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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| FRANK W. MOONEY, | ) |
| ) Court of Appeals No. A-9304 | |
| Appellant, | ) Trial Court No. 1KE-04-238 Civ |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2119 September 7, 2007 |
| ) | |
Appeal from the Superior Court, First Judi
cial District, Ketchikan, Michael A.
Thompson, Judge.
Appearances: Dan Lowery, Assistant Public
Defender, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellant.
Timothy W. Terrell, 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.
MANNHEIMER, Judge.
Frank W. Mooney seeks post-conviction relief from his
conviction and sentence for first-degree sexual assault. In this
appeal, Mooney asserts that he is entitled to relief on two
bases.
First, Mooney contends that he rejected a favorable
plea agreement because his attorney mistakenly (and
incompetently) told him that he would be treated as a second
felony offender for presumptive sentencing purposes, and that he
therefore faced a presumptive term of 15 years imprisonment if he
went to trial and was convicted. After Mooney rejected the
proposed plea bargain, he was convicted at trial. At sentencing,
the superior court ruled that Mooney was a third felony offender,
and that he therefore faced a presumptive term of 25 years
imprisonment. Mooney now asserts that he would have accepted the
States proposed plea bargain if he had known the true extent of
his potential liability.
Second, Mooney contends that he is entitled to a new
trial based on the testimony of two witnesses who claim that,
following Mooneys trial and conviction, the victim of the sexual
assault admitted to them that she had lied about being sexually
assaulted.
As we explain below, we are not sure whether Mooney was
correctly sentenced as a third felony offender. It appears
possible (although we can not tell for sure, based on the limited
record before us) that Mooney should have been sentenced as a
second felony offender.
However, assuming that Mooney was properly sentenced as
a third felony offender, we nevertheless reject Mooneys first
claim for relief because the record shows that, during the plea
negotiations, both the prosecutor and the defense attorney shared
the same mistaken belief concerning Mooneys presumptive
sentencing status (i.e., the belief that Mooney was a second
felony offender rather than a third felony offender). Mooneys
claim is therefore governed by the law that applies to contracts
where the parties are laboring under a mutual mistake concerning
a material fact. Because the prosecutors offer of a favorable
plea agreement was premised on the mistaken assumption that
Mooney faced only a 15-year presumptive term if he was convicted
at trial, and because there is no way of knowing what offer (if
any) the prosecutor might have made if he had known that Mooney
faced a 25-year presumptive term, we conclude that even if
Mooneys defense attorney gave him incompetent advice regarding
the applicable presumptive term, Mooney is not entitled to demand
specific performance of the prosecutors offer.
However, with respect to Mooneys second claim for
relief (his request for a new trial), we conclude that the
superior court must reconsider its decision because the court
applied the wrong legal test when the court rejected this claim.
The superior court declared that even if the victim had
repudiated her prior accusation of sexual assault when she spoke
with Mooneys two witnesses, this evidence was merely impeaching
and, as such, it could not legally support the granting of a new
trial.
The superior courts ruling was based on the test
announced by our supreme court in Salinas v. State, 373 P.2d 512
(Alaska 1962). Under Salinas, when a defendant seeks a new trial
based on newly discovered evidence, one of the things the
defendant must prove is that the new evidence is not merely
cumulative or impeaching. Id. at 514.
It is true that Mooneys new evidence impeaches the
testimony that the victim gave at Mooneys trial. But, as we
explain in more detail in this opinion, the Salinas test must not
be interpreted to bar a new trial in all instances where the
defendants newly discovered evidence undermines the credibility
of the testimony given by one or more trial witnesses. If
impeach were interpreted this broadly, it would be all but
impossible to procure a new trial based on newly discovered
evidence.
Rather, we conclude that this element of the Salinas
test refers to evidence that is cumulative of the evidence
previously available, or that simply reinforces the evidence that
was previously available to impeach the governments case. If, on
the other hand, the newly discovered evidence impeaches the
governments case in new and significant ways, the Salinas test
allows a court to order a new trial.
We therefore direct the superior court to re-evaluate
Mooneys request for a new trial.
A preliminary issue: Should Mooney have been
sentenced as a second felony offender or a third felony
offender under Alaskas presumptive sentencing law?
At the time of Mooneys prosecution, a second
felony offender convicted of first-degree sexual
assault faced a 15-year presumptive term of
imprisonment, while a third felony offender convicted
of this offense faced a presumptive term of 25 years.
