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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| TERRANCE A. GARLAND, | ) |
| ) Court of Appeals No. A-9790 | |
| Appellant, | ) Trial Court No. 3SP-05-95 CR |
| v. | ) |
| ) | |
| STATE OF ALASKA, | ) O P I N I O N |
| ) | |
| Appellee. | ) |
| ) No. 2131 December 7, 2007 | |
Appeal from the Superior Court, Third Judi
cial District, Sand Point, Daniel Schally,
Judge.
Appearances: Morgan White, Assistant Public
Defender, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellant.
Michelle Tschumper, Assistant District
Attorney, Anchorage, and Talis J. Colberg,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
MANNHEIMER, Judge, concurring.
Terrance A. Garland appeals the superior courts denial
of his request to strike a portion of the presentence report
prepared following his change of plea. Garland sought to exclude
a report that was compiled by a California sheriffs office as a
result of an investigation into a possible sexual assault
committed by Garland. We affirm the superior court because
Garland declined to enter a testimonial denial of the assertions
in the report.
Background facts and proceedings
In December 2005, a Sand Point policeman filed a
complaint charging Garland with one count of first-degree sexual
abuse of a minor.1 On May 16, 2006, Garland filed a request for
a change of plea, informing the court that the parties had
reached a plea agreement. According to the request, Garland
would enter a plea to one count of second-degree sexual abuse of
a minor.2 Garland also agreed to concede that statutory
aggravator AS 12.55.155(c)(10) applied (Garlands conduct
constituting the offense was among the most serious within the
definition of the offense). According to the plea agreement,
Garland agreed that the court would impose a 6-year term with 3
years suspended if the court accepted the plea agreement. The
agreement called for the Department of Corrections to prepare a
standard presentence report and for the court to impose, and
Garland to agree to, the usual conditions of probation imposed
for sex offenders.
The State filed an information charging second-degree
sexual abuse of a minor. Garland waived indictment and entered a
no contest plea. Superior Court Judge pro tem Daniel Schally
ordered a presentence report.
The presentence report included a report from the
Shasta County Sheriffs Department in California that was more
than thirty pages long. The report addressed a 1997 sexual
assault in which Garland was the identified suspect.
Pursuant to Criminal Rule 32.1(d)(5), Garland objected
to the Shasta County report, claiming that the report was
irrelevant, that it was hearsay, and that the sentencing judges
reliance on this information would violate Garlands right to
confrontation. In its opposition, the State pointed out that if
Garland intended to dispute this information, he had to enter a
testimonial denial and submit to cross-examination. In reply,
Garland claimed that the information in the Shasta County report
was not relevant to the courts sentencing decision because the
parties had reached a plea agreement. Therefore, Garland argued,
the Shasta County report should be deleted because it was not
relevant to the courts decision whether to accept the plea
agreement or the courts decision on what probation conditions to
impose. Judge Schally declined to delete the Shasta County
report.
Discussion
Garland renews his argument on appeal. Garland relies
on our discussion in Evans v. State3 of the responsibility of a
sentencing judge when a defendant disputes allegations in a
presentence report of misconduct other than the offense for which
the defendant was convicted.4 Garland points out that we held in
Evans that former Criminal Rule 32.1 required a judge to resolve
disputed allegations in a presentence report, or, if the judge
expressly elected not to resolve a disputed allegation, to delete
the allegation.5
However, in Evans, unlike this case, the defendant took
the stand, denied the allegations under oath, and subjected
himself to cross-examination.6 Furthermore, the Alaska Supreme
Court substantially amended Criminal Rule 32.1 after the Evans
decision.7 Criminal Rule 32.1(f)(5) provides in pertinent part
as follows:
The court shall enter findings regarding
any disputed assertion in the presentence
report. Any assertion that has not been
proved shall be deleted from the report; any
assertion that has been proved only in part
shall be modified in the report.
Alternatively, if the court determines that
the disputed assertion is not relevant to its
sentencing decision so that resolution of the
dispute is not warranted, the court shall
delete the assertion from the report without
making any finding.
