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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA,
Court of Appeals No. A-10941
Petitioner, Trial Court No. 3AN-06-8223 CR
v.
O P I N I O N
KARAN V. CLIFTON,
Respondent. No. 2409 - December 27, 2013
Petition for Review from the Superior Court, Third Judicial
District, Anchorage, Philip R. Volland, Judge.
Appearances: Timothy W. Terrell, Assistant Attorney
General, Office of Special Prosecutions and Appeals,
Anchorage, and John J. Burns, Attorney General (opening
brief), and Michael C. Geraghty, Attorney General (reply
brief), Juneau, for the Petitioner. Josie Garton, Assistant
Public Defender, and Quinlan Steiner, Public Defender,
Anchorage, for the Respondent.
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Before: Mannheimer, Chief Judge, Bolger, Supreme Court
* **
Justice , and Coats, Senior Judge .
Judge MANNHEIMER.
In 1982, the Alaska legislature extensively revised the law that defines how
1
a person's mental disease or defect affects their responsibility for criminal conduct. As
part of that revision, the legislature created a new type of verdict in criminal cases: the
verdict of "guilty but mentally ill".
The present case involves several potential constitutional problems relating
to the "guilty but mentally ill" verdict. Because of these problems, the superior court
concluded that it was unconstitutional to subject defendants to this verdict.
As we explain in this opinion, the legislature has changed the manner in
which the "guilty but mentally ill" verdict is litigated in the trial court. We conclude that
these new procedures apply to Clifton's case, and that these new procedures resolve
many of the issues in this case.
There are yet other issues presented in Clifton's case - issues that we will
explain and resolve during the course of our opinion. But our ultimate conclusion is that
the new procedures relating to the "guilty but mentally ill" verdict are sufficient to
answer the superior court's constitutional objections. We therefore remand this case to
the superior court to allow the parties to litigate whether Clifton should be found "guilty
but mentally ill".
* Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska
Constitution and Administrative Rule 24(d).
** Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska
Constitution and Administrative Rule 23(a).
1 See SLA 1982, ch. 143, § 22.
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Introduction
The present case arises from the State's prosecution of Karan V. Clifton for
attempted murder, and the possibility that Clifton might be found "guilty but
mentally ill".
A verdict of "guilty but mentally ill" constitutes a finding that (1) the
government has proved all the elements of the charged offense (including all required
culpable mental states), plus an additional finding that (2) because of mental disease or
defect, the defendant "lacked ... the substantial capacity either to appreciate the
wrongfulness of [their] conduct or to conform [their] conduct to the requirements of
law." 2
When a defendant is found "guilty but mentally ill" (instead of merely "guilty"),
the defendant must receive treatment for their mental illness while they serve their
sentence, and the defendant is ineligible for parole or furlough release while they are
receiving this mental health treatment.
As we are about to explain, there was substantial reason to believe that
Clifton suffered from a mental disease or defect that substantially affected her cognition
and behavior at the time of the attempted murder. Nevertheless, Clifton's defense
attorney announced (before trial) that Clifton would not rely on a defense of insanity or
on a defense of diminished capacity based on mental disease or defect.
In response, the prosecutor suggested that the State might invoke the
procedure codified in the pre-2012 version of AS 12.47.060. This statute applied to
cases where a defendant suffering from a mental disease or defect was tried and
convicted of a crime, but no evidence of the defendant's mental disease or defect was
2 AS 12.47.030(a).
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introduced at trial - so that the jury was never asked to consider whether the defendant
should be found "guilty but mentally ill" (as opposed to simply "guilty").
The pre-2012 statute allowed for a post-verdict procedure in which the
prosecutor - or the court, on its own motion - could raise the issue of whether the
defendant should be found "guilty but mentally ill". If the issue was raised, the trial
judge was required to make a post-verdict finding as to whether the defendant was shown
to be guilty but mentally ill, using a "preponderance of the evidence" standard of proof.
If so, the judge then entered a verdict of "guilty but mentally ill", and this verdict had the
same legal effect as if the issue had been litigated at the defendant's trial and the jury had
returned a verdict of "guilty but mentally ill".
In Clifton's case, the superior court ruled that this procedure was
unconstitutional, and the State petitioned us to review the superior court's decision.
Underlying facts of Clifton's offenses
Clifton worked as a respiratory therapist at an Anchorage long-term care
facility. She apparently believed that she was under covert government surveillance, and
that there was a government conspiracy to sabotage her life and physically harm her.
After Clifton told her supervisor and other co-workers about this conspiracy, her
employer decided to require Clifton to undergo a psychiatric fitness examination.
On August 2, 2006, Clifton attended a meeting with her supervisor, Steven
Mayer, and her employer's human resources manager, Kathleen Manion. During this
meeting, Mayer informed Clifton that she would have to undergo a psychiatric evaluation
before she could return to work. Clifton became agitated; she declared that she would
not submit to the examination, and she accused Mayer and Manion of trying to destroy
her life and her livelihood.
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A few moments later, Clifton drew a semi-automatic pistol from her purse,
shoved the barrel against Mayer's ribs, and pulled the trigger. Fortunately, Clifton had
neglected to "rack" the pistol's slide (to chamber a round), so no bullet fired.
Mayer was able to tackle Clifton and take the pistol away from her. Manion
ran for help, and several other employees came to assist Mayer in restraining Clifton
until the police arrived.
When the police later examined Clifton's pistol, they found that it was
loaded with five rounds of ammunition. The police found another fully loaded magazine
for the pistol in Clifton's purse, as well as another six loose rounds of ammunition.
Based on this incident, Clifton was indicted for attempted murder
(attempting to kill Mayer). Clifton was also charged with third-degree assault for placing
Manion in fear of imminent serious physical injury. Following a trial in the superior
court, a jury found Clifton guilty of these crimes.
However, as we are about to explain in the next section of this opinion,
Clifton has not yet been sentenced for these offenses.
