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303 K Street, Anchorage, Alaska 99501
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E-mail: corrections @ appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
DARIN L. JONES,
Court of Appeals No. A-10487
Appellant, Trial Court No. 3PA-03-129 Civ
v.
O P I N I O N
STATE OF ALASKA,
Appellee. No. 2373 - September 14, 2012
Appeal from the Superior Court, Third Judicial District,
Anchorage, Eric A. Aarseth, Judge.
Appearances: Dan S. Bair, Assistant Public Advocate, Appeals
& Statewide Defense Section, and Rachel Levitt, Public
Advocate, Anchorage, and Darin Jones, in propria persona,
Juneau, for the Appellant. Michael Sean McLaughlin, 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.
MANNHEIMER, Judge.
BOLGER, Judge, dissenting.
Darin L. Jones appeals the superior court's denial of his petition for post-
conviction relief. Jones argues that the superior court committed error when it denied
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his request to be transported from prison to attend the evidentiary hearing on his claims
- thus forcing him to testify at the evidentiary hearing by telephone.
For the reasons explained in this opinion, weagree with Jones that the court
should have ordered the Department of Corrections to transport him to the evidentiary
hearing, so that he could present his testimony in person. This error affected the
litigation of two of Jones's claims for post-conviction relief. We therefore vacate the
portion of the superior court's order denying those two claims, and we direct the superior
court to hold a new evidentiary hearing on those claims.
Underlying facts
In September 2000, Darin Jones was indicted for first-degree murder in
connection with the killing of Shane Rogers. Jones was represented by Assistant Public
Advocate Darrel Gardner. On the day that Jones's trial was scheduled to begin (May 2,
2002), Gardner informed the superior court that Jones and the State had reached a plea
agreement. Under the terms of this agreement (as described by Gardner and the
prosecutor), Jones would plead no contest to a reduced charge of second-degree murder,
and there would be a sentencing cap of 25 years to serve, with "suspended time and
probation terms ... open to the court".
Upon hearing this description of the plea bargain, the judge presiding over
the proceedings - Superior Court Judge Dan Hensley - addressed Jones personally:
The Court: [Y]our lawyer [has] told me that ... you've
reached an agreement [with the State]. I'm going to restate
what I think the agreement is, [and] then I'm going to ask you
if I [described] it correctly.
Jones : Yes.
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The Court: All right. ... [Y]ou would plead no contest
to [the count] of the indictment which alleges murder in the
second degree. [And] if I accepted your plea, the State would
dismiss all the other counts ... . [Your plea of] no contest to
murder in the second degree ... would also establish that you
violated your probation in [case number] [3AN-]99-4327. ...
[Also,] there would be ... an agreement concerning your
sentence - which would be [that] the most active jail time
I could give you [is] 25 years for both cases, but I would be
free to impose additional suspended time if I thought that was
appropriate, and [the]length ofprobation[and the]conditions
of probation would be subject to my discretion ... . Did I set
out the agreement accurately?
Jones : Yes, sir.
After further discussion concerning the rights that Jones was giving up by entering this
plea, the superior court accepted Jones's plea.
The following September, Judge Hensley sentenced Jones for the second-
degree murder conviction and the probation revocation in the earlier felony case. Jones
received a composite term of 50 years' imprisonment with 27 years suspended.
About four months later, in January 2003, Jones filed a pro se petition for
post-conviction relief in which he challenged various aspects of Gardner's
representation. A new lawyer was appointedto representJones, and this lawyer prepared
and filed an amended petition. In its final form, Jones's petition contained nine separate
assertions regarding ways in which Gardner's representation of Jones was allegedly
incompetent.
Superior Court Judge Eric A. Aarseth scheduled an evidentiary hearing on
Jones's petition for July 25, 2008. At that time, Jones was housed at the Red Rock
prison in Arizona (under contract with the Alaska Department of Corrections).
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In advance of the evidentiary hearing, Jones's attorney filed a motion
asking the superior court to order the Department of Corrections to transport Jones to
Anchorage, so that Jones could attend the hearing and testify in person, rather than by
telephone. However, this motion did not specify what Jones wished to testify about.
