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10313299
NEAL & COMPANY, INC., an Alaska corporation, Appellant, v. CITY OF DILLINGHAM and CH2M Hill Northwest, Inc., Appellees
Neal & Co. v. City of Dillingham
1996-08-30
No. S-6525
89
96
923 P.2d 89
923
Pacific Reporter 2d
Alaska Supreme Court
Alaska
2021-08-10T16:59:37.070555+00:00
CAP
Before RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.
NEAL & COMPANY, INC., an Alaska corporation, Appellant, v. CITY OF DILLINGHAM and CH2M Hill Northwest, Inc., Appellees.
NEAL & COMPANY, INC., an Alaska corporation, Appellant, v. CITY OF DILLINGHAM and CH2M Hill Northwest, Inc., Appellees. No. S-6525. Supreme Court of Alaska. Aug. 30, 1996. R.R. De Young, Wade & De Young, Anchorage, for Appellant. R. Eldridge Hicks and Jeffrey S. Moeller, Hicks, Boyd, Chandler & Falconer, Anchorage, for Appellee City of Dillingham. D.K. “Kirby” Wright, Jr., Hintze • & Wright, Anchorage, for Appellee CH2M Hill Northwest, Inc. Before RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.
4144
25091
OPINION RABINOWITZ, Justice. I. INTRODUCTION This appeal centers on the application of the notice requirement of the Differing Site Conditions clause found in a contract between appellant Neal & Company, Inc. (NCI) and appellee City of Dillingham (City). Ap-pellee CH2M Hill (Hill), the City's engineer on the project, is involved in this appeal primarily because it acted as the City's representative on the project. NCI claims that it encountered difficulties in excavation during the project because of unexpected soil conditions, that it gave notice of these unexpected conditions to Hill (and thus constructively to the City), and that therefore it is entitled to assert a claim under the Differing Site Conditions clause. The City and Hill claim that no notice of a differing site condition was given. The superior court ruled on partial summary judgment that NCI did not give adequate notice of a differing site condition. NCI also appeals the superior court's denial of its motions for leave to amend its complaint, for continuance of the trial, and for disqualification of thé trial judge. II. FACTS In February 1987 the City solicited bids for the construction of a sewerage facility. The project included two lagoon ponds. The lagoons were to be dug into a bluff outside of Dillingham. Interested bidders received a set of drawings and a volume containing bidding requirements, contract forms, conditions of the contract, and construction specifications, along with a "Geotechnical Data Summary." The geological survey and the data summary, as well as all technical specifications for the project, were completed by Hill, the City's engineer and on-site representative for the project. The first dig in the construction of the lagoons was to be a wedge-cut into the bluff from the surface down to an elevation of forty-seven feet. After the first dig down to the forty-seven foot level, the second dig would begin, consisting of the excavation of two ponds down from the flat area created by the first dig. The pools were to be eighteen feet deep, reaching an elevation of twenty-nine feet at their lowest point. The data summary stated that there was a layer of peat containing some silt infilling extending four feet to eight feet below the original ground surface. Below the peat was a layer of sand and silty sand interbedded with layers of silt extending about six to twelve feet below the peat zone. Below that, the data summary described the remaining depth of the excavation as "fairly uniform to the remaining depth of the borings, showing a layer of stiff-to-hard clay having low-to-medium plasticity." Regarding the clay layer, the data summary specified: "Occasional samples contained clay with gravel and sand suspended in the clay matrix, indicating that the clay unit may be a glacial till. No distinct bedding or layers of coarse grained material were found in the clay unit." The data summary went on to describe the process by which the lagoons could be constructed: The most attractive aspect of constructing the lagoons in the lower clay zone of the bluff is that they will not have to be lined. Also, native materials will not have to be recompacted to form the dikes, as the dikes can be constructed by carving the lagoons out of the bluff and leaving the clay intact around them. Construction concerns for this configuration are primarily slope protection against seepage and removal and disposal of the excavated material. A set of contract documents was sent to NCI. On April 1,1987, bids were opened and NCI was declared the low bidder at $2,059,-991. NCI began the excavation on June 6, 1987. Excavation of the first dig, down to the forty-seven foot elevation of the pond surface, was completed. Work was suspended in October 1987. The second dig, excavation of the pond prisms, began when the ground froze. Excavation was completed by April 20,1988. During the summer of 1987, while excavating the first dig, NCI encountered water bubbling through sand lenses in the excavation. Randy Mattoon, NCI's project superintendent, discussed with Tony Neal, president of NCI, the possibility of the existence of sand lenses impairing the integrity of the lagoon, which would allow sewage to escape. Mattoon also discussed the issue of water permeable sand lenses with Bob Richie, Hill's representative. Ken Green, a Hill geotechnical engineer, was scheduled to visit the project the week of July 27,1987. NCI contends that Green's visit was scheduled after and because of the Mattoon-Riehie conversation regarding the sand lenses. The City and Hill contend that Green's visit had already been scheduled. During Green's visit, a test pit was dug in each of the pond prisms, and a soil sample was taken from one of the pits. Green's field notes, taken at the time the pits were dug, indicate that at the level where the lagoons were to be dug, he saw "clayey silt Slightly plastic Blue Gray Moist slightly Blocky structure, stiff to n. stiff[.]" This level (two to nineteen feet down from the forty-seven foot elevation of the surface of the lagoon) had been described in the Data Summary as "a layer of stiff-to-hard clay having low-to-medium plasticity." During this time, the consistency of the soil was causing difficulties in NCI's excavation. The soil in the lagoon area turned into a sticky mud, creating problems with excavation and transportation. The consistency of the soil, and the difficulty of excavating it, form the basis of NCI's Differing Site Condition claim. During the 1988 phase of the excavation, water infiltration continued to cause problems. In October 1988, NCI advised Hill that it was considering legal action. NCI then filed suit. III. SUPERIOR COURT PROCEEDINGS . During the course of these proceedings, numerous claims and cross-claims were filed. The following are relevant to this appeal. On March 29, 1990, NCI filed a second amended complaint, which added NCI's Differing Site Condition claim to the lawsuit as the sixth cause of action, and added what NCI interprets as a defective specifications claim as the seventh cause of action. In May, NCI filed a substitute second amended complaint. Judge Beverly Cutler granted the motion to amend on August 6, 1990. In January 1991, the City, seeking indemnity from NCI's claims, filed a third-party complaint against Hill. In November 1991, Hill filed a motion for partial summary judgment based on the limitation of liability and indemnity clause in its contract with the City. The superior court ruled for Hill. The City filed a petition for review, which this court accepted and has since decided in City of Dillingham v. CH2M Hill Northwest, Inc., 873 P.2d 1271 (Alaska 1994). In April 1993, NCI moved for partial summary judgment, seeking to establish the sufficiency of its notice of differing site conditions. The City moved for summary judgment against both NCI and Hill. In October 1993 the superior court granted partial summary judgment to the City and dismissed NCI's sixth and seventh causes of action. The court subsequently denied NCI's motion for reconsideration. Meanwhile, in November 1993, NCI filed a motion for leave to amend its complaint and a motion to continue the trial. The superior court denied these motions. The superior court also denied NCI's motion to reconsider the denial of its motion to amend. On January 26,1994, NCI filed a motion to disqualify the judge. The next day, Judge Cutler refused to recuse herself, and referred the motion to the presiding judge for assignment. The motion was assigned to Judge Peter A. Michalski, who denied the motion for disqualification on January 31. On February 3, 1994, the parties reached a settlement, reserving to NCI the right to appeal the rulings which are now before us: the dismissal of NCI's sixth and seventh causes of action, the denial of NCI's motions for leave to file a third amended complaint and for continuance of the trial, and the denial of the motion to disqualify Judge Cutler. IV. DISCUSSION A. The Summary Judgment Dismissing NCI's Sixth and Seventh Causes of Action Resolution of this summary judgment turns on the interpretation and application of the Differing Site Conditions clause which, at the time the contract for this project was made, was required by the Environmental Protection Agency in contracts for projects with EPA funding. 40 C.F.R. § 33.1030 (1986). NCI filed a motion seeking to establish that oral communications with Hill constituted actual notice sufficient to meet the notice requirements in the Differing Site Condition contract clause. Paragraph 4(a) of the contract requires that the notice be in writing. Though there is no claim that NCI provided timely written notice of any differing site condition, case law establishes that under certain circumstances timely actual notice, even in the absence of written notice, will be considered sufficient notice under the clause. See, e.g., Brechan Enter. v. United States, 12 Cl.Ct. 545 (1987) ("[N]otice does not need to be in any specific format; it need only show the existence of the condition."). Therefore, the appeal of this summary judgment requires an interpretation of what qualifies as the minimum necessary notice under the clause, and, secondly, of whether the acts alleged here satisfy that minimum. In Brinderson Corp. v. Hampton Rds. San. Dist., 825 F.2d 41 (4th Cir.1987), a contractor had problems with wet soil conditions which forced it to incur increased costs. The court stated that "[generally, when the owner has actual or constructive notice of the conditions underlying the claim and an opportunity to investigate, that is sufficient." Id. at 44. Similarly, NCI's notice to the City, though not in writing, will be considered sufficient if it was clear and it alerted or should have alerted the City to the fact that NCI believed it had encountered differing site conditions. NCI claims that Green, and therefore Hill, was put on notice when Green met with NCI representatives to talk about problems with the composition of the soil and then actually took a soil sample and noted that its composition differed from what the data summary predicted. If Green knew upon looking at the soil that the site condition was materially different from what was expected, he was on notice even if the contractor continued to labor ignorantly, having no idea why work was progressing so slowly. NCI's position is that after concerns about sand lenses were expressed to Richie, Green was specially brought in to test the soil. When he looked at the pits he saw "clayey silt, " not clay, at the elevation of the lagoon prisms (ie., between elevations forty-seven and twenty-nine). NCI asserts that the clayey silt constituted a differing site condition, and that Green knew that it was. But NCI's assertions and suppositions are not supported by reasonable inferences from the evidence. When Green came to inspect the soil — even if he came in especially because of NCI's concerns — the reason for his visit was possible sand lenses in the floor of the lagoon, not the consistency of the material to be excavated. The notes he took were simply a recording of what he saw at various levels, not the focus of his investigation. Because of the concerns about sand lenses, Green came to the site and took a soil sample in the presence of representatives of NCI and Hill. The sample came from the twenty-seven foot elevation, which was two feet below the level anticipated for the lagoon floors. This again indicates that the concerns Richie and Green were addressing related to the eventual integrity of the lagoon floor, not to the difficulty of excavation. Green's log notes describing the composition of the soil on the way down the test pits were offhand assessments, not the focus of his attention. NCI asserts that Mattoon's characterization of the material within the lagoon prism as blue clay, and the level the sample was taken, are both evidence that Green knew about the differing site condition and attempted to mislead NCI into believing there was none. NCI speculates that Green, knowing that the presence of clayey