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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: firstname.lastname@example.org IN THE COURT OF APPEALS OF THE STATE OF ALASKA
|MICHAEL SCOTT HOLLSTEIN,||)|
|) Court of Appeals No. A-9780|
|Appellant,||) Trial Court No. 3PA-05-3021 Cr|
|) O P I N I O N|
|STATE OF ALASKA,||)|
|Appellee.||) No. 2148 February 15, 2008|
Appeal from the District Court, Third Judi cial District, Palmer, John W. Wolfe, Judge. Appearances: Carmen E. Clark, Ingaldson, Maassen & Fitzgerald, Anchorage, for the Appellant. Jarom B. Bangerter, Assistant District Attorney, and Roman J. Kalytiak, District Attorney, Palmer, and Talis J. Colberg, Attorney General, Juneau, for the Appellee. Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges. MANNHEIMER, Judge. Michael Scott Hollstein was charged with driving under the influence.1 Hollsteins attorney decided to argue that Hollsteins arrest had been illegal. She filed an eleven-page motion in which she argued that the officer who arrested Hollstein had lacked probable cause to believe that he was under the influence. However, instead of labeling her motion a motion to suppress, the defense attorney labeled it a motion to dismiss specifically, a Motion to Dismiss [for] Lack of Probable Cause to Arrest. And, rather than seeking suppression of the evidence against Hollstein, the defense attorney argued for outright dismissal. The concluding sentences of the motion read: Applying the appropriate [legal] standard[,] there [was] no driving misconduct to suggest impairment. Nor did the officer observe sufficient signs of alcohol impairment[,] as opposed to simple [alcohol] consumption[,] to justify Hollsteins arrest ... . Consequently, the charges must be dismissed. In response, the prosecutor filed a pleading in which he argued that the facts known to the officer did, in fact, establish probable cause for Hollsteins arrest. After considering the parties pleadings, District Court Judge John W. Wolfe concluded that he did not need to resolve the issue of whether there was probable cause for Hollsteins arrest. Instead, Judge Wolfe focused on the fact that Hollsteins attorney was asking for dismissal of the charge as opposed to suppression of the evidence. The judge issued the following order: This matter comes [before the court] for consideration [of] the defendants Motion to Dismiss because the defense asserts [that] the officer lacked probable cause to arrest. Assuming arguendo [that] the officer did lack probable cause at the time he arrested the defendant, the motion fails to cite any legal authority for the proposition that dismissal is an appropriate remedy. For this reason[,] the motion is hereby denied. One might suppose that, having received such an order from Judge Wolfe, the defense attorney would simply re-file her motion as a motion to suppress. But instead, the defense attorney filed a motion for reconsideration in which she argued again that outright dismissal of criminal charges is the proper remedy whenever a defendants arrest is not supported by probable cause. As a backup argument, Hollsteins attorney suggested that Judge Wolfe should have treated her earlier pleading as a mislabeled motion to suppress, and that the judge should then have held a hearing on the issue of whether there was probable cause for Hollsteins arrest. Judge Wolfe denied this motion for reconsideration. After Judge Wolfe denied the motion for reconsideration, the defense attorney and the prosecutor decided to resolve Hollsteins case through a Cooksey plea. That is, the parties agreed that Hollstein would enter a plea of no contest to the DUI charge, with Hollstein reserving his right to challenge Judge Wolfes rulings on appeal.2 In particular, the parties agreed that Hollstein reserved the right to argue (1) that his arrest had not been supported by probable cause or, in the alternative, (2) that Judge Wolfe at least should have held an evidentiary hearing so that the issue of probable cause (or lack thereof) could be litigated. The problem is that, under Alaska law, a litigant who wishes to raise an issue on appeal must show that the issue was adequately preserved in the lower court which means not only that the litigant presented the issue to the lower court, but also that the lower court ruled on that issue.3 Moreover, in the context of Cooksey pleas, an issue preserved for appeal must be dispositive of the defendants case. We held in Miles v. State, 825 P.2d 904, 906 (Alaska App. 1992), that an issue is dispositive for Cooksey purposes only if resolution of the issue in the defendants favor would either legally preclude the government from pursuing the prosecution or would leave the government without sufficient evidence to survive a motion for judgement of acquittal at the conclusion of the governments case. At Hollsteins change-of-plea hearing, his defense attorney, the prosecutor, and Judge Wolfe all agreed that Hollsteins appellate issues were properly preserved, and that they were dispositive of Hollsteins criminal case. But this is clearly wrong. As explained above, Judge Wolfe never issued a ruling on the merits of Hollsteins claim that the police lacked probable cause to arrest him. Instead, Judge Wolfe first ruled that a motion to dismiss was the wrong procedural vehicle to raise such a claim and then, on reconsideration, the judge declined to treat the defense attorneys motion to dismiss as a mislabeled motion to suppress. Because Judge Wolfe never decided whether Hollsteins arrest was supported by probable cause, Hollsteins argument that the police had no probable cause to arrest him is not adequately preserved for appeal. Hollstein did adequately preserve the issues of whether Judge Wolfe should have treated his motion to dismiss as a motion to suppress, and whether Judge Wolfe should then have granted Hollstein an evidentiary hearing on the suppression issue. But these issues are not dispositive of Hollsteins case. Even if Judge Wolfe abused his discretion when he declined to treat Hollsteins motion to dismiss as the equivalent of a motion to suppress, and when he failed to order an evidentiary hearing, these errors would only mean that Hollstein is entitled to engage in further litigation of his underlying claim i.e., his claim that there was no probable cause for his arrest, and that he is therefore entitled to suppression of much of the evidence against him. And even assuming that Hollstein should have been accorded the right to further litigate his claim, this does not mean or even suggest that Hollstein would prevail on that claim. In other words, even if we agreed with Hollstein that Judge Wolfe should have allowed him to litigate the merits of the probable cause issue, our decision would not be dispositive of Hollsteins case. For these reasons, Hollsteins Cooksey plea is improper. One of the issues presented on appeal (Hollsteins claim that there was no probable cause for his arrest) would be dispositive, but it is not adequately preserved because the lower court never reached the merits of this claim. The remaining issues (Hollsteins procedural claims) are adequately preserved, but they are not dispositive of his case. We must therefore dismiss this appeal for lack of jurisdiction. Miles, 825 P.2d at 907. This appeal is DISMISSED. Because Hollstein entered his no contest plea in reliance on his ability to challenge Judge Wolfes rulings on appeal, Hollstein must now be given an opportunity to withdraw his plea. Accordingly, this case is REMANDED to the district court to allow Hollstein to withdraw his plea. _______________________________ 1 AS 28.35.030(a). 2See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974). 3See, e.g., Sengupta v. University of Alaska, 139 P.3d 572, 581 (Alaska 2006) (To preserve a claim based on [the lower] courts failure to rule on a motion, a party must make every effort to request and obtain a ruling before proceeding to trial.) (quoting Taylor v. Johnston, 985 P.2d 460, 467 (Alaska 1999)); Bryant v. State, 115 P.3d 1249, 1258 (Alaska App. 2005) (Normally, an appellant may only appeal issues on which he has obtained an adverse ruling from the trial court.); Mahan v. State, 51 P.3d 962, 966 (Alaska App. 2002) (To preserve an issue for appeal, an appellant must obtain an adverse ruling.).
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