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NOTICE
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are encouraged to bring typographical or other formal
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303 K Street, Anchorage, Alaska 99501
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| TIMOTHY WAYNE BRADLEY, | ) |
| ) Court of Appeals No. A-9877 | |
| Appellant, | ) Trial Court No. 3AN-05-12341 CR |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) |
| ) No. 2195 November 28, 2008 | |
Appeal from the
Superior Court, Third Judicial District,
Anchorage, John E. Suddock and Larry Card,
Judges.
Appearances: Doug Miller, Assistant Public
Advocate, and Joshua Fink, Public Advocate,
and Rachel Levitt, Acting Public Advocate,
Anchorage, for the Appellant. Diane L.
Wendlandt, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Talis J. Colberg, Attorney
General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
Timothy Wayne Bradley appeals his conviction for
felony driving while under the influence.1 Bradley raises
several claims of error. On appeal, he contends (1) that the
superior court should have dismissed the driving while under the
influence charge, or at least suppressed evidence of the breath
test, because police lost the audio recording of the field
sobriety tests and the Datamaster processing; (2) that in light
of the loss or destruction of evidence instruction given in this
case, there was insufficient evidence to support the conviction;
(3) that the superior court erred by refusing to consider the
possibility of granting Bradley co-counsel status; (4) that the
superior court erred when, at the start of jury selection for the
first phase of a bifurcated trial, it inadvertently informed the
prospective jury panel that Bradley faced a charge of felony
driving while under the influence; and (5) that the superior
court erred when it ruled that Bradley had been previously
convicted of driving while under the influence two or more times
since January 1, 1996. For the reasons explained here, we reject
Bradleys claims and affirm his conviction and his sentence.
Background facts and proceedings
On December 27, 2005, Anchorage Police Officer Troy
Clark saw a vehicle driven by Bradley fail to stop at a stop
sign. Clark followed the vehicle and watched Bradley turn
without using his turn signal and then run two more stop signs.
Clark stopped Bradley for these violations. When Clark contacted
Bradley, he noticed that Bradleys eyes were red and watery, his
speech was slurred, and there was a strong odor of alcohol
emanating from his breath. Bradley was also swaying and unsteady
on his feet. Bradley admitted that he had been drinking beer
earlier.
Two other police officers, Jeff Whitworth, who was in
training at the time, and his field training officer, Kevin
Mitchell, had Bradley perform field sobriety tests. Bradley
performed poorly on the three standardized field sobriety tests
and Whitworth arrested him for driving while under the influence.
Whitworth and Mitchell transported Bradley to the
Fourth Avenue police substation. While completing paperwork,
Whitworth observed Bradley for the requisite fifteen-minute
observation period. Whitworth then had Bradley provide a breath
sample, and the DataMaster result was .110.
Whitworth had recorded the field sobriety tests and
the DataMaster processing on a digital recorder issued by the
Anchorage Police Department. At the end of his shift, Whitworth
attempted to upload the digital recording onto the police
departments computer server. Later, however, the recording could
not be found on the server.
Bradley was charged with one count of felony driving
while under the influence. He was also charged with two
misdemeanors driving with a suspended license and failing to
maintain motor vehicle liability insurance.
Bradley filed a motion to suppress the breath test
results, asserting that Whitworth was required to record the
field sobriety tests and the DataMaster processing under Stephan
v. State.2 After an evidentiary hearing, Superior Court Judge
John E. Suddock denied the motion, finding that the failure to
record was inadvertent and that Bradley had failed to show how he
was prejudiced by the lack of a recording. However, during
Bradleys trial, the jury was instructed to presume that the
missing recorded evidence would have been favorable to [Bradley].
Bradley also complained about the performance of the
assistant public defenders appointed by the court to represent
him. He requested that he be allowed to represent himself, or
else be granted co-counsel status. At an ex parte representation
hearing, Bradleys appointed counsel objected to Bradleys request,
and also explained that, as a matter of policy, the Public
Defender Agency would not agree to co-counsel or hybrid
representation.
Based on counsels position, Judge Suddock asked
Bradley if he wanted to represent himself or continue with his
appointed attorney. Judge Suddock pointed out that his current
attorney had entered the case so recently that Bradley could not
have determined that shes incompetent. And, in fact, Bradley did
not offer any evidence that the new attorney was incompetent;
rather, he was unhappy with her because she would not allow a
friend of his to act as part of the defense team, and because she
was not yet familiar with Bradleys claim that he had a medical
condition that prevented him from passing the field sobriety
tests. But rather than continue with his appointed counsel,
Bradley chose to represent himself.
