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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
| JAMES E. BUSH, | ) |
| ) Court of Appeals No. A-9535 | |
| Appellant, | ) Trial Court No. 3KN-05-490 CI |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) |
| ) No. 2099 May 18, 2007 | |
Appeal from the
Superior Court, Third Judicial District,
Kenai, Harold M. Brown, Judge.
Appearances: Stephanie D. Patel, Law Office
of Dan Allan, Anchorage, for the Appellant.
Blair M. Christensen, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and David W. M rquez,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
This appeal raises the question of whether the State
may retry a defendant whose conviction is set aside based on a
denial of the right to counsel.
James E. Bush was charged with felony driving while
under the influence and felony refusal to submit to a breath
test. The offenses were charged as felonies because Bush was a
repeat offender that is, he had two prior convictions for
driving while intoxicated within the previous ten years.
While these felony charges were pending, Bush filed an
application for post-conviction relief, asking the superior court
to set aside one of his prior convictions because he had not
waived his right to counsel when he entered his plea in that
earlier case. Bush argued that his conviction should be set
aside with prejudice that is, without any opportunity for the
State to retry him because a retrial would violate his rights to
due process and speedy trial and put him in jeopardy twice for
the same offense.
The superior court agreed that Bush had been denied
his right to counsel and set aside his conviction. However, the
court ruled that the State could retry Bush for the offense.
Bush appeals the superior courts ruling that the State
is entitled to retry him. For the reasons discussed below, we
affirm the decision of the superior court.
Facts and proceedings
On August 29, 2003, Bush was charged with felony
driving while under the influence1 and felony refusal to submit
to a chemical test.2 Bushs offenses were charged as felonies
because he had two recent prior convictions for driving while
intoxicated: one in May 2000 and one in November 2001.3
Bush moved to suppress the evidence of his May 2000
conviction. He argued that his 2000 conviction was void and
could not be used to establish that he was a felony offender
because he had not knowingly and intelligently waived his right
to counsel in that case. The superior court agreed and ruled
that Bush was entitled to withdraw his plea. The court stayed
the felony case and tolled Criminal Rule 45 pending further
proceedings in the 2000 case.
Bush ultimately filed an application for post-
conviction relief. Bush asked the superior court to set aside
his 2000 conviction with prejudice that is, without any
opportunity for the State to retry him arguing that a retrial
would violate his rights to due process and speedy trial and
place him in jeopardy twice for the same offense. Superior Court
Judge Harold M. Brown granted the application and set aside Bushs
conviction. However, when Judge Brown signed Bushs proposed
order dismissing the 2000 conviction, he scratched out the words
with prejudice paving the way for the State to retry Bush.
Bush appeals the superior courts decision that the
State is entitled to retry him for the 2000 offense.
Why we conclude that retrial will not violate Bushs
right to a speedy trial
Bush claims that retrying him would violate his right
to a speedy trial.
Alaska Criminal Rule 45(g) directs trial courts to
dismiss a case without the opportunity for re-prosecution if the
defendant is not brought to trial within the 120-day period
required by the rule (as extended by any excluded periods). Bush
argues that the 120-day time for trial expired in his 2000 case
sometime in 2000. He argues that, because he never uttered the
words no contest or guilty when the district court accepted the
plea agreement and entered judgment against him in the 2000 case,
Rule 45 ran continuously from the time the charging document was
served on him and expired sometime after the court sentenced him
and issued a judgment.
We find no merit to this claim. It is well settled
that the 120-day time for trial in Rule 45 stops running on the
date a defendant announces his intent to change his plea.4 At
that point, the parties and court no longer anticipate a trial.5
If the defendant later changes his mind and demands a trial, the
120-day period restarts at day 1.6
The transcript of Bushs change of plea hearing shows
that Bush had reached a Rule 11 agreement with the State before
the hearing. At the hearing, the court questioned Bush about
this agreement and asked him if he was entering it freely and
voluntarily. Bush said he was.
Absent an earlier notice of the change of plea, the
Rule 45 clock stopped running at that hearing. Thus, retrying
Bush will not violate Rule 45.