Underlying facts pertaining to the question of whether, consistent with
Clifton's constitutional rights, Clifton's trial judge could make a post-trial
determination as to whether she should be found "guilty but mentally ill"
rather than simply "guilty"
(a) How the issue arose
About one year after Clifton was indicted, while she was still awaiting trial,
Clifton's defense attorney asked the superior court to hold a hearing to determine if
Clifton was competent to stand trial. The court sent Clifton to be evaluated at the Alaska
Psychiatric Institute, locally known as "API".
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Clifton was initially evaluated by psychologist Lois Michaud. Michaud
concluded that Clifton was not competent. The State then asked for a second opinion,
so the court ordered another evaluation, this time by psychiatrist David Sperbeck.
Both Michaud and Sperbeck concluded that Clifton suffered from a
"delusional disorder" of the "persecutory type". In August 2008, the superior court
concluded that Clifton was not competent to stand trial, and the court ordered that Clifton
receive treatment at API in the hope that she would recover sufficiently to stand trial.
During the ensuing months, Clifton was re-evaluated by Michaud and
Sperbeck, and also by another clinician, Fred Wise. In late January 2009, the superior
court concluded that Clifton was competent to stand trial, and Clifton's trial was
scheduled for later that year.
In advance of trial, the State raised the issue of whether Clifton would
defend the charges on the basis of mental disease or defect. Clifton's attorney declared
that Clifton did not intend to rely on either the defense of insanity or the defense of
diminished capacity (i.e., lack of culpable mental state because of mental disease or
defect). In other words, Clifton's defense attorney purposely chose not to introduce any
evidence of her mental illness, even though this evidence was arguably relevant to
assessing Clifton's mental state at the time of the crime.
The prosecutor indicated that even if Clifton chose not to raise a defense
based on mental illness at trial, if the jury found her guilty at trial, the State might invoke
the procedure codified in AS 12.47.060 (i.e., the pre-2012 version of that statute) and ask
the trial judge to make a post-trial finding that Clifton was "guilty but mentally ill".
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(b) The definition and consequences of a "guilty but mentally ill"
verdict under Alaska law
As this Court explained in Lewis v. State , 195 P.3d 622, 637 (Alaska App.
2008), a verdict of "guilty but mentally ill" constitutes a finding (1) that the government
has proved all the elements of the charged offense (including all required culpable mental
states), plus an additional finding (2) that because of mental disease or defect, the
defendant "lacked ... the substantial capacity either to appreciate the wrongfulness of
[their] conduct or to conform [their] conduct to the requirements of law." See
AS 12.47.030(a).
The consequences of a "guilty but mentally ill" verdict are spelled out in
AS 12.47.050. Subsection (a) of this statute declares that when a defendant is found
guilty but mentally ill, the defendant receives a normal sentence for the crime - but
while the defendant is serving this sentence, the Department of Corrections is required
to provide mental health treatment to the defendant as long as the defendant continues
to suffer from a mental disease or defect that causes the defendant to be "dangerous to
the public peace or safety". See AS 12.47.050(b).
While the defendant is receiving this mental health treatment, the defendant
is not eligible for parole and can not be released on furlough except to a secure setting.
See AS 12.47.050(d).
Finally, under subsection (e) of the statute, if the defendant is still receiving
this mental health treatment as the defendant nears the end of their sentence, and if the
Commissioner of Corrections has good cause to believe that the defendant still suffers
from a mental illness that causes them to be dangerous, the Commissioner is required to
file a petition for the defendant's involuntary civil commitment under AS 47.30.700.
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In sum, a verdict of "guilty but mentally ill" means that a defendant becomes
entitled to mental health treatment during the service of their sentence, but it also means
that the defendant is ineligible for parole and furlough release as long as this mental
health treatment is required, and it also means that the defendant may face a petition for
involuntary commitment at the end of their sentence.
Whenever a defendant raises a defense of insanity or diminished capacity
(based on mental disease or defect) at trial, "guilty but mentally ill" is one of the potential
verdicts that the jury must consider. See AS 12.47.040(a).
But the post-trial procedure at issue in Clifton's case - a procedure whereby
the trial judge could make a post-trial finding that Clifton was guilty but mentally ill -
was expressly authorized by the pre-2012 version of AS 12.47.060.
This former version of AS 12.47.060(a) declared that, in cases where a
criminal defendant did not present evidence of mental disease or defect to support a
defense of insanity or a defense of diminished capacity, and if the defendant was
convicted, "the defendant, the prosecuting attorney, or the court on its own motion
[could] raise the issue of whether the defendant [was] guilty but mentally ill."
If the court or either party raised the issue of whether the defendant should
be found guilty but mentally ill, the court was required to hold a hearing on this issue
(either before, or at, the defendant's sentencing hearing). Based on the evidence
presented at this hearing, and on any other relevant evidence presented at the defendant's
trial, the court was to determine whether the defendant had been shown to be guilty but
mentally ill, using a "preponderance of the evidence" standard of proof. See the pre-
2012 version of AS 12.47.060(b) - (c).
If the court concluded that the defendant was guilty but mentally ill, the
court's decision had the same legal effect as if the jury had returned a "guilty but
mentally ill" verdict at trial: the defendant became entitled to receive mental health
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treatment, and the defendant was subject to the same restrictions on parole and furlough
release.
(c) The litigation leading to the present appeal, and a description
of the superior court's decision
Two months after the jury found Clifton guilty, and while Clifton was
awaiting sentencing, the State filed a motion (pursuant to the pre-2012 version of
AS 12.47.060) asking the superior court to hold a hearing to determine whether Clifton
should be found "guilty but mentally ill".
In response, Clifton's attorney filed a pleading attacking the constitutionality
of this post-trial procedure on several grounds.
The superior court held a hearing to receive evidence on the issue of Clifton's
mental health, and then the court allowed the parties to file another round of legal
memoranda.
