them were in on it.
The magistrate, hes in on it; the tape,
fabricating evidence. By the time we get
done here, ... Ill be prosecuting Officer
Wisel. Its just not true. Tell him its not
true. Find him guilty.
Lampley argues that the prosecutors
statements invited the jury to shift the
burden of proof to the defense. We disagree.
Nothing in these statements addressed the
burden of proof.
Lampley also argues that, in these
two statements, the prosecutor was improperly
vouching for the veracity of police
witnesses. The prosecutors remarks were made
in the context of Lampleys attack on the
various law enforcement officers testimony.
As explained above, Lampley testified that,
on the night of his arrest, he never went
into the Fourth Avenue substation, much less
refused the breath test. And Lampley further
insisted that Trooper Herrell was lying when
he testified that he informed Lampley that
his license was suspended. Given Lampleys
assertions at trial, the prosecutor could
properly argue that the officers had been
telling the truth, so long as the prosecutor
did not declare or insinuate that his
argument rested on his own personal
assessment of the officers credibility, or on
information that had not been presented as
evidence during Lampleys trial.
See Darling v. State, 520 P.2d 793
(Alaska 1974), where our supreme court
stated:
[The defendant] asserts [that] the
prosecutors [summation] exceeded the bounds
of propriety. On three occasions[,] counsel
for the government alluded to the fact that
[the] states chief witness was a sworn police
officer[,] and on one occasion [the
prosecutor] argued that this undercover agent
was absolutely truthful. We find nothing in
these statements, standing either by
themselves or in the full context in which
they were made, which constitutes a violation
of the rule barring counsel from personally
vouching for the credibility or reliability
of a witness.
Darling, 520 P.2d at 794 n. 6.
Lampley argues that when the
prosecutor stated, By the time we get done
here, ... Ill be prosecuting Officer Wisel,
the prosecutor was implicitly assuring the
jurors that the officer was telling the truth
(because the officer was not being prosecuted
for perjury or other misconduct). But taking
this remark in context, it is doubtful that
the jurors understood the prosecutor to be
personally vouching for the officers
testimony. Rather, it appears that the
prosecutor was emphasizing the fact that
Lampleys defense rested on the questionable
assumption of a far-ranging conspiracy to
distort the truth and fabricate evidence.
Lampley also challenges the
prosecutors comment during summation that
[d]enial has been a tradition since Cain, and
that the jurors had seen another example of
denial in Lampleys case. Lampley argues that
the prosecutor was improperly comparing
Lampley to Cain, and that the prosecutor was
also improperly arguing that the Bible
somehow showed that Lampley was guilty.
We disagree. As noted above,
Lampley testified that he was not intoxi
cated, that he never was taken inside the
police substation and offered a breath test,
and that he never received any notice that
his license was suspended. The officers
testified otherwise. The prosecutor could
properly argue that the jurors should believe
the officers and should conclude that Lampley
was falsely denying his guilt.
In sum, the trial judge could
properly overrule Lampleys objections to the
foregoing arguments and could properly deny
Lampleys requests for curative instructions.
Finally, Lampley objects to a
portion of the rebuttal argument in which the
prosecutor addressed the issue of whether
Lampley had received notice that his drivers
license was suspended or revoked. Lampleys
objections to this portion of the prosecutors
summation are now moot because, as we
explain later in this opinion, Lampleys
conviction for driving with a suspended
license must be reversed.
The jury instructions on the meaning of reasonable
doubt, the elements of DUI, and the elements of
breath-test refusal
Lampley challenges several of the
instructions given to the jury. The first of
these is the instruction on the concept of
reasonable doubt. This instruction stated, in
pertinent part:
The law presumes a defendant to be innocent
of crime. Thus, a defendant, although
accused, begins the trial with a clean slate
with no evidence favoring conviction. The
presumption of innocence alone is sufficient
to acquit a defendant, unless you are
satisfied beyond a reasonable doubt of the
defendants guilt, after careful and impartial
consideration of all the evidence in the
case.
This last-mentioned requirement, that you be
satisfied beyond a reasonable doubt of
defendants guilt, is what is called the
burden of proof. It is not required that the
prosecution prove guilt beyond all possible
doubt, for it is rarely possible to prove
anything to an absolute certainty. Rather,
the test is one of reasonable doubt. A
reasonable doubt is a doubt based upon reason
and common sense. Proof beyond a reasonable
doubt must be proof of such a convincing
character that, after consideration, you
would be willing to rely and act upon it
without hesitation in your important affairs.
