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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Lamb v. Anderson (11/17/2006) sp-6078
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| MICHAEL LAMB, | ) |
| ) Supreme Court No. S- 11936 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 4FA-03-2534 CI |
| ) | |
| JEFFREY ANDERSON, | ) O P I N I O N |
| ) | |
| Appellee. | ) No. 6078 - November 17, 2006 |
| ) | |
Petition for Review from the Superior Court
of the State of Alaska, Fourth Judicial
District, Fairbanks, Mark I. Wood, Judge.
Appearances: Joseph L. Paskvan, Paskvan &
Ringstad, P.C., Fairbanks, for Appellant.
John J. Burns, Borgeson & Burns, P.C.,
Fairbanks, for Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
Jeffrey Anderson was driving drunk on the Parks Highway
when he crashed his truck into Michael Lambs motorcycle. Lamb
was seriously injured. Anderson was criminally charged, was
convicted on his plea of no contest to second-degree assault,
failing to render assistance, and driving under the influence,
and he was sentenced to prison. Lamb subsequently brought a
civil negligence action against Anderson. Lamb sought partial
summary judgment as to liability for punitive damages on the
ground that Anderson was collaterally estopped from relitigating
recklessness due to his earlier criminal plea. The superior
court denied the motion. We granted Lambs petition for review.
Because Andersons conviction for assault collaterally estops him
from relitigating the essential elements of that offense, and
because one of the elements of assault is recklessness, we
reverse.
II. FACTS AND PROCEEDINGS
A. Facts
On June 14, 2003 Michael Lamb was riding his motorcycle
northbound on the Parks Highway near Ester. Anderson was also
proceeding northbound, driving a three-quarter ton Dodge Ram
pickup. Anderson apparently passed a tractor-trailer rig at high
speed and, to avoid oncoming traffic, cut in front of the tractor-
trailer. In doing so Anderson collided with the rear end of
Lambs motorcycle. Lamb was seriously injured, requiring wrist
and knee surgeries. Anderson claims not to have any memory of
the accident or of leaving the scene.
Anderson had been drinking heavily prior to the
accident: He consumed a total of at least four double Jack
Daniels at two bars in Nenana. He then drove to his home in
Fairbanks, where he apparently drank most of a large bottle of
tequila shortly before returning to the road. Finally, Anderson
also had with him in the truck a fanny pack with three small
bottles of alcohol in it.
Blood tests at Fairbanks Memorial Hospital indicated
that Anderson had a blood alcohol content of 286 milligrams per
100 milliliters of blood, approximately three-and-one-half times
the legal limit for driving while intoxicated.1
Anderson subsequently pled no contest to assault in the
second degree, failing to render assistance to an injured person
after an accident, and driving under the influence. Charges of
eluding a police officer and refusal to take a chemical test were
dismissed. On December 8, 2003 the superior court sentenced
Anderson to nearly seven years in prison (with slightly more than
three years suspended), and six years probation, ordered him to
pay $3,175 in fines and surcharges, and revoked his drivers
license for five years. Anderson remains incarcerated and has
since been treated for alcoholism.
B. Proceedings
Michael Lamb filed suit against Anderson in October
2003. He complained of negligence and also sought punitive
damages for outrageous or reckless conduct. In September 2004
Lamb moved for partial summary judgment as to Andersons liability
for punitive damages. The superior court denied the motion
without comment in March 2005. Lamb sought reconsideration, but
his motion was denied and Lamb filed a petition for review in
this court. We granted the petition in July and heard oral
argument in December. After oral argument, we issued an order on
December 22 granting relief to Lamb, so that the trial, scheduled
for January 2006, could proceed.2 We noted that an opinion fully
explaining our order would follow.3 This is that opinion.
III. STANDARD OF REVIEW
The extent to which a civil defendant is collaterally
estopped from denying the essential elements of an underlying
crime by a conviction based on a previous plea of nolo
contendere is a question of law. We apply our independent
judgment to questions of law, adopting the rule of law that is
most persuasive in light of precedent, reason, and policy.4 This
case comes before us as review of a denial of partial summary
judgment. A party is entitled to summary judgment if there is no
genuine issue of material fact and the moving party is entitled
to judgment as a matter of law. In determining whether a party
is entitled to judgment as a matter of law, all reasonable
inferences of fact must be drawn against the moving party and in
favor of the non-moving party.5
IV. DISCUSSION
A. A Civil Defendant Who Has Entered a No Contest Plea to
a Criminal Charge Is Collaterally Estopped by the
Resulting Conviction from Denying the Essential
Elements of the Crime in a Subsequent Civil Action.