The maximum punishment for first-degree sexual assault
at this time was 30 years imprisonment.1
Both the prosecutor, Assistant District
Attorney Daniel J. M. Schally, and Mooneys defense
attorney, Loren K. Stanton, were aware that Mooney had
several prior felony convictions from the State of
Washington: a 1981 conviction for rape, plus
additional convictions for burglary and felony assault
from 1976. However, both Schally and Stanton initially
believed that only one of these prior felonies Mooneys
1981 conviction for rape could be counted when
assessing Mooneys prior offender status under Alaskas
presumptive sentencing law.
At the time of Mooneys offense (September
2001), the pertinent sentencing statute,
AS 12.55.145(a)(1)(A), stated:
[A] prior [felony] conviction may not be
considered if a period of 10 or more years
has elapsed between the date of the
defendants unconditional discharge on the
immediately preceding offense and [the
defendants] commission of the present offense
unless the prior conviction was for an
unclassified or class A felony[.]
Schally and Stanton agreed that
Mooneys rape conviction in Washington was the
equivalent of a conviction for the
unclassified Alaska felony of first-degree
sexual assault.2 Accordingly, they further
agreed that this rape conviction counted
against Mooney, regardless of how old it was.
However, Schally and Stanton concluded that
Mooneys other felony convictions (i.e., his
1976 convictions for burglary and assault)
did not count.
In other words, both the prosecutor
handling Mooneys case and Mooneys defense
attorney believed that Mooney was a second
felony offender for purposes of Alaskas
presumptive sentencing law, and that Mooney
therefore faced a presumptive term of 15
years imprisonment if he went to trial and
was convicted of first-degree sexual assault.
The plea negotiations in Mooneys case were
premised on this assumption.
Schally first offered to let Mooney
plead guilty to attempted first-degree sexual
assault (a class A felony with a 10-year
presumptive term for second felony
offenders). Later (when Mooney failed to
respond to this first offer), Schally offered
to let Mooney plead guilty to second-degree
sexual assault (a class B felony with a 4-
year presumptive term for second felony
offenders). Mooney rejected both of these
offers and went to trial and he was
convicted.
While preparing for Mooneys
sentencing, Schally reached a new conclusion
about Mooneys presumptive sentencing status.
In a Notice [Regarding] Prior Convictions and
Presumptive Sentencing, Schally told the
superior court:
[Mooneys] prior conviction for First[-
]Degree Rape in 1981, although over ten years
old, qualifies as a prior conviction for
purposes of [presumptive] sentencing ...
because it is for an offense equivalent to an
unclassified ... felony in Alaska[.]
[His] other prior felony convictions
qualify per Griffin v. State [sic: Griffith
v. State], 653 P.2d 1057 (Alaska App. 1982).
In other words, based on this
Courts decision in Griffith v. State, Schally
concluded that all of Mooneys prior felony
convictions counted for presumptive
sentencing purposes because Mooneys most
recent prior felony was an unclassified
felony. As we shall explain, this was an
incorrect reading of Griffith. Nevertheless,
based on his erroneous interpretation of
Griffith, Schally asserted that Mooney was a
third felony offender for presumptive
sentencing purposes and that Mooney
therefore faced a 25-year presumptive term of
imprisonment.
Mooneys defense attorney, Stanton,
did not object to the prosecutors new
analysis of Mooneys presumptive sentencing
status. In an affidavit filed during the
post-conviction relief proceedings, Stanton
described his response to the prosecutors
assertion that Mooney should be treated as a
third felony offender. According to Stanton,
after he read the prosecutors pleading, he
researched this issue, but he did not come to
any conclusion on the [applicable]
presumptive term.
Later, at Mooneys sentencing
hearing, when Superior Court Judge Michael A.
Thompson indicated that he agreed with
Schallys position (i.e., that Mooney was a
third felony offender, and that Mooney faced
a 25-year presumptive term), Stanton still
did not object even though, as noted in the
preceding paragraph, he apparently was not
sure that the judges ruling was correct.
According to Stantons affidavit, he decided
not to object to Judge Thompsons ruling
because of [his] strong belief ... that
[Mooneys] conviction would be overturned [due
to erroneous evidentiary rulings at trial].
Mooney was thus sentenced as a
third felony offender. Based on the States
proof of aggravating factors, Judge Thompson
increased the 25-year presumptive term by
adding 5 years of suspended imprisonment.
That is, the judge sentenced Mooney to 30
years imprisonment with 5 years suspended.