The present rule requires a sentencing court to enter
findings on disputed assertions in the presentence report. If an
assertion in the presentence report is not relevant to the courts
sentencing decision, the court has the option to avoid resolution
of the issue by simply deleting the assertion. However, Garland
does not argue that the amendment to the rule enacting Rule
32.1(f)(5) eliminated the requirement that a defendant take the
stand and testify subject to cross-examination in order to deny a
hearsay allegation of verified misconduct contained in a
presentence report.8
Because Garland did not take the stand and deny the
allegations in the Shasta County report, the superior court was
not faced with a disputed assertion that the superior court was
required to resolve. Accordingly, the superior court was not
required to delete the Shasta County report.
Conclusion
The judgment of the superior court is AFFIRMED.
MANNHEIMER, Judge, concurring.
I write separately to more fully explain my analysis of
the legal issues presented in this appeal. These issues concern
the relationship between Alaska Criminal Rule 32.1(d), Alaska
Criminal Rule 32.1(f), and this Courts decisions in Evans v.
State, 23 P.3d 650 (Alaska App. 2001), and Hamilton v. State, 771
P.2d 1358 (Alaska App. 1989) decisions which hold that a
sentencing judge can rely on verified hearsay information
contained in the pre-sentence report for proof of the matters
asserted, unless the defendant offers a testimonial denial of
that information and submits to cross-examination.1
Garland was initially indicted for first-degree sexual
abuse of a minor. He and the State proposed to resolve the case
by having Garland plead no contest to the reduced charge of
second-degree sexual abuse of a minor. In addition, the plea
agreement called for Garland to receive a specific sentence: 6
years imprisonment with 3 years suspended.
Before deciding whether to accept this proposed
disposition of the case, Superior Court Judge Daniel Schally
ordered a pre-sentence report. When this pre-sentence report was
prepared, it contained information concerning a 1997 sexual
assault case in which Garland was the suspect.
Alaska Criminal Rule 32.1(d)(5) states that, if a
defendant objects to any information in the pre-sentence report,
the defendant shall notify the court and the government of the
objection, shall state the basis for the ... objection, and shall
supply any information upon which the defendant intends to rely
in refuting the objected-to information in the pre-sentence
report.
Garland filed an objection to the information about the
1997 sexual assault. However, Garland did not directly assert
that this information was untrue, nor did he offer any contrary
information. Rather, Garland argued that the information was
irrelevant, that it was hearsay, and that the sentencing judges
reliance on this information would violate Garlands right to
confrontation.
Garland argued that the information was irrelevant
because his plea agreement called for imposition of a specified
sentence. Thus, Garland contended, the information had no
significance because his sentence would remain the same
regardless of whether he committed the 1997 sexual assault. But
Judge Schally had not yet decided whether to accept the plea
agreement and the fact that Garland might have committed another
sexual offense had obvious relevance to Judge Schallys decision.
Garland also argued that the information was hearsay.
This is clearly correct: the information was derived from out-of-
court statements that were being offered to prove the truth of
the matters asserted.2 However, under the Alaska Supreme Courts
decision in Nukapigak v. State, 562 P.2d 697 (Alaska 1977),3 a
sentencing judge can rely on hearsay statements if they are
sufficiently verified to appear trustworthy and the defendant
[is] given the opportunity to deny [the truth of the statements]
or present contrary evidence of his own.4
Garland argues that the government can not rely on such
hearsay accusations unless those accusations have led to a grand
jury indictment or to some other form of criminal charge that has
been independently screened and declared to be well-founded.
Garland is wrong. The hearsay accusations in Nukapigak included
third-hand hearsay accusations made by villagers, communicated to
the village council, and then passed on to the author of the pre-
sentence report. It seems that none of these accusations had
ever been the subject of a criminal charge. And yet the Alaska
Supreme Court held that the sentencing judge could properly rely
on this information.