silt was a differing site condition, lied to Mattoon to cover up the problem, telling him that they were looking at blue clay. But there is no evidence in the record that Green told Mattoon that the soil was blue clay, except for Mattoon's note indicating that they had found blue clay. Mat-toon's note nowhere states that he received this classification from Green. NCI also suggests that Green "used his superior knowledge to select a single sample that aided in the deception." Because the sample was taken from test pit 1, and not pit 2, and because it was taken from below the lagoon floor, NCI concludes that Green was taking the sample from a place he knew would be clay. But NCI's June-July 1987 concern regarding the soil composition, which Mattoon had expressed to Richie, was the integrity of the pond floors, not the difficulty of excavation. None of NCI's representatives found it remarkable at the time that Green took a sample from below the bottom of the lagoon. The only reasonable conclusion is that, since seepage in the lagoon floor was the concern, Green took a sample from the material which would eventually form the floor of the lagoon in order to test its characteristics. NCI's interpretation of the evidence is untenable. It relies entirely on conjecture to convert concerns expressed about the integrity of the pond floors into notice of unexpected conditions within the pond prisms. There is no reasonable interpretation of the facts which supports NCI's contention that it gave clear non-written notice of a differing site condition. The superior court correctly, dismissed NCI's sixth and seventh causes of action. B. Denial of NCI's Motions to Amend Complaint and for Continuance of Trial In November of 1993, NCI sought to amend its complaint. It reworded its seventh cause of action to indicate that it was intended to state a defective specifications claim rather than simply repeat the sixth cause of action's claim of differing site conditions. Also, NCI attempted for the first time to assert four separate claims directly against Hill. To this point, NCI had made all of its claims against the City, which then sought indemnity from Hill; there had been no direct NCI claims against Hill. Finally, NCI sought a continuance. The superior court denied all of these motions. NCI argues that the superior court's denial of leave to amend was based on a failure to apply Civil Rule 15(a), which provides that "leave shall be freely given when justice so requires." The superior court stated that it finds no manifest injustice in denying Neal leave to amend its complaint at this late date. Therefore the court finds that justice does not require amendment. Neal has had ample opportunity to pursue in a timely fashion all of the claims listed in the proposed Third Amended Complaint.... [Tjhere is no manifest injustice in failing to permit amendment on the eve of trial, after five years of preparation and motions. NCI claims that the superior court's application of the "manifest injustice" standard was an error. The superior court indicated in its order denying Neal's motion to amend his complaint that its reason for applying the "manifest injustice" standard was Civil Rule 16(e). While Civil Rule 15(a) directs that leave be "freely granted" by the court "when justice so requires," Civil Rule 16(e) states that pretrial orders following a final pretrial conference shall control unless modified by the judge "to prevent manifest injustice." NCI argues that the superior court was mistaken in its belief that a Civil Rule 16(e) pretrial order had been issued, and, therefore, that the superior court's application of Civil Rule 16(e) instead of Civil Rule 15 was an error. However, it is unnecessary to determine whether the superior court had issued a Civil Rule 16(e) pretrial order. If there was no Civil Rule 16(e) pretrial order, and the superior court therefore erred in applying the "manifest injustice" standard, that error was harmless. Even under the "freely given when justice so requires" standard, it is difficult to see why NCI should be allowed to amend its complaint again. After five years of litigation, including two amendments to its complaints, and after losing a major summary judgment motion, NCI requested leave to rework its causes of action and to bring four claims against Hill for the first time. Justice does not require that such leave be granted. The superior court carefully and accurately analyzed the amendments which NCI was offering to its complaint. All of its findings would sustain a denial of leave to amend under either the Rule 15(a) or the Rule 16(e) standard. Similarly, it was not an abuse of discretion for the superior court, at that late point in the litigation, to deny a continuance to NCI. C. Denial of NCI's Motion for Disqualification During a conference involving Tony Neal, President of NCI, NCI's counsel, and Hicks and Moeller, counsel for the City, Hicks told Neal about some contact he had with Judge Cutler. Judge Cutler had worked for Hicks approximately twenty years earlier, and they had occasional social contact since. There are some minor disputes as to some details. However, there is no record support for NCI's assertion of bias or lack of impartiality. In short, there is no merit in NCI's claim that Judge Cutler should have been disqualified. Judge Cutler and Judge Michalski did not err in denying the motion to disqualify. V. CONCLUSION Review of the record shows that the superior court correctly granted summary judgment against NCI on its Differing Site Conditions claim. NCI's other points on appeal, regarding the motions to amend, to continue the trial, and to recuse the trial judge, are also without merit. The rulings of the superior court and of Judge Michalski are AFFIRMED in all respects. MOORE, C.J., not participating. . In reviewing a grant of summary judgment, we "must determine whether a genuine issue of material fact exists and whether the moving party is entitled to judgment as a matter of law." Saddler v. Alaska Marine Lines, 856 P.2d 784, 787 (Alaska 1993). All reasonable factual inferences must be drawn in favor of the non-moving party. Wright v. State, 824 P.2d 718, 720 (Alaska 1992). When reviewing a trial court's interpretation of contract language, based solely on documentary evidence, this court will use its independent judgment. Klosterman v. Hickel Inv. Co., 821 P.2d 118, 122 (Alaska 1991). . The Brinderson court held that the resident engineers "were on the site, and aware of the problems, and they had abundant opportunity to inspect and investigate. This satisfied the notice requirement." Brinderson, 825 F.2d at 45. . "A DSC exists if the actual conditions of the site differ materially from what . a contractor would have expected based on indications in the contract." Municipality of Anchorage v. Frank Coluccio Constr. Co., 826 P.2d 316, 323 (Alaska 1992). .The superior court entered the following relevant findings of fact regarding the differing site condition issue: Here the court finds that, under the case law cited by Neal & Co., in order for oral notice to be sufficient to replace the written notice specifically called for in the contract, either the oral notice must have given actual notice of differing site conditions to CH2M Hill and/or the City, or the oral notice must be oral notice that would have given notice of differing site conditions to CH2M Hill and/or the City except for conditions beyond Neal & Co.'s control. The court notes that in this case there is a genuine dispute regarding to whom notice of a differing site condition must be given. Given the court's holding discussed below that Neal & Co. did not give adequate notice to CH2M Hill, the court does not reach this latter issue. The court finds that Neal & Co. failed to give oral notice of differing soil conditions in the lagoon excavation, sufficiently forceful to anyone to replace the contractual requirement of clear written notice. This holding is based on the fact that Neal & Co. merely suggested, once, that there might be a differing soil condition, and when this suggestion was rejected by CH2M Hill, Neal & Co. dropped the subject. There was no appeal to higher authority of this rejection by Neal & Co., or specific or repeated oral notice given, as occurred in W.C. Shepherd [v. United States, 125 Ct.Cl. 724, 113 F.Supp. 648 (1953)] and Brinderson. The court also finds nothing in the record indicating that CH2M HU1 had any actual knowledge of differing conditions. There were no Field or Change Orders requested by any party, or issued because of the alleged sand lenses. Neal & Co. has not submitted any evidence tending to show that any CH2M Hill employee observed a changed condition. The record does indicate that CH2M Hill examined the site once for sand lenses, and did not find any. The court holds that the mere fact that CH2M Hill conducted such examination is not evidence that CH2M Hill had actual knowledge of a differing condition. The court finds that, at best, Neal & Co. gave a tentative and equivocal notice that there may have been a differing site condition at the lagoon site, and holds that this notice was not sufficient to replace the written notice requirement of E.P.A. Contract Clause 4(a), or to support a claim for equitable adjustment of the contract price under 4(c). See, Blankenship Const[r], Co. v. N.C. State Highway Comm'n, 28 N.C.App. 593, 222 S.E.2d 452, 461 (1976). Based on the discussion above, the court finds that there is no material fact dispute regarding Neal & Co.'s purported notice to CH2M Hill, and based on the facts noted, the court holds as a matter of law that the City is entitled to summary judgment that Neal & Co.'s differing site condition claim is barred for lack of adequate notice as required by E.P.A. Contract Clause 4(c) and Contract General Condition 58. Neal & Co.'s differing site condition claim against the City of Dillingham is hereby dismissed from this case. In denying NCI's motion for reconsideration, the superior court stated in part: If Neal in fact encountered a differing site condition for which contract adjustment and written notice were required, Neal as the contractor on a large public works project, engaged in the actual earthwork that was the primary focus of the project and doing the actual encountering of differing conditions, if such were truly encountered, had the responsibility to give written notice or other compelling notice. . The superior court read NCI's seventh cause of action as a restatement of the sixth cause of action, which was explicitly a Differing Site Condition claim. NCI maintains that the seventh cause of action was a defective specifications claim, not a Differing Site Condition claim. It is unnecessary to determine whether NCI is correct in this assertion, as a defective specifications claim under the circumstances of the case at bar would fall to the same deficiency of notice which defeats the Differing Site Condition claim. NCI contends that the notice requirement does not apply to defective specifications claims. For this proposition, NCI cites Paragraph 3(a)(4) of the standard EPA specifications. But Paragraph 3 deals with compensation for change orders issued by the City or Hill, whereas Paragraph 4 addresses equitable adjustments due to site conditions differing materially from those contemplated in the contract. Compare 40 C.F.R. § 33.1030 ¶ 3 with 40 C.F.R. § 33.1030 ¶4. Regardless of whether NCI's seventh cause of action states a different claim from its sixth cause of action, both are subject to the notice requirement of Paragraph 4. . We apply an abuse of discretion standard in reviewing a trial court's denial of a motion for leave to amend. James v. State, 815 P.2d 352, 359 (Alaska 1991). A denial of a motion for continuance is also reviewed under an abuse of discretion standard. House v. House, 779 P.2d 1204, 1206 (Alaska 1989). . A trial court's decision not to recuse itself is reviewable on an abuse of discretion standard, as is a decision by a reviewing judge not to disqualify the trial judge. Amidon v. State, 604 P.2d 575, 577 (Alaska 1979). The refusal to recuse the trial judge will be reversed only when it is evident that no fair-minded person could have come to the same conclusion on the basis of the known facts. Alaska Trams Corp. v. Alaska Elec. Light & Power, 743 P.2d 350, 353 (Alaska 1987); Amidon, 604 P.2d at 577.
10398651
Major TOWNSEL, III, Appellant, v. STATE of Alaska, Appellee
Townsel v. State
1988-11-04
No. A-1850
1353
1356
763 P.2d 1353
763
Pacific Reporter 2d
Alaska Court of Appeals
Alaska
2021-08-10T16:59:32.179770+00:00
CAP
Before BRYNER, C.J., and COATS and SINGLETON, JJ.
Major TOWNSEL, III, Appellant, v. STATE of Alaska, Appellee.
Major TOWNSEL, III, Appellant, v. STATE of Alaska, Appellee. No. A-1850. Court of Appeals of Alaska. Nov. 4, 1988. Michael Dieni, Asst. Public Advocate, and Brant McGee, Public Advocate, Anchorage, for appellant. David Mannheimer, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Grace Berg Schaible, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.
