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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State, Division of Corporations, Business and Professional Licensing, Alaska Board of Nursing v. Platt (10/26/2007) sp-6182
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
| STATE OF ALASKA, DIVISION OF | ) |
| CORPORATIONS, BUSINESS AND | ) |
| PROFESSIONAL LICENSING, | ) |
| ALASKA BOARD OF NURSING, | ) |
| ) Supreme Court No. S- 12173 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 3KN-04-00663 CI |
| ) | |
| JOY PLATT, | ) O P I N I O N |
| ) | |
| Appellee. | ) No. 6182 - October 26, 2007 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Kenai,
Charles T. Huguelet, Judge.
Appearances: David L. Brower, Assistant
Attorney General, and David W. M rquez,
Attorney General, Juneau, for Appellant.
Mark D. Osterman, Mark D. Osterman Law
Office, P.C., Kenai, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
CARPENETI, Justice.
BRYNER, Justice, concurring in part and dissenting in
part.
I. INTRODUCTION
I. The Alaska Board of Nursing denied appellees
application to be certified as a nurse aide by examination based
on the fact that she had previously been convicted of felony
forgery. The superior court reversed the boards decision,
holding that the board could not rely on the conviction because
it had been set aside. Because we conclude that the board may
properly consider a conviction that has been set aside and that
substantial evidence supported the boards decision, we affirm the
boards decision to deny the application.
II. FACTS AND PROCEEDINGS
A. Facts
Joy Platt applied to the Division of Occupational
Licensing to become a certified nurse aide1 by examination on May
10, 2002. The application asked whether she had been convicted
of a criminal offense and stated that convictions include
suspended imposition of sentence. Platt indicated that she had
been convicted, but did not provide any further explanation.
Platts application was forwarded to the Alaska Board of Nursing
for consideration. The board sought and received documentation
of Platts criminal convictions. Because of the importance of the
facts surrounding her convictions to the legal issues raised in
this appeal, we set out the facts here in some detail.
In 1991 Joy Platt moved from Oregon to the Kenai
Peninsula to live with a family friend, Ms. V. W., while she
completed high school. Platt attended a private high school
affiliated with the church where Ms. W. was the pastor,
graduating in 1996. After graduation, Platt married Michael
Platt; the couple experienced severe financial distress when they
both lost their jobs. From mid-September 1997 through November
1997, Platt forged fourteen checks belonging to Ms. W. for a
total of $6,641.90. Platt was indicted on fourteen counts of
Forgery in the Second Degree and one count of Theft in the Second
Degree. From late January 1998 to mid-February 1998, Platt also
forged ten more checks belonging to another couple, acquaintances
of Platt who attended her church, for a total of $3,152.81.
Platt had lived with this couple for a period of time in 1995.
In June 1998 Platt was convicted after pleading no
contest to two counts of Forgery in the Second Degree and one
count of Theft in the Second Degree, Class C felonies. She was
given a suspended imposition of sentence (SIS) on the conditions
that she serve six months in jail and pay restitution, and she
was placed on probation for five years.
In December 1999, while still on felony probation,
Platt was convicted of Theft in the Third Degree, a Class A
misdemeanor, for shoplifting child care products from Fred Meyer.
A petition to revoke Platts felony probation was filed, but the
judge did not revoke her SIS. Instead, her probation was
continued and she was sentenced to ninety days in jail, with
eighty days suspended, for the probation violation.2
The Board of Nursing considered Platts application in
June 2002. It denied the application on the grounds that her
1998 forgery conviction was substantially related to the
qualifications, functions, or duties of a certified nurse aide.3
In response to the boards decision, Platt wrote a letter
appealing the decision. In Platts July 2002 letter, she indicated
that she expected to have her convictions set aside by late 2003.
B. Proceedings
A. An administrative hearing was held in March 2003 to review
the boards decision. After hearing testimony from numerous
witnesses, the hearing officer issued a proposed decision
containing factual findings, conclusions of law, and analysis.
