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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
ROBERT EBERHARDT, )
) Court of Appeals No. A-10546
Appellant, ) Trial Court No. 1JU-09-11 CR
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. )
) No. 2355 - May 4, 2012
Appeal from the Superior Court, First Judicial District,
Juneau, Philip M. Pallenberg, Judge.
Appearances: Tracey Wollenberg, Assistant Public Defender,
and Quinlan Steiner, Public Defender, Anchorage, for the
Appellant. Diane L. Wendlandt, Assistant Attorney General,
Office of Special Prosecutions and Appeals, Anchorage, and
John J. Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger,
Judges.
BOLGER, Judge.
COATS, Judge, dissenting.
In 2009, Robert Eberhardt was convicted of felony driving under the
influence of alcohol. This offense required the State to prove that Eberhardt had two
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prior DUI convictions within the preceding ten years. In this appeal, Eberhardt argues
that one of his prior convictions was too old to be counted.
In 1994, Eberhardt was charged with driving under the influence in Cowlitz
County, Washington. This charge remained unresolved for several years because
Eberhardt was accepted into a deferred prosecution program. However, in 2004, after
Eberhardt was charged with DUI in Oregon, Eberhardt's deferred prosecution in
Washington was terminated, and he was convicted and sentenced for the 1994 offense.
The superior court ruled that Eberhardt's Washington deferred prosecution
did not constitute a "conviction," and that his conviction occurred in 2004, within the ten
years preceding his Alaska offense. Eberhardt contends that this ruling was wrong. He
argues that, even though he was not found guilty and sentenced for the Washington
offense until 2004, his conviction for this offense should be deemed to have occurred in
1994, when he was accepted into the deferred prosecution program.
For the reasons explained in this opinion, we conclude that Eberhardt was
not convicted of the Washington offense until 2004, and thus his Washington offense
was properly counted as one of the predicate prior offenses for his 2009 felony DUI
conviction.
Background
Eberhardt was arrested in Juneau on January 2, 2009. He was charged with
felony DUI under AS 28.35.030(n) because his criminal history showed that he had a
2004 DUI conviction from Washington and a 2004 DUI conviction from Oregon.
Eberhardt moved to dismiss the indictment prior to trial. He did not submit
any documentation from the Washington proceedings, but he claimed that he had been
accepted into a deferred prosecution program in 1994. He argued that the 1994 order
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accepting him into the deferred prosecution program qualified as a conviction, outside
of the ten-year look-back period for felony DUI. The State opposed, arguing that
Eberhardt's Washington conviction and sentencing did not occur until August 11, 2004,
after Eberhardt was removed from the deferred prosecution program. Superior Court
Judge Philip M. Pallenberg denied the motion, concluding that Eberhardt's acceptance
into the deferred prosecution program did not constitute a conviction.
The trial jury found Eberhardt guilty of driving under the influence of
alcohol. Then, in the second part of the bifurcated trial, the State presented documentary
evidence of Eberhardt's prior convictions. The record from Washington showed that
Eberhardt had been convicted and sentenced on August 11, 2004, to a term of 365 days
imprisonment with 275 days suspended. Again, Eberhardt did not present any
documentation that he had been admitted to the deferred prosecution program. But he
testified that he entered the program in 1994 and that the 2004 entry in his criminal
history indicated only that he had violated the terms of the program. He explained that
the violation had not been enforced until 2004 because he had absconded from probation
and moved to another state. The jury found that Eberhardt had two prior DUI
convictions, and he was convicted of felony DUI. Eberhardt now appeals.