1857
11480
OPINION COATS, Judge. Major Townsel was convicted, following a jury trial, of four counts of robbery in the first degree, AS 11.41.500(a)(1), and one count of misconduct involving weapons in the first degree, AS 11.61.200(a)(3). Judge Rene Gonzalez sentenced Townsel to the presumptive seven-year term for each count of robbery. He imposed three of the robbery sentences concurrently but imposed the fourth sentence consecutively. Judge Gonzalez sentenced Townsel to a five-year concurrent term for misconduct involving weapons. Thus, Townsel's composite sentence is fourteen years. Townsel appeals his conviction and sentence. Townsel first argues that Judge Gonzalez erred in failing to grant his suppression motion. He argues that the evidence against him was obtained as the result of a traffic stop which was used as a pretext for a search. In deciding this issue, Judge Gonzalez issued a written decision which set out the facts of the case as he found them. Judge Gonzalez found as follows: On January 5, 1986 at approximately 11:58 p.m. an individual robbed the Oaken Keg at 900 East Dimond Boulevard in Anchorage. Anchorage Police Officer Mizelle responded at approximately 11:59 p.m. and made contact with the alleged victim Glenda Morrison. Ms. Morrison informed the officer that a juvenile black male between the ages of 16-20, approximately 5'6"-5'-7" and 130-140 pounds with black hair and brown eyes had just robbed the Oaken Keg. The individual was described as wearing a brown and white bandanna and a floppy or ski type hat. The individual had left on foot travelling east bound from the Oaken Keg and Carrs complex. After the robbery Ms. Morrison had contacted her supervisor by intercom. The supervisor apparently contacted Ms. Morrison in person and notified the police. A police dispatcher relayed the information obtained from the Oaken Keg personnel over the radio to on duty officers. At approximately 11:58 p.m. Officer David Rochford was on duty at the intersection of 36th and "A" when he was advised by dispatch that an armed robbery had taken place at the Oaken Keg at Old Seward and Dimond. Dispatch indicated that the suspect was a juvenile black male, armed with a rifle, and had fled on foot. Officer Rochford proceeded to the intersection of New Seward and 36th Avenue and arrived at said intersection approximately two minutes later. Upon his arrival he observed a vehicle traveling north bound at the speed limit. The following vehicle infractions were observed by Officer Rochford: vehicle had its left headlight out, the driver's window was obstructed by clouded visqueen, a taillight lens was broken allowing white light to shine through, and the license plate was obscured. Rochford let the vehicle travel out of view. He used his emergency lights to cross the intersection and turn onto the New Seward. When Officer Rochford was behind subject vehicle, he determined that the vehicle was exceeding the speed limit by ten miles per hour — by travelling at approximately 55 miles per hour in a 45 mile per hour zone. Officer Rochford testified that he would have stopped the vehicle for the traffic and vehicular infractions in the normal course of his duties. Consequently the officer stopped the vehicle. At the driver's window, the officer asked the driver to exit the vehicle. The driver explained that because the driver's door did not open, he had to exit from the passenger side. As the driver slid across the seat and exited from the car, the officer asked him for his driver's license. As the driver spoke the officer saw the muzzle of a rifle in the back seat of the car. When the officer told the driver not to touch the rifle the defendant reached for the gun. The officer drew his weapon and the defendant threw the rifle to the ground and fled on foot. The officer was unable to catch the defendant. Another officer arrived on the scene and seized a license, a wallet, a bag and a rifle from the vehicle. A search warrant was issued to search defendant's residence and to further search the vehicle based upon the evidence seized. Relying upon the evidence found in the vehicle and at the defendant's residence, the defendant was charged in the indictment with four courts of robbery in the first degree, one count of burglary in the second degree, and one count of misconduct involving weapons in the first degree. These facts, as found by Judge Gonzalez, are supported by the record. Judge Gonzalez then concluded as follows: Officer Rochford had substantial evidence to stop defendant's vehicle for violations of traffic regulations and the evidence presented does not support the assertion that this was merely a pretext stop. Townsel cites Brown v. State, 580 P.2d 1174 (Alaska 1978) as the leading Alaska case in support of his position. Brown does establish that "an arrest (or a traffic stop) should not be used as a pretext for a search." Id. at 1176 (footnote omitted). However, the case also establishes that where "there is substantial evidence to support the trial court's determination that [the defendant's] vehicle was stopped for a violation of traffic regulations and that [the stop] was not a pretext stop," then the stop was not illegal. Id. at 1176 (footnote omitted). Officer Rochford testified that he stopped the vehicle for the traffic and vehicular infractions, not on a pretext to enable him to investigate the robbery. He testified that he would have made this stop under normal conditions if he was not investigating the robbery. Judge Gonzalez found the officer's testimony to be credible and this conclusion is not clearly erroneous. We conclude that Brown is controlling, and we affirm the trial court's decision. Townsel next argues that his sentence was excessive. Townsel was thirty-five at the time of these offenses and had no prior felony convictions. In 1981, he served seventeen days in jail for misconduct involving weapons; in the presentence report Town-sel indicated he had discharged a firearm in the city limits. In 1976, he was fined $500 dollars for possession of marijuana. He has had several non-serious traffic violations. Townsel served two years in the military and received an honorable discharge. In sentencing Townsel, Judge Gonzalez found that the four armed robberies were planned. He noted that all of the robberies involved robbing businesses at a time when older women were alone in the establishment. He noted that the robberies were all done with a weapon which had been specially modified so that it could be easily concealed. Judge Gonzalez also considered the fact that Townsel had lunged for the weapon when confronted by the officer during the stop. He found Townsel's pattern of conduct to be particularly serious. Robbery in the first degree is a class A felony. The maximum sentence is twenty years. The presumptive sentence for a first felony offender who possesses a firearm during the offense is seven years. A second felony offender faces a ten-year presumptive term, a third felony offender fifteen years. In Austin v. State, 627 P.2d 657, 657-58 (Alaska App.1981), we stated the general rule that "[njormally a first offender should receive a more favorable sentence than the presumptive sentence for a second offender. It is clear this rule should be violated only in an exceptional case." Thus, Judge Gonzalez could sentence Townsel to a sentence of ten years or greater only if he found the case to be exceptional. Furthermore, the A.B.A. Standards governing sentencing alternatives and procedures provide that "[f]or most offenses, the maximum prison term authorized ought not to exceed ten years and normally should not exceed five years. Longer sentences should be reserved for particularly serious offenses committed by particularly dangerous offenders." Ill Standards for Criminal Justice, § 18-2.1 (2nd ed. Supp.1982). We have defined who is a particularly dangerous offender by referring to the A.B.A. Standard governing habitual offenders. Id. at § 18-4.4. That standard defines an habitual offender as one who has been convicted of at least two prior felonies, which were committed on two different occasions, within five years of the present offense. Under the standards, the habitual offender must have previously served a sentence in excess of one year. Under the A.B.A. Standards, therefore, Townsel does not qualify as either a habitual offender or a particularly dangerous offender. Because Townsel has never been previously convicted of a felony nor served an extensive period of confinement, we do not believe that there is a reliable basis for concluding that he is incapable of rehabilitation or that his isolation from society for a period in excess of ten years is necessary. Except in cases where the defendant has committed an unclassified felony, this court and the Alaska Supreme Court have followed the A.B.A. Standard ten-year benchmark. See Pruett v. State, 742 P.2d 257 (Alaska App.1987); Skrepich v. State, 740 P.2d 950 (Alaska App.1987). Recently, in Williams v. State, 759 P.2d 575 (Alaska App.1988), this court followed the A.B.A. Standards in a case similar to Townsel's. Williams was sentenced to ten years' imprisonment in federal court for armed bank robbery and for using a deadly weapon during a crime of violence. Williams was also convicted of three second-degree robberies in state court. In state court, the sentencing judge sentenced Williams to eight years with five years suspended, but imposed that sentence consecutively to the earlier ten-year federal sentence. We found that the sentencing judge was clearly mistaken in imposing Williams' three-year unsuspended terms consecutively to his ten-year federal prison term. We thus ordered Williams' sentence reduced to a composite sentence of fifteen years with five years suspended on both his state and his federal charges. Thus, Williams' term of actual imprisonment was ten years. It appears to us that Townsel's case is very similar to Williams. Townsel was thirty-five years old at the time of his offense. Williams was a significantly younger offender at eighteen years of age. However, Williams had an extensive history of minor property and weapon offenses as a juvenile. Furthermore, Williams had been arrested soon after committing the sixth in a series of strong-armed robberies. While he was released on bail, Williams committed the armed robbery of a federal credit union. Townsel's case is aggravated by his consistent use of an illegal weapon and his dangerous confrontation with the police officer when he was stopped. On balance, we conclude that Williams and Townsel are similar offenders who deserve similar sentences. Although both offenders qualify for severe sentences, we do not believe that they qualify for sentences in excess of the ten-year A.B.A. Standard benchmark. We accordingly find Town-sel's sentence to be clearly mistaken. We AFFIRM Townsel's conviction. We VACATE Townsel's sentence, and we REMAND to the trial court with directions to impose a sentence of fourteen years with four years suspended.
10398713
George A. KONRAD, Appellant, v. STATE of Alaska, Appellee
Konrad v. State
1988-11-10
No. A-2126
1369
1381
763 P.2d 1369
763
Pacific Reporter 2d
Alaska Court of Appeals
Alaska
2021-08-10T16:59:32.179770+00:00
CAP
Before BRYNER, C.J., and COATS and SINGLETON, JJ.
George A. KONRAD, Appellant, v. STATE of Alaska, Appellee.
George A. KONRAD, Appellant, v. STATE of Alaska, Appellee. No. A-2126. Court of Appeals of Alaska. Nov. 10, 1988. Janet L. Crepps, Gilmore & Feldman, Anchorage, for appellant. Cynthia M. Hora, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Grace Berg Schaible, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.
