You can
search the entire site.
or go to the recent opinions, or the chronological or subject indices.
Gudmunson v. State (12/6/91), 822 P 2d 1328
<![CDATA[
NOTICE: This opinion is
subject to formal correction before
publication in the Pacific
Reporter. Readers are requested to
bring typographical or other formal
errors to the attention of the
Clerk of the Appellate Courts, 303
K Street, Anchorage, Alaska 99501,
in order that corrections may be
made prior to permanent
publication.
THE SUPREME COURT OF THE STATE OF ALASKA
RONALD E. GUDMUNDSON, )
)
Petitioner, )
) Supreme Court No. S-3521
v. )
)
STATE OF ALASKA, )
) [No. 3780 - December 6, 1991]
Respondent. )
_________________________)
STATE OF ALASKA, )
) Supreme Court No. S-3527
Petitioner, )
)
)
)
RONALD E. GUDMUNDSON and )
STEVEN E. KNUTSON, )
)
Respondents.)
_________________________)
)
STEVEN E. KNUTSON, )
) Supreme Court No. S-3529
Petitioner, )
) Court of Appeals Nos.
v. ) A-2309, A-2331
) Superior Court Nos.
STATE OF ALASKA, ) 3AN-S85-6429/30 Criminal
)
Respondent. ) O P I N I O N
_________________________)
Petitions for Hearing from the Court of
Appeals, on Appeal from the Superior Court of
the State of Alaska, Third Judicial District,
Anchorage, John D. Mason, Judge.
Appearances: Nancy R. Simel, Assistant
Attorney General, Anchorage, Douglas B.
Baily, Attorney General, Juneau for
Petitioner/Respondent, State of Alaska. Paul
E. Malen, Assistant Public Defender,
Anchorage, John B. Salemi, Public Defender,
Anchorage for Petitioner/Respondent, Ronald
E. Gudmundson. Leslie A. Hiebert, Assistant
Public Advocate, Anchorage, for
Petitioner/Respondent, Steven E. Knutson.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, Compton, and Moore,
Justices.
RABINOWITZ, Chief Justice.
I. FACTS AND PROCEEDINGS
On August 31, 1985, Gudmundson and Knutson, possessing
sheep tags and hunting licenses, killed at least one Dall sheep
ram on Sheep Mountain on the Glenn Highway. Sheep Mountain was
closed for hunting, but was within Game Management Unit 13A,
which was otherwise open for hunting of full-curl rams.
Gudmundson and Knutson claim that, at the time of the
kill, they did not know Sheep Mountain was closed. They assert
that they consulted a recent regulation summary, having been
unable to obtain a copy of the full regulations, and that the
summary did not provide notice that Sheep Mountain was closed.
Moreover, as they approached Sheep Mountain from the west, there
was no sign indicating that the area was closed for hunting.
Gudmundson and Knutson assert that impending darkness
made it impossible to pack the sheep they had killed out that
night. Therefore, they left the partially gutted carcass on Sheep
Mountain, and went to a local lodge to celebrate their successful
hunt.
When Gudmundson and Knutson left the lodge that night,
they headed back toward Sheep Mountain to find a place to camp.
As they approached Sheep Mountain from the east, they observed a
sign indicating that Sheep Mountain was closed to hunting. They
contend that they returned to the west side of the mountain to
see if they could locate a similar sign, but found none. Instead
of making camp, they returned to Anchorage that night.
After an anonymous informant furnished the state
information, Knutson and Gudmundson admitted the kill and
disclosed the location of the abandoned carcass to state
authorities. By the time Fish and Wildlife personnel retrieved
the sheep carcass, it was infested with maggots and unfit for
human consumption.
The state charged Gudmundson and Knutson with
violations of 5 AAC 80.300(B), taking game in a closed area, and
AS 16.30.010(a), wanton waste of a big game animal.