Ultimately, the superior court concluded (using a "preponderance of the
evidence" standard of proof) that Clifton was suffering from a mental disease or defect
at the time of her offenses, and that this mental disease or defect rendered her "guilty but
mentally ill" because she was unable to conform her conduct to the requirements of the
law. However, the superior court also concluded that it would violate Clifton's
constitutional rights to equal protection and due process of law if the court were to find
her guilty but mentally ill.
In reaching this conclusion, the superior court relied on the fact that Clifton
had never asserted a defense based on mental disease or defect. But the superior court's
ruling rested primarily on two legal conclusions.
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First, the superior court held that AS 12.47.050(d) is unconstitutional to the
extent that it bars guilty but mentally ill defendants from being released on parole as long
as they are receiving mental health treatment. The court ruled that guilty but mentally
ill defendants have a "limited fundamental liberty interest" in being released on
mandatory parole when their good time credit equals the time remaining to be served in
their sentence. The court further found that the State had failed to articulate a
"compelling interest" to justify the statutory prohibition on parole release.
Second, the superior court held that the procedure specified in the pre-2012
version of AS 12.47.060 - the procedure under which the trial judge made a post-trial
determination as to whether the defendant was guilty but mentally ill (as opposed to
simply guilty) - violated a defendant's Sixth Amendment right to trial by jury as
interpreted in Blakely v. Washington , 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403
(2004).
As we have already described, a "guilty but mentally ill" verdict rests on a
finding of fact over and above the specific elements of the defendant's crime - an
additional finding that, because of mental disease or defect, the defendant "lacked ... the
substantial capacity either to appreciate the wrongfulness of [their] conduct or to
conform [their] conduct to the requirements of law." And, if that finding is made, the
defendant is subject to a harsher sentence - because the defendant becomes ineligible
for mandatory parole release (as long as they suffer from a mental disease or defect that
renders them dangerous).
Because of this, and based on the Supreme Court's decision in Blakely , the
superior court concluded that defendants are entitled to a jury trial on the question of
whether they are "guilty but mentally ill", and that defendants are further entitled to
demand that the government prove this allegation beyond a reasonable doubt.
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The pre-2012 version of AS 12.47.060 specified that this decision was to be
made by the trial judge, and that the judge was to use a "preponderance of the evidence"
standard of proof. Accordingly, the superior court concluded that this pre-2012 statute
was unconstitutional.
Clifton's proposed alternative rationale for upholding the superior court's
decision
As we just explained, the superior court found (as a factual matter) that
Clifton was "guilty but mentally ill" as that phrase is defined in AS 12.47.030(a) - that,
because of mental disease or defect, Clifton lacked the ability to conform her conduct to
the requirements of the law. However, the superior court decided that it would be
unconstitutional to enter this verdict against Clifton.
Before we address the various aspects of the superior court's decision, we
must address a separate argument raised by Clifton on appeal. Clifton argues that,
regardless of the legal merit of the superior court's constitutional analysis, the superior
court's decision can be affirmed on a separate, independent ground.
As we noted earlier, the superior court held a post-trial evidentiary hearing
to investigate the State's assertion that Clifton was guilty but mentally ill. At that
hearing, the superior court heard testimony from Dr. David Sperbeck.
Dr. Sperbeck was one of the people who evaluated Clifton before trial, when
her competency to stand trial was at issue. In her brief to this Court, Clifton contends
that when Dr. Sperbeck testified at the post-trial evidentiary hearing, he impermissibly
relied on the results of the earlier competency examination.
Specifically, Clifton asserts that, because of her privilege against self-
incrimination, the results of the competency examination could be used solely for the
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purpose of evaluating her competency to stand trial - and that it was unconstitutional
to allow Dr. Sperbeck to testify about statements Clifton made during the competency
examination when Sperbeck's testimony was offered for the separate purpose of proving
that Clifton was guilty but mentally ill.
In her brief to this Court, Clifton asserts that the superior court "did not rule
on this issue". Nevertheless, Clifton urges us to affirm the superior court's decision on
this basis, because "this [C]ourt may affirm [a lower court's ruling] on any grounds
apparent in the record".
The main problem with Clifton's argument is that the superior court did rule
on this issue - and the superior court's ruling is directly adverse to Clifton's position.
On pages 7 through 10 of its written decision, the superior court expressly
addressed Clifton's contention that, when Dr. Sperbeck testified as a government witness
at the post-trial evidentiary hearing, Sperbeck impermissibly relied, at least in part, on
his earlier examination of Clifton to determine her competency to stand trial. The
superior court rejected the factual basis of Clifton's argument:
[This] court does not find persuasive Clifton's
argument that Dr. Sperbeck's opinion that Clifton could not
conform her conduct to the requirements of the law was
impermissibly influenced by his [earlier] evaluation [of] her
competency to stand trial. Sperbeck testified that he could set
aside this [earlier] evaluation[,] and the court accepts this
assessment. The court finds Dr. Sperbeck to be an
experienced and professional forensic expert who is capable
of making objective assessments when required, and who
would acknowledge improper influence by another
assessment.
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For these reasons, we reject Clifton's suggestion that the superior court
violated her privilege against self-incrimination when the court relied on Dr. Sperbeck's
testimony in the post-trial evidentiary hearing.
We now turn to the constitutional issues presented by the superior court's
refusal to enter this verdict against Clifton.
The next section of our opinion explains why we must vacate the superior
court's finding that Clifton was guilty but mentally ill - why the post-trial procedures
that the superior court used in Clifton's case were an unconstitutional denial of Clifton's
right to trial by jury.