6563
40790
OPINION BRYNER, Chief Judge. George A. Konrad was convicted, following a jury trial, of assault in the third degree, assault in the second degree, and terroristic threatening. Konrad appeals, arguing that the trial court erred in failing to dismiss his indictment, that Alaska's ter-roristic threatening statute is unconstitutionally vague, that the evidence presented at trial was insufficient to support his conviction, that the trial court erred in excluding testimony offered to impeach the victim, and that the court erred in denying his motion for a new trial when a new judge was assigned to his case for purposes of conducting sentencing proceedings. We affirm Konrad's convictions for second-degree assault and terroristic threatening, but vacate his conviction for third-degree, assault. BACKGROUND Konrad was indicted for a series of incidents that occurred during the breakup of his marriage to Luann Konrad. The indictment charged Konrad with third-degree assault for recklessly causing physical injury to Luann Konrad by striking her on the head and ribs with his hands, with second-degree assault for recklessly causing serious physical injury to Luann by throwing her off a bed onto a wooden crate, and with terroristic threatening for engaging Luann in a telephone conversation in which Konrad repeatedly threatened to kill her. ASSAULT IN THE THIRD DEGREE On May 9, 1986, following a heated argument, George Konrad struck Luann Konrad twice with his hands: once on the head and once on the ribs. Luann Konrad experienced abdominal pain following the assault. Several days later a physician determined that the blow to Luann's midsection had injured her spleen, causing it to bleed into her abdominal cavity. The injury resolved itself without treatment. Based on the May 9 incident, the state requested the grand jury to charge Konrad with assault in the third degree. The state proceeded under AS 11.41.220(a)(2), which states that "a person commits the crime of assault in the third degree if that person recklessly . causes physical injury to another person by means of a dangerous instrument." The state's theory was that Konrad's hands were dangerous instruments. After reading the statutory definition of "dangerous instrument" to the grand jury, the prosecutor stated, in relevant part: "I would instruct you at this time that in the state of Alaska hands or feet can be considered a dangerous instrument under the definition that I have given you of a dangerous instrument." The grand jury returned a true bill. Prior to trial, Konrad moved to dismiss the third-degree assault charge, challenging the propriety of the prosecutor's instruction to the grand jury. The superior court denied Konrad's motion. At trial, Konrad unsuccessfully moved for a judgment of acquittal on the third-degree assault charge, contending that the evidence was insufficient to establish the use of a dangerous instrument. Konrad now renews these arguments on appeal. The term "dangerous instrument" is defined in AS 11.81.900(b)(ll): (11) "fDJangerous instrument" means any deadly weapon or anything which, under the circumstances in which it is used, attempted to be used, or threatened to be used, is capable of causing death or serious physical injury. "Physical injury" and "serious physical injury" are in turn defined in AS 11.81.-900(b)(40) and (50): (40) "[Pjhysical injury" means a physical pain or an impairment of physical condition; (50) "[S]erious physical injury" means (A) physical injury caused by an act performed under circumstances that create a substantial risk of death; or (B) physical injury that causes serious and protracted disfigurement, protracted impairment of health, protracted loss or impairment of the function of a body member or organ, or that unlawfully terminates a pregnancy. This court has never squarely decided whether a bare hand can be a "dangerous instrument" within the meaning of these provisions. In Wettanen v. State, 656 P.2d 1213 (Alaska App.1983), we held that a bare foot could qualify as a dangerous instrument under certain circumstances. The evidence there established that Wetta-nen had kicked another person repeatedly about the face and head, inflicting serious physical injuries. Because the state neglected to establish whether Wettanen was shod when he committed the assault, it was necessary to decide if a bare foot could qualify as a dangerous instrument. We concluded that sufficient evidence had been presented at trial to allow a finding that Wettanen's foot was a dangerous instrument, even if it was unshod. Id. at 1218. In reaching, this conclusion, we expressly declined to decide whether a bare hand could similarly qualify as a dangerous instrument, noting that the cases from other jurisdictions on the issue are in conflict. Id. at 1218. Since deciding Wettanen, we have had no occasion to resolve this issue. In at least one case, however, we have assumed that a hand might qualify as a dangerous instrument in some situations. See New v. State, 714 P.2d 378, 383 (Alaska App.1986). For the purpose of deciding the present case, we may likewise assume that there is no categorical prohibition against a hand being deemed a dangerous instrument under the definition set forth in AS 11.81.900(b)(ll). Our prior cases nevertheless firmly establish that the question of whether a hand qualifies as a dangerous instrument in any given case must be answered by examining the precise manner in which the hand is actually used. The need to focus on the specific circumstances of each case derives from the definition of "dangerous instrument." While the statutory definition encompasses "anything" that is capable of causing death or serious physical injury, the express language of the statute requires that an instrument's potential for causing death or serious physical injury be assessed in light of "the circumstances in which it is used, attempted to be used, or threatened to be used." AS 11.81.900(b)(ll). It is the actual use of the instrument in each case that must be considered, not abstract possibilities for use of the instrument in hypothetical cases. We emphasized this point in Wettanen, cautioning that "every . blow, even if it causes serious injury, will not automatically be an assault with a dangerous instrument." Wettanen, 656 P.2d at 1217. We pointed out that the inquiry must focus on the vulnerability of the victim and the specific nature of the assault in each case. Id. at 1217. In this regard, we emphasized that "the requirement of a dangerous instrument serves to shift the focus of the trier of facts' attention from the result (physical injuries), which in any given case may have been unforeseeable to the defendant at the time the assault was committed, to the manner in which the assault was committed." Id. at 1218. We elaborated on Wettanen in Carson v. State, 736 P.2d 356 (Alaska App.1987), hearing denied, 742 P.2d 782 (Alaska 1987), a case involving an analogous situation. In that case, police officers performing a misdemeanor arrest subdued Carson by kicking him in the groin and unleashing a police dog, which bit Carson on the legs and buttocks until he ceased struggling. At issue was whether the officers' actions amounted to "deadly force." The applicable statute defined "deadly force" to include any force used under circumstances that "create a substantial risk of causing death or serious physical injury." See AS 11.81.900(b)(12); Carson, 736 P.2d at 361. We found that the evidence in Carson did not support a finding that deadly force had been used. In reaching this conclu sion, we emphasized the need to focus on the actual risk of serious physical injury posed in the specific case, rather than on the abstract possibility of serious physical injury under other, hypothetical circumstances. We said, in relevant part: Although we can certainly conceive of cases in which specific testimony describing a kick to the groin or an attack by a dog would support the inference that a substantial risk of death or serious physical injury was created, we are unwilling to conclude that testimony establishing no more than the unadorned fact of a kick to the groin or an attack by a police dog is per se sufficient to create a jury question as to the use of deadly force. The issue is not one to be resolved in the abstract. There must, at a minimum, be some particularized evidence from which a reasonable juror could conclude that a substantial risk of serious physical injury was actually created in the specific case at bar. The issue is analogous to one we considered in Wettanen v. State. There, we held that, while any object, including an unshod foot, that was capable of inflicting serious physical injury might qualify under the broad statutory definition of "dangerous instrument," the actual determination of whether a dangerous instrument was used must be made on a case-by-case basis, based on the totality of the circumstances surrounding the actual use of the object in question. Carson, 736 P.2d at 361 (citations omitted). When read together, Wettanen and Carson stand for the proposition that, before a hand may be deemed a "dangerous instrument," the state must present particularized evidence from which reasonable jurors could conclude beyond a reasonable doubt that the manner in which the hand was used in the case at issue posed an actual and substantial risk of causing death or serious physical injury, rather than a risk that was merely hypothetical or abstract. Obviously, whenever serious physical injury does in fact occur, there will be prima facie evidence to support a finding that a dangerous instrument was used. Conversely, when serious physical injury does not occur, other case-specific evidence must be adduced to establish that the risk of such injury was both actual and substantial, even though it did not in fact occur. The facts of the present case are problematic when viewed in light of this analysis. We consider initially the grand jury proceedings. The state did not contend below, and it does not argue on appeal, that Luann Konrad suffered serious physical injury when Konrad struck her with his hands. In presenting its case to the grand jury, the prosecution instructed that "under Alaska law hands or feet can be considered dangerous instruments." The ambiguity of this instruction is troublesome. While it might be taken to indicate that the decision as to whether Konrad's hands were dangerous instruments was a factual one to be made by the grand jury, it might as readily be taken to indicate that there was no need at all for the grand jury to consider the issue, since it was settled as a matter of Alaska law. In our view, the giving of this instruction raises a serious question as to whether the grand jury in Konrad's case ever actually determined, as a factual matter, whether Konrad used his hands in a manner capable of inflicting death or serious physical injury- In any event, even without the ambiguous instruction, we believe that the circumstances of the present ease would have been sufficiently unique to require a specific admonition to the grand jury concerning the manner in which it was required to determine whether a dangerous instrument had been used. We recognize that the grand jury was appropriately instructed on the statutory definitions of "dangerous instrument," "physical injury," and "serious physical injury." Nevertheless, when, as in the present case, the defendant is alleged to have used a dangerous instrument that was not a "deadly weapon" and that did not actually inflict death or serious physical injury, the possibility that the grand jury might decide the instrument's potential for causing injury as an abstract or hypothetical matter is, in our view, sufficiently great to require that an express instruction be given. The instruction should alert the grand jury to the need for it to find, based on the evidence in the case before it, that the defendant used an instrument in a manner that actually created a substantial risk of death or serious physical injury. In view of the lack of an appropriate clarifying instruction and the ambiguity of the instruction actually given, we conclude that the trial court erred in denying Konrad's pretrial motion to dismiss the count charging him with assault in the third degree. We must separately consider whether sufficient evidence was presented at trial to support Konrad's conviction of assault in the third degree. As we have already indicated, the state does not allege that the evidence established that Konrad inflicted serious physical injury by striking Luann Konrad with his hands. While Luann suffered internal bleeding from the spleen, the condition healed without treatment within a short period of time. No medical evidence was adduced to establish that Luann's condition verged on becoming more serious or that a blow to the ribs similar to that inflicted by Konrad actually posed a risk of inflicting more severe injuries to the spleen or to other internal organs. See, e.g., James v. State, 671 P.2d 885, 888-89 (Alaska App.1983), rev'd on other grounds, State v. James, 698 P.2d 1161 (Alaska 1985). Apart from Luann Konrad's testimony that Konrad's hand was in a fist when he struck her, there is nothing in the record to establish that the manner in which Konrad used his hands was inordinately violent or particularly calculated to inflict serious physical injury. No evidence was offered to suggest that Konrad had received martial arts training or that he was otherwise skilled in using his hands to inflict physical injury. Other than the fact that Konrad had awakened Luann Konrad shortly before he assaulted her, there was no evidence to suggest that she was especially susceptible to incurring a serious physical injury. Although it can be inferred that Luann would have been better able to ward off Konrad's blows and to prevent the injuries that she did receive had she not recently been asleep, nothing in the evidence establishes that she was vulnerable to suffering injury more serious than that actually inflicted merely because she had been sleeping and was caught off guard by Konrad's assault. In arguing that the evidence was sufficient to support a finding that Konrad's hands were dangerous instruments, the state notes that, after the assault, Konrad offered to take Luann to the doctor when he got back from work. The state contends that this evidence reflects upon the seriousness of Konrad's assault and could legitimately be relied on by the jury. To the extent that Konrad's offer of assistance betrayed his awareness that he had assaulted Luann Konrad with sufficient force to inflict injuries requiring medical treatment, the state is