Subsequently, Gudmundson and Knutson were convicted by a district
court jury of wanton waste, a misdemeanor. Prior to trial the
charge of taking game in a closed area was dismissed on the
state's motion.1
Gudmundson and Knutson appealed their convictions, and
the state appealed the sentence that the district court imposed
because it was less than the statutory minimum. The court of
appeals rejected Gudmundson's and Knutson's appeal, but remanded
the case with instructions to the district court to impose the
legal sentence. Knutson v. State, 736 P.2d 775 (Alaska App.
1987).
Gudmundson and Knutson then sought post conviction
relief in district court pursuant to Criminal Rule 35.1(a)(1) on
the grounds that their convictions under AS 16.30.010(a) violated
due process. The court of appeals summarized Gudmundson's and
Knutson's claim as follows:
Knutson and Gudmundson argue that their
due process rights were violated because they
were placed in a "cruel dilemma"at the scene
of the shooting since they would have
committed a crime whether they acted or
failed to act. According to the hunters, on
the day of the kill, they had two choices,
both illegal, available to them: They could
salvage the sheep and become criminally
liable for illegal transportation of game, 5
AAC 92.140, or they could decline to salvage
and become liable for wanton waste, AS
16.30.010(a). In Knutson's and Gudmundson's
view, they were entitled to post-conviction
relief on this basis.
Gudmundson v. State, 763 P.2d 1360, 1361 (Alaska App. 1988)
(Gudmundson I).
The district court denied the claim for post-conviction
relief and the court of appeals affirmed this denial. Id. at
1360-61. Although the court of appeals acknowledged that
"Gudmundson and Knutson have framed significant issues," it
affirmed the district court's denial of post-conviction relief on
the grounds that Gudmundson's and Knutson's due process
contentions were abandoned as a result of inadequate briefing on
their part. Id. at 1362.
Gudmundson and Knutson then petitioned for rehearing on
the grounds that their legal research disclosed no authority for
the due process position they were advancing because of the
unique factual situation. The court of appeals granted their
petition for rehearing. Gudmundson v. State, MO&J No. 1712
(Alaska App., December 14, 1988) (Gudmundson II).
On rehearing, the court of appeals stated "we adhere to
the original conclusion that AS 16.30.010, which prohibits the
wanton waste of big game animals, is not unconstitutionally vague
when viewed in conjunction with 5 AAC 92.140, which prohibits the
unlawful transportation or possession of game illegally taken."
Gudmundson v. State, MO&J No. 1838 at 1-2 (Alaska App. June 28,
1988) (Gudmundson III). However, the court of appeals went on to
hold that "the two provisions, when read together, might create
an unfairness in situations such as the instant case, unless the
defendants are permitted to defend on the basis of reasonable
mistake of law." Id. at 2. The court of appeals remanded the
matter to the district court "for a new trial limited to the
issue of whether Gudmundson and Knutson acted on a reasonable
mistake of law." Id. Thereafter, we granted both Gudmundson's
and Knutson's petitions for hearing.2
II. HAVE GUDMUNDSON AND KNUTSON WAIVED THEIR RIGHT TO CLAIM A
DUE PROCESS VIOLATION?
Gudmundson and Knutson did not raise a violation of due
process claim prior to or at their trial in district court. Nor
was an alleged violation of due process advanced as a
specification of error in their original appeal to the court of
appeals. The due process issue was thereafter raised for the
first time in Gudmundson's and Knutson's application for post-
conviction relief brought pursuant to Criminal Rule 35.1.
Criminal Rule 35.1(a) provides in relevant part that:
Any person who has been convicted of, or
sentenced for a crime and who claims: (1)
that the conviction or sentence was in
violation of the constitution of the United
States or the constitution or laws of Alaska
. . . may institute a proceeding under this
rule to secure relief.
The court of appeals held that "[t]he contention that
Gudmundson and Knutson were prosecuted under statutes that are
void because of conflicts with the due process clauses of the
Alaska and United States Constitutions are properly cognizable in
post-conviction relief proceedings." Gudmundson II, MO&J No.
1712 at 2.
The state does not contest this holding. Rather, the
state argues that Gudmundson and Knutson have forfeited the right
to raise any alleged violation of due process by virtue of their
failure to raise such a claim either before trial, at trial, or
on direct appeal.