1. Current law applies estoppel to the civil
plaintiff.
Lamb seeks to establish Andersons recklessness as a
matter of law. Before considering that question, we must first
determine the extent to which a conviction based on a no contest
plea has preclusive effect on a civil defendant in a subsequent
civil action. Although we have not previously determined the
full extent of a no contest pleas preclusive effect, our case law
clearly indicates that, in general, a no contest plea
collaterally estops a civil plaintiff from denying the essential
elements of his underlying crime in a resulting civil action.
In Scott v. Robertson, we adopted the rule that a
criminal conviction resulting from a jury trial could be
introduced as conclusive proof (rather than merely persuasive
evidence) of the facts necessarily determined.6 In that case,
Robertson had been convicted by a jury of operating a motor
vehicle under the influence and was subsequently sued for damages
by Scott. We held that Alaska courts could
admit criminal convictions as evidence in
subsequent civil trials where: (1) the prior
conviction is for a serious criminal offense;
(2) the defendant in fact had a full and fair
hearing; and (3) it is shown that the issue
on which the judgment is offered was
necessarily decided in the previous trial.[7]
We added a cautionary note: such convictions would serve as
conclusive, rather than prima facie, evidence of the facts
necessarily determined so long as the jury in the civil case was
properly instructed to avoid the possibility that it would take
the prior conviction as presumptive of complete liability in the
civil action.8 The [i]nstructions to the jury should include
exactly which facts were necessarily determined in the prior
conviction and what facts remain for the jury to decide.9
Shortly after Scott, we decided in Lowell v. State10
that convictions resulting from nolo pleas may be used . . . to
impeach a witness, including a defendant/witness, who testifies
in a later proceeding.11 But Lowell also suggested that allowing
convictions based on nolo pleas to be used for impeachment
purposes might not necessarily mean that such convictions could
also be used for the broader purpose of establishing the
operative facts of the crime for which the nolo plea had been
entered. Specifically, our discussion in Lowell referred with
approval to a line of cases holding that the only forbidden
consequence of a nolo plea is its use as an admission in a civil
action, and that all other uses of the conviction are permissible
as if the plea were of guilty, not nolo.12 Todays case requires
us to decide whether this language should be broadly read to bar
convictions based on nolo pleas from being used to prove the
underlying facts of the prior criminal case or whether it should
be more narrowly read to mean only that the nolo plea itself may
not be used as a testimonial admission.13
Alaska Statute 09.65.210 establishes that a person who
has committed a felony will be collaterally estopped by the
felony conviction from seeking damages for injuries incurred
during the commission of the felony. We interpreted the former
version of that statute, AS 09.17.030, in Sun v. State, where the
defendant went on a drinking and shooting rampage in Shungnak and
was shot while confronting two state troopers.14 Sun subsequently
brought a personal injury action against the two troopers.15
Although we noted that [w]e have expressly refrained from
deciding whether a plea of nolo contendere has collateral
estoppel effect,16 we felt that the statute clearly barred Suns
personal injury action.17 We carefully cabined our decision,
however, noting that because this holding is based on the express
language of AS 09.17.030, we need not decide whether a conviction
based on a nolo contendere plea has collateral estoppel effect in
other contexts.18 This echoed our caution in Pletnikoff v.