There is a statute, AS 33.30.081(e) - (f), that governs this type of request.
Under the provisions of this statute, a court may not order the transportation of a prisoner
who is a party or witness in a civil action - such as post-conviction relief litigation -
unless (1) the court provides a reasonable opportunity for the State to comment on the
proposed transportation, and (2) "the court determines ... that the prisoner's personal
appearance is essential to the just disposition of the action". The statute directs the court
to consider alternatives to the prisoner's personal appearance, including holding a
deposition within the prison facility, or having the prisoner give telephonic testimony.
Pursuant to this statute, the Departments of Corrections and Public Safety
filed an opposition to Jones's request to be transported from Arizona to Anchorage. In
their opposition, the two Departments took the position that if the resolution of Jones's
claims turned on Jones's credibility as a witness, then he should be brought back to
Alaska so that he could testify in person. However, the Departments pointed out that
Jones had failed to explain the nature of the testimony he intended to give at the hearing,
and thus Jones had failed to explain why his personal appearance was required.
Specifically, theDepartments argued thatJones had failed to makeonecrucialallegation:
he had failed to allege that any of the issues to be decided at the hearing hinged on his
credibility as a witness.
Here is the pertinent passage of the Departments' opposition:
Jones has stated no persuasive reason [why] his
personal presence is necessary for the just disposition of this
hearing. Although Jones states he will testify, he does not
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state the substance of his testimony and why he cannot testify
telephonically. If the substance of Jones testimony does not
call his credibility into question, he should not be transported
and [he] should testify telephonically. See Richard B. v.
[Alaska] Dept. of Health [and Social Services] , 71 P.3d 811,
828 (Alaska 2003) (lack of credibility-dependent testimony
supports denial of motion for transport).
Judge Aarseth denied Jones's request to be transported back to Alaska for
the evidentiary hearing. However, the judge also rejected the position taken by the
Departments of Corrections and Public Safety -the position that Jones's request should
be denied because Jones had failed to identify any issue where his personal credibility
as a witness might make a difference to the outcome. Instead, Judge Aarseth ruled that
it was irrelevant whether he, as fact-finder, would be required to assess Jones's
credibility as a witness. The judge declared that he could assess Jones's credibility
equally well, regardless of whether Jones testified in person or by telephone.
Here is the wording of Judge Aarseth's order:
The Petitioner requests the Court to order his
transport[ation] from Red Rock Facility in Eloy, Arizona
[back to Alaska] for his ... evidentiary hearing. The Court
does not require his presence in the courtroom. The Court
can adequately determine Mr. Jones' credibility via
telephonic testimony.
The evidentiary hearing on Jones's petition for post-conviction relief was
ultimately held on October 10, 2008. Both Gardner and Jones testified at this hearing
- Gardner in person, and Jones by telephone. However, the testimony at this hearing
was not confined to the nine allegations of incompetence contained in Jones's petition.
In a pre-hearing affidavit filed by Jones, and in his opposition to the State's
motion for summary dismissal of the case, Jones claimed that he would not have
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accepted the State's proposed plea bargain if he had understood that the 25-year cap
specified in the sentencing agreement applied only to his active term of imprisonment
(his "time to serve"), and that he might receive an additional suspended term of
imprisonment over and above the 25-year cap.
During the October 2008 evidentiary hearing, Jones reiterated these
assertions in his telephonic testimony. Indeed, the greater portion of Jones's testimony
at the evidentiary hearing was devoted to lengthy and repeated assertions that he
misunderstood the terms of his sentencingagreement with the State, and that his sentence
exceeded the limits of what he had agreed to.
According to Jones, he believed that the sentencing agreement limited his
sentence to a total of 25 years (including both time to serve and suspended time). Thus,
according to Jones, his ultimate sentence - 25 years to serve plus an additional 27 years
suspended - exceeded the sentence allowed under the plea agreement, at least as he
understood it.
Jones testified that, immediately after this sentence was imposed, he turned
to his attorney (Gardner) and told him that he wanted to withdraw his plea because the
sentence was more severe than allowed under the terms of the sentence agreement.
According to Jones, Gardner answered that he could not do that - and then Gardner
"walked out of the courtroom".