Judge Suddock then advised Bradley on the advantages
and disadvantages of proceeding without an attorney. When
Bradley was asked if it was his decision to waive his right to an
attorney, he said: Yes, sir, it is. Judge Suddock then inquired
about Bradleys ability to represent himself. Ultimately, he
found that Bradley was capable of representing himself.
Approximately six weeks later, the State filed a
motion to ensure that Judge Suddock had made an adequate record
showing that Bradley had voluntarily and intelligently waived his
right to counsel. Judge Suddock conducted another hearing.
There, Bradley reminded Judge Suddock that he had already found
that he was capable of representing himself. And when Judge
Suddock asked Bradley if he wanted to continue representing
himself, Bradley said: Absolutely, Sir. When asked if he wanted
standby counsel, Bradley said he wanted pro se status. When
asked if he wanted his former attorney in an advisory capacity,
Bradley answered, Absolutely not. After this, Judge Suddock
again advised Bradley on the advantages and disadvantages of
proceeding without an attorney.
Soon after, the case proceeded to a jury trial.
Before the State began its case, Bradley pleaded no contest to
the misdemeanor charges. Superior Court Judge Larry D. Card
presided over a bifurcated trial for the driving while under the
influence charge. Ultimately, Bradley was found guilty of felony
driving while under the influence.
This appeal followed.
Why we find that Bradley has not shown that the
superior court committed plain error when it
refused to dismiss the DUI charge or to suppress
the DataMaster test results
Bradley moved to suppress evidence on the ground that
the police had violated the rule established in Stephan v.
State.3 That is, he argued that evidence must be suppressed
because the police failed to record the DUI processing done at
the substation. He argued that a recording would show that the
police failed to allow the fifteen-minute observation period
before administering the test, that they ran more than one test,
hit the machine between tests, and printed out the results that
showed Bradleys breath alcohol content was .110 percent but
rejected the results showing that his alcohol content was .00
percent.
Judge Suddock held an evidentiary hearing to resolve
this motion. At the hearing, Anchorage Police Officers Jeff
Whitworth and Kevin Mitchell testified that the cassette tape
recorder in the substation was not working, so they recorded the
processing on Whitworths digital recording device. This model of
digital recorder had been issued by the Anchorage Police
Department to its police officers. At the end of Whitworths
shift, he attempted to upload the recorded information from the
digital recorder to a server. Although Whitworth thought he had
completed the upload successfully, he later discovered that the
information never made it to the server. By the time this was
discovered, the information was no longer available on his
digital recorder. The parties entered into a stipulation that a
search of the server showed that there was no indication that the
upload had occurred.
Whitworth and Mitchell also testified that only one
DataMaster test for Bradley was conducted that night and that its
result was .110. Evidence at trial supported this testimony. A
document introduced into evidence and testimony at trial showed
all of the tests conducted on that DataMaster that day. This
evidence showed that there was only one test of Bradleys breath.
The evidence at trial also showed that the DataMaster was
calibrated and was functioning properly when Bradleys breath was
tested. In addition, the States expert explained that if the
police hit the DataMaster during the test with enough force to
interrupt its operational capabilities, then it would stop
working. Bradley testified at the hearing. Although
he said that the police left him waiting and waiting for them to
get [the testing] process started, he claimed that the police did
not conduct the fifteen-minute observation period. He also said
that the first DataMaster results showed that his breath alcohol
content was .00 percent, but that one of the officers then
smacked [the instrument] twice and the DataMaster result changed
to .110 percent.
Judge Suddock noted that neither this court nor the
Alaska Supreme Court has expanded the Stephan rule to encompass
DUI processing. Rather than decide whether he should expand the
rule, Judge Suddock instead ruled that even if Stephan did apply
to DUI processing, the failure to save the recording was
inadvertent. He also found that Bradley had not presented
credible evidence that the [loss of the audio recording] ... made
any difference to his ability to defend his case . Under
Stephan, an unexcused failure to electronically record a
custodial interrogation conducted in a place of detention
violates a suspects right to due process, under the Alaska
Constitution, and ... any statement thus obtained is generally
inadmissible.4 But here, Judge Suddock found that Whitworths
failure to preserve the recording was excused, and that
suppression under Stephan was not warranted.5 On appeal,
Bradley does not challenge this ruling.