On appeal, we affirmed both Judge Thompsons
ruling that Mooney should be sentenced as a
third felony offender, and the judges
ultimate decision to sentence Mooney to 30
years with 5 years suspended. See Mooney v.
State, 105 P.3d 149, 155-56 (Alaska App.
2005).
Although we affirmed Judge
Thompsons ruling that Mooney was a third
felony offender for presumptive sentencing
purposes, we may have been mistaken.
As just explained, the prosecutors
argument that Mooney should be sentenced as a
third felony offender was based on the fact
that Mooneys immediately preceding felony was
an unclassified felony (or the equivalent of
an unclassified felony). Based on this fact,
and based on this Courts decision in Griffith
v. State, the prosecutor asserted and Judge
Thompson apparently agreed that all of
Mooneys other felonies counted for
presumptive sentencing purposes, no matter
how old they were. But our decision in
Griffith does not support this position.
Griffith held that, under
AS 12.55.145(a)(1), the question of whether a
defendants older felonies count for
presumptive sentencing purposes hinged solely
on one issue of fact: whether the defendants
release from supervision from their
immediately preceding felony occurred within
the look-back period specified in the
statute.3 If the defendants release from
felony supervision occurred within the
specified look-back period, all of the
defendants prior felonies count no matter
how old they are.4
Our decision in Griffith does not
mention, much less construe, the statutory
phrase unless the prior conviction was for an
unclassified or class A felony. This is
because the version of the statute that we
construed in Griffith did not contain this
language.
Our decision in Griffith was issued
on October 29, 1982. The wording about
unclassified and class A felonies was added
to the statute just 28 days before; see SLA
1982, ch. 143, 32 (effective October 1,
1982). The version of the statute that we
construed in Griffith was the original
version of the statute, as enacted in 1978.
See SLA 1978, ch. 166, 12 (effective January
1, 1980).
In that original version, the
pertinent clause of AS 12.55.145(a)(1) ended
with the words the date of the defendants
unconditional discharge on the immediately
preceding offense and [the defendants]
commission of the present offense. That is,
there was no exception for unclassified or
class A felonies. Thus, our decision in
Griffith says nothing about the effect of
unclassified or class A felonies on the
assessment of a defendants presumptive
sentencing status.
Rather, our later decision in
Gilley v. State, 955 P.2d 927 (Alaska App.
1998), provides the answer to this question.
In Gilley, we were asked to construe the post-
1982 version of the statute i.e., the
version that included the language about
unclassified and class A felonies. We
interpreted this statute to mean that (1) if
a defendants most recent discharge from
felony supervision occurred within the
statutory look-back period, then all of the
defendants prior felony convictions count for
presumptive sentencing purposes (our holding
in Griffith); but (2) if a defendants most
recent discharge from felony supervision
occurred outside the statutory look-back
period (that is, if the unconditional release
from supervision occurred 10 years or more
before the defendants commission of the
present offense), then the only prior felony
convictions that count for presumptive
sentencing purposes are the defendants
convictions for unclassified felonies or
class A felonies (if any). Gilley, 955 P.2d
at 930.
In other words, the fact that
Mooneys immediately preceding felony was an
unclassified felony had absolutely no bearing
on whether Mooneys older felonies should be
counted. Rather, the question that the
superior court should have been asking was:
When was Mooney released from supervision
from his 1981 Washington rape conviction?
If Mooneys release from felony
supervision occurred ten years or more prior
to his commission of the sexual assault in
the present case, then his 1976 felonies do
not count, and he should have been sentenced
as a second felony offender. If, on the
other hand, Mooney was still on felony
supervision from his 1981 rape conviction
during any portion of the 10-year look-back
period specified in AS 12.55.145(a)(1)(A),
then all of Mooneys prior felonies count, and
he was correctly sentenced as a third felony
offender.
It is true, as we mentioned above,
that this Court affirmed Judge Thompsons
ruling on this issue (i.e., his ruling that
Mooney was a third felony offender) when we
decided Mooneys direct appeal. However, the
issue of whether Mooney was a second or third
felony offender for presumptive sentencing
purposes was not well briefed in that appeal.
Mooneys attorney, Mr. Stanton, did
not even mention this issue in his opening
brief; rather, he argued only that Mooneys
sentence was excessive. The State responded
that Mooneys sentence (30 years with 5 years
suspended) was not excessive because it was
not much higher than the applicable 25-year
presumptive term specified by Alaska law for
third felony offenders. Only then did
Stanton decide to argue (in his reply brief)
that Mooney should have been sentenced as a
second felony offender.5
Moreover, Stantons argument on this
issue was based on an obvious misreading of
the applicable statute, AS
12.55.145(a)(1)(A).