The post-trial procedures prescribed in the pre-2012 version of
AS 12.47.060 violated the Sixth Amendment right to jury trial as
interpreted in Blakely v. Washington
In Blakely v. Washington , the United States Supreme Court held that the
Sixth Amendment guarantees criminal defendants the right to trial by jury (and the right
to demand proof beyond a reasonable doubt) on any question of fact which, if resolved
in the government's favor, will subject the defendant to a greater maximum sentence than
would otherwise apply to the defendant's crime. 3
Clifton stands convicted of attempted murder and third-degree assault. Under
the provisions of AS 33.20, she would normally be entitled to good time credit equal to
one-third of her composite sentence, and she would be entitled to release on mandatory
parole when that good time credit equals the unserved portion of her active sentence of
imprisonment.
3 Blakely , 542 U.S. at 303-04, 124 S.Ct. at 2537.
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This good time credit, and the accompanying right to mandatory parole, is
not a discretionary aspect of Clifton's sentence. The superior court has no sentencing
authority to diminish Clifton's good time credit, or to declare her ineligible for
mandatory parole. Forster v. State , 236 P.3d 1157, 1171 (Alaska App. 2010).
Rather, Clifton's eligibility for mandatory parole can be restricted only if she
is found guilty but mentally ill - only if the government proves that, because of mental
disease or defect, Clifton lacked the substantial capacity either to appreciate the
wrongfulness of her conduct or to conform her conduct to the requirements of the law.
In Forster , we held that when a finding of fact will deprive a defendant of
their normal eligibility for mandatory parole, the defendant is entitled to demand trial by
jury on that issue of fact, and to demand that the government prove that fact beyond a
reasonable doubt. 236 P.3d at 1170-72. See also Alleyne v. United States , __ U.S. __,
133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) (holding that there is a right to jury trial under
the Sixth Amendment with respect to any finding of fact that triggers, or increases, a
mandatory minimum sentence). 4
As we explained earlier, the post-trial procedure described in the pre-2012
version of AS 12.47.060 (the version of the statute that was in effect when Clifton's case
was litigated) authorized the trial judge to determine whether the defendant should be
found "guilty but mentally ill", and it directed the judge to use a "preponderance of the
evidence" standard of proof when making this decision.
4 The United States Supreme Court's decision in Alleyne implicitly overrules the
Alaska Supreme Court's contrary interpretation of the right to jury trial in State v. Malloy,
46 P.3d 949 (Alaska 2002). In Malloy , the Alaska Supreme Court held that a defendant has
no right to jury trial with respect to a finding of fact that increases the applicable mandatory
minimum sentence but does not increase the defendant's potential maximum sentence. Id.
at 956-57.
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Because this statute designated the judge as the finder of fact rather than the
jury, and because this statute called for proof by a preponderance of the evidence rather
than proof beyond a reasonable doubt, the statute violated the Sixth Amendment right
to jury trial as interpreted in Blakely .
Normally, the next question would be whether this Court should strike down
the statute in its entirety or, instead, modify the statutory procedures to make them
comply with Blakely . But this question has been mooted by an action of the legislature
- because, in 2012, the legislature amended AS 12.47.060 to make its procedures
comply with Blakely . 5
Subsection (a) of the current statute declares that if the defendant is not going
to rely on a defense of mental disease or defect, and if the State wishes to litigate the
question of whether the defendant should be found guilty but mentally ill, the State must
notify the defendant and the court before the trial. If the underlying charges against the
defendant are to be tried by a jury, the post-verdict determination of whether the
defendant should be found "guilty but mentally ill" must be decided by the same jury
(unless both parties agree to waive a jury on that issue). And the statute specifies that
the standard of proof on this issue is "beyond a reasonable doubt".
In a separate provision of the same session law, the legislature declared that
these procedural changes apply "to [all] proceedings occurring on or after the effective
date of this Act", regardless of whether the defendant committed their underlying offense
"before, on, or after the effective date of this Act." 6
In other words, if this Court sends Clifton's case back to the superior court
for a new post-trial determination of whether Clifton should be found "guilty but
5 SLA 2012, ch. 70, §§ 6 & 7.
6 SLA 2012, ch. 70, § 17.
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mentally ill", the legislature has already declared that the newly enacted, Blakely-
compliant procedures will apply.
Whether there is a constitutionally adequate basis for the legislature's
distinction between defendants who are simply "guilty" and defendants
who are "guilty but mentally ill"
As we explained in the preceding section of this opinion, a defendant who
is found "guilty but mentally ill" is subject to a more severe sentence than a defendant
who is simply found "guilty". When a defendant is found guilty but mentally ill, they
must receive mental health treatment until they no longer suffer from a mental disease
or defect that renders them dangerous. See AS 12.47.050(b). And as long as this
mandated mental health treatment continues - i.e., as long as the defendant suffers from
a mental disease or defect that renders them dangerous - the defendant is not eligible
for release on parole or furlough.
Clifton concedes that the State has a legitimate interest in protecting the
public from people who are dangerous and who pose an increased risk of recidivism.
But Clifton argues that the means chosen by the legislature to advance this goal - the
statutes pertaining to the verdict of "guilty but mentally ill" - are not sufficiently
tailored to survive constitutional scrutiny.
Clifton first argues that the "guilty but mentally ill" verdict is constitutionally
flawed because the legislature has unreasonably equated "mental illness" with
"dangerousness".
We do not read AS 12.47 as equating "mental illness" with "dangerousness".
Under AS 12.47.030(a), proof that a defendant suffered from mental illness at the time
of the offense is not enough to support a verdict of "guilty but mentally ill". Rather, the
government must prove that the defendant suffered from a mental illness and that,
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because of this mental illness, the defendant lacked the substantial capacity to appreciate
the wrongfulness of their conduct or to conform their conduct to the requirements of the
law.
Similarly, the mandatory mental health treatment prescribed in
AS 1247.050(b) - and the concomitant restriction on parole and furlough eligibility -
does not apply to all mentally ill offenders. Rather, it only applies to defendants who
have been found "guilty but mentally ill" and who continue to suffer from "a mental
disease or defect that causes [them] to be dangerous to the public peace or safety".