Instead, Bradley makes a different claim he contends
that Judge Suddock, rather than relying on Stephan, should have
relied on case law addressing the proper sanctions when the State
loses or destroys evidence. Bradley now argues that Judge
Suddocks decision was controlled by Thorne v. Department of
Public Safety 6 and Putnam v. State.7 But Bradley argued at the
evidentiary hearing that suppression was the appropriate sanction
for a Stephan violation. He never asked Judge Suddock to
consider whether other sanctions were warranted under Thorne or
Putnam. Accordingly, Bradley must show that Judge Suddocks
failure to impose any other sanction was plain error.8
As part of his argument on appeal, Bradley takes issue with the
sanction that was imposed. During trial, when the parties were
discussing jury instructions, Bradley asked that the jury be
instructed to presume that the missing recorded evidence would
have been favorable to the defendant. Judge Card agreed and
instructed the jury that
[t]here was a digital recording made during
the field sobriety test, arrest and at the
time of the alcohol testing at the police
substation. The original and back-up
recording was lost or destroyed. You are
instructed to presume that the missing
recorded evidence would have been favorable
to the defendant.
This was the first and only time that this issue arose. To the
extent that Bradley now contends that this sanction was
inadequate, he again must show plain error.
A plain error is an error that is so obvious that any
competent judge or attorney would have recognized it.9 The law
is well-settled that [w]hen the state destroys or loses evidence
in its possession, the trial court is not automatically required
to impose sanctions.10 Instead, the trial court must carefully
examine the circumstances surrounding the states violation of its
duty of preservation.11 In particular, the trial court must
consider the degree of culpability on the part of the State, the
importance of the lost evidence, the prejudice suffered by the
defendant, and the evidence of guilt adduced at the hearing or
trial.12
In Thorne, the supreme court considered these factors
and determined that the appropriate sanction for the States
premature destruction of a videotape of the defendants field
sobriety tests was to remand with directions to the
administrative hearing
officer to presume that the videotape would have been favorable
to the defendant.13 This type of sanction has been approved by
the supreme court and this court.14
In light of Alaska case law and the circumstances in
Bradleys case, Bradley has not shown that all competent judges
would have concluded that the sanction Bradley requested was
inadequate. We therefore conclude that neither Judge Suddock nor
Judge Card committed plain error.
Bradley also claims that Judge Suddock, at the
evidentiary hearing, disregarded the parties stipulation that the
information had never been on the server, nor did the server show
that there had been any attempt to upload the information. But
Judge Suddocks ruling did not reject or ignore the stipulation;
Judge Suddock found that Whitworth may have incorrectly performed
the uploading process. The stipulation did not prevent such a
finding.
Why we find that Judge Suddock did not abuse
his discretion when he denied Bradleys
request to act as co-counsel
As already explained, prior to trial Bradley filed a
motion asking that he be allowed to represent himself or,
preferably[,] obtain an Order ... allow[ing] ... Co-Counsel
Status. Judge Suddock held an ex parte representation hearing.
There, Bradleys attorney told the judge that the Public Defender
Agency was not willing to accept co-counsel status with Mr.
Bradley. She also claimed that it was the Public Defenders
policy to not accept such legal relationships and that the agency
refuse[d] to get in[to] contractual relationships with someone in
co-counsel status. For his part, Bradley again asked that he be
allowed to either represent himself or act as co-counsel.
Judge Suddock said that he would not give Bradley co-
counsel status because his attorney, based on agency policy, was
not willing to accept such an arrangement. He also found that
Bradley did not provide sufficient reasons for terminating his
current attorney and having another appointed. He told Bradley
he had to either proceed with his appointed attorney or proceed
pro se. Bradley chose to proceed pro se.
On appeal, Bradley contends that Judge Suddock abused
his discretion by denying Bradleys request solely on the claim
that the Public Defender Agency had a policy against accepting co-
counsel status. Bradley argues that Judge Suddock made the same
error that occurred in Cano v. Anchorage.15 That is, he claims
that Judge Suddock rejected the request for co-counsel status out
of hand.