A defendant is never to be convicted on mere
suspicion or conjecture.
The burden of proving the defendant guilty
beyond a reasonable doubt always rests upon
the prosecution. This burden never shifts
throughout the trial, for the law never
imposes upon a defendant in a criminal case
the burden or duty of calling any witness or
producing any evidence. ...
Lampley argues that this
instruction undermines the presumption of
innocence by telling the jurors that a
defendant begins a criminal trial with a
clean slate and with no evidence favoring
conviction. Lampley contends that this
phrasing suggests that the scales are evenly
balanced at the beginning of a criminal
trial, rather than tipping heavily in favor
of the defendant.
Lampley also objects to the
statement in the instruction that the
Municipality did not need to prove its case
to an absolute certainty. Lampley recognizes
that we upheld this language in Wilson v.
State,6 but he argues that Wilson should be
overruled. Lampley also argues that the
instruction unlawfully shifted the burden of
proof by telling the jurors that a reasonable
doubt is a doubt based upon reason and common
sense. Lampley contends that this language
seemingly tells the jurors that it is a
defendants burden to establish that any doubt
concerning the defendants guilt is
reasonable.
We decline to overrule Wilson. We
further find that the challenged instruction,
taken as a whole, accurately explains the
presumption of innocence, the prosecutions
burden of proving guilt beyond a reasonable
doubt, and the definition of reasonable
doubt.
Lampley next challenges the judges
instruction on the elements of driving under
the influence. The challenged instruction
states that it was the Municipalitys burden
to prove that Lampley knowingly consumed
alcoholic beverages and knowingly drove a
motor vehicle. Lampley does not dispute that
this is an accurate statement of law.7
However, he points out that the Municipalitys
DUI complaint contained different language:
Jimmy Aaron Lampley did unlawfully and
intentionally drive or operate a motor
vehicle ... while under the influence.
(Emphasis added) Lampley argues that,
because the Municipality included this
language in the complaint, the Municipality
was obliged to prove that Lampley intended to
drive while under the influence.
It is true that the language of the
complaint misdescribes the culpable mental
state that must be proved to establish the
offense. However, Lampley has not alleged
that he detrimentally relied on this language
or that he was otherwise prejudiced by the
misstatement in the complaint. And, as
explained in the preceding paragraph, Lampley
concedes that the challenged jury instruction
accurately states the law. Accordingly, it
was not error for the judge to give this
instruction to the jury.
Lampley also challenges the jury
instruction on the elements of breath-test
refusal. He argues that, under the Anchorage
Municipal Code, the government must prove to
the jury that there was probable cause for
the defendants arrest and that the defendant
was otherwise lawfully arrested.
Anchorage Municipal Code
9.28.021.A states that the operator of a
motor vehicle consents to the administration
of a chemical test for the purpose of
determining the drivers blood alcohol content
if [the driver has been] lawfully arrested
for an offense that occurred while the person
was driving under the influence. This same
section further states that the chemical test
shall be administered at the direction of a
law enforcement officer who has probable
cause to believe the person was driving under
the influence.
However, we have repeatedly held
that the legality of the drivers arrest is
not an element of the crime of breath-test
refusal; rather, any question concerning the
legality of the arrest is a suppression issue
to be decided by the judge. Patterson v.
Anchorage, 815 P.2d 390, 392 (Alaska App.
1991); Brown v. State, 739 P.2d 182, 187
(Alaska App. 1987); Skuse v. State, 714 P.2d
368, 372 (Alaska App. 1986).
Lampley suggests that we should re-
examine these decisions in light of the
United States Supreme Courts decisions in
United States v. Booker,8 Blakely v.
Washington,9 and Crawford v. Washington.10
However, Lampley does not explain how any of
these cases are relevant to the issue of
statutory interpretation presented here.
We therefore conclude that the
district court correctly instructed the jury
on the elements of breath-test refusal.
The erroneous jury instruction on the elements of
driving with a suspended or revoked license
Lampley also challenges the jury instruction
defining the elements of driving while ones license is
suspended or revoked. In this instruction, the jurors
were told that the Municipality needed to prove that
Lampley was negligent concerning the fact that his
drivers license was suspended. Lampley argues that the
true culpable mental state for this offense is
recklessness rather than negligence. We agree.