Stanton conceded that, under this
statute, Mooneys 1981 rape conviction counted
for presumptive sentencing purposes, because
the Washington offense of rape was equivalent
to Alaskas unclassified felony of first-
degree sexual assault. But Stanton contended
that Mooneys older felonies (i.e., the
burglary and assault convictions from 1976)
did not count because Mooneys rape conviction
was more than 10 years old. Here is Stantons
argument:
[I]f Mooney had committed any felony
within the ten years preceding his current
[offense], ... the [sentencing] court [could]
properly [have] considered all of [Mooneys]
prior felonies. [But Mooney] has no prior
felonies within the ten-year limitation
window set out by [the] statute. ...
[Under] Gilley v. State [and] Griffith [v.
State], [a defendants] old [class B and class
C] felonies [are counted] only where one
[felony] is committed within the ten years
preceding the current offense. [Here,
Mooney] had ... no felonies that were
committed within the preceding ten years.
Reply Brief of Appellant, Mooney v. State,
File No. A-8383, pp. 13-14 (emphasis in the
original).
But, contrary to this argument,
Mooneys presumptive sentencing status did not
depend on when he committed his prior
felonies. The wording of
AS 12.55.145(a)(1)(A), as well as this Courts
decisions in Griffith and Gilley, all plainly
state that the question of whether a
defendants prior class B and class C felonies
should be counted for presumptive sentencing
purposes hinges on when the defendant was
discharged from supervision from the
defendants immediately preceding felony.
In his briefs to this Court in
Mooneys direct appeal, Stanton made no claim
that Mooney had been released from felony
supervision 10 years or more before he
committed the sexual assault in this case.
Because Stanton did not raise this claim,
this Court apparently assumed that Mooney had
no viable argument on this point and that,
when Judge Thompson ruled on this issue, he
employed the construction of AS 12.55.
145(a)(1)(A) that we adopted in Gilley.
It now appears that these two
assumptions may have been unwarranted. As
explained above, when the prosecutor (Mr.
Schally) argued that all of Mooneys prior
convictions should be counted, he did not
rely on the date of Mooneys discharge from
felony supervision. (In fact, Schallys
pleading made no mention of this date.)
Instead, Schally relied solely on the fact
that Mooneys immediately preceding felony was
an unclassified felony. If Judge Thompson
relied on this same reasoning, then the judge
used the wrong legal test when he ruled on
Mooneys presumptive sentencing status.
When Mooney litigated his petition
for post-conviction relief, his new attorney
(Assistant Public Defender Amanda M. Skiles)
raised the issue that Mooney may have been
wrongfully treated as a third felony offender
for presumptive sentencing purposes. The
State (also represented by a new attorney)
acknowledged that Mooney apparently [had]
been unconditionally discharged from [his
prior felony] more than 10 years before he
committed this sexual assault. However, the
State argued that Mooney was barred from
pursuing this claim because AS
12.72.020(a)(2) prohibits a defendant from
raising a claim in post-conviction relief
litigation if that same claim was raised on
direct appeal. The State pointed out that
when this Court decided Mooneys direct
appeal, we addressed the claim that Mooney
should have been sentenced as a second felony
offender, and we resolved this claim against
Mooney.
Confronted with the States
seemingly unanswerable argument, Ms. Skiles
announced that Mooney was dropping his claim
concerning his presumptive sentencing status.
Indeed, Mooney does not mention this claim in
his appeal to this Court. Nonetheless, we
conclude (from our examination of the record
before us, as well as our examination of the
pleadings filed in Mooneys direct appeal)
that there is a significant possibility that
Mooney was sentenced illegally i.e., that he
was sentenced as a third felony offender
when, under the statute, he should have been
sentenced as a second felony offender.
Under these circumstances, our
decision of this issue in Mooneys direct
appeal should not be deemed conclusive. If,
in fact, Mooney was unconditionally
discharged from felony supervision 10 years
or more before he committed the sexual
assault in the present case, then he is
entitled to be re-sentenced this time, as a
second felony offender.
Because (as we explain below) we
must remand Mooneys case to the superior
court for reconsideration of Mooneys motion
for a new trial, we direct the superior court
to resolve this sentencing issue, too, during
the proceedings on remand.