But Judge Suddock, unlike the judge in Cano, did not
reject Bradleys request out of hand. Rather, Judge Suddock
refused to give Bradley co-counsel status over his attorneys
objection. And more importantly, as explained later in this
opinion, Bradley rejected a second opportunity to have some sort
of hybrid representation.
In Cano, the defendant and his appointed attorney were
willing to proceed
as co-counsel.16 The trial court refused to even consider the
request.17 This court ruled that the trial court abused its
discretion by its outright refusal to consider various
alternatives available to it.18 This amount[ed] to nothing more
than a denial by the court of its own authority.19 The defendant
then decided to proceed pro se and eventually convinced the judge
to allow appointed counsel to stand by in the courtroom; the
appointed counsel was unable to participate in the trial, but was
available for consultation during recesses.20 This court
reversed the conviction. In a concurring opinion, Judge Coats
pointed out that this courts ruling was very limited and among
other things did not address situations where counsel objected to
co-counsel status.21 Here, Judge Suddock clearly knew he had the
authority to grant Bradleys request but refused to do so over the
attorneys objection.
Bradley also contends that Judge Suddock erred when he
accepted the Public Defender Agencys position that it would not
act as co-counsel, but we do not need to address this issue.
Even if we assume that the Public Defender lacks the authority to
refuse to act as co-counsel absent a case-specific reason, the
record shows that approximately six weeks after Judge Suddock
made his initial ruling, he offered Bradley a second opportunity
to have hybrid representation, to have counsel reappointed, or to
again ask for co-counsel status. When Judge Suddock asked
Bradley if he needed or wanted standby or advisory counsel,
Bradley answered, Absolutely not.
This second opportunity occurred approximately six
weeks after the first representation hearing, when the State out
of an abundance of caution asked Judge Suddock to ensure that
Bradley was making a voluntary and knowing waiver of his right to
counsel. The original representation hearing had been ex parte
and the prosecutor was not present when Judge Suddock found that
Bradley had made such a waiver. In response to the States
motion, Judge Suddock again discussed the issue with Bradley.
As the hearing began, Bradley reminded Judge Suddock
that he had already granted him pro se status. He pointed out to
the court that he was found competent enough to do the [trial] on
[his] own and ... appreciate[d] that. The following dialogue
then occurred:
Court: Okay, and youre happy and want to continue
in that vein?
Bradley: Yes, and if theres any objection from the
State, ... [it has had plenty of
opportunity] to argue the point.
Court: So, youre not making any motion that youre
having any difficulty or problem
representing yourself ...?
Bradley: Absolutely ....
Court: [A]nd you want to continue as you are?
Bradley: Absolutely, Sir.
A short time later, Bradley reminded Judge Suddock
that he requested pro se status:
Bradley: [I]f the court remembers in my motion for the
representation hearing, I did ask for pro se
status or ....
Court: Right. Would you like to have ... [your
former attorney] along just as an ...
Bradley: No, I do not.
Court: ... advisory capacity?
Bradley: Absolutely not.
By the time Bradley rejected the opportunity to have his former
attorney reinstated in some capacity, he had been handling the
litigation on his own for approximately six weeks. But rather
than request hybrid representation or renew his request for co-
counsel, he instead asked that the court allow him to have a non-
attorney sit with him during trial to take notes and otherwise
provide assistance. Judge Suddock granted this request, and
Judge Card honored it at trial.
Even if Judge Suddock had originally erred by refusing
to grant Bradley co-counsel status over Bradleys attorneys
objection, the error was harmless the record shows that when
Judge Suddock revisited the issue, Bradley had the opportunity to
ask for, and Judge Suddock was willing to consider, hybrid
representation. But Bradley had no interest in having an
attorney assist him and he unequivocally chose to represent
himself. (Bradley does not separately claim that his waiver of
the right to assistance of counsel was invalid.)
Why we find that Judge Cards inadvertant act
of informing the prospective jurors that
Bradley had been charged with felony DUI was
harmless error
Before a jury was selected, Judge Card read the
charges to the prospective jurors. Judge Card told this panel
that the State of Alaska has charged Mr. Bradley with the
following offenses ... Count I, felony driving under the
influence excuse me, driving under the influence. There was no
objection, but Bradley now contends that telling the jury that
this was a felony offense was reversible error. Because there
was no objection, Bradley has to show plain error.