When this issue was raised at Lampleys trial,
the district court concluded the issue was controlled
by this Courts decision in Gregory v. State, 717 P.2d
428 (Alaska App. 1986). In Gregory, we held that the
required culpable mental state for the offense of
driving with a suspended or revoked license was
criminal negligence. Id. at 432.
But in Gregory, we were construing this
offense as it is defined under state law in AS
28.15.291. Lampley was not charged with violating
AS 28.15.291; rather, he was charged with violating the
corresponding Anchorage ordinance, AMC 9.28.019.B.
The Anchorage Municipal Code expressly
provides that [i]f a provision of law defining an
offense does not prescribe a culpable mental state, the
culpable mental state that must be proved with respect
to ... a circumstance or result is recklessly. AMC
8.05.010.C.
Unlike the corresponding rule of statutory
construction codified in AS 11.81.610(b), which applies
only to the criminal offenses defined in Title 11 of
the Alaska Statutes,11 the rule of statutory
construction codified in AMC 8.05.010.C applies to all
offenses defined under municipal law. Accordingly,
Anchorage municipal law specifies that recklessly is
the culpable state that the government must prove to
convict someone of driving with a suspended or revoked
license as defined in AMC 09.28.019.B.
The Municipality concedes that its municipal
law apparently calls for this result. But the
Municipality argues that, in this situation, the rule
of statutory construction codified in AMC 8.05.010.C is
inconsistent with state law on the same subject, and
thus AMC 8.05.010.C is unlawful to the extent that it
requires a higher culpable mental state (proof of
recklessness rather than proof of negligence). The
Municipality urges us to declare that, because criminal
negligence is the culpable mental state that must be
proved under state law, no municipality has the
authority to enact a corresponding ordinance that
requires proof of a higher culpable mental state.
The Municipalitys argument hinges on AS
28.01.010(a), which declares that [a] municipality may
not enact an ordinance that is inconsistent with the
provisions of [Title 28 of the Alaska Statutes] or the
regulations adopted under [that] title.
It is true that there is a discrepancy
between the state and municipal definitions of the
offense of driving with a suspended or revoked license.
But not every discrepancy between state and municipal
law amounts to an inconsistency for purposes of AS
28.01.010(a).
To determine whether a municipal ordinance is
inconsistent with state law for purposes of AS
28.01.010(a), we assess the totality of the legislative
framework within which the municipal ordinance and
state statute are included.12
The question is not merely whether there is some
discrepancy between the two laws, but rather whether
any discrepancy ... impedes or frustrates [a] policy
expressed by state law.13
For example, in Adkins v. Lester, 530 P.2d 11
(Alaska 1974), the Alaska Supreme Court considered
whether there was an impermissible inconsistency
between a state traffic regulation that permitted
drivers of emergency vehicles to forego the use of
audible signals and warning lights under certain
circumstances, and a Fairbanks ordinance that required
the use of audible signals at all times.14 The supreme
court held that the ordinance was inconsistent with the
statute and, therefore, adoption of the ordinance was
prohibited under state law.15
Likewise, in Simpson v. Anchorage, 635 P.2d
1197 (Alaska App. 1981), this Court considered the
discrepancy between the state statute prohibiting
driving while under the influence of intoxicating
liquor and the corresponding Anchorage ordinance which
provided an alternative way of proving the crime proof
that the operator of the vehicle had a blood alcohol
level of .10 percent or greater.16 We concluded that
the municipal ordinances blanket prohibition against
driving with a blood alcohol level of .10 percent or
greater, without regard to whether the driver was
actually under the influence, was impermissibly
inconsistent with the corresponding state statute.17 We
therefore struck down the ordinance.
But in Cremer v. Anchorage, 575 P.2d 306
(Alaska 1978), the Alaska Supreme Court concluded that
there was no impermissible inconsistency between a
state statute that prohibited driving a motor vehicle
on a public highway while ones license was suspended,
and a corresponding municipal ordinance that prohibited
driving a motor vehicle anywhere within the
municipality while ones license was suspended.18 The
supreme court concluded that the discrepancy between
the statute and the ordinance i.e., the fact that the
ordinance covered the driving of motor vehicles on
private property as well as public highways was not so
inconsistent with state law as to be prohibited under
AS 28.01.010(a).19
In the present case, Anchorage municipal law
requires the government to prove that a driver was
reckless, and not just negligent, with respect to the
fact that the drivers license was suspended. By
requiring proof of a higher culpable mental state, the
Municipality has made it harder to prosecute people for
driving with a suspended or revoked license under
municipal law than it would be to prosecute these same
people under state law. But we do not believe that
this discrepancy amounts to an impermissible
inconsistency.