correct. However, the evidence does nothing to indicate that Konrad believed he had inflicted serious physical injury, as opposed to nonserious physical injury. Consequently, the evidence fails to establish, either directly or inferentially, that his assault created an actual and substantial risk of serious physical injury. In ruling on the sufficiency of the evidence at trial, we must view the evidence and the inferences arising therefrom in the light most favorable to the state to determine whether reasonable jurors could conclude that the defendant's guilt was established beyond a reasonable doubt. Snyder v. State, 661 P.2d 638, 641 (Alaska App.1983); Des Jardins v. State, 551 P.2d 181, 184 (Alaska 1976). Applying this standard to the present case, we conclude that insufficient evidence was adduced to support Konrad's conviction of third-degree assault. In our view, the evidence cannot justify a finding that Konrad's hands qualified as dangerous instruments. On the record of the present case, a conclusion that Konrad's hands were capable of causing death or serious physical injury under the circumstances in which they were actually used— that is, that they actually created a substantial risk of death or serious physical injury to Luann Konrad — would be wholly speculative. Were we to find sufficient evidence in this case to support a conclusion that Konrad's hands were dangerous instruments, a similar conclusion would be justified in virtually every case involving blows struck with fists that inflicted some physical injury. We conclude that the trial court erred in denying Konrad's motion for a judgment of acquittal as to the charge of assault in the third degree. ASSAULT IN THE SECOND DEGREE On August 24, 1986, Konrad became angry with Luann Konrad and threw her off of their bed. She struck the corner of a wooden crate that was on the floor; as a result of the blow Luann suffered a collapsed right lung. Treatment of this injury required surgical perforation of Luann's ribcage and the insertion of a tube to reinflate the lung. The treatment necessitated Luann's hospitalization for a period of six days. Konrad's August 24 assault was the basis for his conviction of assault in the second degree. Under AS 11.41.210(a)(2), second-degree assault occurs when a "person recklessly causes serious physical injury to another person." On appeal, Konrad argues that the evidence below was insufficient to establish serious physical injury. "Serious physical injury" may be proved, inter alia, by evidence establishing that the defendant inflicted physical injury by "an act performed under circumstances that create a substantial risk of death." AS 11.81.900(b)(50)(A). This definition of serious physical injury focuses on the circumstances in which the defendant performed the act that caused physical injury. The fortuity of prompt medical treatment and speedy recovery by the victim is not a primary consideration. See James v. State, 671 P.2d at 888-89. At trial, Dr. David D. Anderson testified that Luann Konrad sustained a pneumotho-rax, or a collapsed lung caused by air seeping into the chest cavity. Dr. Anderson characterized the injury as life threatening. He likened the risk of death to that involved in open heart surgery. Despite repeated cross-examination by Konrad's counsel, Dr. Anderson steadfastly refused to say that the risk of death posed to Luann Konrad by her injury was not substantial. To the contrary, the doctor testified that "there is a definite risk of death, there is no getting around it." When viewed in the light most favorable to the state, Dr. Anderson's testimony provides ample evidence from which the jury could have reasonably concluded that Luann Konrad suffered a serious physical injury as a result of the August 24 assault. The trial court did not err in denying Konrad's motion for a judgment of acquittal as to the charge of assault in the second degree. TERRORISTIC THREATENING On November 20, 1986, George and Luann Konrad spoke to each other by telephone. Their conversation lasted for about one-half hour. During the second half of the conversation, Konrad repeatedly threatened to kill his wife if she prevailed in a child custody dispute that was then pend ing in the superior court. Luann Konrad recorded the entire conversation. Konrad's death threats served as the basis for his conviction of terroristic threatening. A. Failure to Present Exculpatory Evidence to the Grand Jury During the grand jury hearing on Konrad's case, the prosecution played only the latter portion of the recorded conversation between Konrad and his wife. That was the portion in which Konrad made his threatening statements. Prior to trial Konrad unsuccessfully moved to dismiss the terroristic threatening charges, arguing that the prosecution breached its duty to present exculpatory evidence by failing to play the entire recorded conversation, as well as two prior conversations between Konrad and Luann that were recorded on the same tape. Konrad renews his argument on appeal. He contends that the first portion of the tape would have tended to establish that Luann was not particularly afraid of Konrad and that she in effect goaded him into making the threats upon her life. We are unpersuaded by Konrad's argument. While the prosecution must disclose exculpatory evidence to the grand jury, Frink v. State, 597 P.2d 154, 164 (Alaska 1979), there is no duty to present "possibly favorable" evidence or to develop potential theories of defense. Abruska v. State, 705 P.2d 1261, 1272 (Alaska App.1985); Tookak v. State, 648 P.2d 1018, 1021 (Alaska App.1982). In the present case, there was nothing inherently exculpatory in the portion of the recorded conversations that remained unplayed. Konrad was charged with terroristic threatening under AS 11.-56.810(a)(2), which applies when a person, "with intent to place another person in fear of death or serious physical injury to the person or the person's immediate family, makes repeated threats to cause death or serious physical injury to another person." Because this statutory definition hinges the offense of terroristic threatening on the specific intent of the accused rather than on the subjective reaction of the victim, the fact that Luann Konrad may not have appeared to be particularly afraid of Konrad during the initial portion of their conversation is not directly relevant to the issue of Konrad's guilt or innocence. Moreover, no defense arises under the statutory definition of the offense merely because the accused is in some manner provoked to threaten the victim. It is theoretically possible that the un-played portions of the tape might have had some indirect relevance on the issue of Konrad's specific intent to place Luann Konrad in fear. A person who is provoked and makes threats out of anger may act without a specific intent to cause fear. Thus, if the earlier portion of the recorded conversation revealed significant provocation, it should arguably have been played to provide a context from which the grand jury could have determined Konrad's intent in making the threats contained in the latter part of the recording. In this connection, however, our review of the recorded conversation convinces us that the unplayed portion of the tape could have had no substantial exculpatory value. To the extent that the unplayed portion reveals any provocation of Konrad by Luann Konrad, that provocation is decidedly slight in comparison to the threats of death that followed. Given the marginal extent of provocation on the unplayed portion of the tape and the repeated and apparently deliberate nature of Konrad's subsequent death threats, we are satisfied that a playing of the full conversation would not have been substantially favorable to the defense in this case. We find no error. B. Lesser-Included Offense Konrad was initially charged by information with attempted coercion, in violation of AS 11.41.530(a)(1) and AS 11.31.100(d)(4). Because coercion is a class C felony, attempted coercion constitutes a class A misdemeanor. AS 11.31.100(d)(4). In presenting Konrad's case to the grand jury, the prosecution elected to ask for a charge of terroristic threatening instead of attempted coercion. The offense is a class C felony. See AS 11.56.810(b). During the grand jury hearing, a grand juror asked the prosecutor, with respect to the terroristic threatening charge: Is there — are there other avenues of potential counts or charges for threatening people's lives? The prosecutor responded: We considered other charges, but unfortunately there's not anything that's a real good fit, and the legislature amended terroristic threatening; it used to not include threats that were made to people and their family members, and they recently amended it so it seems to me that that's probably the closest fit that we're going to get. In moving to dismiss the indictment below, Konrad argued that the prosecutor was obligated to submit the crime of attempted coercion to the grand jury as a possible lesser-included offense of terroristic threatening. Konrad repeats this argument on appeal. He acknowledges that there is normally no duty to offer the grand jury a lesser-included offense when sufficient evidence is presented to support a greater offense. See Oxereok v. State, 611 P.2d 913, 916-18 (Alaska 1980); Castillo v. State, 614 P.2d 756, 763 (Alaska 1980). Nevertheless, Konrad insists that an instruction on attempted coercion was necessary in the present case in light of the grand jury's specific request for possible alternative charges. In our view, however, the prosecution's response to the grand juror's inquiry was reasonable. "[A]s legal advisor to the grand jury, the prosecutor may appropriately explain the law and express an opinion on the legal significance of the evidence...." I Standards for Criminal Justice, Standard 3-3.5 (2d ed. 1980). Here, the prosecutor's opinion that terroristic threatening appeared to be the "best fit" was accurate. Contrary to Konrad's position below and on appeal, attempted coercion is not a lesser-included offense of terroristic threatening. As defined in AS 11.41.-530(a)(1), coercion is committed when the accused instills fear in another person by threats of physical injury in order to compel the other person "to engage in conduct from which there is a legal right to abstain or abstain from conduct in which there is a legal right to engage-" To prove attempted coercion, the prosecution would have been required to establish not only that Konrad intended to cause fear on Luann Konrad's part, but also that he did so with the express purpose of coercing her to abstain from pursuing her custody claim. This additional burden would have placed the prosecution at a significant disadvantage. Because Konrad may well have intended to place Luann Konrad in fear without actually intending to coerce her into relinquishing her claim of custody, he might have been found guilty of terror-istic threatening without also being found guilty of attempted coercion. Under the circumstances, then, attempted coercion was not a lesser-included offense of terror-istic threatening, and the prosecution's advice that terroristic threatening was a "better fit" was not unreasonable. C. Vagueness Konrad argues for the first time on appeal that Alaska's terroristic threatening statute is unconstitutionally vague and overbroad. In relevant part, AS 11.56.-810(a)(2) provides: (a) A person commits the crime of ter-roristic threatening if the person (2) with intent to place another person in fear of death or serious physical injury to the person or the person's immediate family, makes repeated threats to cause death or serious physical injury to another person. Konrad's claim of vagueness is premised on the statute's use of the word "repeated," which modifies the word "threats." According to Konrad, "repeated" is ambiguous, because it may be understood to mean either a threat uttered more than one time in a single conversation or a threat made on more than one occasion. Konrad claims that this ambiguity deprived him of fair notice as to what conduct on his part was prohibited. He also claims that the ambiguity invites arbitrary enforcement of the statute. Konrad's argument is unconvincing. A statute is impermissibly vague when it fails to give adequate notice of what conduct it prohibits, that is, when it is so imprecise that ordinary persons of common intelligence are left to guess at its meaning and are apt to differ as to its scope. Summers v. Anchorage, 589 P.2d 863, 866-67 (Alaska 1979). We find no such imprecision in the statutory phrase "repeated threats." "Repeated" is not defined in Alaska's revised criminal code. Its ordinary definition must be considered. Gibson v. State, 719 P.2d 687, 690 (Alaska App.1986). According to Webster's Collegiate Dictionary, "repeated" means: "said, made, done, or happening again, or again and again." We find little ambiguity in this definition. In context, a "repeated threat" is simply a threat made more than once. See, e.g., State v. Diede, 319 N.W.2d 818, 821 (S.D.1982). While the ordinary meaning of "repeated threats" certainly encompasses a threat made on more than one occasion, there is no reason to suppose, as Konrad suggests, that these words can reasonably be read to exclude threats made more than once on a single occasion. The Colorado Supreme Court, relying on the ordinary meaning of "repeatedly," rejected a vagueness claim almost identical to the one advanced by Konrad here. See People ex rel. VanMeveren v. County Court, Etc., 191 Colo. 201, 551 P.2d 716 (1976). In reaching its conclusion, the court said: "Repeatedly" is a word of such common understanding that its meaning is not vague. It simply means in the context of this statute that the defendant used insulting, taunting or challenging language more than one time. Id. 551 P.2d at 720. We find no sound basis for refusing to apply the ordinary meaning of "repeated" in the present case. The challenged portion of Alaska's terroristic threatening statute was adopted by the legislature in 1984, apparently without commentary. See Chapter 108, § 1, SLA 1984. Of the various other states having terroristic threatening statutes similar to Alaska's, almost none require more than a single threat. See generally Model Penal Code § 211.3 commentary at 206 n. 8 (1980); Annotation, Validity And Construction of Terroristic Threat Statutes, 45 A.L.R. 4th 949 (1986). Accordingly, there seems to be no statutory history in Alaska or general trend elsewhere indicating a need to restrict the plain meaning of Alaska's statute. The only state adopting a requirement similar to that urged by Konrad appears to be Hawaii, which provides for a misdemeanor conviction of terroristic threatening based on a single threat, see Haw.Rev.Stat. § 707-715 (1985), but requires "threatening another person on more than one occasion" for conviction of a felony. See Haw.Rev.Stat. § 707-716 (1985). It is uncertain whether Alaska's terroristic threatening provision was patterned after Hawaii's. For purposes of construing Alaska's statute, the issue seems unimportant. Assuming Alaska's statute was drawn from Hawaii's, our legislature's election to depart from the wording of the Hawaii statute by requiring a "repeated" threat rather than a threat "on more than one occasion," would appear to be significant. Assuming Alaska's statute was not taken from the Hawaii code, then Hawaii's decision to require a threat "on more than one occasion" would be significant only insofar as it establishes that the Alaska legislature could easily have drafted a statute to require a threat on more than one occasion had it wanted to do so. While we hold that the terroristic threatening statute is not impermissibly vague when "repeated" is accorded its ordinary meaning, we nonetheless recognize that applying the literal definition of the word may create problems in certain unusual circumstances in which a question might arise as to whether a single statement contains more than one threat. The obvious purpose in requiring that a threat be "repeated" before becoming a terroristic threat within the meaning of AS 11.56.