Here, after telling the jury that Bradley was charged
with felony driving while under the influence, Judge Card
immediately said, excuse me, driving under the influence. Then
after reading the other two counts against Bradley, Judge Card
instructed the jury that:
[T]hese charges are only a formal method of
accusing a defendant of a crime. Its not
evidence of any kind against the accused.
It does not create any presumption or permit
any inference of guilt. Its merely an
allegation of the charges against the
defendant and informs him as to the specific
crimes that he is charged with. The fact
that it was filed may not be considered by
you for any purpose and is not evidence in
the case and should not be considered as
such by you.
He went on to explain to the jury that the State had the burden
of proving beyond a reasonable doubt all of the material
allegations and essential elements of the crime charged, and that
Bradley was presumed innocent.
In addition, the instructions later given to the jury
explained that the indictment was a mere accusation, was not
evidence of the defendants guilt, and the jury should not be
influenced to any extent, however slight, against the defendant
based on its having been filed. The jury was also instructed
that the State had the burden of proving each and every element
of the charges beyond a reasonable doubt, and that they were
obligated to decide the case based upon the law and the evidence.
This court ordinarily presumes that a jury follows the trial
courts instructions.22
Bradley has not shown that these instructions were
insufficient to cure any possible prejudice that arose from the
fact that the jury heard he was charged with felony DUI. We
conclude that no plain error occurred.
Why we find that there was sufficient
evidence to support Bradleys conviction for
DUI
Bradley claims that based on the loss or destruction
of evidence jury instruction, there was insufficient evidence
supporting the DUI verdict. That is, he contends that had the
members of the jury followed this instruction and presumed that
the lost or destroyed evidence was favorable to Bradley, they
could not have found him guilty of driving while under the
influence. But in this case, the jury could disregard the
evidence surrounding the field sobriety tests and the DataMaster
processing and still convict Bradley of driving while under the
influence.
Bradley was charged under both the impairment theory
and the .08 theory. The jury was instructed that it could
convict Bradley under either theory. Even without the field
sobriety tests and the DataMaster result, there was sufficient
evidence to support Bradleys conviction under the impairment
theory.
At trial, the jury heard Anchorage Police Officer Troy
Clark testify that he watched Bradley slide past a stop sign,
then turn without using his turn signal. When Clark tried to
stop him, Bradley continued to drive, even though Clark had
activated his vehicles lights and siren. With Clark following
him, Bradley drove through two more stop signs without stopping.
He finally stopped when he pulled into a trailer park. When
Bradley got out of the vehicle he was driving, Clark saw that he
was swaying and unsteady on his feet. Clark could smell a strong
odor of alcohol coming from Bradley while still two to three feet
away. And when Bradley spoke, his speech was slurred. Clark put
Bradley in the back of his police vehicle and waited for Officer
Whitworth to arrive to conduct a DUI investigation.
The jury heard Officer Whitworth testify that when he
first contacted Bradley, he noticed a very strong odor of alcohol
coming from his breath and person. Bradleys speech was slurred,
and he had bloodshot and watery eyes. Bradley admitted that he
had been drinking.
The evidence was sufficient to support the jurys
verdict that Bradley was guilty of DUI under AS 28.35.030(a)(1),
the impairment theory.
Why we find that the State proved that
Bradley had two prior qualifying DUI
convictions
Bradleys DUI trial was bifurcated. In the first
phase, the jury found him guilty of driving while under the
influence. In the second phase, Judge Card found that the State
had proven that Bradley had the requisite prior DUI convictions
and was guilty of felony DUI.
Bradleys current DUI offense occurred on December 27,
2005. Under AS 28.35.030(n), for his current offense to be a
felony, he had to have been previously convicted two or more
times since January 1, 1996, and within the 10 years preceding
the date of the present offense. Bradley asserts that it is not
clear what the legislature meant by previously convicted.
Bradley points out that one of the prior offenses the
State relied upon was committed in September 1995. Although he
entered a plea of no contest and was found guilty of that offense
a felony DUI in December 1995, he was not sentenced until March
7, 1996. He asserts that the legislature intended that
previously convicted meant the day the defendant was found
guilty, not the day the defendant was sentenced.