The hearing officer found that Platt had been convicted of
forgery in June 1998 but had been given a suspended imposition of
sentence, which the hearing officer assumed would be set aside by
the time the board issued its final decision.4 In his
conclusions of law, the hearing officer held that there was no
legal barrier to consideration of a set-aside conviction in
making an employment decision and that a person against whom a
judgment of conviction has been entered and subsequently set
aside pursuant to AS 12.55.085(e) is a person who has been
convicted within the meaning of AS 08.68.270(2). The hearing
officer nonetheless recommended that the board exercise its
discretion in favor of granting Platt a license because she would
be a competent, caring, committed nurse aide and was unlikely to
engage in criminal conduct in the long term.
The board declined to adopt the hearing officers
decision and requested that the parties submit additional written
briefing before it issued its own decision. After considering
the supplemental briefing and the record from the hearing, the
board adopted the hearing officers findings of fact and
conclusions of law. The board declined, however, to adopt the
hearing officers analysis. In its own analysis the board placed
particular weight on [Platts] serious and repeated criminal
conduct and the close relationship between the victims and the
applicant and placed relatively less weight on character
references and on the use of a [set aside] disposition. The
board denied Platts application and notified her of her right to
appeal to the superior court.
Platt appealed. Relying on Doe v. State, Department of
Public Safety,5 the superior court held that a conviction that
had been set aside did not constitute a prior felony conviction
under AS 08.68.270. The court concluded that the board was
attempting to treat Platt as if she remained convicted despite
the fact that her conviction had been set aside. The court held
that this was improper and reversed the boards decision.
The board appeals.
III. STANDARD OF REVIEW
I. When we review the superior courts resolution of an
administrative appeal, we review the agencys determination
directly, without deferring to the superior courts decision.6
Whether the board has the authority to consider a conviction that
has been set aside is a question of law that does not implicate
the boards expertise; accordingly, we review it using the
substitution of judgment test.7 Because the boards expertise is
implicated in the ultimate licensing decision, however, we review
that decision using the reasonable basis standard, under which we
will affirm the decision if it is supported by the facts and has
a reasonable basis in law.8
IV. DISCUSSION
This appeal asks whether the board may consider a
conviction that has been set aside when making a licensing
decision under AS 08.68.334 and whether the boards decision was
supported by the evidence in this case. We address each question
in turn.
A. The Board Properly Considered Platts Set Aside Conviction.
A. The legislature has authorized the board to deny
certification to any individual who has been convicted of a crime
substantially related to the qualifications, functions, or duties
of a certified nurse aide.9 Exercising its power to adopt
regulations necessary to protect the health, safety, and welfare
of clients served by nurse aides,10 the board classified forgery
and theft as such crimes.11 The central issue presented is
whether an individual whose conviction has been set aside
pursuant to AS 12.55.08512 remains someone who has been convicted
of a crime substantially related to the qualifications,
functions, or duties of a certified nurse aide under AS
08.68.334(2). For the reasons explained below, we answer in the
affirmative.
Alaska Statute 12.55.085 authorizes the superior court
to suspend the imposition of a sentence and thereafter set aside
a conviction if the defendant successfully completes a
probationary period.13 Platts conviction for forgery was set
aside in November 2003.14 The board argues that the fact of
conviction remains part of Platts criminal history even though
it was set aside, and therefore the fact of conviction can be
considered by the board. Platt argues that the use of the term
conviction in AS 08.68.334 was not intended to include set aside
convictions.