Mooneys claim that he should be allowed to belatedly
accept the States favorable plea offer
As explained in the preceding section of this
opinion, in the weeks leading up to Mooneys trial,
Mooney rejected two different plea bargain proposals
put forward by the prosecutor. Under the first
proposal, Mooney would plead guilty to attempted first-
degree sexual assault, and he would face a 10-year
presumptive term (the presumptive term specified for
second felony offenders). When Mooney failed to
respond to this first offer, the prosecutor made a
better offer: Mooney would plead guilty to second-
degree sexual assault, and he would face a 4-year
presumptive term (again, the presumptive term specified
for second felony offenders). Mooney chose to go to
trial rather than accept these offers and he was
convicted.
In his petition for post-conviction relief,
Mooney contends that he rejected these plea agreements
and, in particular, the more favorable second proposal
because his attorney, Mr. Stanton, incompetently told
him that he was a second felony offender for
presumptive sentencing purposes, and that he therefore
faced a presumptive term of 15 years imprisonment if he
went to trial and was convicted. Mooney asserts that
he would have accepted the States second proposal if he
had known that he really faced a presumptive term of 25
years (as a third felony offender). For this reason,
Mooney asks us to order the superior court to sentence
him in accordance with the terms of the prosecutors
second offer.
Obviously, this claim evaporates if, as we
discussed in the preceding section, Mooney is entitled
to be re-sentenced as a second felony offender because
then his attorneys advice would be accurate.
However, we conclude that Mooneys claim also
fails even if Mooney was correctly sentenced as a third
felony offender. Accordingly, in the discussion that
follows, we will assume (for purposes of this
discussion only) that Mooney was properly treated as a
third felony offender i.e., that Mooney was still on
felony supervision from his 1981 rape conviction when
he committed the sexual assault in the present case, or
that his supervision from that 1981 conviction ended
less than 10 years before he committed the sexual
assault in this case.
The crucial fact underlying our analysis of
this issue is that Mooney has never asserted that the
prosecutor, Mr. Schally, knowingly misrepresented
Mooneys presumptive sentencing status during the pre-
trial negotiations. Even though Schally eventually
concluded that Mooney should be sentenced as a third
felony offender, the evidence presented at the post-
conviction relief hearing establishes that both Schally
and Mooneys defense attorney, Mr. Stanton, conducted
their plea negotiations under the shared mistaken
belief that Mooney was a second felony offender for
presumptive sentencing purposes, and that Mooney
therefore faced a presumptive term of 15 years
imprisonment if he went to trial and was convicted.
Because the prosecutor and the defense
attorney were laboring under a mutual mistake
concerning this significant aspect of the situation,
Mooneys case is not analogous to instances where a
defense attorney fails to communicate a proposed plea
agreement to a client, nor is it analogous to instances
where a defense attorney gives a client incompetent
advice (either by affirmative counsel or by omission)
regarding a proposed plea agreement.
Rather, Mooneys case presents a situation
where both the prosecutors formulation of the offer and
Mooneys decision to reject the offer were the product
of the same mistaken belief concerning the extent of
Mooneys liability if he was convicted as charged. For
this reason, we conclude that Mooneys claim for post-
conviction relief is governed by the law of contracts
that applies when the parties are laboring under a
mutual mistake concerning a material fact.
The basic rules governing this situation are
found in chapter 6 of the American Law Institutes
Second Restatement of the Law of Contracts. In
particular, 152 of the Restatement declares:
When Mistake of Both Parties Makes a Contract
Voidable
(1) Where a mistake of both parties at
the time a contract was made as to a basic
assumption on which the contract was made has
a material effect on the agreed exchange of
performances, the contract is voidable by
[an] adversely affected party unless [that
party] bears the risk of the mistake under
the rule stated in 154.
(2) In determining whether the [mutual]
mistake has a material effect on the agreed
exchange of performances, account [should be]
taken of any relief [available] by way of
reformation, restitution, or otherwise.
The Comment to this section
clarifies that, even in circumstances where
the parties were laboring under a mutual
mistake, voiding the contract is a remedy
that should be used sparingly. [This r]elief
is only appropriate in situations where a
[mutual] mistake ... has such a material
affect on the agreed exchange of performances
as to upset the very basis for the contract.
Second Restatement of Contracts, 152,
Comment (a), Vol. 1, p. 386. A [mutual]
mistake does not make a contract voidable
unless [the mistake materially affects] ... a
basic assumption on which both parties made
the contract. Id., 152, Comment (b), Vol.
1, p. 386.