Johnson, where the majority stated that [w]e express no view as
to whether the conviction based on Pletnikoffs plea of nolo
contendere might have collateral estoppel consequences because
that subject was not adequately briefed by the parties.19
In dissent in Pletnikoff, then-Chief Justice Matthews
reached the issue that the majority declined to reach. Justice
Matthews acknowledge[d] that under federal law an exception is
made to the rule of collateral estoppel for convictions based on
pleas of nolo contendere but noted that Alaskas treatment of the
nolo contendere plea was sufficiently different from the federal
treatment that the imposition of collateral estoppel effect was
justified.20 The Alaska Evidence Rules lack several specific
provisions found in the Federal Rules.21 Moreover, because a
defendant may plead nolo as a matter of right, guilty pleas are
virtually non-existent in felony cases in Alaska.22 In Alaska,
then, the nolo plea is for nearly all purposes the equivalent of
a guilty plea.23
The full court adopted Justice Matthewss Pletnikoff
position in Burcina v. City of Ketchikan.24 Burcina pled nolo
contendere to arson and was sentenced to two and one-half years
in prison.25 He subsequently filed suit against his mental health
providers, alleging that their negligence had led to the
psychotic episode in which he set fire to their building.26 We
held that Burcina was collaterally estopped from relitigating the
issue of his mental capacity because his criminal conviction for
arson already established that he had the requisite level of
intent.27 We noted that Burcina could have asserted the defenses
of insanity or mental disease, or he could have pled guilty but
mentally ill; instead, he opted to plead no contest.28
In Burcina we took the step that we had declined to
take in Sun v. State,29 holding that a plea of nolo contendere
has collateral estoppel effect:
Although our holding [in Sun] was based on
the express language of [former] AS
09.17.030, we have noted that [that statute]
embodies the public policy principle
enunciated in Alaska case law. . . . We now
combine and clarify these rules. We hold,
based on public policy grounds, that a civil
plaintiff is collaterally estopped from
relitigating any element of a criminal charge
to which he has pled nolo contendere.[30]
Finally, in Howarth v. State, Public Defender Agency31
we followed Burcina in prohibiting a civil plaintiff from
relitigating the essential elements of a criminal charge to which
he had pled no contest.32 Howarth, who had been convicted of
first-degree sexual assault on his plea of nolo contendere, was
allowed to withdraw his plea because his appointed attorney had
ineffectively represented him.33 He later pled no contest to
second-degree sexual assault, and then sued his former attorney
for malpractice.34 We held that Howarth, by pleading no contest
to the reduced charge, was precluded from denying that he had
committed the essential elements of that crime.35 Howarth
clarified that for purposes of the first prong of the Scott test36
(whether the prior conviction is for a serious offense), all
felonies qualified as serious offenses even if no jail time were
imposed.37
The above analysis demonstrates our progression over
time in addressing no contest pleas, and our ultimate conclusion
that civil plaintiffs are collaterally estopped from relitigating
the essential elements of the crimes to which they pled no
contest in prior criminal proceedings. However, Anderson is a
defendant in this civil case. We turn now to the question of
whether collateral estoppel applies equally to civil defendants
who previously pled no contest to criminal charges.
2. Collateral estoppel should also apply to the civil
defendant.
Several cases since Howarth suggest that extending
collateral estoppel to civil defendants would be a reasonable and
wholly expected progression in the law. In Lashbrook v.
Lashbrook, a father was arrested for assault in an incident that
also led the mother of his children to petition for a
modification of custody.38 The father pled no contest to the
assault charge during the pendency of the custody modification
proceedings.39 The superior court granted the mother full custody
of the children without a hearing.40 We reversed, holding that a
separate hearing was required on permanent modification of
custody.41 We noted, however, that [o]n remand, [the father] will
be precluded from challenging the facts which constitute the
elements of the offenses to which he pled no contest.42 Lashbrook
indicated our inclination to extend the collateral estoppel
effect of convictions resulting from nolo pleas to subsequent
civil defendants. We took a similar position in Richard B.
v. State, where a father challenged the procedural particulars of
a termination of parental rights hearing.43 The father argued
that due process required that he, an incarcerated felon, be
allowed to testify in person rather than telephonically.44 We
disagreed, noting that live testimony would add little, in part
because Richard would ordinarily be precluded by his conviction
from denying the conduct on which it was based.45 We declined to
decide the issue on that basis, however, because Richard was in
the process of challenging his conviction. As we did in
Lashbrook, in Richard B. we assumed that a conviction based on a
nolo plea would have collateral estoppel effect on a subsequent
respondent in a parental rights termination hearing.