-810(a)(2) is to assure that the harsh sanction of felony prosecution will not be visited upon a person for making a rash statement out of transitory anger or in the heat of passion. This purpose is reflected in the reading generally given to terroristic threatening provisions in other jurisdictions. See, e.g., Annot., supra, 45 A.L.R. 4th § 31. Accordingly, strict adherence to the literal meaning of "repeated threats" will be inappropriate in some situations. When a threat is uttered several times in virtually the same breath, elaborated upon without any significant interruption, or repeated at the request of the listener, the statutory requirement of repetition will not, in our view, be met. Rather, in order to justify the finding that a threat has been repeated or that more than one threat has been made during a single conversation, the evidence must establish a clear break in context between initial and subsequent threats and the passage of sufficient time between threats to permit reflection. The ultimate question should be whether the repetition of the threat amounted to a separate act by the accused or whether it is part of a single continuous act. Resolution of this question lends itself to no inflexible rule and should ordinarily be left to the jury, whose decision should be on the totality of the evidence in the case at issue. In the present case, there was ample evidence to permit a finding that Konrad made "repeated threats" to take Luann Konrad's life. The recording of the telephone conversation reveals that Konrad threatened to kill his wife numerous times. The threats were not made in a continuous manner. Rather, they were repeated over a period of more than fifteen minutes. Konrad's threats were separated not only in time, but also by the subject matter of the conversation. The individual threats were interspersed with discussion concerning other matters. Sufficient time elapsed between the threats to permit reflection, and the threats were uttered in a composed and calculated tone of voice. Konrad's conduct is thus within the core prohibition of the statute. To the extent that there is any potential for uncertainty in some situations, Konrad's case falls well outside the area of uncertainty. See, e.g., Levshakoff v. State, 565 P.2d 504, 508 (Alaska 1977). We reject both Konrad's vagueness argument and his related contention that insufficient evidence was presented below to support his conviction for terroristic threatening. OTHER ISSUES Konrad raises two additional issues that do not require extended discussion. First, he contends that the trial court erred in excluding the testimony of Keith Wiger. Wiger's testimony, however, was offered for the sole purpose of impeaching Luann Konrad's testimony concerning an entirely collateral matter. We find no abuse of discretion in the exclusion of his testimony. See, e.g., Moss v. State, 620 P.2d 674, 676-77 (Alaska 1980); Oswald v. State, 715 P.2d 276, 278-79 (Alaska App.1986). Konrad also claims that the court erred in failing to grant a new trial. Konrad's trial was conducted before Superior Court Judge Duane K. Craske, who was on temporary assignment in Anchorage from Sitka. Following the trial, Judge Craske returned to Sitka; Konrad's sentencing hearing was assigned to Superior Court Judge S.J. Buckalew, Jr., of Anchorage. Konrad thereafter moved for a new trial, pursuant to Alaska Criminal Rule 25(c), which provides: After Verdict. If by reason of absence from the district . the judge before whom the action has been tried is unable to perform the duties to be performed by the court after a verdict or finding of guilt, any other judge regularly sitting . may perform those duties; but if such other judge is satisfied that he cannot perform those duties because he did not preside at the trial or for any other reason, he may in his discretion grant a new trial. Judge Buckalew denied Konrad's motion and proceeded to impose sentence. Judge Buckalew's denial of a new trial did not amount to an abuse of discretion. Criminal Rule 25(c) vests a newly-assigned judge with discretion to order a new trial if that judge "is satisfied that he cannot perform those duties [i.e., sentencing] because he did not preside at the trial or for any other reason...." Here, there is no indication that Judge Buckalew was unable to perform his duties. To the contrary, the record discloses that the judge thoroughly familiarized himself with the case by reviewing the entire record of trial proceedings. Even had he not reviewed the record, Judge Buckalew would have been in essentially the same position as any judge who imposes a sentence after a plea of guilty or no contest. Under the circumstances, we find no abuse of discretion. The convictions for terroristic threatening and assault in the second degree are AFFIRMED. The conviction for assault in the third degree is VACATED. This case is REMANDED to the superior court, with directions to amend the judgment accordingly. . "Deadly weapon" is defined in AS 11.81.-900(b)(13) as follows: "[D]eadly weapon" means any firearm, or anything designed for and capable of causing death or serious physical injury, including a knife, an axe, a club, metal knuckles, or an explosive.... Under the definition of "dangerous instrument" set out in AS 11.81.900(b)(ll), any deadly weapon qualifies as a dangerous instrument, without regard to the circumstance in which it is actually used. The inherent danger posed by deadly weapons justifies their treatment as dangerous instruments without regard to actual use. See, e.g., Krasovich v. State, 731 P.2d 598 (Alaska App.1987). We emphasize that our discussion in the text is restricted to dangerous instruments that would not qualify within the statutory definition for a deadly weapon. . Although the argument in the body of Konrad's briefs appears to be that attempted coercion is the lesser offense that the prosecution should have called to the attention of the grand jury, the statement of points on this issue in Konrad's opening brief refers to the class B misdemeanor of harassment, AS 11.61.120(a)(4), which prohibits threatening telephone calls that are made with intent to harass or annoy. Like attempted coercion, harassment is not a lesser-included offense of terroristic threatening under the circumstances of the present case. Harassment requires proof that the accused was the person who made the threatening telephone call and that the call was made with the intent to harass. In the present case, the recording made by Luann Konrad did not reveal who initially placed the call. Even assuming the state could have proved that it was Konrad, rather than his wife, who placed the call, it would still have had to prove that Konrad's original purpose in placing the call was to harass or annoy. In contrast, the crime of terroristic threatening required the state to prove only that Konrad's purpose was to instill fear of serious physical injury in his wife at the time he uttered the threatening remarks. . The word "threat" is defined in AS 11.81.-900(b)(55) to include "a menace, however, communicated," to inflict physical injury. Konrad does not challenge the adequacy of the statutory definition of "threat." . The derivation table included in the Alaska Department of Law's Criminal Law Manual lists Hawaii Revised Statute 707-715 in connection with Alaska's terroristic threatening statute. This reference to the Hawaii statute is of questionable significance, however, because the derivation table does not necessarily indicate the actual source of any given Alaska statute. A preface to the derivation table cautions, in relevant part: It should be noted that the derivation listing was compiled by the Criminal Division of the Department of Law after enactment of the revised code. Statutes from other jurisdictions that were actually considered by the Criminal Law Revision Subcommission are set out in a table appearing as an appendix to each volume of the six-part Tentative Draft of the code published by the Subcommission. Id. at 6-1 — 6-2 (emphasis in original). The tentative draft contained no terroristic threatening provision. We note, moreover, that the derivation table referred to Hawaii Revised Statute 707-715 even before the terroristic statute was amended in 1984 to add subsection (a)(2), which for the first time added the provision requiring "repeated threats." . Insofar as Konrad has claimed that AS 11.56.-810(a)(2) would permit arbitrary enforcement, he has failed to establish any history of arbitrary enforcement to support his claim. See, e.g., Summers v. Anchorage, 589 P.2d at 866-67; Holton v. State, 602 P.2d 1228, 1234 (Alaska 1979). . The record discloses no efforts by Konrad's trial counsel to reschedule sentencing for a time when Judge Craske might have been available or to make other arrangements that might have allowed the sentencing hearing to be conducted by Judge Craske. Had trial counsel made such efforts, we believe that reassignment of the case for sentencing purposes would have amounted to error, absent compelling circumstances precluding the trial judge's participation. We emphasize, however, that on appeal Konrad does not argue that he should have been sentenced by Judge Craske. Rather, his only point is that he should have received a new trial before Judge Buckalew. Our holding addresses only that contention.
10398665
Richard D. ROBISON, Appellant, v. STATE of Alaska, Appellee
Robison v. State
1988-11-04
No. A-2049
1357
1360
763 P.2d 1357
763
Pacific Reporter 2d
Alaska Court of Appeals
Alaska
2021-08-10T16:59:32.179770+00:00
CAP
Before BRYNER, C.J., and COATS and SINGLETON, JJ.
Richard D. ROBISON, Appellant, v. STATE of Alaska, Appellee.
Richard D. ROBISON, Appellant, v. STATE of Alaska, Appellee. No. A-2049. Court of Appeals of Alaska. Nov. 4, 1988. Susan Orlansky, Asst. Public Defender, and Dana Pabe, Public Defender, Anchorage, for appellant. Nancy Simel, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Grace Berg Schaible, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.
2088
12493
OPINION SINGLETON, Judge. A jury convicted Richard D. Robison of kidnapping, but accepted the affirmative defense that he released his victim without harming her. Consequently, the offense was reduced to a class A felony. AS 11.-41.300(d). The jury also convicted Robison of attempted sexual assault in the first degree. AS 11.41.410(a)(1); AS 11.31.-100(a). Robison, a first felony offender, was subject to a five-year presumptive term. AS 12.55.125(c)(1). The trial court rejected Robison's claim that his conduct was among the least serious within the definition of the offense, AS 12.55.155(d)(9), and found instead that the conduct was among the most serious. AS 12.55.-155(c)(10). Robison received a sentence of ten years with five years suspended. He appeals his conviction and sentence. We affirm Robison's conviction, but vacate his sentence and remand for imposition of the presumptive term. FACTS In October 1986, C.R. was living and working in Anchorage. She rode the bus to work each day and had to change buses at the University Mall. During the afternoon of October 27, 1986, she had taken the bus to the mall and had gone inside the mall while waiting for her connecting bus. As she walked back out through the mall parking lot towards the bus stop, a man in a small pickup truck asked her for directions to Tudor Road. C.R. answered the man and then went across the street to the bus stop. She waited a few minutes and became concerned that she had missed her bus. She then went to a nearby phone booth to call her employer to say she was late. C.R. testified that while she was in the phone booth, bending over her purse to find change, the man to whom she had earlier given directions backed up his pickup truck near the phone booth. He got out of the truck and came up behind C.R. C.R. testified that she felt something against her back and heard the man say to her, "I have a gun and I want you to suck my dick." C.R. said that the man directed her to get into the passenger side of his truck and she complied. When C.R. and the man were in the truck she could not see a gun. He again requested sexual activity which she refused. C.R. testified that the man started the truck and proceeded down the road, not traveling very fast. As the truck pulled slowly away from a stop sign, C.R. jumped out. The man drove away. C.R. scraped her hand "a little bit" but was not otherwise hurt. C.R. immediately reported the abduction to a passer-by, who took her to a nearby office from which C.R. summoned the police. At trial, C.R. identified Robison as the man who had abducted her. Robison testified at trial. He admitted that he had offered a ride to C.R. and requested that she "suck his dick." He denied having a gun or threatening C.R. with any object. He indicated that he was slowing down to let her out of the truck at her request, when she panicked and jumped out. He drove off. DISCUSSION Alaska Statute 11.41.300(a)(1)(C) provides in pertinent part that a person commits the crime of kidnapping if the person restrains another person with the intent to sexually assault the other person. Particularly relevant to this case is AS 11.41.300(d), which provides as follows: In a prosecution for kidnapping, it is an affirmative defense which reduces the crime to a class A felony that the defendant voluntarily caused the release of the victim alive in a safe place before arrest, or within 24 hours after arrest, without having caused serious physical injury to the victim and without having engaged in conduct described in AS 11.41.410(a)(1) or (2) [sexual assault in the first degree] or AS 11.41.420 [sexual assault in the second degree]. Also significant is AS 11.81.900(b)(1) which provides in relevant part: In this title, unless otherwise specified or unless the context requires otherwise, (1) "affirmative defense" means that (A) some evidence must be admitted which places in issue the defense; and (B) the defendant has the burden of establishing the defense by a preponderance of the evidence^] Prior to sentencing, Robison filed notice of a mitigating factor and the state filed notice of aggravators. Robison contended that the conduct constituting his offense was among the least serious conduct included in the definition of the offense. AS 12.55.155(d)(9). The state contended that the conduct constituting the offense was among the most serious included in the offense "because it was part of a series of five inappropriate approaches to women who did not know him." AS 12.55.