For Alaska cases acknowledging and
applying this rule regarding mutual mistake,
see Stormont v. Astoria Ltd., 889 P.2d 1059,
1061 (Alaska 1995), Schachle v. Rayburn, 667
P.2d 165, 168-69 (Alaska 1983), and Matanuska
Valley Bank v. Abernathy, 445 P.2d 235, 237
(Alaska 1968). In particular, Schachle v.
Rayburn holds that this rule applies to
situations when the parties are mistaken
concerning the law that governs their
anticipated performance or benefit under the
contract.
In Mooneys case, the prosecutors
and the defense attorneys mutual mistake
concerning Mooneys presumptive sentencing
status i.e., their mistaken belief that
Mooney was a second felony offender was
obviously a basic premise of the pre-trial
negotiations. Because the prosecutor
believed that Mooney was a second felony
offender, he made two sentencing offers that
were illegal: the offer to have Mooney plead
guilty to a class A felony with a presumptive
term of only 10 years, and then the later
offer to have Mooney plead guilty to a class
B felony with a presumptive term of only
4 years.
(Because Mooney was actually a
third felony offender, Alaska law specified a
15-year presumptive term if he pleaded guilty
to a class A felony, and a 6-year presumptive
term if he pleaded guilty to a class B
felony.)6
But more importantly, it is
impossible to know what kind of plea bargain
the prosecutor would have been prepared to
offer if the prosecutor had understood that
Mooney faced a 25-year presumptive term (not
just a 15-year term) if the case went to
trial and Mooney was convicted. We believe
there is a significant chance that the
prosecutor never would have offered a plea
agreement of 4 years to serve, or 6 years to
serve, or even 10 years to serve, if he had
understood this.
It is simply impossible to say,
with any degree of certainty, what kind of
offer the prosecutor might have made, and
what kind of response Mooney might have
given, if the parties had understood the true
extent of Mooneys liability if he was found
guilty at trial. Because of this, even
assuming (for purposes of argument) that
Mooneys defense attorney was incompetent for
failing to see that Mooney would be sentenced
as a third felony offender, it would
nevertheless be unfair to hold the State to
either of the two offers that the prosecutor
made to Mooney.
For these reasons, we affirm the
superior courts dismissal of this claim.
Mooneys claim that he is entitled to a new trial
because of newly discovered evidence
In order to explain the significance of
Mooneys newly discovered evidence, we must first
briefly recapitulate the underlying facts of Mooneys
case. Those facts are described in our earlier
opinion, Mooney v. State, 105 P.3d 149, 151 (Alaska
App. 2005).
In the early morning hours of September 11,
2001, the Ketchikan police received a 911 call
reporting that a man was chasing a half-nude woman down
the road. When officers responded to this call, they
saw that the man (Mooney) had pinned the woman to the
ground; Mooney was lying across the woman, with his arm
to her throat. Mooney was wearing only pants, and the
woman, S.M., was naked except for a fleece jacket.
After the officers separated Mooney and S.M.,
a female officer interviewed S.M.. In this interview,
S.M. told the officer that she had initially agreed to
come to Mooneys apartment and perform oral sex on him,
but during this sexual act Mooney had gotten rough with
her. According to S.M., when she told Mooney that she
wanted to stop the sexual act and leave his residence,
Mooney hit her and told her that she could not leave
until he reached orgasm and that if she did not
continue, he would sodomize her, and then she would not
leave his residence alive. S.M. resumed fellating
Mooney, but then she told him that she had to use the
bathroom. When Mooney let her go, S.M. ran for the
front door and fled down the street, wearing only the
fleece jacket.
When Mooney was interviewed, he told the
officers that S.M. had come to his apartment for the
purpose of performing oral sex on him. However, Mooney
denied that he had threatened S.M. or that he had
forced her to do anything. Mooney agreed that, at some
point during the sex act, S.M. asked to use the
bathroom. However, while S.M. was in the bathroom,
Mooney noticed that his wallet was missing. When
Mooney asked S.M. about the wallet, she bolted out the
door. Mooney told the officers that he chased S.M. and
threw her to the ground because she had just stolen
$600 from him.
The authorities decided that S.M.s version of
events was more credible, and Mooney was indicted for
first-degree sexual assault. The jury at Mooneys trial
likewise concluded that S.M. was telling the truth
about this incident, and Mooney was convicted of the
sexual assault.
In the post-conviction relief litigation,
Mooney supported his request for a new trial with the
testimony of two witnesses who said that, after Mooney
was convicted, S.M. told them that she had falsely
accused Mooney.