Why we conclude that retrial will not violate the
double jeopardy clause
Bush next claims that the State would put him in
jeopardy twice for the same offense by retrying him on the 2000
charge in order to remedy a defect of insufficient evidence in
his pending felony case.
If the superior court had dismissed the current felony
charge of driving while under the influence due to insufficient
evidence that is, if that charge had gone to trial and the State
could not prove that Bush had two qualifying prior convictions
the double jeopardy clause would indeed prohibit the State from
re-litigating the felony charge.7 But Bush has not been tried in
the felony case, so jeopardy has not attached. To the extent
that Bush is claiming that the superior court erred by staying
his current felony case and tolling Rule 45 so the State could
retry him in the 2000 case, those claims are not properly before
us in this appeal. No final judgment has been entered in Bushs
felony case.
Nor is there merit to Bushs claim that the State will
violate the double jeopardy clause by retrying him after his
conviction was set aside. Bush filed an application for post-
conviction relief asking the superior court to set aside the 2000
conviction based on his claim that he was denied his right to
counsel in that proceeding. The double jeopardy clause does not
preclude the government from retrying a defendant whose
conviction is set aside at the defendants request due to an error
in the proceedings leading to conviction.8 It is irrelevant for
these purposes whether the conviction was overturned on direct or
collateral attack.9 The United States Supreme Court has
explained the social interests served by this rule:
Corresponding to the right of an accused to
be given a fair trial is the societal
interest in punishing one whose guilt is
clear after he has obtained such a trial.
It would be a high price indeed for society
to pay were every accused granted immunity
from punishment because of any defect
sufficient to constitute reversible error in
the proceedings leading to conviction. From
the standpoint of a defendant, it is at
least doubtful that appellate courts would
be as zealous as they now are in protecting
against the effects of improprieties at the
trial or pretrial stage if they knew that
reversal of a conviction would put the
accused irrevocably beyond the reach of
further prosecution. In reality, therefore,
the practice of retrial serves defendants
rights as well as societys interest.[10]
Once Bushs 2000 conviction was set aside as void
because his plea was entered in violation of the right to
counsel, his former jeopardy was no longer a bar to re-
prosecution.11 Therefore, a retrial would not violate the double
jeopardy clause.12 It is true that Bush has already served his
sentence for the 2000 offense, so if he is again convicted, he
cannot receive any additional punishment for that offense.13 But
society retains an interest in ensuring that his 2000 offense can
be used to establish his status as a repeat offender.
Bush alternatively claims that the superior court
should have dismissed his case with prejudice because the State
did not file a timely opposition to his application for post-
conviction relief. But this circumstance did not relieve Bush of
his obligation to plead facts demonstrating his entitlement to
the relief he requested.14 Bush did not make a prima facie case
that retrial would violate the double jeopardy clause or his
right to a speedy trial. He therefore did not establish that he
was entitled to dismissal with prejudice on these grounds.
Why we conclude that Bush had adequate notice of the
courts decision and sufficient opportunity to
supplement his petition for post-conviction relief
Bush next argues that the superior court erred by not
giving him notice that the court intended to deny his request for
dismissal of the 2000 case with prejudice, and by not giving him
an opportunity to supplement his application for post-conviction
relief on the issue of whether retrial was prohibited. Bush
argues that he was entitled to notice and an opportunity to
supplement because the court ruled on his application without any
response by the State.
In Tall v. State,15 we held that the trial court is not
required to give an applicant for post-conviction relief notice
that it intends to dismiss an application if the State has moved
to dismiss the application and given supporting reasons.16 We
reasoned that the States motion to dismiss alerts the applicant
to potential deficiencies in the application and gives the
applicant an opportunity to oppose dismissal or to file an
amended application.17
In this case, the State did not file a timely response
to Bushs application. But even assuming, without deciding, that
the court was obliged to give Bush notice and an opportunity to
supplement before it denied part of the relief he requested, any
error was harmless under the circumstances of this case. After
the court set aside Bushs conviction, the State filed a motion
for reconsideration. Bush filed an opposition to that motion.