-155(c)(10). In support of the aggravating factor, the state called three witnesses at the sentencing hearing and relied on the testimony of a fourth witness at trial. Each of these women testified that Robison had approached them at a mall, asked directions, and impressed them as "weird," "strange," or "unusual." One of the women, L.S., testified that Robison called to her while sitting in his truck and asked directions to Spenard. As she looked over to answer him she thought, but was not certain, that he was masturbating. L.S. could not positively identify Robison as the man she had seen, but her description generally matched Robison and his vehicle. Construing this evidence most favorably to the state, it appears that Robison approached female strangers in shopping malls and asked for directions as an unsuccessful ploy in making their acquaintance. Judge Ripley relied heavily on this evidence in rejecting the mitigating factor and concluding that Robi-son's conduct was among the most serious included within the definition of the offense of which he was convicted. The state concedes that this aggravating factor refers only to defendant's conduct in committing the offense and not to his propensity to commit similar crimes. In the state's view, however, Judge Ripley relied on the other contacts only as evidence indicating the character of the present assault. The state claims that in the judge's view, this evidence established that the defendant's act was not an impetuous isolated incident but a calculated approach, part of an ongoing plan to gain access to women as a means of sexually assaulting them. Finally, the state argues that Judge Ripley, in performing his role as sentencing judge, could disregard the jury's contrary conclusion regarding the victim's having been injured and could find that the defendant committed a more serious offense than that for which he was ultimately convicted. Monroe v. State, 752 P.2d 1017, 1021 (Alaska App.1988); Fee v. State, 656 P.2d 1202, 1204 (Alaska App.1982). See also Ridgely v. State, 739 P.2d 1299, 1302 (Alaska App.1987); Huckaby v. State, 632 P.2d 975, 976-77 (Alaska App.1981). In the state's view, Judge Ripley's rejection of the jury's finding would permit the conclusion that Robison's offense was among the most serious within the definition of the crime. See AS 12.55.155(c)(10); Braaten v. State, 705 P.2d 1311, 1322-23 (Alaska App.1985); Peetook v. State, 655 P.2d 1308, 1311-12 n. 3 (Alaska App.1982). We reject these arguments. First, the jury's finding that Robison sustained his burden of proving, by a preponderance of the evidence, that he released his victim without harm was binding on the trial court. See Briggs v. State, 732 P.2d 1078, 1081 (Alaska 1987) (order suppressing breathalyzer test in criminal case operates as collateral estoppel in license revocation proceeding). Cases such as Schnecker v. State, 739 P.2d 1310, 1312-14 (Alaska App.1987), Ridgely and Huckaby are distinguishable. In those cases, the defendant either pled to a lesser offense, or was convicted of the lesser offense, rather than the greater, arguably because the jury had a reasonable doubt regarding the element that distinguished the greater and lesser offenses. In contrast, the jury in this case expressly found, by a preponderance of the evidence, that the victim was released unharmed. In this circumstance, the trial court was bound by that finding. We agree with the parties that the trial court could not find Robison's conduct to be among the most serious within the definition of the offense based upon his contacts with other women. This is true even if those contacts supported an inference that the instant offense was premeditated and not impulsive. The fact that a kidnapping is premeditated does not, standing alone, take it out of the class of typical offenses. Judge Ripley erred in concluding that Robison's conduct fell within AS 12.55.155(c)(10). On the other hand, Robison's reasons for characterizing his offense as among the least serious included within the offense seems to be subsumed within the affirmative defense. See AS 12.55.155(e). We therefore conclude that the trial court was not clearly mistaken in rejecting the mitigating factor. The judgment of the superior court is AFFIRMED. Robison's sentence is VACATED and this case REMANDED for resentencing to the presumptive term. . Robison challenges both his sentence and his conviction on appeal. We briefly address his merit appeal in this footnote. His sentence appeal is discussed in the text of this decision. Robison challenges his conviction on two grounds. First, he argues that he is entitled to a new trial because the investigating officer signaled the prosecuting witness and thereby coached her during her testimony. The trial court noticed the officer's actions and brought it to counsel's attention. Defense counsel expressly waived any remedy, indicating that the jury was probably aware of the officer's actions and would hold it against the state. It would appear that counsel's conscious waiver of a remedy during trial would be binding on the defendant in the absence of ineffective assistance of counsel. Lanier v. State, 486 P.2d 981, 983-88 (Alaska 1971). Since counsel obviously had strategic reasons for foregoing a remedy, i.e., a cautionary instruction, we are not able to find either plain error or ineffective assistance of counsel. See Potts v. State, 712 P.2d 385, 394 n. 12 (Alaska App.1985). Robison notes that he brought a "habeas corpus" petition raising this issue after trial, which he contends should be construed as a motion for new trial. In Robison's view, by seeking "habeas corpus," he brought the issue to the attention of the trial court and therefore should not be bound by the plain error rule. As we have seen, however, matters of trial strategy are within the waiver rule established in Lanier. In addition, the plain error rule applies to all objections which should have been made at trial. Clearly, the trial court gave Robison an opportunity to seek a remedy during trial. His failure to do so could not be cured by a post-trial motion for new trial or for "habeas corpus." Id. at 390 n. 8. Robison next argues that he is entitled to a new trial because one of the jurors voting to convict him later reconsidered his verdict and concluded that it was the product of fatigue. Robison concedes that we would have to overrule a number of Alaska Supreme Court cases and an applicable evidentiary rule in order to grant him relief. See, e.g., A.R.E. 606(b) and, e.g., LaLonde v. State, 614 P.2d 808, 811 (Alaska 1980). We have no power to overrule our state's supreme court. We note that the United States Supreme Court, likewise, would not grant Robison relief on this claim. See Tanner v. United States, — U.S. -, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987). We therefore find no error. . The state also filed notice that another aggravating factor, that the victim sustained physical injury as a result of the defendant's conduct, applied. See AS 12.55.155(c)(1). The trial court made no finding with respect to this factor. We believe that this aggravating factor is precluded by the affirmative defense found by the jury. . If Judge Ripley felt that Robison's conduct in accosting the other women established a dangerous pattern of behavior, warranting a suspended sentence in excess of the presumptive term, his remedy was to refer the case to the three-judge panel for sentencing on the theory that the presumptive term was too lenient. See, e.g., AS 12.55.165-.175.
10398692
Darryl W. SLEDGE, Appellant, v. STATE of Alaska, Appellee
Sledge v. State
1988-11-10
No. A-1892
1364
1369
763 P.2d 1364
763
Pacific Reporter 2d
Alaska Court of Appeals
Alaska
2021-08-10T16:59:32.179770+00:00
CAP
Before BRYNER, C.J., and COATS and SINGLETON, JJ.
Darryl W. SLEDGE, Appellant, v. STATE of Alaska, Appellee.
Darryl W. SLEDGE, Appellant, v. STATE of Alaska, Appellee. No. A-1892. Court of Appeals of Alaska. Nov. 10, 1988. Blair McCune, Asst. Public Defender, Dana Fabe, Public Defender, Anchorage, for appellant. Robert D. Bacon, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Grace Berg Schaible, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.
3529
20975
OPINION SINGLETON, Judge. Darryl W. Sledge was convicted of one count of sexual assault in the first degree, an unclassified felony. AS 11.41.410(a)(1). He was sentenced to serve the applicable eight-year presumptive term. AS 12.55.-125(i)(l). Sledge appeals. We conclude that it is necessary to remand this case for a further hearing to determine whether Sledge was denied his constitutional right to confront his accuser. FACTS AND PROCEEDINGS D.W., a fourteen-year-old girl, testified that on November 9, 1985, she accepted a ride with Darryl W. Sledge in his automobile. D.W. agreed to accompany Sledge to the store, and then Sledge was to take her home. D.W. testified that instead of taking her home as promised, Sledge purchased beer at the store and then drove her to a secluded place where he attempted to sexually assault her. He succeeded in penetrating her vagina with his finger. The sexual assault was interrupted by a passing police officer. Sledge recounted a substantially different story. He agreed that he gave D.W. a ride in his car, but contended that D.W. gave him money and he bought her a six-pack of beer. Sledge further stated that after leaving the store he and D.W. drove around so that D.W. could smoke a marijuana cigarette. Sledge claimed that he and D.W. got into an argument because she was drinking in his car. He stopped the car and poured out the beer she had opened. Sledge said that when the police arrived, D.W. panicked and jumped out of the ear. D.W.'s testimony that she was sexually assaulted was corroborated in part by medical testimony that she had a small cut on the lower part of her vagina. Prior to the start of trial, Sledge filed a discovery motion, requesting D.W.'s "Child in Need of Aid" (CIÑA) file, and her file from the Division of Family and Youth Services (DFYS). In support of his request, he argued in part: [D.W.] alleged that Sledge had sexually assaulted her in his vehicle. She denied consuming any alcohol or marijuana with Sledge. Sledge claimed that [D.W.] went with him voluntarily and consumed alcohol at her own request. [D.W.] informed the officers that she was a ward of the state. Therefore, she had been unwilling to violate any drinking laws with Sledge. [D.W.] was the one who informed the officers of her legal custody status. Discovery of [D.W.'s] Child in Need of Aid file, both the court file and the Division of Family and Youth Services file, is necessary for Sledge to explore the possibility that [D.W.] is biased and motivated to shade or fabricate her testimony in order to avoid detrimental consequences for herself in the Child in Need of Aid case. Sledge agreed that Superior Court Judge S.J. Buckalew, Jr., the omnibus hearing judge, should conduct an in camera inspection of the DFYS file to determine if anything in the file should be disclosed to Sledge. After conducting the in camera inspection, Judge Buckalew determined that nothing in the DFYS file should be disclosed to Sledge. Superior Court Judge J. Justin Ripley substituted for Judge Buckalew at trial and sentencing. Based on Judge Buckalew's ruling that nothing in the DFYS file was discoverable, the state requested a protective order barring Sledge from inquiring into D.W.'s residence in a foster home during the course of trial. In response, defense counsel pointed out that: [D.W.], in making the statement to the police, explaining why she did certain things, or did not do certain things, raised up the fact that she was a ward of the state and therefore to avoid getting in trouble she did not do certain things in the car with Mr. Sledge. And since she brought it up, I intend to ask her about that. Defense counsel therefore requested that Judge Ripley not enter a protective order. Judge Ripley replied that this would appear to be going into "misconduct of the victim." Defense counsel responded: Well, mostly motive and bias actually. As to — she's saying that she's under some sort of restriction. I don't know what the restrictions are, I don't know if — anything about that. But there is something there that she did not drink with Mr. Sledge, or accept what she claims is an offer of marijuana because she was a ward of the state. And she was afraid that if she violated whatever those conditions were, she would get in trouble with the state and with her foster parents. Judge Ripley asked that no examination on the matter be conducted until a hearing out of the presence of the jury could be held to determine whether the evidence had any relevance. Judge Ripley did not review D.W.'s DFYS files, but he accepted Judge Buckalew's ruling on this matter, concluding that it was the law of the case unless relaxed at a later time. After D.W. had testified on direct and cross-examination, the jury was excused and Sledge renewed his request to inquire into her wardship status. The defense counsel reasoned: Your honor, my request is that I be allowed to — at least outside the presence of the jury to ask her about her — why she is a ward of the state. The reason is this. When the police officer — she was explaining to the police officer that I don't — I didn't take any marijuana, I told him I didn't want any and