Jones testified that he communicated again with Gardner the next day,
telling him that he wanted to "appeal this". Several weeks later, Gardner responded to
Jones in a letter dated October 11, 2002. In this letter, Gardner told Jones that he could
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not appeal his sentence, and that (in Jones's paraphrasing), "[if] you don't like it, file
[for] post-conviction relief." 1
After Jones made these assertions during his telephonic testimony, Judge
Aarseth exercised his power to call witnesses (see Alaska Evidence Rule 614), and he
re-summoned Gardner to the stand.
Under questioning by Judge Aarseth (and then, under follow-up
questioning by both the prosecutor and Jones's post-conviction relief attorney), Gardner
testified that his plea discussions with Jones centered on how much time Jones would
have to serve - and that the amount of suspended time "really [didn't] matter".
According to Gardner, Jones took the offered bargain because it placed a limit of 25
years on his time to serve.
Gardner explained that the State's proposed plea bargain called for Jones's
sentence to be limited to 25 years to serve, but that the superior court could impose
1 The text of the October 11th letter actually reads:
Enclosed is a copy of the final written judgment in your case.
Because the court followed the terms of the Rule 11 agreement
and imposed a sentence of no more than 25 years actual jail time
to serve, there is no right to a sentence appeal. I understand that
after your sentencing, you spoke with Leslie Hiebert and
complained that you believed that you had received ineffective
assistance of counsel. You do have the right to file an
application for post-conviction relief alleging ineffective
assistance of counsel. You would be appointed new counsel to
represent you on such an application. It is also my
understanding that our office has already sent you the
appropriate application form for you to fill out and file with the
court.
At this point, there is nothing else for me to do on your case.
I wish you the best of luck in the future, Darin.
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additional suspended jail time, "up to [a combined total of] 99 years". Gardner declared
that he had explained this to Jones.
Gardner conceded that it waspossible that he did not explicitly talk to Jones
about the potential suspended portion of the sentence. But Gardner declared that this
scenario was very unlikely: "[G]iven the ... background of the case, and ... how much
we went back and forth about the offer, ... [I believe] I would have discussed with him
... the fact that he could get more than the 25 years, but it would be suspended." Gardner
added, "I believe that he understood that - that there could be a suspended [component]
on top of [the time to serve]."
About six months after this evidentiary hearing, Judge Aarseth issued a
written order denying Jones's petition for post-conviction relief. In Sections III and V
of that order, Judge Aarseth addressed Jones's claim that he should be allowed to
withdraw his plea because he did not understand the terms of the sentencing agreement.
Judge Aarseth acknowledged that, according to Jones's testimony at the
hearing, Jones believed that his total sentence (including both time to serve and
suspended time) would be capped at 25 years. However, Judge Aarseth found that the
evidence, taken as a whole, refuted Jones's testimony on this issue. The judge concluded
that "[the] evidence showed [that] Mr. Jones understood the agreement" - i.e.,
understood that the agreement included the possibility of suspended jail time over and
above the maximum 25 years to serve.
Jones's claim on appeal, and the State's defense to that claim
On appeal, Jones claims that the superior court committed error when it
denied his request to be transported to the evidentiary hearing so that he could give his
testimony about the plea bargain in person, rather than by telephone. The State responds
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that Judge Aarseth's ruling on Jones's transportation request was correct - because,
at the time of that ruling, the judge had no reason to believe that the outcome of the
evidentiary hearing would hinge on Jones's credibility as a witness.
The State concedes that if Judge Aarseth had known that Jones intended to
testify that he misunderstood the terms of the plea bargain, or that his sentence did not
comport with the plea bargain, then the judge should have granted Jones's request to be
transported to the evidentiary hearing - because resolution of these claims might hinge
on Jones's credibility as a witness. But the State argues that Judge Aarseth had no
reasonable way of knowing that these issues would be raised.
The State points out that Jones's petition for post-conviction relief - i.e.,
the final form of the petition, as drawn up by Jones's new attorney - made no mention
of any claim that Jones misunderstood the terms of the plea bargain, or that Jones's
sentence did not comport with the terms of the plea bargain. This claim was not
developed until the evidentiary hearing itself, when Jones gave his testimony on this
subject.