As explained above, the question is whether
the Municipalitys enactment of a higher culpable mental
state impedes or frustrates state policy.20 It does not
appear to. The State retains concurrent jurisdiction
over traffic offenses within the Municipality of
Anchorage; that is, the state statute prohibiting
driving while ones license is suspended or revoked
continues to apply within the Municipality of
Anchorage. Thus, drivers who negligently ignore the
fact that their license is suspended or revoked can
still be prosecuted under state law, AS 28.15.291(a),
even if they could not be successfully prosecuted under
the municipal ordinance.
In Salt Lake City v. Newman, 113 P.3d 1007
(Utah App. 2005),21 the Utah Court of Appeals recently
considered this same issue: whether a city government
might properly enact a criminal ordinance that required
a higher culpable mental state than the corresponding
state statute. The state statute defined assault as
recklessly creating a risk of injury, while the city
ordinance defined assault as willfully using force
against another.22 The court concluded that the city
ordinance was not impermissibly inconsistent with the
state statute because the state statute continued to
apply, and because the municipal ordinance did not
purport to authorize people to engage in conduct that
was forbidden under the state statute.23
In Spokane v. White, 10 P.3d 1095 (Wash.
App. 2000), the Washington Court of Appeals recently
considered the converse of the situation presented in
Lampleys case a local ordinance that required proof of
a lesser culpable mental state than the corresponding
state statute. The state statute defined assault as
requiring proof of intent, but the city ordinance only
required proof that the defendant acted willfully or
knowingly.24 The Washington court concluded that the
statute and the ordinance were not impermissibly
inconsistent. The court noted that the local ordinance
does not attempt to authorize what the
Legislature has forbidden; nor does it
forbid what the Legislature has
expressly licensed, authorized, or
required. The ordinance merely differs
from the state statute in the scope of
the required mental culpability.
White, 10 P.3d at 1099.25
Like these cases from Utah and Washington,
the Anchorage municipal ordinance at issue in Lampleys
case does not authorize conduct that the Alaska
legislature has forbidden, nor does it forbid conduct
that the Alaska legislature has authorized. The
Anchorage ordinance does not declare that it is legal
to drive if you are merely negligent concerning the
possibility that your license is suspended or revoked.
Nor does the Anchorage ordinance purport to prohibit
the State from enforcing its stricter statute within
the geographic limits of the Municipality. The
ordinance simply makes it harder for the Municipality
to prosecute someone for the same conduct.
We therefore conclude that the challenged
ordinance does not impede or frustrate state policy or
the enforcement of state law and, thus, there is no
unlawful inconsistency between the Anchorage ordinance
and the corresponding state statute. The Municipality
of Anchorage may lawfully require proof of recklessness
in prosecutions for driving while ones license is
suspended or revoked.
This means that the jury instruction in
Lampleys case erroneously described the culpable mental
state that the Municipality was obliged to prove. As
explained above, the jurors were told that the
Municipality only needed to prove that Lampley acted
with criminal negligence concerning the possibility
that his license was suspended. In fact, however, the
Municipality needed to prove that Lampley acted with
recklessness.
This error was not harmless. Lampley
actively disputed the Municipalitys claim that he had
been notified that his license was suspended. Lampley
testified that he was in Spring Creek Correctional
Center when his license was suspended and that he did
not receive the notification from the Division of Motor
Vehicles. Lampley also denied that Trooper Herrell
ever told him that his license was suspended.
Lampley admitted that he had been convicted
of driving with a suspended license in 1992 and 1993,
that he had never gone to get a new drivers license
since then, and that he had been cited for driving with
a suspended license in September of 2003. However,
Lampley claimed that someone at the Anchorage Municipal
Attorneys office told him that his 2003 suspended
license charge was dismissed because the Municipality
determined that he had a valid drivers license.