Discussion
A person who commits the crime of driving under the influence of alcohol
is guilty of felony DUI if they have been "previously convicted" within ten years
preceding the date of their present offense.1 A previous conviction includes a conviction
1 AS 28.35.030(n).
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"in this or another jurisdiction" for driving under the influence or a "violation of another
law or ordinance with similar elements."2
The term "conviction" is not separately defined in the DUI statutes. In
common usage, this term refers to the judicial act or judgment determining that a person
is guilty of a crime.3 When a criminal statute requires a "prior conviction" or a "previous
conviction" to elevate a criminal sentence, the mere commission of a prior offense is
insufficient. When a statute requires a prior conviction, the State must establish that a
formal conviction was entered before the current offense.4
Of course, the legislature can define the effective date of a prior conviction
by statute or allow the effective date to be established by regulation.5 But in the absence
of a statute defining the effective date of a prior conviction, there is a "longstanding
principle of Alaska law that, when a statute imposes enhanced punishment for repeat
offenders, a defendant's status as a repeat offender hinges on the date of the defendant's
sentencing rather than the date on which the jury found the defendant guilty or the court
accepted the defendant's guilty plea."6
2 AS 28.35.030(u)(4).
3 See Black's Law Dictionary 358 (8th ed. 2004); see also Kelly v. State , 663 P.2d 967,
971 (Alaska App. 1983) (noting that the term "conviction" can be used to denote the finding
of guilt prior to the entry of judgment).
4 See Gonzales v. State, 582 P.2d 630, 636 (Alaska 1978); State v. Carlson , 560 P.2d
26, 30 (Alaska 1977). Gonzales and Carlson were superseded on other grounds by ch. 143,
§§ 32-34, SLA 1982. See Linn v. State, 658 P.2d 150, 152 (Alaska App. 1983).
5 See AS 12.55.145(f); State v. Otness , 986 P.2d 890, 891-92 (Alaska App. 1999)
(applying a regulation that defined "conviction" for purposes of sex offender registration as
the entry of a guilty or no contest plea or a guilty finding by a court or jury).
6 Wooley v. State ( Wooley I), 157 P.3d 1064, 1065 (Alaska App. 2007) (citing Smith v.
State, 83 P.3d 12, 15-16 (Alaska App. 2004); Sawyer v. State , 663 P.2d 230, 232 (Alaska
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7
We applied this principle to the felony DUI statute in Bradley v. State. In
Bradley , the defendant pleaded no contest to a prior DUI offense more than ten years
before he committed his current offense.8 But the date Bradley was sentenced was within
9
the ten-year look-back period. We explained the principle involved by quoting from
prior similar cases:
[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 defendant's sentencing.10
Based on this principle, we concluded that Bradley's liability for felony DUI should be
based on the date of his sentencing hearing rather than the date of his no contest plea.
In this case, both the wording of the Washington deferred prosecution
statute and the court decisions interpreting that statute establish that a deferred
prosecution is not considered to be a conviction. Under the 1994 version of the deferred
prosecution statute, a judge could accept a defendant for deferred prosecution if the
App. 1983); State v. Rastopsoff, 659 P.2d 630, 640-41 (Alaska App.1983), superseded on
other grounds as recognized in Wooley v. State ( Wooley II), 221 P.3d 12, 16-17 (Alaska App.
2009); Gonzales, 582 P.2d at 636; Carlson, 560 P.2d at 30).
7 197 P.3d 209 (Alaska App. 2008).
8 Id . at 217.
9 Id .
10 Id . at 218 (alteration in original) (quoting Wooley I, 157 P.3d at 1066 and Smith, 83
P.3d at 16).
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defendant agreed to comply with a plan for alcohol, drug, or mental health treatment.11
The docket entry would be noted in the defendant's driving record.12 But the statute
made it fairly clear that this entry would not be treated the same as a criminal judgment:
"The entry is not a conviction."13 And if the defendant successfully completed the
treatment program, then the court was required to dismiss the pending charges.14
The Washington courts have addressed the legal effect of a deferred
prosecution on numerous occasions and have held that the "record of a DUI charge and
deferred prosecution is not analogous to a prior conviction."15 Instead, a deferred
prosecution referral gives an offender "an opportunity to avoid conviction if they
successfully complete treatment."16 In other words, "[t]o accept deferred prosecution is,
by definition, to leave adjudication by plea or trial to a later time." 17
Since a deferred prosecution is not a conviction, an order placing a
defendant on deferred prosecution does not require the same procedural protections as
a guilty plea.18 Therefore, a deferred prosecution is not the equivalent of a guilty plea. 19
11 Former Wash. Rev. Code § 10.05.060 (1994).
12 Id .
13 Id .
14 Id . § 10.05.120.
15 City of Kent v. Jenkins, 992 P.2d 1045, 1046 (Wash. App. 2000); see also City of
Richland v. Michel , 950 P.2d 10, 13 (Wash. App. 1998).