The State further points out that, in Jones's request for transportation to the
evidentiary hearing, he asserted that he intended to take the stand at the hearing, but he
gave no description of what subjects he intended to testify about. In particular, Jones
again made no mention of any claim that he misunderstood the terms of the plea bargain,
or that his sentence did not comport with the plea bargain.
Given these circumstances, the State argues, Jones failed to provide Judge
Aarseth with any reason to believe that his ultimate resolution of Jones's petition for
post-conviction relief might hinge on Jones's credibility as a witness. And because a
judge's ruling must be assessed in light of the circumstances known to the judge at the
time, the State concludes that Judge Aarseth correctly denied Jones's request to be
transported to the evidentiary hearing.
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We agree with the State that, at the time Judge Aarseth made his ruling,
Jones had not given the judge reasonable notice that he intended to assert that he
misunderstood a material element of the plea agreement, or (alternatively) that his
sentence exceeded the bounds of the plea agreement.
But as we have already explained, when Jones presented his testimony at
the evidentiary hearing, it became clear to everyone that this was Jones's primary claim.
Even though Jones's testimony about misunderstanding the plea bargain did not relate
to any of the claims of ineffective assistance of counsel articulated in Jones's petition,
Judge Aarseth did not rule that Jones's testimony was irrelevant and should be
disregarded. Instead, the judge effectively allowed Jones to supplement his claims to
include this new one. Indeed, after Judge Aarseth heard Jones's testimony on this issue,
the judge took it upon himself to call Gardner to the witness stand again, so that Gardner
could address Jones's assertions concerning the sentencing provisions of the plea
agreement, and Jones's understanding of these sentencing provisions.
Moreover,whenJudgeAarseth issued his final decisionon Jones'spetition,
the judge addressed this plea bargaining issue, and he resolved this issue against Jones
- because he found that the evidence, taken as a whole, refuted Jones's testimony.
In other words, even though Jones's testimony about the sentencing
agreement did not relate to any of the claims presented in his petition for post-conviction
relief, Judge Aarseth allowed Jones to litigate this new claim, and the judge resolved this
claim on the merits. In arriving at his decision, Judge Aarseth expressly rejected Jones's
testimony on this issue. The judge concluded that, in light of the evidence as a whole,
Jones's testimony was not credible.
As we explained earlier, when Jones made his request for transportation to
the evidentiary hearing, the Departments of Corrections and Public Safety took the
position that Jones should be transported to the hearing if his credibility as a witness was
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going to be an issue. And now, on appeal, the State concedes that this is the rule that
governs requests for transportation.
If Judge Aarseth had shared this view of the matter, then we have little
doubt that the judge would have declined to adjudicate the sentencing issue based on
Jones's telephonic testimony. Instead, he would have interrupted the proceedings and
would have ordered that Jones be brought to the hearing.
But Judge Aarseth did not deny Jones's request for transportation on the
basis suggested by the Departments of Corrections and Public Safety. That is, the judge
did not deny Jones's request on the basis that none of the issues to be litigated turned on
Jones's credibility as a witness. Rather, Judge Aarseth denied the request for
transportation because he believed that he could adequately evaluate Jones's credibility
regardless of whether Jones testified in person or by telephone - and that it was
therefore irrelevant whether any of the issues to be litigated turned on Jones's credibility
as a witness.
Our dissenting colleague, Judge Bolger, argues that it was incumbent on
Jones to renew his request for transportation once it became clear that the issues litigated
at the hearing - in particular, the question of Jones's alleged understanding of the
sentencing agreement - would turn on Jones's credibility as a witness.
Butgiven thenatureofJudgeAarseth's ruling, it would havebeen pointless
for Jones's attorney to seek reconsideration on the ground that Jones's credibility as a
witness was now clearly in question. Judge Aarseth's response to such a motion for
reconsideration would presumably have been the same - that it was irrelevant whether
any of the issues to be litigated turned on Jones's credibility as a witness, because the
judge could adequately evaluate Jones's credibility even if he testified by telephone.
For this reason, we do not believe that Jones waived this issue by failing to
renew his request for transportation at the evidentiary hearing.