We have thus shown a clear inclination to apply
collateral estoppel effect to the nolo pleas of criminal
defendants in subsequent civil litigation, subject to the
safeguards of the Scott test. We now extend this line of cases
to apply to civil defendants. We hold that a conviction based on
a no contest plea will collaterally estop the criminal defendant
from denying any element in a subsequent civil action against him
that was necessarily established by the conviction, as long as
the prior conviction was for a serious criminal offense and the
defendant in fact had the opportunity for a full and fair
hearing.46
In adopting this rule, we take the occasion to remind
our trial courts that, before a no contest plea is accepted in a
case involving serious criminal charges, the record should
establish the defendants understanding that a no contest plea
will result in a conviction, just as a guilty plea would, and
that this conviction could be used in future cases to establish
that the defendant engaged in the conduct involved in the charged
offense.47
We are mindful that the use of a conviction based on a
no contest plea for preclusion purposes may smack of unfairness
to some. The pleading defendant has not tested the charges
against him or her in a court of law, but has instead given up
that opportunity in exchange for a quick resolution, saving face,
or myriad other reasons.For these reasons we note the trial
courts responsibility before accepting a no contest plea in a
case involving serious criminal charges.
B. As a Result of Andersons Conviction Based on His No
Contest Plea to Second Degree Assault, Anderson Is
Collaterally Estopped from Denying that He Evidenced
Reckless Indifference to the Interest of Another
Person.
1. Andersons conviction is sufficient for preclusive
effect.
Lamb argues that, because recklessness is an essential
element of Andersons assault conviction, Anderson should be
precluded from arguing in the civil suit that he was not
reckless. Furthermore, Lamb argues that, because Andersons
recklessness has been conclusively established, Lamb is entitled
to summary judgment on the issue of punitive damages. Anderson
replies that recklessness for the purposes of assault is
different from recklessness for the purposes of punitive damages,
and that the civil forum allows Anderson to introduce evidence as
to recklessness that was barred from the criminal proceeding. We
hold that Andersons conviction has preclusive effect as to his
recklessness (but not as to his liability for punitive damages,
as the next section of this opinion makes clear).
Anderson was convicted of assault in the second degree.
Alaska Statute 11.41.210(a)(2) provides: A person commits the
crime of assault in the second degree if that person recklessly
causes serious physical injury to another person.48 Assault in
the second degree is a class B felony for which a fine of
$100,000 and imprisonment for ten years may be imposed.49 On the
assault charge Anderson was sentenced to four and one-half years
with one and one-half years suspended.
Applying the Scott test,50 we conclude that Andersons
assault conviction should collaterally estop him from denying the
essential elements of the offense.51 As to the first requirement
that the conviction be for a serious criminal offense52 the test
is clearly satisfied. Assault in the second degree is a felony,
and all felonies are serious offenses for the purposes of the
rule. The second prong of the test requires that the defendant
in fact had a full and fair hearing.53 While this language may
initially suggest that convictions via plea are disfavored, our
opinion in Scott clearly contemplated the use of such convictions
for collateral estoppel purposes:
We first require that the prior conviction be
for a serious offense in order that the
accused have the motivation to defend himself
fully. A driver who pleads guilty to a minor
traffic violation may have decided merely
that the costs of defending outweigh the
burden of having such a conviction on his
record. Such a conviction is not credible
evidence of guilty conduct.[54]
Scott described the fair hearing requirement as designed to
prevent the introduction of the prior conviction where there is
substantial question as to its validity. Normally, a criminal
conviction . . . should be admissible absent strong showing of
irregularity.55 The present case has no indicia of irregularity;
the fair hearing requirement is met even if a defendant pleads
nolo contendere, as Scott indicates.
The third prong of the Scott test requires that the
proposition for which the conviction is offered must have
necessarily been determined at the previous proceeding, and the
civil jury must be carefully instructed as to which facts were
and were not necessarily determined.56 Here, Andersons
recklessness and the fact that he inflicted serious physical
injury were necessary elements of his assault conviction; the
sentencing judge specifically referred to the statutory provision
regarding recklessness. At trial the superior court should
ensure that the jury is instructed that the assault conviction
establishes only elements that were necessary for the conviction.
2. Anderson is estopped from denying recklessness,
but the inquiry on punitive damages remains open.