16 Jenkins , 992 P.2d at 1046-47.
17 State v. Higley, 902 P.2d 659, 668 (Wash. App. 1995).
18 State v. Preuett, 67 P.3d 1105, 1107 (Wash. App. 2003) ("Unlike guilty pleas, ... due
process does not require written notice of all the consequences of deferred prosecutions.");
Higley , 902 P.2d at 664, 667-68 (holding that a deferred prosecution order does not trigger
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Likewise, the treatment program required as part of a deferred prosecution is not
equivalent to criminal punishment.20 Through successful completion of the program, a
defendant "has the opportunity to avoid criminal prosecution entirely ... [and is
confronted with the] consequences of his or her wrongful conduct" only upon failure to
complete the treatment program.21 "In short, both the purposes and effects of deferred
prosecutions differ from convictions."22
Despite these authorities, Eberhardt argues that his prior conviction
occurred in 1994, when he was accepted for deferred prosecution, rather than in 2004,
when he was convicted and sentenced. He points out that, as a condition of the deferred
prosecution program, he was required to stipulate to the admissibility of the facts stated
in the written police report.23 He was also required to swear that his wrongful conduct
was the result of alcoholism, drug addiction, or mental problems for which he needed
24
treatment. Eberhardt relies on language from Bradley and contends that, as a result of
the due process protections that apply to a guilty plea).
19 See Jenkins, 992 P.2d at 1047 ("Deferred prosecution is not equivalent to a guilty
plea... ."); Abad v. Cozza , 911 P.2d 376, 378 (Wash. 1996) ("A deferred prosecution is not
tantamount to a guilty plea."); Higley , 902 P.2d at 667-68 ("To accept deferred prosecution
is not the same as to plead guilty.").
20 Abad , 911 P.2d at 378-79; see also Jenkins , 992 P.2d at 1046 ("Deferred prosecution
is designed to encourage treatment of culpable people whose conduct is caused by a treatable
condition, like alcoholism.").
21 Abad , 911 P.2d at 381 n.2.
22 Jenkins , 992 P.2d at 1047.
23 See former Wash. Rev. Code § 10.05.020(2) (1994).
24 See id. § 10.05.020(1).
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these requirements, he was "judicially confronted" with his misconduct and "given an
opportunity for reformation."
But Eberhardt's argument takes this quotation from Bradley out of context.
In Bradley (and the cases we relied on), we used this language to explain why a prior
conviction was effective on one of two alternative dates - the date of the sentencing
hearing or the date when the defendant's guilt was first established by a jury verdict or
no contest plea. Under either alternative, however, the court had performed the basic
requirement of a criminal conviction - a formal finding of the defendant's guilt. We
used this quotation to explain why we chose to make the conviction effective on the date
of sentencing, even though the initial finding of guilt occurred on an earlier date.
Eberhardt also points out that the Washington DUI statute includes both
prior convictions and deferred prosecutions as "prior offenses" that may elevate a
defendant's sentence for DUI.25 But the fact that Washington law gives similar treatment
to prior convictions and prior deferred prosecutions does not control the effect of a
deferred prosecution in this case. The effect of a prior court order on the sentencing of
an Alaska offender is an issue governed by Alaska law.26 And Alaska law requires a
conviction and sentence before a DUI offense will qualify as a prior conviction.27
Eberhardt also argues that the Washington deferred prosecution program
is the same as the Alaska statute allowing a suspended imposition of sentence. He notes
that a suspended imposition of sentence will count as a prior conviction, unless the prior