Given this record, the jurys decision may
well have hinged on the fact that they were erroneously
told that the Municipality needed only to prove the
lesser culpable mental state of negligence rather than
the more exacting culpable mental state of
recklessness. Accordingly, we reverse Lampleys
conviction for this offense. He is entitled to a new
trial on the charge of driving with a suspended or
revoked license.
Lampleys motion for a new trial
Three weeks following his conviction,
Lampley filed a motion for a new trial. In this
motion, Lampley alleged that corrections officers
had illicitly monitored his telephone
communications with his lawyer, and that the
Municipality had therefore obtained an improper
advantage when preparing for trial. The district
court denied this motion without a hearing.
Alaska Criminal Rule 33(c) states that a
motion for a new trial must be made within five
days of the verdict unless the motion is based on
newly discovered evidence (in which case the
motion must be made within 180 days of the final
judgment). Lampley filed his motion three weeks
after the verdict. Thus, at that point, his
motion was untimely on any ground other than newly
discovered evidence.
A motion for a new trial based on newly
discovered evidence must meet the following
requirements: (1) It must appear from the motion
that the evidence relied on is, in fact, newly
discovered, i.e., discovered after the trial; (2)
the motion must allege facts from which the court
may infer diligence on the part of the
[defendant]; (3) the evidence relied on must not
be merely cumulative or impeaching; (4) [the
evidence] must be material to the issues involved;
and (5) [the evidence] must be such as, on a new
trial, would probably produce an acquittal.26
In his motion for a new trial, Lampley
asserted that his attorney-client communications were
monitored by corrections officers:
This was made plain to Mr. Lampley by
correctional officers mimicking and repeating
information and statements emanating from
counsels side of a privileged conversation.
... This is not the first time Mr. Lampleys
attorney-client communications have been
monitored unlawfully.
We conclude that the district court did not have to
decide whether Lampleys allegation was true because the
record discloses that Lampley was aware of this potential
problem during his trial. On the morning of August 5, 2004
that is, on the second day of Lampleys four-day trial
Lampley told the trial judge that he had heard jail
personnel making comments that indicated they were aware of
the contents of Lampleys conversations with his attorney.
But instead of asking the court to declare a mistrial,
Lampley simply asked for an order directing jail personnel
to stop monitoring his attorney-client conversations. The
district court granted this request, ordering that all of
Lampleys attorney contact [shall] be unmonitored.
Given this record, Lampleys motion for a new trial
under Criminal Rule 33(a) was untimely because his claim
was not based on newly discovered evidence. The district
court could deny the motion on this basis alone.
Moreover, the record shows that Lampley was aware of
the potential problem during his trial, and yet he only sought
(and obtained) relief short of a mistrial. Under Alaska law,
Lampley was not entitled to gamble on the jurys verdict and then,
three weeks after being convicted, raise this issue again in a
motion for a new trial. In such circumstances, Alaska law bars a
defendant from withholding a request for mistrial or new trial
until the defendant has heard the jurys decision. See Owens v.
State, 613 P.2d 259, 261 (Alaska 1980) (a defendant should not be
allowed to take a gamblers risk and complain only if the cards
[fall] the wrong way); Turpin v. State, 890 P.2d 1128, 1130
(Alaska App. 1995).
As this Court said in Allen v. State, 51 P.3d 949, 953
(Alaska App. 2002):
When a [defendant] believes that an error
requires early termination of the trial or
other extraordinary relief (such as summoning
a new jury panel), the [defendant] must ask
the trial judge to take action when action is
still possible. The claim of error can not
be deferred until appeal.
This same principle applies to the
circumstances of Lampleys post-verdict motion
for a new trial. We accordingly conclude
that the district court could properly deny
Lampleys motion without holding a hearing on
the merits of Lampleys claim.
The district court could properly determine the number
of Lampleys prior convictions without submitting this
issue to a jury
As explained above, Lampley was initially
sentenced as a second offender. Later, the district
court concluded that Lampley had two prior convictions
for DUI or breath-test refusal, and the court therefore
re-sentenced Lampley as a third offender.
Lampley argues that a jury, and not the
sentencing judge, should have decided the issue of how
many prior convictions he had. Lampley concedes that
we held the opposite in Huitt v. State, 678 P.2d 415,
422-23 (Alaska App. 1984), but he asks us to overrule
Huitt.
Lampley has not provided us any convincing
reason to revisit Huitt. He cites Blakely v.