Clifton nevertheless argues (referring to the facts of her own case) that it is
unreasonable and arbitrary for the legislature to draw a distinction between
(1) defendants who commit attempted murder and who suffer from a mental disease or
defect that deprives them of the substantial capacity to appreciate the wrongfulness of
their conduct or to conform their conduct to the requirements of the law, versus (2) all
other defendants who commit attempted murder.
In particular, Clifton asserts that there is no good reason to impose additional
restrictions on the parole eligibility of defendants in the first category - no good reason
to conclude that defendants in the first category pose a greater danger to the public than
defendants in the second category.
We disagree. The legislature could reasonably conclude that if a defendant
suffers from a mental disease or defect that deprives them of the substantial capacity to
appreciate the wrongfulness of criminal conduct, this fact is important to any assessment
of whether the defendant can safely be released on parole or furlough. The legislature
could likewise conclude that, even when a defendant does appreciate the wrongfulness
of the criminal conduct, if the defendant nevertheless suffers from a mental disease or
defect that deprives them of the substantial capacity to control their behavior and
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conform their conduct to the requirements of the law, this too is important to any
assessment of whether the defendant can be safely released on parole or furlough.
The legislature could reasonably conclude that defendants who are found
guilty but mentally ill (under either of the two clauses of the statutory definition) will be
significantly less receptive to parole supervision and control.
We accordingly conclude that the legislature had sufficient justification for
classifying these defendants differently (for parole and furlough purposes) from
defendants who commit the same crimes but who do not suffer from a mental disease or
defect that deprives them of the substantial capacity to appreciate the wrongfulness of
their conduct or to conform their conduct to the requirements of the law.
In the superior court's written decision in Clifton's case, the court noted a
second, related problem: A verdict of "guilty but mentally ill" only establishes that,
at the time the defendant committed the offense, the defendant suffered from a mental
disease or defect which caused them to lack the substantial capacity to appreciate the
wrongfulness of their conduct or to conform their conduct to the requirements of the law.
But the continuing consequences of that verdict - the defendant's ineligibility for parole
or furlough release - rest on the assumption that the defendant continues to suffer from
a mental disease or defect that renders them dangerous. And the provisions of AS 12.47
do not include any procedure by which a defendant can show - either at sentencing or
later, during the service of their sentence - that they no longer suffer from a mental
disease or defect that renders them dangerous.
We noted this same problem more than twenty years ago, in Monroe v.
State . 7
In footnote 4 of Monroe , 847 P.2d at 90, we declared that defendants who are
found guilty but mentally ill "must be provided some procedural mechanism to seek
7 847 P.2d 84 (Alaska App. 1993).
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----------------------- Page 19-----------------------
eligibility for parole [and] furlough by demonstrating [their] lack of continued
dangerousness." But we did not delve further into this issue in Monroe because we
concluded that the issue was not yet ripe: Monroe had received a lengthy sentence, so
"[r]egardless of his mental condition, Monroe would be ineligible for discretionary
parole for an extended period of time." 8
The superior court likewise concluded that this issue was not ripe in Clifton's
case.
Clifton has not yet been sentenced, but she stands convicted of attempted
murder, and she therefore faces a mandatory minimum sentence of 5 years'
imprisonment. 9 Clifton also stands convicted of a separate third-degree assault, and she
must receive a partially consecutive sentence for this crime. 10
Under the provisions of AS 33.16.090(b)(7), Clifton will not be eligible to
apply for discretionary parole until she serves the 5-year mandatory minimum sentence
for attempted murder, or one-third of her actual sentence for attempted murder
(whichever is greater), plus one-quarter of the consecutive portion of the sentence she
receives for third-degree assault.
For this reason, the superior court concluded that it was premature to decide
this due process issue in Clifton's case, and the court made no ruling on the merits of this
issue.
8 Id. at 90 n. 4.
9 See AS 12.55.125(b).
10 See AS 12.55.127(c)(2)(F). See also Scholes v. State , 274 P.3d 496, 500 (Alaska
App. 2012) (construing this statute to require a sentencing court to impose at least one day
of the other sentence consecutively).
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Whether the consequences of a "guilty but mentally ill" verdict - in
particular, the restriction on parole and furlough release - can lawfully
be imposed on defendants who do not raise a defense at trial based on
mental disease or defect
Clifton argues that even if the legislature had an adequate basis for drawing
a distinction between defendants who are "guilty" and defendants who are "guilty but
mentally ill", it is nevertheless unlawful to subject a defendant to the consequences of
a "guilty but mentally ill" verdict unless the defendant has affirmatively raised a defense
based on mental disease or defect.
As Clifton notes in her brief to this Court, there are two main consequences
of a "guilty but mentally ill" verdict: the Department of Corrections is required to
provide mental health treatment to the defendant, and the defendant is ineligible for
parole and furlough release while receiving this mental health treatment.
But as Clifton acknowledges, when the superior court declared the "guilty
but mentally ill" verdict unconstitutional, the court did not consider, and did not rely on,
the assertion that a "guilty but mentally ill" verdict leads to compulsory mental health
treatment. Rather, the superior court relied on the fact that this verdict leads to a
restriction on a defendant's eligibility for parole and furlough release.
Indeed, the relevant statute - AS 12.47.050(b) - does not explicitly say that
defendants who are found guilty but mentally ill are thereby subject to compulsory
mental health treatment. Rather, the statute says that the Department of Corrections is
required to "provide" mental health treatment to defendants who are found guilty but
mentally ill, and that the Department shall determine the course of this treatment. It is
arguable that defendants in this situation are free to reject the Department's proposed
course of treatment - although this would seemingly mean that defendants who did not
spontaneously get better would never be released on parole or furlough.
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(We do not speak here of the Department's separate authority to administer
mental health treatment to prison inmates who, because of mental disease or defect, pose
a threat to the safety of persons in the prison environment. Rather, the question is the
Department's authority to administer mental health treatment under AS 12.47.050, which
addresses a different concern: prisoners who, because of mental disease or defect, would
pose a danger to the public safety if they were released on parole or furlough.)