He supports this assertion by pointing out that in the
same statute the legislature recently created an alternate way to
qualify for a felony DUI conviction; under this alternate theory,
a person is guilty of felony DUI if that person has been
previously punished for a prior felony. Under the current
version of AS 28.35.030(n), a person is guilty of a class C
felony if the person is convicted under (a) of this section and
either has been previously convicted two or more times since
January 1, 1996, and within the 10 years preceding the date of
the present offense, or punishment under this subsection ... was
previously imposed within the last 10 years.23 Bradley contends
that in light of this new wording, the legislature must have
intended previously convicted to mean something other than
sentencing.
The State disagrees and argues that the Alaska
appellate courts have consistently decided that when habitual
offender statutes are based on prior convictions, the pertinent
date is the day the defendant was sentenced, not the day he
actually committed the offense or was found guilty. The State
also contends that the second theory making a DUI a felony was
added in 2004 solely to ensure that persons who had previously
been convicted of felony DUI would remain subject to the felony
enhancement even if the prior convictions forming the basis for
the earlier DUI conviction no longer fell within the ten-year
period.24 This contention is supported by the testimony before
the legislature, and there is no indication that either the House
or the Senate Judiciary Committee intended to overturn or modify
the Alaska appellate courts interpretation of habitual offender
statutes.25
Although Bradleys position is not unreasonable, we
conclude that the States position more closely reflects the
legislatures intent in cases like Bradleys. As we concluded in
Wooley v. State,26 when a statute imposes enhanced punishment for
repeat offenders, there is a longstanding principle of Alaska law
that ... a defendants status as a repeat offender hinges on the
date of the defendants sentencing rather than the date on which
the [defendant was found guilty].27
In Wooley, we were construing AS 11.46.130(a)(6),
which elevates a theft from a misdemeanor to a felony if, within
the preceding five years, the person has been convicted and
sentenced on two or more separate occasions of certain theft-
related offenses. It is true that this statutes language is
slightly different than the language in AS 28.35.030(n) rather
than just saying convicted it says convicted and sentenced, but
the difference is not significant enough to require us to reach a
different conclusion. We explained in Wooley:
[T]he underlying rationale for imposing
enhanced punishment on repeat offenders is
the idea that a person is more blameworthy
if they return to crime after being
judicially confronted with [their] prior
misconduct and ... given an opportunity for
reformation. The judicial confrontation and
the opportunity for reformation occur at
(and following) the defendants sentencing.28
Other Alaska appellate court decisions support our
decision in Wooley. For example, in State v. Carlson,29 the
Alaska Supreme Court interpreted the habitual criminal statutes
that were in force before the enactment of Alaskas current
criminal code to require proof that the defendant was sentenced
for the prior offense before the defendant committed the present
offense.30 This same rule was applied in Gonzales v. State,31
which addressed the provisions imposing enhanced punishment for
repeat drug offenders.32 In both State v. Rastopsoff33 and
Sawyer v. State,34 this court held that for the purposes of
determining a defendants status under Alaskas presumptive
sentencing laws, a defendant is not previously convicted of a
felony unless the defendant has actually been sentenced for that
felony.35 And, recently in State v. Hodari,36 the Alaska
Supreme Court reasoned that because Hodari had not been
sentenced on the second felony when he attacked the family, he
was considered a second felony offender for presumptive
sentencing purposes.37
Although these cases construed different statutes,
they all addressed the same principle that a defendants status
as a repeat offender hinges on the date of the defendants
sentencing rather than the date on which the defendant was found
guilty. Bradley does not point to any legislative history that
suggests that the legislature has changed this principle.
We acknowledge that the legislature recently amended
AS 28.35.030(n) to add a provision making DUI a felony offense
based on a the date that punishment ... was ... imposed for a
single prior felony DUI. And we understand Bradleys argument
that when the legislature used this language it must have meant
something different than when it used conviction in the same
statute. But Bradley has not shown that the legislature
intended to overturn the long history of case law
construingprevious conviction to mean the date of sentencing
when enhancing punishment for repeat offenders. Accordingly, we
conclude that Judge Card properly found that Bradley was guilty
of felony DUI based on his two prior qualifying DUI convictions.
Bradley also argues that our interpretation of the
statute should be guided by the rule of lenity the rule that
ambiguities in criminal statutes should construed against the
government.38 But the rule of lenity cannot easily be applied
in this case.