Finally, Garland argued that use of the information
regarding the 1997 sexual assault would violate his right of
confrontation. But we held in Evans and Hamilton that a criminal
defendant has only a limited right of confrontation in sentencing
proceedings. Before a defendant can demand that the government
support its sentencing allegations with in-court testimony, the
defendant must deny the allegations under oath and submit to
cross-examination. Garland did not do that. Thus, the inclusion
of hearsay information in the pre-sentence report did not violate
Garlands right of confrontation.
In other words, Judge Schally properly rejected all
three of Garlands objections to the inclusion of this information
in the pre-sentence report.
On appeal, Garland raises two new claims.
First, he argues that this Courts decisions in Evans
and Hamilton contravene the Alaska Constitutions guarantee
against compelled self-incrimination (Article I, Section 9). As
just explained, Evans and Hamilton stand for the proposition that
if Garland wished to contest the information concerning the 1997
sexual assault, he had to take the stand, deny the assault under
oath, and submit to cross-examination. Garland asserts that,
because he might still be prosecuted for the 1997 sexual assault,
it is unconstitutional to require him to give testimony and
submit to cross-examination concerning this event.
Garland did not raise this argument in the superior
court, so he must now show plain error. He has not done so.
Garland makes the bald assertion that the rule of Evans and
Hamilton is unconstitutional, but he offers no legal authority to
support his position. Whatever merit Garlands argument might
have, it is no more than debatable. Reasonable judges could
conclude that this Courts decisions in Evans and Hamilton do not
contravene the Alaska Constitution. Thus, Garland has failed to
show plain error.5
Second, Garland argues that once Judge Schally decided
to adopt the proposed plea agreement, the judge was obliged to
delete the information concerning the 1997 sexual assault from
the pre-sentence report.
Garland relies on Alaska Criminal Rule 32.1(f)(5),
which states that if the [sentencing] court determines that [a]
disputed assertion is not relevant to its sentencing decision[,]
so that resolution of the dispute is not warranted, the court
shall delete the assertion from the report without making any
finding.
Garland points out that, when this matter was discussed
at the sentencing hearing, Judge Schally declared that the 1997
sexual assault [was] not necessarily relevant to the sentence
that [he was] going to impose. Garland argues that, given Judge
Schallys conclusion that the 1997 sexual assault was not
relevant, the judge was obliged under Rule 32.1(f)(5) to delete
all mention of that incident from the pre-sentence report.
Garlands argument fails for two reasons.
First, although the 1997 sexual assault may no longer
have been relevant to Judge Schallys sentencing decision after he
decided to accept the proposed negotiated sentence, the 1997
sexual assault was obviously relevant to Judge Schallys decision
to accept or reject that negotiated sentence. Judge Schally
never said otherwise.
Second, Rule 32.1(f)(5) applies only to assertions of
fact that are disputed. As I pointed out above, and as Judge
Stewart points out in the lead opinion, Garland never fulfilled
the procedural requirements for contesting the pre-sentence
reports information about the 1997 sexual assault. Thus, this
information was not disputed for purposes of Rule 32.1(f).
For these reasons, I concur in this Courts resolution
of Garlands appeal.
_______________________________
1 AS 11.41.434(a)(3)(A), (B).
2 AS 11.41.436(a)(2).
3 23 P.3d 650 (Alaska App. 2001).
4 Id. at 651-52.
5 Id. at 651.
6 Id.
7 See Supreme Court Order No. 1464, effective March 5, 2002.
8 See Hamilton v. State, 771 P.2d 1358, 1362-63 (Alaska
App. 1989); see also Nukapigak v. State, 576 P.2d 982, 984
(Alaska 1978) (accepting the use of verified hearsay information
at sentencing).
1 Evans, 23 P.3d at 652; Hamilton, 771 P.2d at 1362-63.
2 See Alaska Evidence Rule 801(c).
3 Affirmed on rehearing, 576 P.2d 982 (Alaska 1978).
4 Nukapigak, 562 P.2d at 701; affirmed on rehearing, 576
P.2d at 984-85.
5 Cooper v. State, 153 P.3d 371, 373 (Alaska App. 2007);
Simon v. State, 121 P.3d 815, 820 (Alaska App. 2005).
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