We need not resolve these issues of statutory interpretation and a defendant's
potential right to refuse various forms of treatment - because these issues were not
litigated in the superior court, and the superior court made no rulings concerning them.
Instead, we turn to the issue that the superior court did decide: Is it
constitutional to restrict a defendant's eligibility for parole or furlough release if (1) the
defendant suffers from a mental disease or defect that renders the defendant dangerous
to the public, but (2) the defendant chooses not to raise a defense to the underlying
criminal charge based on mental disease or defect?
In her brief to this Court, Clifton asserts that it is fundamentally unfair for the
legislature to give "disparate treatment [to] defendants who have not placed their mental
illness at issue". But Clifton's brief does not explain what this "disparate" treatment is.
It is true that, under the provisions of AS 12.47.040(a), a defendant who
raises the affirmative defense of insanity knows that, as a consequence, the jury will be
given the option of finding the defendant "guilty but mentally ill". But this same statute
also declares that the jury must be instructed on the "guilty but mentally ill" verdict in
all other cases where evidence of the defendant's mental disease or defect was admitted
at trial.
Alaska law does not require a defendant's approval before the State
introduces evidence of the defendant's mental disease or defect. Under AS 12.47.020(a),
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such evidence "is admissible whenever it is relevant to prove that the defendant did or
did not have a culpable mental state which is an element of the crime [charged]."
AS 12.47.020(a) limits the admissibility of this evidence only in the sense
that if a defendant wishes to introduce evidence of their mental disease or defect to
negate a culpable mental state, the defendant must give the State and the trial court
advance notice.
Thus, under AS 12.47.020(a), the State can introduce evidence of a
defendant's mental disease or defect if this evidence is relevant to support the State's
allegations concerning the defendant's mental state. And if such evidence is admitted
at trial, AS 12.47.040(a) declares that the jury must be instructed on the verdict of "guilty
but mentally ill".
The procedure set forth in AS 12.47.060 (i.e., the post-verdict assessment of
whether a defendant should be found guilty but mentally ill) applies only in cases where
neither the State nor the defendant presents evidence of the defendant's mental disease
or defect during the litigation of the defendant's guilt.
But even in the cases covered by AS 12.47.060 - i.e., cases where no
evidence of the defendant's mental illness is presented at trial, and the litigation
regarding the "guilty but mentally ill" verdict occurs after the jury has found the
defendant guilty - (1) the elements of the "guilty but mentally ill" verdict are the same,
(2) the State bears the burden of proving those elements beyond a reasonable doubt, (3)
the defendant is entitled to demand that the same jury decide both the underlying offense
and the question of whether the defendant is guilty but mentally ill, and (4) the same
consequences attach to any resulting verdict of "guilty but mentally ill".
Reading between the lines of Clifton's brief, it appears that Clifton is arguing
that even though she may suffer from a mental disease or defect that rendered her
dangerous - either because it deprived her of the capacity to understand that attempted
-22- 2409
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murder is wrong, or because it deprived her of the capacity to control her behavior and
refrain from trying to commit murder - she nevertheless has a constitutional right not
to be subjected to the consequences of a "guilty but mentally ill" verdict because she
affirmatively chose not to raise a defense to the underlying attempted murder charge
based on this mental disease or defect.
Clifton's brief offers little direct discussion of this legal contention, and scant
legal authority to support it. Nor is there some self-evident constitutional impediment
to the State seeking a more severe form of sentence based on an assertion about the
defendant's mental state (above and beyond the elements of the charged offense), so long
as (1) the defendant receives adequate advance notice and (2) the procedures under
which this factual assertion is litigated comply with Blakely .
At its core, Clifton's argument appears to be that a "guilty but mentally ill"
verdict is the "price" that a defendant risks if the defendant raises a defense based on
mental disease or defect and is unsuccessful - and that the State is barred from exacting
this price if the defendant does not raise a mental illness defense.
We do not view the matter in this way. As we have explained, a "guilty but
mentally ill" verdict represents findings of fact that are relevant to the assessment of a
defendant's dangerousness - relevant to gauging the risks that the defendant would
pose to the public if they were released on parole or furlough. If a defendant suffers
from a mental disease or defect, and if that mental disease or defect rendered the
defendant substantially incapable of understanding that their criminal behavior was
wrong, or substantially incapable of refraining from engaging in that criminal behavior
even though they understood that it was wrong, then there is a reasonable basis for
concluding that the defendant would be less receptive to supervision and control if they
were released on parole or furlough.
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A defendant who suffers from this sort of mental disease or defect may
choose not to raise a defense based on mental illness at trial. And there will be times (as
in Clifton's case) when the State is likewise willing to litigate guilt or innocence without
introducing evidence of the defendant's mental illness. In such cases, evidence of the
defendant's mental disease or defect will be relevant only if the defendant is convicted,
because it is relevant to the type of disposition that the sentencing court should impose
on the defendant - in particular, the restriction on parole and furlough release that arises
from a finding that the defendant is "guilty but mentally ill".
The post-verdict procedure that Clifton attacks - the procedure specified in
AS 12.47.060 - is a method that allows the State to present, and the defendant to
confront, evidence of (1) the defendant's mental disease or defect and (2) the potential
link between that mental illness and the defendant's capacity to appreciate the
wrongfulness of their conduct or their capacity to conform their conduct to the law.
There is no apparent constitutional impediment to having the State seek parole and
furlough restrictions in a post-verdict proceeding, so long as the procedures for litigating
this question comply with Blakely .
The current version of AS 12.47.060 does apparently comply with Blakely .
As currently drafted, this statute essentially calls for a bifurcated trial, in front of the
same finder of fact, in cases where neither party wishes to introduce evidence of the
defendant's mental disease or defect on the question of the defendant's guilt or
innocence, but one or both parties nevertheless wish to litigate - in a sentencing context
- the issue of whether the defendant should be found guilty but mentally ill.