Anderson argues that, even if he is collaterally
estopped from relitigating recklessness by his conviction,
recklessness in the context of punitive damages is fundamentally
different from recklessness for the purpose of an assault
conviction. This argument is without merit. Alaska law defines
recklessness for criminal purposes to occur when a person is
aware of and consciously disregards a substantial and
unjustifiable risk that the result will occur or the circumstance
will exist.57 The punitive damages statute, AS 09.17.020, states
in relevant part that [t]he fact finder may make an award of
punitive damages only if the plaintiff proves by clear and
convincing evidence that the defendants conduct . . . evidenced
reckless indifference to the interest of another person.58 We
have adopted the Restatement view that a partys conduct
is in reckless disregard of the safety of
another if he does an act . . . knowing or
having reason to know of facts which would
lead a reasonable man to realize, not only
that his conduct creates an unreasonable risk
of physical harm to another, but also that
such risk is substantially greater than that
which is necessary to make his conduct
negligent.[59]
Thus, both the Restatement and our criminal statute
view recklessness as unreasonably disregarding a known risk of
substantial physical harm to another. The two standards are
substantially similar; the assault standard is at least as broad
as the punitive damages standard. The reference to conscious
action may indicate a level of culpability even higher than is
present in the somewhat passive state of indifference. Anderson
is therefore estopped from denying recklessness under AS
09.17.020(b).
That Anderson is estopped from denying recklessness
under AS 09.17.020(b) means that Lamb is eligible for punitive
damages rather than that punitive damages must be imposed. The
multifactor inquiry under AS 09.17.020(c) as to the amount of
punitive damages that may be awarded60 remains open and the
superior court must instruct the jury on the factors identified
in that statute. Because AS 09.17.020(b) provides that the jury
may award punitive damages under AS 09.17.020(c) once reckless
indifference has been proved, the inquiry under AS 09.17.020(c)
permits, but does not require, an award of punitive damages.61
V. CONCLUSION
Under Alaska law, a defendant in a civil case who has
been convicted after pleading no contest is collaterally estopped
from relitigating the essential elements of the offense.
Andersons criminal conviction for assault is thus conclusive
evidence of his recklessness under AS 09.17.020(b). It was for
these reasons that we REVERSED the judgment of the superior court
and REMANDED with instructions in our order of December 22, 2005.
_______________________________
1 Under Alaska law if a person has 80 milligrams or more
of alcohol per 100 milliliters of the persons blood, then it
shall be presumed that the person was under the influence of an
alcoholic beverage. AS 28.35.033(a)(3).
2 Lamb v. Anderson, 126 P.3d 132 (Alaska 2005).
3 Id. at 133.
4 Burcina v. City of Ketchikan, 902 P.2d 817, 820 n.4
(Alaska 1995) (quoting Shanks v. Upjohn Co., 835 P.2d 1189, 1193
(Alaska 1992)); Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska
1979).
5 Burcina, 902 P.2d at 820 n.4 (citations omitted).
6 Scott v. Robertson, 583 P.2d 188, 193 & n.27 (Alaska
1978) (citations omitted).
7 Id. at 191-92.
8 Id. at 193 (citation omitted).
9 Id. at 193-94 (citation omitted).
10 574 P.2d 1281 (Alaska 1978).
11 Id. at 1285.
12 Id.
13 Cf. Pletnikoff v. Johnson, 765 P.2d 973, 981 (Alaska
1988) (Matthews, J., dissenting) (I take this language [from
Lowell] literally. A nolo plea may not be used as an admission
in a civil action. However, insofar as a nolo plea results in a
conviction, the conviction may be used for any purpose for which
any conviction based on a plea of guilty might be used.); see
also Burcina v. City of Ketchikan, 902 P.2d 817, 822 (Alaska
1995) (citing Justice Matthewss Pletnikoff dissent in discussing
Alaska rules and decisional law on the subject of nolo contendere
pleas).
14 830 P.2d 772, 773-74 (Alaska 1992).
15 Id.
16 Id. at 777 (citing Pletnikoff, 765 P.2d at 976 n.2).
17 Id.
18 Id. at 777 n.9.
19 Pletnikoff, 765 P.2d at 976 n.2.
20 Id. at 979 (Matthews, C.J., dissenting).
21 Id. at 979-80.
22 Id. at 981 n.2. See Alaska R. Crim. P. 11. This
paucity of actual guilty pleas seems to continue, even in plea
bargains. See, e.g., Snelling v. State, 123 P.3d 1096, 1097
(Alaska App. 2005); Dayton v. State, 120 P.3d 1073, 1075 (Alaska
App. 2005); Simon v. State, 121 P.3d 815 (Alaska App. 2005);
Greist v. State, 121 P.3d 811, 812 (Alaska App. 2005); Grohs v.