Washington,27 a decision which expanded the Sixth
Amendment right to jury trial in the context of
presumptive sentencing. But this right to jury trial
only comes into play when the resolution of a disputed
factual issue will determine the defendants maximum
sentence. There is no Sixth Amendment right to jury
trial when resolution of the factual issue affects only
the defendants mandatory minimum sentence, and does not
alter the defendants potential maximum sentence.
The United States Supreme Court explained
this point in Harris v. United States, 536 U.S. 545,
122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), where the Court
held that a legislature does not violate the Sixth
Amendment right to jury trial by increasing a
defendants mandatory minimum sentence (as opposed to
the defendants maximum sentence) based on aggravating
facts that are tried to, and decided by, the sentencing
judge.28
Under the Anchorage Municipal Code, all
defendants convicted of DUI and all defendants
convicted of breath-test refusal face the same maximum
penalty: 1 years imprisonment. See AMC 09.48.010.D.2.
A defendants prior convictions affect only the
mandatory minimum penalty to which the defendant is
subject. See AMC 09.28.020.C and AMC 09.28.022.D.
Thus, a defendant has no Sixth Amendment right to jury
trial with regard to these prior convictions, even if
they are disputed.
The district court violated the double jeopardy clause
when, at Lampleys re-sentencing, the court increased
Lampleys composite sentence for DUI and breath-test
refusal
After the district court concluded that
Lampley had two prior convictions for DUI or breath-
test refusal in other words, that Lampley was a third
offender for purposes of the mandatory minimum
sentences set forth in AMC 09.28.020.C.1 and AMC
09.28.022.D.1 the district court re-sentenced Lampley.
Lampley had originally received only 30 days
to serve for each of the offenses of DUI and breath-
test refusal. But AMC 09.28.020.C.1.c (the DUI
ordinance) and AMC 09.28.022.D.1.c (the breath-test
refusal ordinance) both require a mandatory minimum
sentence of 60 days imprisonment if a defendant is a
third offender. Accordingly, after the district court
discovered that Lampley was a third offender, the court
re-sentenced Lampley and imposed these greater
penalties. This was proper.
Nevertheless, when a court corrects an
illegally lenient sentence, the court can increase the
sentence only to the extent necessary to correct the
illegality.29 The district court violated this
principle in Lampleys case.
Under Alaska state law, a defendant convicted
of both DUI and breath-test refusal must receive
consecutive sentences for these offenses.30 However,
the Anchorage Municipal Code has no similar
requirement. When a defendant is convicted of these
two crimes under Anchorage municipal law, the
sentencing judge may impose the two sentences
concurrently.
It is true that Lampley originally received
consecutive sentences for these two offenses. But, for
present purposes, the important thing is that the
district court had the discretion to impose the two
sentences concurrently. Thus, when the district court
discovered that Lampley was a third offender and that,
as a consequence, Lampleys sentences for these two
crimes would have to be increased to 60 days to serve,
the district court had the authority to impose these
greater mandatory minimum sentences but to make them
concurrent thus giving Lampley the mandatory minimum
sentences that the law prescribed, but without
increasing Lampleys total time to serve.
Altering the judgement in this manner would
satisfy the municipal laws requirement of 60-day
minimum sentences for the two offenses, but at the same
time it would honor the double jeopardy clause of the
Alaska Constitution by preserving Lampleys original
composite sentence of 90 days to serve.
The Municipality does not dispute that the
Anchorage Municipal Code permits a judge to impose
concurrent sentences for DUI and breath-test refusal.
But again, the Municipality invokes AS 28.01.010(a)
arguing that this aspect of its municipal sentencing
law is illegal because (according to the Municipality)
the imposition of concurrent sentences in this
situation would be inconsistent with state sentencing
law.
We have already explained the test for
deciding whether a discrepancy between state law and
municipal law renders the two laws inconsistent for
purposes of AS 28.01.010(a). Applying that test, we
conclude that this discrepancy between state and
municipal law is not a fatal inconsistency.
The core goal of AS 28.01.010(a) the statute
that requires statewide uniformity of traffic laws is
to ensure that motorists will not be subjected to a
patchwork of differing traffic laws as they travel
within this state. The fact that the district court
may have differing sentencing authority, depending on
whether a motorist is charged under state or municipal
law, does not affect this statutory goal.