First, the jury hears the evidence pertaining to the defendant's guilt or
innocence and reaches a decision. Then, if the jury finds the defendant guilty, the jury
hears the evidence pertaining to the defendant's mental disease or defect and decides
whether the defendant should be found "guilty but mentally ill".
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Because (as this Court held in Forster) the defendant faces an increased
maximum sentence if the jury decides in the government's favor on this issue, the
defendant is entitled to trial by jury and to proof beyond a reasonable doubt. The current
version of AS 12.47.060 guarantees both of these rights.
To the extent that Clifton might be arguing something else, beyond the
contentions we have just discussed here, we conclude that the argument is inadequately
briefed and therefore waived.
Whether it would violate the constitutional guarantee against double
jeopardy if we now ordered the superior court to hold a trial on the issue
of whether Clifton should be found "guilty but mentally ill"
To sum up the discussion thus far:
We have concluded that the legislature has a valid basis for distinguishing
between defendants who are simply "guilty" of a crime and defendants who are "guilty
but mentally ill" because, at the time of their offense, they suffered from a mental disease
or defect that deprived them of the substantial capacity either to appreciate the
wrongfulness of their conduct or to conform their conduct to the requirements of the law.
We have further concluded that it is constitutional to impose the
consequences of a "guilty but mentally ill" verdict on a defendant - i.e., to restrict the
defendant's parole and furlough release - so long as the government is forced to prove
the factual assertions underlying the finding of "guilty but mentally ill" using procedures
that comply with Blakely .
Thus, the superior court was wrong when the court concluded that it would
be unconstitutional to subject Clifton to a guilty but mentally ill finding.
The remaining question is what to do in Clifton's case. The State asks us to
remand Clifton's case to the superior court, so that a jury trial can be held on the issue
-25- 2409
----------------------- Page 26-----------------------
of whether Clifton should be found "guilty but mentally ill". Clifton argues that any new
trial would violate the double jeopardy clause.
As we are about to explain in more detail, we conclude that a new trial will
not violate the double jeopardy clause. We reach this conclusion for two reasons.
First, Clifton repeatedly urged the superior court to bifurcate the proceedings
- to hold separate trials on the issues of (1) whether Clifton was guilty of the criminal
charges and (2) whether Clifton was guilty but mentally ill.
The defense attorney assured the trial judge that even if the trial jury was not
offered a "guilty but mentally ill" verdict, the State would have a later opportunity
(if Clifton was convicted at trial) to pursue a post-verdict hearing on this issue under
AS 12.47.060.
Second, the United States Supreme Court has declared that states can
lawfully enact procedures which call for a separate, second trial on aggravating factors
(for example, a defendant's prior convictions) if the existence of the aggravating factor
"is a distinct issue", "essentially independent of the determination of [the defendant's]
guilt on the underlying substantive offense." Oyler v. Boles, 368 U.S. 448, 452; 82 S.Ct.
501, 503-04; 7 L.Ed.2d 446 (1962).
Clifton's attorney repeatedly assured the superior court that the issue of
Clifton's mental illness had no relevance to the question of her guilt of the underlying
crimes. The defense attorney took this position during his arguments to the trial judge
- arguments that ultimately proved successful - that Clifton's jury should not be
instructed on the "guilty but mentally ill" verdict.
Given these circumstances, we conclude that Clifton abandoned any double
jeopardy claim that she might otherwise have had.
-26- 2409
----------------------- Page 27-----------------------
(a) The pertinent aspects of the superior court litigation
As we explained at the beginning of this opinion, the superior court and the
parties engaged in pre-trial discussions concerning Clifton's mental illness and the role
that evidence of that illness might play at Clifton's trial.
The prosecutor wanted to have the jury instructed on the verdict of "guilty
but mentally ill", but Clifton's attorney urged the trial judge to reject the State's request.
The defense attorney told the court that it would be inappropriate to instruct
the jury on the "guilty but mentally ill" verdict because (according to the defense
attorney) the question of whether Clifton was guilty of attempted murder and third-
degree assault "[did] not implicate [her] mental condition in the slightest".
The defense attorney told the court that he did not intend to litigate any
defense based on mental disease or defect. The defense attorney declined to recite the
exact details of his planned defense, but he assured the court that he "[would not] argue
that [Clifton's] mental condition impacted her ability to form the requisite [culpable]
mental state. ... Our defense does not implicate [her] mental condition."
Upon hearing the defense attorney's remarks, the trial judge suggested that
a "guilty but mentally ill" verdict should still be given to the jury, even if the defense
attorney did not intend to raise a defense based on mental disease or defect, because it
appeared likely that Clifton's case was going to be litigated in such a way as to raise
questions about her mental condition. The defense attorney disagreed:
Defense Attorney : I don't believe so. Certainly,
nothing we're going to do - you know, ... we've not made
[a] final decision whether Ms. Clifton's going to testify or
not, so ... I can't say [with] absolute certainty, but I think
there's definitely ways in which we can go about the trial
without reference to her mental condition, without that
-27- 2409
----------------------- Page 28-----------------------
becoming an issue that the jury needs to dwell upon. We're
not going to be arguing that her mental condition impacts her
culpability in any way. We're not going to argue that she had
a diminished capacity because of a mental defect or illness.
You know, this is going to be a straightforward defense.
In response to the defense attorney's remarks, the prosecutor told the judge:
"And if that's all it is, Your Honor, then we don't have an issue." In other words, the
State would not press its request to have the jury instructed on the "guilty but mentally
ill" verdict.
But the trial judge was not yet satisfied. He asked the defense attorney what
would happen if the jury heard evidence during the trial suggesting that Clifton suffered
from mental illness, and the jury sent a note to the court asking whether this evidence
should make any difference to their decision. The defense attorney answered:
Defense Attorney : I think the thing to do is ... write
them back a note say[ing], "This is not something you've
been instructed on. ... You haven't heard any evidence
relating to [this issue], and so it shouldn't enter your
[consideration of the case]."