In Alaska a conviction that has been set aside loses
much of its legal importance in future legal proceedings. A set
aside conviction does not qualify as a conviction in situations
in which a sentence is increased or a crime is defined by a prior
conviction.15 It cannot trigger a presumptive sentence16 and can
be used as an affirmative defense to some repeat offender
statutes.17 In other words, the act of setting a conviction aside
creates a settled expectation that the state [will] not
subsequently use the conviction . . . as a basis for imposing
brand-new affirmative burdens on [the defendant].18
Although setting aside a conviction limits the
consequences of the conviction itself, it does not change the
fact that an individual was previously found guilty of committing
a crime.19 We explained in Spenard Action Committee v. Lot 3,
Block 1, Evergreen Subdivision20 that where a conviction is set
aside it does not mean that the crime, and the events surrounding
the crime, never occurred.21 Setting aside a conviction does not
expunge the conviction from the individuals criminal record,22
which means that [b]oth the conviction and the judgment setting
it aside consequently remain in the public record.23 Thus,
although the set aside indicates that the defendant has made a
substantial showing of rehabilitation,24 it does not erase the
fact of conviction.25
As we have noted in previous cases, the fact of
conviction may lead to certain lingering consequences that follow
naturally from the original conviction and are not inconsistent
with the findings [of rehabilitation] that justify a set-aside or
with the set-aside order itself.26 Where, for example, the
superior court must decide among a range of sentences, it is
permitted to consider the fact that an individual has previously
been convicted when determining what sentence is appropriate.27
Similarly, because the fact of conviction remains part of an
individuals criminal record after a conviction is set aside,
[m]embers of the public, such as potential employers inquiring
into a job applicants criminal record, can learn of the existence
of a conviction that has been set aside.28
Thus, although Platts forgery and theft convictions had
been set aside, our case law does not require that the board
treat her as though she had never been convicted. Such an
approach would force the board to ignore the fact that she was
convicted of committing serious crimes. That approach would be
inconsistent with the boards duty to protect the health, safety,
and welfare of clients served by nurse aides29 because it would
prevent the board from undertaking a thorough and informed
evaluation of each applicant. We conclude that despite the fact
that Platts forgery and theft convictions30 had been set aside,
she remained a person who has been convicted of a criminal
offense within the meaning of AS 08.68.334(2). The boards
consideration of the fact that Platt had previously been
convicted of a serious crime was therefore not in error.
We are cognizant of the fact that criminal records,
even those containing convictions that have been set aside, often
have pernicious effects.31 We observed in Journey v. State that a
person with a criminal record is often burdened by social stigma,
subjected to additional investigation, prejudiced in future
criminal proceedings, and discriminated against by prospective
employers.32 These consequences may be harsh where, as appears to
be the case here, the individual has demonstrated an ability to
turn her life around after being convicted. But they appear to
be within the contemplation of the legislature that enacted AS
08.68.334(2). For the reasons set forth above, her objection to
the boards consideration of the fact that she had been convicted
is unavailing.
B. Substantial Evidence Supports the Boards Decision To Deny
Platts Application.
After reviewing the hearing officers recommended
decision, the board adopted the hearing officers findings of fact
and conclusions of law but rejected his analysis and his proposed
decision. In its own analysis, the board chose to give Platts
conviction for forgery great weight based on the fact that Platt
had a close relationship with her victims. Writing on behalf of
the board, Mary H. Weymiller, L.P.N., the chairperson of the
Alaska Board of Nursing, indicated that the board in its
discretion rejected the hearing officers recommended course of
action because the board placed particular weight on [Platts]
serious and repeated criminal conduct and the close relationship
between the victims and [Platt]. Conversely, the board gave
relatively little weight to Platts character references and the
apparent fact that Platt had made substantial progress towards
her rehabilitation since her convictions.
Because the boards expertise is implicated in its
decision to deny Platts application, our review of the decision
is limited to determining whether there is substantial evidence
to support it. Substantial evidence is such relevant evidence as
a reasonable mind might accept as adequate to support a
conclusion. 33 If substantial evidence supports the boards
decision, we must uphold it. Even though there are competing
facts that might support a different conclusion than the one
arrived at by the board, we will not reweigh the evidence nor
choose between competing factual inferences.34
Alaska Statute 44.62.50035 authorizes the board to
decline to adopt a hearing officers proposed decision and to
instead make its own decision based on the record. The board did
exactly this. After reviewing the record and the additional
briefing submitted by the parties, the board adopted the hearing
officers findings of fact and conclusions of law, but substituted
its own analysis. Our review of the record shows that the boards
analysis is supported by substantial evidence.
The record establishes that Platt was convicted of one
count of forgery and one count of theft in 1998. Her victims
were older persons who had befriended Platt, brought her into
their homes, and were vulnerable to her actions. She was given a
suspended imposition of sentence, requiring her to serve six
months in jail and be on probation for five years. While on
probation, Platt was convicted of misdemeanor thefts and was
required to serve additional time in jail, and her probation was
extended. The board relied heavily on these facts particularly
that Platt repeatedly preyed on older, vulnerable persons who had
trusted her to deny Platts application.
The position for which Platt sought certification would
have put her into frequent contact with persons who, by reason of
their medical condition, left them extremely vulnerable to their
caregivers. As the hearing officer noted, many patients under
the care of certified nurse aides are vulnerable and dependent.