25 See Wash. Rev. Code § 46.61.5055(14)(a).
26 See Mancini v. State, 904 P.2d 430, 432-33 (Alaska App. 1995).
27 See Bradley, 197 P.3d at 218.
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conviction has been set aside.28 But the Alaska statutes authorizing a judge to suspend
the imposition of sentence require that guilt must be established by a verdict or plea. The
statutes permit a judge to suspend the imposition of sentence only "upon entering a
judgment of conviction of a crime." 29 And if the defendant successfully completes his
term of probation "the court may set aside the conviction."30
Washington does have another statutory procedure that is similar to the
Alaska suspended imposition of sentence. Under Washington Revised Code section
3.66.067, a trial court may defer the imposition of sentence and place the defendant on
probation for up to two years. But the Washington courts have recognized that this
procedure is fundamentally different than a deferred prosecution: "A deferred
prosecution treatment program, unlike a deferred sentence or probation, occurs prior to
an adjudication of guilt."31 It is this requirement of a conviction - a formal finding of
guilt - that distinguishes the suspended imposition of sentence procedure from a
deferred prosecution.
Unlike the requirements of a suspended imposition of sentence, Eberhardt
was not required to be convicted before he could be accepted for deferred prosecution
in 1994. And no judgment of conviction would have been entered if he had followed the
terms of the program. His conviction was not entered until 2004, after the court made a
28 See Shaw v. State, 673 P.2d 781, 786 (Alaska App. 1983).
29 AS 12.55.080.
30 AS 12.55.085(e).
31 State v. Vinge, 795 P.2d 1199, 1201 (Wash. App. 1990).
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formal finding of his guilt and imposed a sentence. We conclude that this latter date is
the effective date of his Washington conviction.
Conclusion
We AFFIRM the judgment of the superior court.
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COATS, Chief Judge, dissenting.
Driving under the influence is a misdemeanor offense. But if the defendant
has been previously convicted two or more times within the ten years preceding the date
of the present offense, the offense is a class C felony.1
The defendant in this case, Robert Eberhardt, was convicted of driving
under the influence in Juneau on January 2, 2009. Because the trial jury determined that
Eberhardt had two prior DUI convictions within the preceding ten years (one in Oregon
and one in Washington state), Eberhardt was convicted of a felony. The question is
whether the jury properly considered Eberhardt's Washington conviction - because that
conviction was for an offense that occurred in 1994, fifteen years before Eberhardt's
most recent offense.
When Eberhardt committed his Washington offense, he was placed in a
deferred prosecution program, a treatment program for misdemeanor offenders that is
somewhat analogous to a suspended imposition of sentence in Alaska. That deferred
prosecution was revoked in 2004, and Eberhardt was then sentenced to a term of
imprisonment. Because of this circumstance, the State argues that we should treat
Eberhardt's 1994 offense as a 2004 conviction, thereby elevating his 2009 Juneau
offense to a felony. The opinion of the court accepts the State's argument. I disagree.
When the legislature enacted the statute making a third driving under the
influence offense within ten years a felony, it intended to enhance punishment for DUI
offenders who commit three or more offenses within a specified time period. Enhancing
Eberhardt's offense to a felony for conduct that subjected him to punishment in 1994 is
contrary to this legislative intent. It also violates the principle of statutory construction
1 AS 28.35.030(n).
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2
that ambiguities in penal statutes be strictly construed against the government. For these
reasons, I am unwilling to extend the ten-year period specified by the legislature to
include an offense Eberhardt committed, and was punished for, in 1994.
The opinion of the court appears to rest on a fairly technical definition of
when a defendant has been "previously convicted." In general, under Alaska law, to
qualify for enhanced punishment based on a prior conviction, a defendant must have
been convicted of a crime and must have faced the consequences of that crime, usually
3
by being sentenced. So, for instance, if a defendant committed three burglaries before
he was sentenced on the first burglary, he would be treated as a first felony offender
under Alaska law, because at the time he committed the additional offenses he had not
been sentenced for the first burglary and therefore had received no court-imposed
opportunity to reform his behavior.4
In 1994, Eberhardt was confronted with his Washington crime and given
an opportunity to reform. To be eligible for deferred prosecution in Washington, the
defendant must file a petition alleging under oath "that the wrongful conduct charged is
the result of or caused by alcoholism, drug addiction, or mental problems for which the
person is in need of treatment and unless treated the probability of future recurrence is
great."5 The petitioner is required to submit a case history and a written assessment