The defense attorney then added:
Defense Attorney : And I think it's important to note,
too, that this isn't the [State's] last chance to pursue a ["guilty
but mentally ill"] verdict. Should Ms. Clifton be convicted,
... 12.47.060 provides the procedure through which the State
can ask [that] her conviction ... be amended to a ["guilty but
mentally ill"] verdict. And that's done outside the presence
of [the] jury. ... That's another issue altogether. ... It's not
as though this is the last chance to seek a ["guilty but
mentally ill"] verdict.
-28- 2409
----------------------- Page 29-----------------------
This discussion continued for many more pages of transcript, with the
defense attorney repeatedly objecting to any suggestion that Clifton's jury should be
instructed concerning the verdict of "guilty but mentally ill". Again, the defense attorney
repeatedly asserted that Clifton's mental illness would have no relevance to the jury's
determination of her guilt or innocence of attempted murder and third-degree assault.
After hearing these arguments, the trial judge concluded that he would have
to hear the evidence at the trial before he could make an informed decision as to whether
to instruct the jury about the "guilty but mentally ill" verdict.
A little later in the trial, the defense attorney presented a different argument
in an effort to head off a "guilty but mentally ill" verdict: he told the trial judge that,
under Alaska law, "the defense controls whether or not a ["guilty but mentally ill"]
verdict can be introduced to the jury" - that, without the defendant's acquiescence, the
jury could not be given this option. The defense attorney also reiterated his position that
a "guilty but mentally ill" verdict "[was] absolutely unnecessary in this case".
Ultimately, the trial judge acceded to the defense attorney's position:
Clifton's trial jury was not instructed on the verdict of "guilty but mentally ill".
(b) How this procedural history relates to the double jeopardy issue
In State v. Dague, 143 P.3d 988 (Alaska App. 2006), this Court discussed
the United States Supreme Court's decisions in Graham v. West Virginia 11
and Oyler v.
Boles 12
- cases where the Supreme Court rejected double jeopardy challenges to a state
11 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917 (1912).
12 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962).
-29- 2409
----------------------- Page 30-----------------------
procedure that allowed the State to litigate certain aggravating factors in a second jury
trial. See Dague , 143 P.3d at 1006-07 & 1012.
We construed Graham and Oyler as allowing state legislatures to enact
procedures that call for a second, separate jury trial on aggravating factors "whenever the
sentence enhancement was based on facts 'essentially independent of the determination
of guilt on the underlying substantive offense'." Dague , 143 P.3d at 1012 (quoting
Oyler, 368 U.S. at 452, 82 S.Ct. at 503).
The current version of AS 12.47.060 creates a procedure that is well within
the boundaries of Graham and Oyler - because AS 12.47.060 (as now written) does not
call for separate trials, but rather a bifurcated trial in front of the same jury.
This type of bifurcated trial is not possible in Clifton's case, because the
jury that found Clifton guilty of attempted murder and third-degree assault was
discharged long ago. That jury was discharged without reaching any decision as to
whether Clifton should be found "guilty but mentally ill" - but this is because Clifton's
attorney did everything within his power to prevent the jury from being instructed on the
possibility of a "guilty but mentally ill" verdict.
As a technical matter, the elements that the State must prove to establish
that a defendant is "guilty but mentally ill" are distinct from the elements of the
defendant's underlying offense. The State must prove all the elements of the charged
offense (including all required culpable mental states), plus the State must prove that,
because of mental disease or defect, the defendant lacked the substantial capacity either
to appreciate the wrongfulness of their conduct or to conform their conduct to the
requirements of the law.
There will, of course, be times when the effects of a defendant's mental
illness will be relevant to the jury's assessment of the defendant's guilt - in particular,
the jury's assessment of whether the defendant acted with a required culpable mental
-30- 2409
----------------------- Page 31-----------------------
state. In such cases, evidence of the defendant's mental illness will have overlapping
relevance - both to the State's proof of the elements of the charged offense, and to the
State's proof of the additional elements needed to support a "guilty but mentally ill"
verdict.
But when Clifton's trial judge suggested that Clifton's mental illness might
have this kind of overlapping relevance in the present case, Clifton's defense attorney
repeatedly assured the judge that Clifton's case would be litigated in such a way that the
existence of Clifton's mental illness - and the related questions of whether that mental
illness rendered Clifton incapable of appreciating the wrongfulness of her conduct, or
incapable of conforming her conduct to the requirements of the law - would be
irrelevant to the jury's decision.
In the end, Clifton's jury received no instruction on the verdict of "guilty
but mentally ill". And later, when the jury concluded its deliberations and the trial judge
accepted the jury's verdicts and asked if the jury should be discharged, Clifton's attorney
said that he had no objection.
The prosecutor likewise said that she had no objection. But as we have
explained, this was after the defense attorney assured the judge and the prosecutor that
the State would be free to pursue a "guilty but mentally ill" verdict after the trial was
over - pursuant to the then-existing provisions of AS 12.47.060.
Under these circumstances, we reach the same conclusion that we reached
in Dague : Clifton, through the actions of her attorney, waived any right she might
otherwise have had to insist that a single jury decide both (1) her guilt of the underlying
charges and (2) the question of whether, because of mental disease or defect, she lacked
the substantial capacity to appreciate the wrongfulness of her conduct or to conform her
conduct to the requirements of the law.
-31- 2409
----------------------- Page 32-----------------------
We therefore conclude that the superior court can now lawfully convene
another jury to determine whether Clifton should be found guilty but mentally ill.
(In her brief, Clifton raises various arguments concerning the type of
evidence that will be admissible or inadmissible at this renewed trial. These issues are
best left for the superior court.)
Conclusion
The decision of the superior court is REVERSED, and Clifton's case is
remanded to the superior court for a trial on the question of whether Clifton should be
found guilty but mentally ill.
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