If we construe the statute as Bradley wishes that is,
if we construe it so that the crucial date is the date on which a
defendant pleads guilty or is found guilty, as opposed to the
date on which the defendant is sentenced and a formal judgment of
conviction is entered against the defendant this construction of
the statute will benefit defendants in Bradleys situation, but it
will disadvantage defendants in other situations.
Take, for instance, a defendant who is found guilty of
a second DUI and then, before sentencing, commits a third DUI.
Under the rule of law propounded in Wooley, Carlson, and similar
cases, this third DUI would still be a misdemeanor because it
was committed before the defendant was sentenced for the second
DUI. But under Bradleys construction of the statute, this third
DUI would be a felony.
In other words, this is not a situation where one
interpretation of the statute will favor defendants and the other
interpretation will favor the government. Rather, either
interpretation of the statute will benefit some defendants and
will disadvantage others. For this reason, the rule of lenity
does not yield an answer to the question before us.
Conclusion
The judgment of the superior court is AFFIRMED.
_______________________________
1 AS 28.35.030(n).
2 711 P.2d 1156 (Alaska 1985).
3 711 P.2d 1156 (Alaska 1985).
4 711 P.2d. at 1158 (footnotes omitted).
5 See id. at 1162; see also Suiter v. State, 785 P.2d 28, 31
(Alaska App. 1989) (declining to apply Stephan rule to the
booking process where evidence showed that failure to record the
proceedings was inadvertent rather than intentional).
6 774 P.2d 1326 (Alaska 1989).
7 629 P.2d 35 (Alaska 1980) rejected on other grounds in
Stephan, 711 P.2d at 1163.
8 Alaska R. Crim. P. 47(b).
9 Samples v. Anchorage, 163 P.3d 967, 972 (Alaska App. 2007)
(quoting Simon v. State, 121 P.3d 815, 820 (Alaska App. 2005)).
10 State v. Ward, 17 P.3d 87, 89 (Alaska App. 2001); see
Putnam, 629 P.2d at 43; Abdulbaqui v. State, 728 P.2d 1211, 1217-
18 (Alaska App. 1986).
11 Putnam, 629 P.2d at 43.
12 Ward, 17 P.3d at 90; Thorne, 774 P.2d at 1331; Putnam,
629 P.2d at 44.
13 Thorne, 774 P.2d at 1331-32.
14 Id.; Ward, 17 P.3d at 90; see also Snyder v. State, 930
P.2d 1274, 1279-80 (Alaska 1996); State v. Norman, 875 P.2d 775,
777-78 (Alaska App. 1994).
15 627 P.2d 660 (Alaska App. 1981).
16 Id. at 661-62.
17 Id. at 662.
18 Id. at 664.
19 Id.
20 Id. at 662.
21 Id. at 665 (Coats, J., concurring).
22 See Knix v. State, 922 P.2d 913, 923 (Alaska App.
1996).
23 Emphasis added.
24 See ch. 124, 26, SLA 2004.
25 See Minutes of House Judiciary Committee on House Bill
244, March 19, 2004, testimony of Deputy Attorney General Susan
Parkes, log no. 0729-0467; see also Minutes of Senate Judiciary
Committee on Senate Bill 170, March 10, 2004, testimony of Deputy
Attorney General Susan Parkes, 8:16-8:45 a.m. (discussing
sections 26 & 28).
26 157 P.3d 1064 (Alaska App. 2007).
27 Id. at 1065.
28 Id. at 1066 (alteration in original) (quoting Smith v.
State, 83 P.3d 12, 16 (Alaska App. 2004)).
29 560 P.2d 26 (Alaska 1977), superseded by statute on
other grounds as recognized in Linn v. State, 658 P.2d 150, 152
(Alaska App. 1983).
30 Id. at 30.
31 582 P.2d 630 (Alaska 1978), superseded by statute on
other grounds as recognized in Linn, 658 P. 2d at 152.
32 Id. at 636.
33 659 P.2d 630 (Alaska App. 1983).
34 663 P.2d 230 (Alaska App. 1983).
35 Sawyer, 663 P2d at 231-32; Rastopsoff, 659 P2d at 640-
641.
36 996 P.2d 1230 (Alaska 2007).
37 Id. at 1231.
38 See McDole v. State, 121 P.3d 166, 169 (Alaska App.
2005).
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