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Our remaining task is to decide whether it was error not to bring Jones back
to Alaska for the evidentiary hearing after it became clear that the court's resolution of
the major issue litigated at that hearing (Jones's understanding of the sentence bargain)
would turn on Jones's credibility as a witness.
When must a defendant be allowed to testify in person at an evidentiary
hearing on a petition for post-conviction relief?
Alaska law supports the State's general position that a defendant should be
transported to a post-conviction relief trial or evidentiary hearing if the defendant shows
that the outcome of the litigation might hinge on their credibility as a witness.
In Richard B. v. Alaska Department of Health and Social Services, 71 P.3d
811 (Alaska 2003), one of the issues presented on appeal was whether the superior court
abused its discretion under AS 33.30.081 when the court refused to order the Department
of Corrections to transport a prisoner to Bethel so that he could testify in person at a
proceeding to terminate his parental rights. Id. at 826.
On appeal to the supreme court, the State argued that the prisoner had failed
to show that the superior court abused its discretion because the prisoner had failed to
identify any instance where the superior courthad found his testimony less than credible,
or where the superior court's assessment of the prisoner's credibility as a witness
materially affected the outcome of the trial. Id. at 827.
The supreme court declared that "where the credibility of a party or witness
will likely affect the outcome of the case, it will be important for the [trial] court to see
and hear the person testify." Ibid. On this issue, the court quoted its earlier decision in
Whitesides v. Alaska Division of Motor Vehicles, 20 P.3d 1130, 1137 (Alaska 2001):
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[T]he potential for empathy and nuanced understand-
ing is much greater in person-to-person communications than
in any of the various forms of telecommunicating. Likewise,
when a party is denied an in-person hearing before a trier of
fact, there is a risk that the party will be less able to convey
the message that his story is the truth.
Richard B., 71 P.3d at 827-28.
However, the supreme court concluded that, under the circumstances of
Richard B.'s case, the superior court's refusal to order him brought to Bethel was not an
abuse of discretion - because, even though Richard B. expressed a desire to be present
at the trial, and to testify at the trial, he "did not [identify] what specific information he
intended to convey through his testimony that would depend on his credibility, nor did
he present the court with any basis on which to believe that the outcome of the case
would depend upon his presence." Id. at 828. The supreme court held that, "[w]ithout
a specific offer of credibility-dependent evidence[,] or a [specification] ... of any material
issues he intended to dispute, the [superior] court was well within its authority to deny
Richard's motion for transport." Ibid.
The supreme court expressed the same view of the matter in Seth D. v.
Alaska Department of Health and Social Services , 175 P.3d 1222 (Alaska 2008). Again,
the question presented on appeal was whether the superior court abused its discretion
under AS 33.30.081 when it refused to order the Department of Corrections to transport
a prisoner to the site of a parental rights termination trial, so that the prisoner could give
live testimony at the trial. Id. at 1226.
By coincidence, Seth D. completed his sentence while the termination trial
was still in progress, so he was able to attend the last two days of the trial and testify in
person. Ibid. The supreme court concluded that, given this fact, even if the superior
court abused its discretion in not ordering the Department to transport Seth to the trial,
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the error was harmless. Id. at 1229. The supreme court cautioned, however, that the
superior court's denial of Seth's request to be transported to the trial would have been
"problematic" if Seth "[had] not been fortuitously released from prison mid-trial." Ibid.
Two members of the court - Justices Fabe and Carpeneti - were more
forceful in their condemnation of the superior court's ruling:
Our case law makes clear that the trial court erred in ruling
that Seth's telephonic testimony "was adequate for a fair
trial." Only the fortuity of Seth D.'s release from prison
before the conclusion of his hearing rendered the superior
court's decision to deny transport harmless error.
Id. at 1233.