A. Criminal Rules 12 and 16 Do Not Require that
the Defense of Unconstitutionality be Raised Pre-
Trial.
The state argues that "a claim that a statute or
regulation is unconstitutional as applied to an individual
defendant must be raised prior to trial or it will be forfeited"
under Criminal Rules 12 and 16.3 On the basis of our decision
in Gray v. State, 525 P.2d 524, 527 (Alaska 1974), we conclude
that the state's contention must be rejected. There, we held
that a constitutional challenge to the statute under which the
defendant was indicted need not be raised before trial under
either Criminal Rule 12 or 16. See, Gray, 525 P.2d at 527;
Crutchfield v. State, 627 P.2d 196, 199 (Alaska 1989)
(unconstitutionality of regulation or statute can be raised for
the first time on appeal).
B. Gudmundson and Knutson Have Not Forfeited or
Waived Their Right to Post-Conviction Relief for
an Alleged Violation of Due Process.
In Gudmundson I, 763 P.2d at 1361, the court of appeals
concluded that "Gudmundson and Knutson moved to vacate their
conviction on jurisdictional grounds, i.e., that the statute
under which they were convicted was void because it violated due
process. Such a claim may be brought at any time because it
involves a claim that the complaint 'does not charge a crime.'"
We agree with the court of appeals that the due process claim
asserted here is jurisdictional in character and in turn reject
the state's contention that Gudmundson and Knutson forfeited or
waived the right to challenge their convictions on due process
grounds.4
In addition to its forfeiture arguments based on Rules
12 and 16, the state contends that Gudmundson and Knutson waived
or forfeited their claim for post-conviction relief because of
their failure to raise the due process claim prior to or at
trial. In this regard the state relies on Marrone v. State, 653
P.2d 672 (Alaska App. 1982) and Fajeriak v. State, 520 P.2d 795,
803 (Alaska 1974). In Marrone, the court of appeals held that
the right to relief based on an erroneous jury instruction was
forfeited, even if the error was potentially of constitutional
dimension, unless objected to at trial. 653 P.2d at 674-75. In
Fajeriak, we held that the failure to object to the jury
selection process at trial precludes the movant from raising this
issue in an application for post-conviction relief. 520 P.2d at
803.
Fajeriak, citing Merrill v. State, 457 P.2d 231, 239
(Alaska 1969) overruled on other grounds, Donnally v. State, 516
P.2d 396, 399 n.6 (Alaska 1973), and Shotwell Mfg. Co. v. United
States, 371 U.S. 341, 362-63 (1963), refused to allow any post-
conviction objection to be raised concerning jury composition, if
it was not raised at trial. 520 P.2d 803 & n.29. However, this
court refused post-conviction relief in Merrill because this was
his second application for post-conviction relief, 457 P.2d at
233; this was not the case in Fajeriak, 520 P.2d 797-98. In
Shotwell, relief was denied because it was held that movant
should have challenged the jury selection procedure, a
nonjurisdictional defense, before trial pursuant to Federal Rule
of Criminal Procedure 12(b). 371 U.S. at 362-63. Alaska's
Criminal Rule 12(b) is for these purposes identical to the
federal rule. Therefore, Fajeriak stands for the proposition
that Criminal Rule 35.1 relief should be denied when defendants
fail to raise a Criminal Rule 12(b) defense at trial. As noted
above, Gudmundson's and Knutson's void for vagueness/due process
challenge is jurisdictional and is not subject to Criminal Rule
12(b). It therefore follows that neither Fajeriak nor Merrill
require a holding that Gudmundson and Knutson have waived or
forfeited their claim to Criminal Rule 35.1 post-conviction
relief.5
III. DOES THE WANTON WASTE STATUTE, IN CONJUNCTION WITH THE
REGULATION CRIMINALIZING THE TRANSPORTATION OF ILLEGALLY
KILLED GAME, CONSTITUTE A DENIAL OF DUE PROCESS REQUIRING
THE REVERSAL OF GUDMUNDSON'S AND KNUTSON'S CONVICTIONS?