One of these witnesses was Susan McKitrick.
In an affidavit, and later at the evidentiary hearing,
McKitrick testified that, several years after Mooneys
trial, she spoke with S.M. at a bar in Ketchikan.
According to McKitrick, S.M. (who was fairly
intoxicated at the time) admitted that her accusation
against Mooney was false.
The other witness was Lillian Jaehnig.
Jaehnig also testified that she spoke with S.M. in a
bar (apparently, this was a different conversation from
the one described by McKitrick), and that S.M. admitted
that she had falsely accused Mooney. According to
Jaehnig, S.M. said that she had not wanted to press
charges against Mooney, but the State pursued the
criminal prosecution anyway.
At the post-conviction relief hearing, S.M.
rebutted the testimony of both of these witnesses.
S.M. agreed that she had spoken to both McKitrick and
Jaehnig about Mooneys case, but she denied that she had
ever recanted her accusation of sexual assault.
Indeed, S.M. testified that she told Jaehnig that all
of her testimony at Mooneys trial had been truthful.
When Judge Thompson ruled on Mooneys request
for a new trial, he indicated that he doubted
McKitricks and Jaehnigs assertions that S.M. had
recanted her accusation of sexual assault. However,
Judge Thompson then stated that even if McKitricks and
Jaehnigs testimony was true, this evidence was merely
more evidence with which to potentially impeach [S.M.]
in front of the jury and therefore, as a legal matter,
this evidence could not support the granting of a new
trial.
Judge Thompsons ruling that impeachment
evidence is not legally sufficient to support a request
for a new trial was based on the test announced by our
supreme court in Salinas v. State, 373 P.2d 512 (Alaska
1962). Under Salinas, when a defendant seeks a new
trial based on newly discovered evidence, one of the
things the defendant must prove is that the new
evidence is not merely cumulative or impeaching. Id.
at 514. Although Judge Thompson did not refer
specifically to Salinas, it is clear that the judge
rejected Mooneys request for a new trial based on the
statement in Salinas that the defendants new evidence
must not be merely ... impeaching.
It is true that Mooneys new evidence
impeaches the testimony that S.M. gave at Mooneys
trial. But the Alaska Supreme Courts decisions in this
area demonstrate that the Salinas test was not intended
to categorically bar relief in all instances where
newly discovered evidence impeaches the credibility of
the testimony given by one or more trial witnesses.
For instance, in James v. State, 84 P.3d 404
(Alaska 2004), the supreme court confronted a case
where the defendant sought a new trial on the basis
that an important government witness (the sole
eyewitness to the crime) recanted her testimony after
the trial. The trial judge denied the motion for a new
trial because the judge concluded that the recantation
was not credible. Id. at 404. The supreme court held
that the trial judge employed the wrong test:
Although the credibility of a [witnesss]
recantation is certainly relevant to
determining the probable result of a new
trial [that included evidence of this
recantation], it is entirely possible for a
judge to find that, even though he or she
does not believe a witnesss recantation, it
is probable that [the] defendant ... would be
acquitted at a new trial if the witness
testified in accordance with his or her
recantation. Therefore, it is not enough
under Salinas for the superior court to
[assess] only the credibility of [the
recantation] testimony.
James, 84 P.3d at 407. The supreme court
vacated the trial judges ruling and directed
the judge to re-assess the defendants motion
by considering the likely effect of the
recantation evidence on a jury at a new
trial. Id.
Although the James decision does
not directly address the issue of impeaching
evidence, it is obvious from the supreme
courts discussion and from the courts
decision to send the case back to the trial
court for renewed assessment of the
defendants motion for a new trial that the
supreme court did not interpret Salinas as
categorically barring relief in this
situation. Even though the witnesss post-
trial recantation was obviously impeaching
evidence in the broad sense of the word, the
supreme court held that evidence of the
recantation could justify a new trial if this
evidence was significant enough that it would
probably lead a jury to return a different
verdict.
Indeed, in State v. Alaska
Continental Development Corp., 630 P.2d 977
(Alaska 1980), the supreme court indicated
that merely impeaching and likely to change
the result of the trial were simply the two
sides of the same coin:
Concerning motions for a new trial based
on newly discovered evidence, the evidence
must be such as would probably change the
result of the trial. ... Evidence which
merely impeaches a witnesss testimony is not
usually sufficient to warrant the grant of a
new trial. ...