State, 118 P.3d 1080, 1080-81 (Alaska App. 2005); Edmonds v.
State, 118 P.3d 17, 18 (Alaska App. 2005); State v. Gibbs, 105
P.3d 145, 146 (Alaska App. 2005) (no contest plea bargains); but
see Northcut v. State, 2005 WL 3508652 at *1, Mem. Op. & J. No.
5028 (Alaska App., December 21, 2005) (unpublished); Grasser v.
State, 119 P.3d 1016, 1017 (Alaska App. 2005); Maher v. State,
2005 WL 1131164 at *1, Mem. Op. & J. No. 4985 (Alaska App., May
11, 2005) (unpublished) (guilty pleas).
23 Functional differences appear to be exceedingly minor.
In Pletnikoff, Chief Justice Matthews argued that the avoidance
of public humiliation should be the only benefit of the Alaska
nolo plea. Pletnikoff, 765 P.2d at 982 (Matthews, C.J.,
dissenting). We agree.
24 902 P.2d 817 (Alaska 1995).
25 Id. at 819.
26 Id.
27 Id. at 821. See AS 11.46.400 (defining first-degree
arson as intentionally damag[ing] the property of another by
fire).
28 Id. at 822.
29 830 P.2d 772, 777 & n.9 (Alaska 1992).
30 Burcina, 902 P.2d at 822.
31 925 P.2d 1330 (Alaska 1996).
32 Id. at 1332.
33 Id. at 1331.
34 Id.
35 Id. at 1333.
36 Scott v. Robertson, 583 P.2d 188, 191-92 (Alaska 1978).
37 Howarth, 925 P.2d 1334-35. Howarth had been convicted
on his plea of no contest, but after serving six years he
successfully withdrew his plea. Pending trial, he again
negotiated a plea. He was subsequently sentenced to a term of
four years, with credit for time served. He then argued that his
offense should not be considered serious because he had not
served any additional time in jail as a result of his second no
contest plea. We rejected that argument.
38 957 P.2d 326, 327 (Alaska 1998).
39 Id. at 328.
40 Id.
41 Id. at 328-30.
42 Id. at 330 n.2 (citing Burcina v. City of Ketchikan,
902 P.2d 817, 822 (Alaska 1995)).
43 Richard B. v. State, Dept of Health & Soc. Servs., Div.
of Family & Youth Servs., 71 P.3d 811 (Alaska 2003).
44 Id. at 830.
45 Id. at 832 (citing Lashbrook, 957 P.2d at 330 n.2 and
Burcina, 902 P.2d at 822).
46 In Lowell v. State, 574 P.2d 1281, 1285(Alaska 1978),
we stated in part: the only forbidden consequence of a nolo plea
is its use as an admission in a civil action. To the extent this
dictum could be read as limiting the collateral use in a civil
action of a conviction based on a nolo plea, that reading would
be contrary to the result we reach here today.
47 In Miller v. State, 617 P.2d 516 (Alaska 1980), we
considered the level of inquiry the trial court must make under
Criminal Rule 11(f) in deciding whether to accept a proffered
nolo plea, stating, The only inquiry permitted the trial court by
Criminal Rule 11 is that of determining whether the plea is
knowing and voluntary. Id. at 518. Alaska R. Crim. P. 11(f)
provides: The court shall not enter a judgment upon a plea of
guilty without first being satisfied that there is a reasonable
basis for the plea. We gave Rule11(f) a narrow reading,
rejecting the argument that the rule allows the trial court to
require a factual basis for a nolo plea from the defendant: [T]o
require a defendant to show that there is a reasonable basis for
a plea of nolo contendere puts the defendant in the awkward
position of having to demonstrate his guilt in order to be
allowed to plead nolo contendere. Miller, 617 P.2d at 518. As
the court of appeals correctly noted in Bratcher v. State, 681
P.2d 358 (Alaska App. 1984), however, the court is not relieved
of its duty under Rules 11(c) and (d) to ensure that nolo pleas
are made knowingly and voluntarily:
[A] defendants right to enter a nolo
contendere plea despite a claim of innocence
does not diminish the courts duty, under
Criminal Rule 11(c) and (d), to determine
that the plea is knowingly and voluntarily
entered. Thus, where a defendant seeks to
plead nolo contendere, but volunteers
statements consistent with innocence, it is
crucial that the trial court conduct an
appropriate inquiry, in conformity with the
requirements of Criminal Rule 11, to assure
that the [profferred] plea is not the result
of a misunderstanding of the elements of the
offense. While, under Miller, the court
cannot require the defendant to make a
statement acknowledging guilt, nothing in
Miller precludes the court from conducting a
full and careful inquiry, pursuant to
Criminal Rule 11, to assure that the
defendant has an adequate understanding of
the charge to which he seeks to plead.