Bush also filed a motion asking the court to clarify or
reconsider its order on the issue of whether the State could
retry him. The State opposed Bushs motion, and Bush filed a
reply. The record thus demonstrates that Bush had ample
opportunity to respond to the States arguments on this and other
issues and to supplement his application to counter those
arguments.
Moreover, we note that we have addressed and rejected
all of Bushs claims that he was entitled to dismissal of the 2000
case with prejudice.
Why any error in denying Bushs motion for
clarification was harmless
Bush also argues that the superior court erred by not
issuing findings of fact and conclusions of law when it declined
to dismiss the 2000 case with prejudice. Criminal Rule 35.1(g)
directs a trial court in post-conviction relief proceedings to
make specific findings of fact, and state expressly its
conclusions of law, relating to each issue presented.
In this case, findings of fact were unnecessary
because the facts underlying Bushs application for post-
conviction relief were uncontested. And to the extent that the
court erred in failing to expressly state its conclusions of
law, any error was harmless because the record reveals a clear
legal basis for the superior courts action.18
Because Bush has not established any prejudicial
error, we reject his claim that the superior courts cumulative
errors amount to a violation of due process. If Bush believes a
retrial would be unfair because the State has not preserved all
the evidence in his 2000 case, he is free to pursue that claim
in the district court.
Conclusion
We AFFIRM the decision of the superior court.
_______________________________
1 AS 28.35.030(a) & (n)
2 AS 28.35.032(a) & (p).
3 See former AS 28.35.030(n) and former AS 28.35.032(p).
4 Minch v. State, 934 P.2d 764, 768 (Alaska App. 1997)
(citing Morris v. State, 734 P.2d 1012, 1014 (Alaska App. 1987)).
5 Cf. Morgan v. State, 673 P.2d 897, 901-02 (Alaska App.
1983) (citing State v. Fevos, 617 P.2d 490, 492 (Alaska 1980)).
6 Mustafoski v. State, 954 P.2d 1042, 1044 (Alaska App.
1998).
7 See Howell v. State, 115 P.3d 587, 592 (Alaska App. 2005).
8 United States v. Tateo, 377 U.S. 463, 465-66, 84 S. Ct.
1587, 1589, 12 L. Ed. 2d 448 (1964).
9 Id.
10 Id., 377 U.S. at 466, 84 S. Ct. at 1589.
11 See Todd v. State, 101 N.E.2d 45, 46 (Ind. 1951)
(quoting Mitchell v. Youell, 130 F.2d 880, 882 (4th Cir. 1942))
(It is settled that an accused is not put in jeopardy by a void
judgment of conviction, and that upon his discharge thereunder he
may be again arrested and prosecuted.).
12 See, e.g., United States v. Pennsylvania, 343 F.2d 605,
607 (3rd Cir. 1965); Allen v. State, 416 S.E.2d 290, 291 (Ga.
1992); Van Donk v. State, 676 N.E.2d 349, 352 (Ind. App. 1997);
State v. Dolack, 533 P.2d 1282, 1290-91 (Kan. 1975). Cf. Tyler
v. State, 24 P.3d 1260, 1263 (Alaska App. 2001); Dutton v. State,
970 P.2d 925, 931-35 (Alaska App. 1999).
13 See Sonnier v. State, 483 P.2d 1003, 1005 (Alaska 1971)
([O]nce a sentence has been meaningfully imposed, it may not, at
a later time, be increased.).
14 See Willie v. State, 829 P.2d 310, 312 (Alaska App.
1992) (A person seeking court action must plead facts that
demonstrate his or her legal entitlement to the requested action;
this is true whether or not an opposing party files a response.);
see also State v. Johnson, 525 P.2d 532, 534-35 (Alaska 1974);
Schandelmeier v. Winchester Western, 520 P.2d 70, 75 (Alaska
1974).
15 25 P.3d 704 (Alaska App. 2001).
16 Id. at 706-08.
17 Id. at 707.
18 See Eldridge v. State, 848 P.2d 834, 836 (Alaska App.
1993).
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