In our opinion, the newly discovered
evidence offered by the state in this case
has no value beyond impeachment of [the
appraiser] Folletts testimony. Evidence that
Follett relied only upon high comparable
sales in his appraisals in another
condemnation case does not prove that he
slanted his appraisals in the case at bar.
No evidence was developed in this case, by
cross-examination or otherwise, that Follett
selected and relied on certain comparisons to
the exclusion of others in his appraisals.
Folletts appraisals, like the other
appraisals submitted by the landowner,
incorporate comparable sales which are of
higher value than several of those used by
the states appraisers, but this case is
characterized by a lack of closely comparable
sales to the subject property because of the
uncertain market at the time of the taking.
. . .
The additional evidence was unlikely to
change the result in this trial, even though
it might have discredited Folletts testimony.
Alaska Continental Development Corp., 630
P.2d at 992.
This view of matters is confirmed
by the discussion of this point of law in
Wayne R. LaFave, Jerold H. Israel, and Nancy
J. King, Criminal Procedure (2nd ed. 1999),
24.11(d), Vol. 5, pp. 623-28.
The authors state that almost every
American court uses a test essentially
identical to the Salinas test. Id., pp. 624-
25. But then the authors explain that the
distinction between evidence that merely
impeaches, versus evidence that would
probably produce a different result, is one
of degree rather than kind:
[T]he evidence must reach a certain level of
significance as measured by reference to the
other evidence in the trial. ... [T]he
character of the evidence [as] cumulative
[in] nature or [relating] only to witness
credibility ... [is relevant to assessing]
the likelihood that [the evidence] will have
a significant impact upon a factfinder [
i.e., whether or not it will] probably
produc[e] an acquittal.
LaFave, p. 625 (internal quotation marks
omitted).
Thus, when Salinas speaks of
evidence that is merely cumulative or
impeaching, it is referring to evidence that
is unlikely to lead to a different verdict
because it either is cumulative of the
evidence previously available, or it simply
reinforces the types of impeachment that were
previously available. If, on the other hand,
the newly discovered evidence undermines the
governments case in a new and significant
way, then the evidence is not merely
impeaching and the trial judge must
determine whether this evidence, if presented
at a new trial, would probably lead to a
different verdict.
In Mooneys case, it appears that
Judge Thompson relied on an overly broad
definition of impeaching when he ruled that
Mooneys new evidence (the evidence of S.M.s
purported recantations) was legally
insufficient to warrant a new trial. If
there is credible evidence that the purported
victim of a crime later declared that their
accusation was false, this evidence can be
more than merely impeaching under the Salinas
test.
It is fairly obvious from the
record that Judge Thompson personally doubted
the trustworthiness of this new evidence.
But as our supreme court clarified in James,
even though Judge Thompson may have
personally concluded that the new evidence
was not believable, he was nevertheless
obliged to consider whether this evidence, if
presented at a new trial, would probably
produce a different verdict.
For this reason, we direct Judge
Thompson to reconsider his ruling on Mooneys
request for a new trial.
Conclusion
We AFFIRM the superior courts rejection of
Mooneys claim that, because he received purportedly
incompetent advice from his trial attorney during pre-
trial negotiations, he should now be allowed to demand
specific performance of the States proposed plea
bargain.
However, we direct the superior court to
reconsider two issues: first, whether Mooney should
have been sentenced as a second felony offender, rather
than a third felony offender; and second, whether
Mooney should be granted a new trial based on his new
evidence that the victim of the crime may have recanted
her accusation.
The superior court shall make findings on
these two issues and shall transmit those findings to
us and to the parties within 60 days of our decision.
If the superior court again concludes that
Mooney is not entitled to a new trial, Mooney shall
have 30 days to file a supplemental memorandum
addressing the superior courts ruling, and the State
shall then have 30 days to file a responding
memorandum. If, on the other hand, the superior court
concludes that Mooney is entitled to a new trial, the
order of briefing shall be reversed.
_______________________________
1 See former AS 12.55.125(i) (pre-September 2003 version).
2See AS 12.55.145(a)(1)(B): a conviction in ... another
jurisdiction of an offense having elements similar to
those of a felony defined as such under Alaska law at
the time the offense was committed is considered a
prior felony conviction [for purposes of Alaskas
presumptive sentencing law.]
3Griffith v. State, 653 P.2d 1057, 1058 (Alaska App. 1982).
4Id.
5See pages 11-14 of the Reply Brief of Appellant in Mooney v.
State, File No. A-8383.
6See former AS 12.55.125(c)(4) and former AS 12.55.125(d)(2)
(pre-March 2005 versions).
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