Id. at 361-62 n.3. Thus, while the trial court cannot refuse to
accept a nolo plea on the ground that the defendant will not
admit commission of the crime, the court can refuse to accept a
plea if the state has not developed a factual basis sufficient to
inform the defendant of the nature of the charge to which the
defendant is pleading, that is, to establish the defendants
guilt. See Henson v. State, Mem. Op. & J. No. 4895 at 4-5
(Alaska App., July 14, 2004) (unpublished) (remanding for factual
findings where neither party informed sentencing court of factual
basis for defendants plea and defendant disputed basis relied on
by court at sentencing).
48 AS 11.41.210(a)(2).
49 AS 11.41.210(b); AS 12.55.035(b)(3); AS 12.55.125(d).
50 Scott v. Robertson, 583 P.2d 188, 191-92 (Alaska 1978).
51 This analysis focuses on the assault charge; there
would also be preclusive effect from the DUI charge because it
also is a serious criminal offense. Anderson has admitted in
this action the facts that constitute the essential elements of
the DUI charge.
52 Scott, 583 P.2d at 191.
53 Id.
54 Id. at 192 (citation omitted).
55 Id.
56 Id. at 192.
57 AS 11.81.900(3).
58 AS 09.17.020(b)(2).
59 Hayes v. Xerox Corp., 718 P.2d 929, 935 (Alaska 1986)
(quoting Restatement (Second) of Torts 500 (1964)).
60 Alaska Statute 09.17.020(c) provides:
At the separate proceeding to determine the
amount of punitive damages to be awarded, the
fact finder may consider
(1) the likelihood at the time of the
conduct that serious harm would arise from
the defendants conduct;
(2) the degree of the defendants
awareness of the likelihood described in (1)
of this subsection;
(3) the amount of financial gain the
defendant gained or expected to gain as a
result of the defendants conduct;
(4) the duration of the conduct and any
intentional concealment of the conduct;
(5) the attitude and conduct of the
defendant upon discovery of the conduct;
(6) the financial condition of the
defendant; and
(7) the total deterrence of other
damages and punishment imposed on the
defendant as a result of the conduct,
including compensatory and punitive damages
awards to persons in situations similar to
those of the plaintiff and the severity of
the criminal penalties to which the defendant
has been or may be subjected.
61 As our original order following oral argument stated:
4. Anderson is collaterally estopped by his
assault conviction from contesting
recklessness as defined in AS
11.41.210(a)(2). The assault conviction
establishes that Anderson recklessly cause[d]
serious physical injury to another person.
AS 11.41.210(a)(2). Recklessness for the
purposes of assault is defined to include
being aware of and consciously disregard[ing]
a substantial and unjustifiable risk that the
result will occur or the circumstance will
exist. AS 11.81.900(3). This standard is at
least as broad as the standard for punitive
damages, which requires a showing that the
tortfeasor evidenced reckless indifference to
the interest of another person. AS
09.17.020(b).
5. Anderson is therefore estopped from
denying recklessness under AS 09.17.020(b).
That Anderson is estopped from denying
recklessness under AS 09.17.020(b) means that
Lamb is eligible for punitive damages rather
than that punitive damages must be imposed.
The inquiry under AS 09.17.020(c) remains
open and the superior court must instruct the
jury on the factors identified in that
statute. Because AS 09.17.020(b) provides
that the jury may award punitive damages
under AS 09.17.020(c) once reckless
indifference has been proved, the court
should also instruct the jury that the
inquiry under AS 09.17.020(c) permits, but
does not require, an award of punitive
damages.
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