The Board of Nursing, attaching more significance to the specific
facts underlying Platts convictions than her rehabilitative
efforts following her convictions, placed particular weight on
[Platts] serious and repeated criminal conduct and the close
relationship between the victims and [Platt]. Although
reasonable minds may disagree with the correctness of the boards
reliance on Platts criminal history in light of evidence
suggesting that Platt had turned her life around, the boards
decision clearly is supported by substantial evidence and is
therefore affirmed.36
V. CONCLUSION
The Alaska Board of Nursings denial of Platts
application to be certified as a nurse aide by examination is
AFFIRMED. The superior courts decision is REVERSED.
BRYNER, Justice, concurring in part and dissenting in part.
I agree with the courts ruling that the board properly
considered Platts set-aside conviction. I also agree that the
record is legally sufficient to support the boards decision that
is, when viewed in the light most favorable to upholding the
boards decision, there is substantial evidence to support a
reasonable conclusion that Platt should not be licensed. But I
disagree with the courts decision to affirm the boards ruling.
In my view, the boards conclusory rejection of the hearing
officers analysis and its cryptic reference to several selective
factors it considered instead provide an inadequate basis for
meaningful appellate review.1 I would thus remand for
reconsideration and an adequately explained decision.
_______________________________
1 Nurse aides [p]rovide basic patient care under
direction of nursing staff. [They] [p]erform duties, such as
feed, bathe, dress, groom, or move patients, or change linens.
Bureau of Labor Statistics, U.S. Dept of Labor, Standard
Occupational Classification 31-1012 (2001), available at
http://www.bls.gov/soc/soc_k1b2.htm.
2 Platts probation officer, who supplied this information
to the board, also sent a letter informing the board that Platt
had made noted progress during probation and supporting her
application.
3 AS 08.68.334 applies to certification of nurse
assistants: The board may deny a certification to, or impose a
disciplinary sanction authorized under AS 08.01.075 against, a
person who . . . (2) has been convicted of a crime substantially
related to the qualifications, functions, or duties of a
certified nurse aide.
AS 08.68.270 applies to licensing of nurses: The board
may deny, suspend, or revoke the license of a person who . . .
(2) has been convicted of a felony or other crime if the felony
or other crime is substantially related to the qualifications,
functions or duties of the licensee.
Although AS 08.68.334(2) was applicable, the hearing
officer and superior court relied on AS 08.68.270(2). This
mistake was harmless in light of the similarities between the two
statutes and the fact that forgery is a substantially related
offense under both provisions. See 12 AAC 44.705(16).
4 The record establishes that Platts theft conviction was
set aside pursuant to AS 12.55.085 in November 2003. Although
the record suggests that Platts forgery conviction was set aside
at the same time, the record is not clear on this issue. Because
both parties treat Platts forgery conviction as having been set
aside, we do the same.
5 92 P.3d 398 (Alaska 2004).
6 Alaska Ctr. for the Envt v. State, 80 P.3d 231, 236
(Alaska 2003).
7 Id.
8 Tesoro Alaska Petroleum v. Kenai Pipe Line, 746 P.2d
896, 903 (Alaska 1987).
9 AS 08.68.334(2); accord AS 08.68.270(2) (board may deny
license to nurse applicant person who has committed crime that is
substantially related to the qualifications, functions or duties
of the licensee).
10 AS 08.68.100(a)(1).
11 12 AAC 44.705(16).
12 AS 12.55.085 provides in relevant part:
(a) Except as provided in (f) of
this section, if it
appears that there are
circumstances in
mitigation of the
punishment, or that the
ends of justice will be
served, the court may, in
its discretion, suspend
the imposition of
sentence and may direct
that the suspension
continue for a period of
time, not exceeding the
maximum term of sentence
that may be imposed or a
period of one year,
whichever is greater, and
upon the terms and
conditions that the court
determines, and shall
place the person on
probation, under the
charge and supervision of
the probation officer of
the court during the
suspension.
. . . .
(e) Upon the discharge by the court without
imposition of sentence, the court may set
aside the conviction and issue to the person
a certificate to that effect.