The heart of Gudmundson's and Knutson's substantive
argument is that a regulatory scheme which punishes a person's
subsequent action (5 AAC 92.140 - prohibiting the possession and
transportation of illegally taken game)6 as well as a person's
subsequent inaction (AS 16.30.010(a) prohibiting wanton waste)7
violates due process. They argue that the statute and regulation
in question fail to give adequate notice of what course of action
one should take after having illegally killed a big game animal.8
More particularly they argue that:
The two game laws are defective because
of their external contextual ambiguity. The
statute requires hunters to salvage the meat
of killed animals, i.e., to carry the meat
out of the field, even if the kill is the
result of a good faith mistake. The
regulation, however, prohibits the hunter
from transporting, or merely possessing, that
same meat. The possession or transport law
is relevant, or "pertinent,"to the salvage
law, since the act of salvaging necessarily
requires the hunter to both possess and
transport the meat. The hunter has to choose
between the two laws, but he is given no
indication which law to select, i.e., which
"inconsistent statutory directive should
control," or "whether a particular
implication should be inferred," e.g., the
salvage duty is more important. Thus when
the two laws are read in conjunction with
each other, they are ambiguous. This
ambiguity places the hunters in the
constitutionally impermissible situation
where they are potentially liable for up to
year in jail for either acting, or failing to
act.9
Gudmundson and Knutson further argue that these malum
prohibitum laws, when read together, fail to provide adequate
notice, either of the prohibited conduct, or of the preferred
response (i.e. whether the regulation or the statute takes
precedence). Thus, they conclude that principles of basic
fairness, strict construction, and leniency combine to mandate a
holding that their due process rights were violated.10
Our review of the parties' respective arguments
persuades us that Gudmundson's and Knutson's position is well
taken. We agree with their basic premise that there are due
process problems inherent in the application of the wanton waste
statute and the illegal transportation regulation in the
circumstance where game has been illegally taken.
After a big game animal has been illegally killed a
hunter should not have to incriminate himself, nor subject
himself to liability for further criminal acts. In the instant
case, Gudmundson and Knutson were placed in such a situation as a
consequence of the applicability of the wanton waste statute and
the regulation prohibiting the possession or transportation of
illegally killed big game.
As was noted above, the court of appeals concluded that
the statute and the regulation "when read together, might create
an unfairness in situations such as the instant case, unless the
defendants are permitted to defend on the basis of reasonable
mistake of law"and therefore remanded "for a new trial limited
to the issue of whether Gudmundson and Knutson acted on a
reasonable mistake of law." We agree with the court of appeals'
recognition of the unfairness inherent in the circumstances of
this case. Our disagreement lies with the mistake of law defense
fashioned by the court of appeals. Given the dilemma petitioners
were placed in by the operation of the statute and the
regulation, we hold that they were denied due process under
Alaska's constitution.
REVERSED and REMANDED to the court of appeals to in
turn remand the case to the district court with directions to
vacate petitioners' convictions.
_______________________________
1. Gudmundson and Knutson were never charged with a
violation of 5 AAC 92.140 (the unlawful possession or
transportation of game).
2. Gudmundson and Knutson seek this court's review of the
denial of their Criminal Rule 35.1 motion for post-conviction
relief. The state cites Hensel v. State, 604 P.2d 222, 235
(Alaska 1979) for the proposition that post-conviction relief is
always discretionary, and that this court should review this
denial under an abuse of discretion standard.
Hensel had challenged his conviction on the basis of
newly discovered evidence. We held that a trial court has
discretion to make a factual finding that newly discovered
evidence actually would be likely to change the result at trial.
Id. Gudmundson and Knutson, however, contend that the superior
court misapplied the law, alleging that the laws in question are
vague and hence violate due process. See Fajeriak v. State, 520
P.2d 795 (Alaska 1974); Post v. State, 635 P.2d 1194 (Alaska App.
1981).
The parties agree that this court should exercise its
independent judgment on the underlying due process issue. See
Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979). Therefore,
the question of whether Gudmundson and Knutson are entitled to
post-conviction relief because they were denied due process will
be decided under the independent judgment test.