Thesupremecourt'sdecisions inRichard B. and Seth D. areconsistent with
its earlier decision in Fajeriak v. State, 520 P.2d 795 (Alaska 1974), and this Court's
decision in State v. Jones, 759 P.2d 558 (Alaska App. 1988), both dealing with the
question of whether a prisoner seeking post-conviction relief should be allowed to
personally attend the trial or evidentiary hearing. In Fajeriak, the supreme court stated
that a prisoner seeking post-conviction relief must be allowed to testify in person when
"[the prisoner's] testimony will be material and ... founded on personal knowledge". 520
P.2d at 803. And in Jones, this Court echoed the holding in Fajeriak; we stated that
"[i]f the disputed issues involve facts within the personal knowledge of the applicant, the
applicant's presence is required[.]" 759 P.2d at 566.
See also Henry v. State, 861 P.2d 582, 592-94 (Alaska App. 1993), where
this Court held that, despite the telephonic participation provisions of Criminal Rule
38.1(a), it is unlawful for a judge to conduct a sentencing by telephone when the
defendant objects and asserts the right to stand face-to-face with the judge.
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Based on these prior decisions, we conclude that a defendant must be
transported to a post-conviction relief evidentiary hearing when the defendant intends
to testify at the hearing and the outcome of the hearing may turn on the defendant's
credibility as a witness.
Conclusion
Of the several issues litigated by Jones in these post-conviction relief
proceedings, resolution of two of the issues hinged to some degree on Jones's credibility
as a witness: (1) the controversy regarding the terms of the sentencing agreement (the
controversy which we have described at some length in this opinion), and (2) a separate
claim that Gardner did not inform Jones of his right to seek appellate review of the
superior court's denial of a pre-sentencing motion to withdraw his plea.
Accordingly, we VACATE the superior court's decision of these two
issues, and we direct the superior court to hold a new evidentiary hearing on these issues,
with Jones given the opportunity to testify in person at the hearing.
With respect to Jones's other claims for post-conviction relief, the
judgement of the superior court is AFFIRMED.
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BOLGER, J., dissenting.
I disagree with the decision to address the issue identified in the lead
opinion, because Jones failed to preserve this issue for appellate review. At the time
Jones made his motion for a transport order, he did not make any showing that he had
material testimony to offer on the issue he now relies upon.
Jones's amended application for post-conviction relief alleged that his trial
attorney committed several acts of malpractice, including negligent handling of Jones's
mental health issues, failure to notify Jones that he could appeal a motion to withdraw
his plea of no contest, and failure to file a motion to suppress Jones's confession. These
were the only claims that were at issue when Jones filed his one-page motion for a
transport order. The application did not include any claim that Jones should be allowed
to withdraw his plea because he did not understand the sentencing agreement. On the
contrary,theapplicationaffirmatively alleged thatJones'ssentencing agreement "capped
the time to be served at twenty-five years." (Emphasis added).
Under AS 33.30.081(f), a prisoner is not entitled to be transported for a
post-conviction hearing unless he establishes that his "personal appearance is essential
to the just disposition of the action." To satisfy this burden, a prisoner must "demonstrate
to the court what specific information he intend[s] to convey through his testimony that
w[ill] depend on his credibility" and the "basis on which to believe that the outcome of
the case w[ill] depend upon his presence."1 The court must weigh a variety of factors to
determine whether to grant such a request:
In making its determination the trial court may take into
account the costs and inconvenience of transporting a
prisoner from his place of incarceration to the courtroom, any
1 Richard B. v. State, Dep't of Health and Soc. Servs., 71 P.3d 811, 828 (Alaska 2003).
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potential danger or security risk which the presence of a
particular inmate would pose to the court, the substantiality
of the matter at issue, the need for an early determination of
the matter, the possibility of delaying trial until the prisoner
is released, the probability of success on the merits, the
integrity of the correctional system, and the interests of the
inmate in presenting his testimony in person rather than by
deposition.2
A prisoner is not entitled to transportation unless he shows that he has testimony to offer
on a material issue.3
The statute also requires the requesting party to pay for the costs of
transportation before the prisoner is transported.4 If the requesting party is the prisoner,
and the court concludes that he is indigent, then he may be required to advance only a
portion of those costs.5
Jones did not make any offer of the testimony he intended to present at the
post-conviction hearing. Jones's one-page motion did not mention AS 33.30.081(f) or
discuss any of the factors the court was required to consider. In particular, Jones's
motion did not notify the court that Jones wanted to testify to support a claim that he did
not understand his sentencing agreement. The superior court judge had no reason to
identify this issue as a material issue because Jones did not raise this claim in his
2 Id. at 827 (quoting B.H. v. W.S. (In re F.H.) 283 N.W.2d 202, 209 (N.D. 1979)).
3 Id . at 832; see also McCracken v. State, 518 P.2d 85, 92 (Alaska 1974) (noting that
"federal courts have always possessed the power to refuse to compel the production of a
prisoner at an evidentiary hearing on the prisoner's petition for post-conviction relief when
his physical presence was not necessary").