13 Journey v. State, 895 P.2d 955, 957 (Alaska 1995).
14 See supra note 4.
15 Doe v. State, Dept of Pub. Safety, 92 P.3d 398, 406
(Alaska 2004).
16 Larson v. State, 688 P.2d 592, 597 (Alaska App. 1984).
17 Doe, 92 P.3d at 406 (discussing affirmative defense
under AS 11.61.200).
18 Id. at 408.
19 See Larson, 688 P.2d at 597 (affirming superior courts
reliance on conduct underlying appellants set aside conviction to
classify the appellant as a worst offender and impose the maximum
sentence).
20 902 P.2d 766 (Alaska 1995).
21 Id. at 779; accord Larson, 688 P.2d at 598 (set aside
of appellants earlier robbery conviction did not change the fact
that a conviction had taken place or establish that [the
appellant] had not previously committed a robbery).
22 Journey v. State, 895 P.2d 955, 962 (Alaska 1995). Cf.
Spenard Action Comm., 902 P.2d at 779 ([T]he dismissal of a
charge following the period of stayed imposition of sentence is
in the nature of a pardon, not a declaration of innocence.)
(quoting City of St. Paul v. Froysland, 246 N.W.2d 435, 438
(Minn. 1976)). The only instance in which Alaska law provides
that an adult may have a conviction removed from his or her
criminal record is where he or she is able to show that beyond a
reasonable doubt, [the conviction] resulted from mistaken
identity or false accusation. AS 12.62.180(b).
23 Doe, 92 P.3d at 407.
24 Id. at 406 (citing Wickham v. State, 844 P.2d 1140,
1144 (Alaska App. 1993)).
25 See id. at 406-07.
26 Id. at 407.
27 See supra note 19; see also AS 12.55.155(c)(8) &
(c)(21) (allowing court to consider defendants prior criminal
history as aggravating sentencing factor).
28 Doe, 92 P.3d at 407.
29 AS 08.68.100(a)(1).
30 While it is clear that the board relied on Platts
forgery conviction in denying Platts application, it is unclear
whether the board relied on her theft conviction. In a July 2002
letter the board stated that it had denied Platts application in
accordance with 12 AAC 44.705(16) Felony forgery conviction in
March 1998. But in its July 2004 letter written to explain why
it declined to adopt the hearing officers recommendation, the
board stated that it placed particular weight on [Platts] serious
and repeated criminal conduct. In light of this ambiguity, we
interpret the boards action as relying only on the forgery
conviction.
31 Journey v. State, 895 P.2d 955, 959 (Alaska 1995).
32 Id.
33 Wendte v. State, Bd. of Real Estate Appraisers, 70 P.3d
1089, 1091 (Alaska 2003) (quoting Handley v. State, Dept of
Revenue, 838 P.2d 1231, 1233 (Alaska 1992)).
34 Doyon Universal Servs. v. Allen, 999 P.2d 764, 767
(Alaska 2000) (citations omitted).
35 AS 44.62.500(b) and (c) provide in relevant part:
(b) If a contested case is heard by a hearing
officer alone, the hearing officer shall
prepare a proposed decision in a form that
may be adopted as the decision in the case. .
. . Except as otherwise provided in AS
44.64.060(e), for a hearing conducted by the
office of administrative hearings, the agency
itself may adopt the proposed decision in its
entirety, or may reduce the proposed penalty
and adopt the balance of the proposed
decision.
(c) If the proposed decision is not adopted
as provided in (b) of this section the agency
may decide the case upon the record,
including the transcript, with or without
taking additional evidence, or may refer the
case to the same or another hearing officer
to take additional evidence. . . . The agency
may not decide a case provided for in this
subsection without giving the parties the
opportunity to present either oral or written
argument before the agency. . . . This
subsection does not apply to a hearing
conducted by the office of administrative
hearings.
36 See Wendte, 70 P.3d at 1091.
1 See, e.g., Fields v. Kodiak City Council, 628 P.2d 927,
932-33 (Alaska 1981) (The threshold question in an administrative
appeal is whether the record sufficiently reflects the basis for
the [agencys] decision so as to enable meaningful judicial
review. . . . Only by focusing on the relationship between
evidence and findings, and between findings and ultimate action,
can we determine whether the [agencys] action is supported by
substantial evidence.).
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