The state also argues that Gudmundson and Knutson have
waived their due process claim. To the extent that factual
findings are critical to the issue of waiver, we will defer to
factual determinations made at the trial level unless they are
clearly erroneous. Hensel, 604 P.2d at 235.
3. Criminal Rule 12(b) provides:
Pre-Trial Motions. Any defense,
objection, or request which is capable of
determination without the trial of the
general issue may be raised before trial by
motion. Any or all of the following shall be
raised prior to trial:
(1) Defenses and objections based
on defects in the institution of the
prosecution;
(2) Defenses and objections based
on defects in the indictment or information
(other than a failure to show jurisdiction in
the court or to charge any offense, which
objections shall be noticed by the court at
any time during pendency of the proceeding);
(3) Motions to suppress evidence
on the ground that it was illegally obtained;
(4) Requests for a severance of
charges or defendants under Rule 14.
Criminal Rule 16(f)(3) provides:
Pre-Trial Motions and Requests --
Effect of Failure to Raise at Hearing. All
motions and other requests made prior to
trial should ordinarily be reserved for and
presented at the omnibus hearing unless the
court otherwise directs. Subject to
constitutional limitations failure to raise
at the omnibus hearing any pre-trial error or
issue, other than the failure of the
indictment to show jurisdiction or to charge
an offense, constitutes waiver of such error
or issue unless the party concerned does not
then possess the information necessary to
raise it.
4. The state does not refer us to any procedural rule which
requires a claim that a statute is unconstitutional to be raised
prior to or at trial. However, Criminal Rule 35.1(h) does contain
a provision on the subject. In this regard Criminal Rule 35.1(h)
provides in pertinent part:
Waiver of or Failure to Assert
Claims. All grounds for relief available to
an applicant under this rule must be raised
in his original, supplemental or amended
application. Any ground finally adjudicated
or not so raised, or knowingly voluntarily
and intelligently waived in the proceeding
that resulted in the conviction or sentence
or in any other proceeding the applicant has
taken to secure relief may not be the basis
for a subsequent application, unless the
court finds a ground for relief asserted
which for sufficient reason was not asserted
or was inadequately raised in the original,
supplemental, or amended application.
5. We have considered the state's additional arguments in
support of its waiver/forfeiture position and do not find them
persuasive. See also Mead v. State, 489 P.2d 738, 739-40 (Alaska
1971).
6. 5 AAC 92.140 provides:
(a) No person may possess,
transport, or place into the possession of
another, any game or part of game that the
person has taken in violation of AS 16 or a
regulation adopted under AS 16.
(b) No person may possess or
transport any game or part of game received
from a person who took the items contrary to
AS 16 or a regulation under it, if the person
receiving the item knows, or has reasons to
know, or should know that the item was taken
in violation of AS 16 or a regulation under
it.
(c) No person may possess or
transport any game or part of game that the
person knows were taken in violation of AS 16
or a regulation adopted under AS 16.
7. In regard to the offense of wanton waste of a big game
animal, AS 16.30.010(a) provides:
It is a Class A misdemeanor for a person
who kills a big game animal or a species of
wild fowl to fail intentionally, knowingly,
recklessly, or with criminal negligence to
salvage for human consumption the edible meat
of the animal or fowl.
8. Petitioners rely in part on Crutchfield v. State, 627
P.2d 196, 199 n.8 (Alaska 1988) and State v. Rice, 626 P.2d 104,
106-09 (Alaska 1981).
9. Compare Justice Roberts' dissenting opinion in Korematsu
v. United States, 323 U.S. 214, 231, 65 S. Ct. 193, 203 (1944),
where he wrote:
[I]f a citizen was constrained by two
laws, or two orders having the force of law,
and obedience to one would violate the other,
to punish him for the violation of either
would deny him due process of law.... And I
had supposed that under these circumstances a
conviction for violating one of the orders
could not stand.
10. Article I, section 7 of the Alaska Constitution provides
that "No person shall be deprived of life, liberty, or property
without due process of law."
]]>