4 AS 33.30.081(g).
5 AS 33.30.081(h).
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amended application. In my opinion, Jones has failed to preserve this issue for appellate
review.
The lead opinion forgives Jones's waiver because Jones chose to give
telephonic testimony on this sentence-bargain issue at the post-conviction hearing, the
issue was contested by the State, and it was decided by the judge. The lead opinion thus
shifts the burden to the trial judge to renew Jones's pretrial motion for transportation sua
sponte. This shift is contrary to the rule this court has followed on many prior occasions.
If circumstances change during the trial, it is the movant's burden to renew any
unsuccessful pretrial motions.
For example, in Pease v. State, the defendant made an unsuccessful pretrial
motion for severance.6 On appeal, the defendant relied on the trial evidence to support
his claim that he had been prejudiced.7 This court held that "if circumstances arise during
trial that undermine the judge's earlier decision" the defendant has a duty to renew the
motion during trial "to allow the trial judge to consider the actual circumstances as they
arise at trial."8 Because the defendant did not renew his motion at trial, this court limited
its appellate review to the information presented with the defendant's original pretrial
motion.9
Likewise, in Waters v. State, the defendant made an unsuccessful pretrial
motion to suppress his confession.10 This court explained why the defendant was not
entitled to take advantage of trial evidence to support his pretrial motion:
6 54 P.3d 316, 322 (Alaska App. 2002).
7 Id.
8 Id.
9 Id.
10 64 P.3d 169, 170-71 (Alaska App. 2003).
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Although we have indicated that evidence developed at trial
can be used to support the lower court's ruling on a pre-trial
motion, ... such evidence can not be used to attack a pre-trial
ruling unless the proponent of the motion affirmatively asks
the trial judge to re-examine the pre-trial ruling in light of the
newly-developed evidence. ... Therefore, if a party believes
that later-developed evidence has shown that the trial court's
pre-trial findings are erroneous, it is that party's duty to
apprise the trial court of the situation and affirmatively seek
a re-determination of the pre-trial issue.11
This explanation thus supports the general rule of waiver: "The normal rule is that,
absent plain error, a party challenging a trial court's ruling may not rely on an argument
or on evidence that was not brought to the trial court's attention at the time the trial court
made its ruling."12
In this case, the lead opinion concludes that it would have been pointless
for Jones to renew his pretrial motion for transportation because of the wording of the
pretrial order. But I expect that the superior court judge would have worded his pretrial
decision differently if Jones had made an adequate motion with a citation to the
procedures required under AS 33.30.081(f), a discussion of the factors listed in Richard
B.,13 and an offer of proof of the testimony for which his transportation was requested.
11 Id. at 171 (emphasis in original).
12 Id .; see also Khan v. State, 204 P.3d 1036, 1039 (Alaska App. 2009) (holding that the
defendant waived the right to appeal his pretrial motion for a change of venue by his failure
to renew the motion after jury selection), rev'd on other grounds, 278 P.3d 893 (Alaska
2012); Beuter v. State, 796 P.2d 1378, 1384 (Alaska App. 1990) (holding that a defendant
waived his appeal regarding an unsuccessful motion to compel discovery when he failed to
renew his request when the discovery became relevant).
13 71 P.3d at 827.
- 19 - 2373
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Moreover, if Jones had renewed his request for a transportation order
during the post-conviction hearing, then the judge could have made a decision on the
motion based on a full review of the circumstances at that time, including the nature of
Jones's testimony, the timing of the request, and the expense of the requested
transportation. In my opinion, it is inappropriate to address the issue at this point,
because these circumstances have never been presented to the superior court for review.
- 20 - 2373
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