2 See Wooley v. State, 221 P.3d 12, 19 (Alaska App. 2009).
3 Bradley v. State , 197 P.3d 209, 218 (Alaska App. 2008).
4 See State v. Rastopsoff, 659 P.2d 630, 635 (Alaska App. 1983).
5 Former Wash. Rev. Code §10.05.020(1) (1994); Wash. Rev. Code §10.05.020(1).
12 2355
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6
prepared by an approved treatment facility. The petitioner must agree to comply with
the terms and conditions of a treatment plan,7 which must be for a two-year period.8
Furthermore, as the Washington Supreme Court explained in Abad v.
Cozza,9 a defendant who receives a deferred prosecution must waive substantial rights.
The defendant must acknowledge that his offense arose out of a condition such as
alcoholism that is subject to treatment, he must stipulate to the facts of his offense, and
he must give up most of his rights, including the right to a jury trial:
Deferred prosecution is a special preconviction sentencing
alternative that is available to petitioners who acknowledge
their culpability and need for treatment. As a condition for
the granting of a deferred prosecution, the petitioner must
state under oath the wrongful conduct charged took place and
resulted from a condition amenable to treatment. The
petitioner acknowledges advisement of rights as an accused.
The petitioner knowingly and voluntarily stipulates to the
admissibility of the facts in the police report, and
acknowledges the report and sworn statement will be
admitted in any postrevocation trial or hearing and used to
support a finding of guilty. Plainly, this means that the
petitioner agrees to waive the right to raise other defenses, to
introduce other evidence, to question or call witnesses, and to
a jury.10
6 Former Wash. Rev. Code §10.05.020(1) (1994).
7 Id. §10.05.060.
8 Id. §10.05.150.
9 911 P.2d 376 (Wash. 1996).
10 Id. at 382.
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The Washington court observed that the legislature intended to set up a
streamlined procedure for revoking a deferred prosecution to avoid the problem of
litigating a defendant's guilt after witnesses memories had faded or evidence had become
less probative because of the passage of time.11 The dissenting opinion in this case
pointed out that, under the majority's decision, in a deferred prosecution "the defendant's
guilt is presumed, and conviction necessarily follows."12
Moreover, under Washington law, when a court imposes mandatory
penalties for subsequent offenses, a deferred prosecution is considered a prior offense
if the deferred prosecution occurred within the appropriate look-back period.13 In other
words, had Eberhardt committed his DUI offense in Washington, his deferred
prosecution would have been treated as a 1994 conviction.
In Alaska, the analogous provision to Washington's deferred prosecution
is a suspended imposition of sentence. In Shaw v. State,14 we held that, even though
under the suspended imposition of sentence procedure the defendant never had a
sentence imposed, his suspended imposition of sentence qualified as a prior felony
conviction for purposes of sentence enhancement.15 Therefore, had Eberhardt committed
his driving under the influence offense in Alaska and received a suspended imposition
of sentence, the date of his conviction would have been 1994.
11 Id.
12 Id. at 385 (Alexander, J., dissenting).
13 See Wash. Rev. Code §46.61.5055(14)(a)(vii); former Wash. Rev. Code §10.05.120
(1994).
14 673 P.2d 781 (Alaska App. 1983).
15 Id . at 785-86.
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Accordingly, I conclude that, for purposes of sentence enhancement,
Eberhardt was convicted of his Washington offense in 1994, when he was, in effect,
required to enter a guilty plea, and ordered to undergo at least a two-year period of
treatment. This result is consistent with the Alaska Legislature's intent when it enacted
the current felony driving under the influence statute. The legislature determined that a
person who commits three offenses within a ten-year period is a particularly dangerous
offender who deserves enhanced punishment. Eberhardt does not fit this pattern: he
committed the Washington offense well outside the ten-year period. His offense would
have been considered a 1994 offense for sentencing purposes if he had re-offended in
Washington. It would also have been considered a 1994 offense if he had received a
suspended imposition of sentence in Alaska. I therefore conclude that the majority's
result is in conflict with both legislative intent and principles of statutory construction.
15 2355
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