It is possible to argue that state policy is
defeated when a municipality enacts a penalty that is
different from the one provided by state law for the
same underlying traffic misconduct. But our research
of the case law in this area shows that, generally
speaking, when a municipal ordinance provides a
different penalty for criminal conduct, the ordinance
will be invalidated only if it provides a greater
penalty than the corresponding state statute.31 That is
not the case here.
Finally, one could argue that, because
Anchorage sentencing law allows the district court to
impose concurrent sentences for the two offenses of DUI
and breath-test refusal, the Anchorage law undercuts
the state policy of encouraging arrested motorists to
submit to a breath test.
Even though motorists in Alaska are deemed to
have impliedly consented to a chemical test of their
breath if they are lawfully arrested for driving under
the influence,32 the police in most instances have no
authority to physically force the motorist to submit to
the test.33 Instead, the legislature has made breath-
test refusal a separately punishable crime,34 and has
made breath-test refusal an independent ground for
administrative revocation of a motorists drivers
license.35 The purpose of these laws, as we noted in
Bass v. Anchorage, was to provide[] extremely strong
incentives to [an arrestee] to take a breath test.36
It appears that the legislature had a similar
purpose when it mandated consecutive sentences for the
separate offenses of DUI and breath-test refusal.
Because of the mandated consecutive sentences,
defendants who are convicted of both offenses know that
they will serve additional jail time for the act of
refusing the test. If a defendant knows about this
sentencing provision, it becomes one more component of
the governments effort to induce (or coerce) arrested
motorists to take the breath test.
But although the requirement of consecutive
sentencing might further the goal of having arrested
motorists take the breath test, it operates in a much
more attenuated fashion than the provisions of law that
make breath-test refusal a separate crime and that make
breath-test refusal an independent ground for
administrative revocation of the arrestees drivers
license. These latter two provisions exert immediate
pressure on the arrestee to take the test. The
requirement of consecutive sentences, on the other
hand, makes a difference only in the long run and only
if the defendant is indeed convicted of both offenses.
The legislature itself appears to have
recognized this distinction in AS 28.35.032(a), the
statute that specifies the warnings that arrested
motorists must receive before they can be charged with
the separate offense of refusing a breath test. This
statute says that, before an arrested motorist refuses
the breath test, the motorist must be advised
that the refusal will result in the denial or
revocation of the [arrestees] drivers
license, ... that the refusal may be used
against the [arrestee] in a civil or criminal
action ... arising out of an act alleged to
have been committed by the person while
operating a motor vehicle or aircraft while
under the influence of an alcoholic beverage,
... and that the refusal is a crime ... .
Notably lacking here is any requirement that
the arrested motorist be advised that, if the
motorist is ultimately convicted of both DUI
and breath-test refusal, the sentencing judge
will be obliged to impose the applicable
mandatory minimum sentences of imprisonment
consecutively.
We conclude that the legislature
omitted this warning because the legislature
concluded that any conditional threat of
consecutive sentences is simply too remote to
have any substantial effect on the arrested
motorists decision-making that this
conditional threat is unlikely to alter the
motorists decision to refuse the test if the
motorist has already been apprised of the
three major consequences listed in the
statute.
For similar reasons, we conclude
that the municipal sentencing provision that
allows concurrent sentences in these
circumstances is not fatally inconsistent
with state law for purposes of AS
28.01.010(a). Although one could argue that
the possibility of concurrent sentences might
conceivably reduce the pressure on arrested
defendants to take the breath test, any such
effect appears to be speculative and remote.
The main pressure to take the test comes from
the more immediate consequences listed in
AS 28.35.032(a): being charged with a
separate crime, having ones drivers license
revoked, and the fact that the refusal can be
used against the arrestee in a later civil or
criminal action.
We conclude that this discrepancy
between state and municipal sentencing law
does not significantly impede or frustrate a
policy under state law and that, therefore,
this discrepancy does not rise to the level
of an inconsistency for purposes of AS
28.01.010(a).
Because the municipal sentencing
provision is valid i.e., because the
district court could lawfully impose Lampleys
sentences for DUI and breath-test refusal
concurrently the district court was obliged
to exercise this authority when the court re-
sentenced Lampley.
As explained above, Lampley had to
be re-sentenced because his initial sentences
for these two offenses two consecutive
sentences of 30 days were illegally lenient.
The district court was obliged to fix this
sentencing problem in a way that increased
Lampleys sentence to the least extent
possible.
Because concurrent sentences are an
option under municipal law, the district
court could impose the mandated 60-day
minimum sentences for DUI and breath-test
refusal without increasing Lampleys composite
time to serve by making these 60-day
sentences concurrent. And because this
option existed, the district court was
constitutionally required to follow it.
The district court did not violate the due process
clause, the double jeopardy clause, or the
doctrines of equitable estoppel or laches when the
court re-sentenced Lampley after he had already
finished serving his original sentence
Finally, Lampley argues that his re-
sentencing violated the guarantee against double
jeopardy, as well as the principles of due
process, equitable estoppel, and laches, because
he had already served his sentence at the time he
was re-sentenced. These claims are moot. As
explained in the preceding section, we are
directing the district court to impose concurrent
sentences for Lampleys offenses of DUI and breath-
test refusal. That is, we are directing the
district court to impose a sentence that does not
increase Lampleys composite time to serve.
Conclusion
Lampleys convictions for driving under the
influence and refusing to submit to a breath test
are AFFIRMED. Lampleys conviction for driving
while his license was suspended is REVERSED.
Further, we direct the district court to MODIFY
Lampleys sentences for DUI and breath-test refusal
by making the 60-day time-to-serve portions of the
two sentences concurrent.
_______________________________
1 AMC 9.28.020.A, AMC 9.28.022.C, and AMC 9.28.019.B,
respectively.
2 AMC 9.28.020.C.1.c; AMC 9.28.022.D.1.c.
3 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
4 Id., 476 U.S. at 89, 106 S.Ct. at 1719.
5 Darden v. Wainwright, 477 U.S. 168, 169; 106 S.Ct. 2464,
2466; 91 L.Ed.2d 144 (1986).
6 967 P.2d 98, 100-01 (Alaska App. 1998).
7 See State v. Simpson, 53 P.3d 165, 167 (Alaska App. 2002)
(citing Morgan v. Anchorage, 643 P.2d 691, 692 (Alaska
App. 1982)).
8 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
9 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
10 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
11 AS 11.81.640.
12 Simpson v. Anchorage, 635 P.2d 1197, 1200 (Alaska App.
1981).
13 Id. at 1204. See also Cremer v. Anchorage, 575 P.2d 306,
307-08 (Alaska 1978); Adkins v. Lester, 530 P.2d 11, 13-15
(Alaska 1974).
14 Lester, 530 P.2d at 13-14.
15 Id. at 15.
16 635 P.2d at 1200-08.
17 Id. at 1206-08.
18 575 P.2d at 307-08.
19 Id. at 308.
20 Simpson, 635 P.2d at 1204; Cremer, 575 P.2d at 307-08.
21 Affirmed,148 P.3d 931 (Utah 2006).
22 Newman, 113 P.3d at 1010-11.
23 Id. at 1011.
24 White, 10 P.3d at 1098.
25 But see State v. Lopez-Vega, 826 P.2d 48, 50 (Or. App.
1992) (noting that it is at least arguable that a local
ordinance that does not require a culpable mental state
would be preempted by state statute that requires intent).
26 Garroutte v. State, 683 P.2d 262, 267-68 (Alaska App.
1984) (quoting Salinas v. State, 373 P.2d 512, 514 (Alaska
1961)).
27 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
28 536 U.S. at 557-569, 122 S.Ct. at 2414-2420.
29 Curtis v. State, 831 P.2d 359, 360 (Alaska App. 1992);
Love v. State, 799 P.2d 1343, 1346 (Alaska App. 1990);
Dunham v. Juneau, 790 P.2d 239, 241 (Alaska App. 1990),
receded from on other grounds in Curtis, 831 P.2d 359.
30 See AS 28.35.032(g)(5) and 032(p)(5).
31 See, e.g., Rockford v. Floyd, 243 N.E.2d 837, 842-43 (Ill.
App. 1968); Louisiana v. Suire, 319 So.2d 347, 350 (La.
1975).
32 AS 28.35.031(a).
33 See Bass v. Anchorage, 692 P.2d 961, 964 (Alaska App.
1984) (In the implied consent statutes, the legislature has
gone to great lengths to avoid authorizing the police to
forcibly [administer] blood alcohol tests [on] defendants
charged with driving while intoxicated [except as provided
in AS 28.35.035].).
34 AS 28.35.032(f).
35 AS 28.15.165.
36 692 P.2d at 964.
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