I wouldn't have any beer because I'm a ward of the state and that would violate my — whatever the . conditions were. I simply want to ask her . I assume it's a CINA situation. But I don't know why she is a — of course. And it may be entirely innocent. It may, however, be related to prior difficulties. I don't know whether her being there would result in some sort of adjudication against her. That's what I want to get to. And I know — and it may well be entirely innocent and not something that the jury should hear. It may well be, however — it may go toward motive or bias. I don't know. And I think we should at least ask her outside the presence [of the jury] and clarify that. The state did not dispute this offer of proof, arguing that if, in fact, D.W. was worried about her wardship status, that would motivate her to refrain from drugs and alcohol. The state's attorney said: That she didn't want — no, I don't want to smoke any marijuana because I'm not allowed to because I'm in the custody of the state. This is the statement that he wants to tap all this on to. So, even if it shows that she's in the custody of the state and she's under some kind of probation, all it shows is that she was telling the truth when she said that. It just drags in all these bad acts to confirm her statement, which is not before the jury. Judge Ripley concluded that Judge Buck-alew's prior ruling barring discovery of D.W.'s wardship status should stand. Thus, the ruling precluded the.cross-examination requested by Sledge. Additionally, on direct examination of Sledge, defense counsel attempted to elicit testimony from Sledge that D.W. told him she was a ward of the state. Sledge had been explaining his version of what occurred when the police arrived. The state objected, and outside the presence of the jury, Sledge told the court the statement he wanted to make. He was allowed to say, in front of the jury, that D.W. panicked and jumped out of the car, saying, "I don't want to get my parents in trouble." Sledge wanted to testify that D.W. said she didn't want to get her parents in trouble because she was a ward of the state. He also wanted to testify that immediately before jumping out of the car D.W. said, "I'm in . trouble now." Judge Ripley ruled that Sledge could mention neither that D.W. told him she was a ward of the state nor that she was in foster care. The jury found Sledge guilty of sexual assault in the first degree. AS 11.41.410(a)(1). No statutory, aggravating, or mitigating factors were proposed at trial. Sledge, however, requested that his case be referred to the three-judge panel. AS 12.55.165-175. Judge Ripley denied Sledge's request, and imposed the applicable eight-year presumptive term. AS 12.55.125(i)(l). DISCUSSION Sledge first argues that the trial court abused its discretion by excluding evidence regarding D.W.'s status as a ward of the state. Sledge argued that D.W.'s statements regarding her wardship status were made at the scene and reflected her state of mind at the time she first told the police that Sledge assaulted her. In Sledge's view, this information could be relevant to show why D.W. apparently had a particularized fear that, if caught in the activity Sledge said she had engaged in, i.e., drinking beer and smoking marijuana, she could be subject to adverse consequences that would not be present if she were not a ward of the state. Consequently, in Sledge's view, this would show D.W.'s bias and motive to fabricate. D.W. might have hoped that by falsely accusing Sledge of sexual assault, she would divert attention from her own activities and gain sympathy, rather than sanction, from the authorities. Sledge claims that by not allowing D.W.'s foster care status into evidence, the trial court denied Sledge his right to cross-examine the prosecution's witness in violation of the confrontation clauses of the United States and the Alaska constitutions. U.S. Const. amend. VI; Alaska Const., art. 1, § 11. See Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); Jackson v. State, 695 P.2d 227, 230-33 (Alaska App.1985); Fox v. State, 685 P.2d 1267, 1272-73 (Alaska App.1984). The state argues that the evidence was irrelevant and, even if relevant, its probative value was outweighed by the prejudice involved in violating D.W.'s privacy with regard to her status as a ward of the state. See Alaska Evidence Rule 403; Larson v. State, 656 P.2d 571, 575 (Alaska App.1982) (Alaska Evidence Rule 403, when properly applied, does not violate a defendant's constitutional right to confront the witnesses against him and present evidence in his own behalf). Finally, the state argues that any error was harmless. First, the state notes that Sledge was allowed to testify to the following before the jury: that D.W. told him she did not wish to get her parents in trouble, and that she feared she was in trouble by being with Sledge in a parked car. The state points out that Sledge was able to argue this point in closing argument. Second, the state argues that the probative value of the evidence was weak because, assuming the worst, D.W.'s wardship status would not put her under the same pressures to "play ball with the state," that a person on probation for a criminal or delinquent act would have. Third, the state points out that D.W.'s testimony was substantially corroborated by medical evidence of the injury to her vagina and by physical evidence of her torn clothing. Fourth, the state points out that when D.W. ran from Sledge's vehicle to the police vehicle, she ignored a snarling police dog. In the state's view, this is more consistent with a frightened rape victim seeking protection than a calculating liar seeking to explain away a consensual sexual encounter and voluntary consumption of marijuana and alcohol. Finally, the state points to Sledge's allegedly false and inconsistent exculpatory statements to the police which the state contends establish his consciousness of guilt. We are concerned that Sledge may have been restricted in his ability to present evidence to show the victim's motive to fabricate, and that he was unable to adequately present his theory of defense to the jury. Sledge was only able to make a generalized argument as to D.W.'s motive to testify falsely. Essentially, Sledge was only left with the argument that anyone in D.W.'s position would have a motive to testify falsely. It is possible that Sledge was prevented from making the much stronger argument that D.W. had a special fear of adverse consequences because she was a ward of the state and under foster care. Sledge could argue that another young woman who was not a ward of the state would not have the same fear under similar circumstances. D.W. attached great importance to her wardship status. This is indicated by her statements to the police and her fear that adverse consequences would result if she had voluntarily consumed alcohol and smoked marijuana. Thus, her wardship status strongly suggests that she had a motive to fabricate. Consequently, the exclusion of evidence concerning D.W.'s status as a ward of the state may have unduly infringed on Sledge's confrontation rights. We therefore remand this case for a hearing to enable counsel to voir dire D.W. regarding her statements to the police and her understanding of the circumstances surrounding her wardship status. If the court concludes on remand that a jury could reasonably conclude that D.W. did tell the police she would not take drugs or use alcohol because she was a ward of the state, Sledge should be granted a new trial so that a jury can consider the effect of such statements. This could indicate D.W.'s state of mind and might support an inference that she had a motive to falsely accuse Sledge of a sexual assault. The state may be correct that D.W.'s concerns about her wardship status would motivate her to refrain from alcohol and marijuana and, thus, corroborate her claims. However, as Sledge points out, it might also motivate her to lie about her activity with Sledge if, in fact, she had consumed drugs and alcohol and was concerned about the consequences of her conduct being discovered. In such cases, it was for the jury to determine the true interplay between D.W.'s state of mind and the accuracy of her testimony. We stress the limited nature of our holding. The fact that D.W. may have voluntarily used drugs or alcohol with Sledge in violation of her wardship conditions clearly would not provide a defense to his sexually assaulting her. Since D.W. was only fourteen years old, her consent would not provide a complete defense to a charge of sexual assault. The significance is the possibility that D.W.'s use of drugs or alcohol might, under the circumstances, motivate her to falsely accuse Sledge of sexual assault when they were discovered by the police. We stress that it is D.W.'s state of mind exemplified by her statements to the police that is in issue, not D.W.'s wardship as such, or the reasons why she may have been in custody. We are not suggesting that extrinsic evidence regarding the facts leading to her status is admissible unless necessary to enable the jury to evaluate her state of mind in accusing Sledge of a sexual assault. The trial court should address one additional issue on remand. Sledge argues that he should have had access to any information in D.W.'s DFYS and CINA files that would be relevant to show her bias or motive to fabricate. The state argued at trial that only juvenile adjudications relevant to D.W.'s truth and veracity should be discoverable. See Alaska Evidence Rule 609(e). At the time Judge Buckalew reviewed the files, he failed to indicate what type of information he viewed as discoverable. In his findings after remand, however, Judge Buckalew indicated that he viewed the material with the intent to disclose only material relating to the witness' credibility and veracity. It appears that a broader standard for disclosure is required. In Braham v. State, 571 P.2d 631 (Alaska 1977), the Alaska Supreme Court considered the state's duty to disclose otherwise privileged information to a criminal defendant and stated that only relevant evidence must be disclosed. The court explained that the term "relevant" encompassed both logical relevance and materiality. Id. at 643 n. 17. Nondisclosure, the court indicated, would be proper only if the prosecution showed that disclosure would be inconsistent with enforcement or protection of the privacy interests of the individual, and if the information was not relevant to the defense. "Disclosure is . required if the judge's in camera inspection showed that the material was relevant to the defense — whether or not the prosecutor had demonstrated that discovery would be inconsistent with enforcement or protection efforts." Id. at 643. Relevant evidence, in the context of this case, would seem to include evidence showing D.W.'s bias or motive to fabricate. The United States Supreme Court recently decided a case very similar to the one at bar. In Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987), the Court held that the defendant was not entitled to disclosure of certain records pertaining to investigation into the victim's sexual abuse. The Court approved an in camera review of the records by the trial court similar to the review required by Braham. Id. 107 S.Ct. at 1002-04. With regard to the standard of disclosure, the Court stated that any material evidence should be disclosed to the defendant. Material evidence means any evidence where "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceedings would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." Id. 107 S.Ct. at 1001 (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383-84, 87 L.Ed.2d 481 (1985)). In his concurring opinion, however, Justice Blackmun points out that evidence which could be used to impeach a witness by demonstrating bias would be within the court's definition of materiality. Ritchie, 107 S.Ct. at 1006 n. 2 (Blackmun, J., concurring). We agree with this conclusion. Therefore, on remand, the judge reviewing D.W.'s DFYS and CINA files should disclose to Sledge any information that is relevant to show D.W.'s bias or motive to fabricate, as well as any other relevant evidence. One additional point needs clarification. In Ritchie, the Supreme Court stated that, "the duty to disclose is ongoing; information that may be deemed immaterial upon original examination may become important as proceedings progress, and the court would be obligated to release information material to the fairness of the trial." Ritchie, 107 S.Ct. at 1003. In the present case, Judge Buckalew reviewed the files, but Judge Ripley presided over the case at trial. To comply with the ongoing duty of disclosure, the trial judge, at trial, must review the files. Consequently, the trial judge, on remand, should review the files to determine whether there was any discoverable material. The judgment of the superior court is REVERSED, and this case is REMANDED for further hearing to determine whether D.W. made statements to the police indicating a motive to falsely accuse Sledge of sexual assault. If the court is satisfied that such statements were made under circumstances which would permit a jury to infer bias, a new trial should be granted; if, on reconsideration, any materials in D.W.'s file should have been made available to the defense and, if made available, might have affected the results of the trial, a new trial should be granted. If not, the trial court may reinstate Sledge's conviction. . It was unclear from the original record exactly what files Judge Buckalew inspected. This issue was remanded to Judge Buckalew for clarification. After this issue was remanded, DFYS was ordered to turn over all of D.W.'s files. According to Judge Buckalew's findings after remand, DFYS had turned over additional files that were not turned over to Judge Buckalew prior to trial. Consequently, Judge Buckalew did not have an opportunity to review all of D.W.'s DFYS files prior to trial. . D.W.'s DFYS and CINA records are confidential, and access to them can be had "only with the court's permission and only by persons having a legitimate interest in them." AS 47.10.-090(a). The use of this information to impeach D.W. by showing her motive to fabricate would appear to give Sledge a legitimate interest in the records. Therefore, if there was information in the files that could be used to impeach D.W., then the statute would allow disclosure. . On appeal, Sledge raises two additional issues. First, Sledge argues that the trial court erred in denying his motion to dismiss the case for violation of Alaska Criminal Rule 45. This issue is foreclosed by Lindsay v. State, 698 P.2d 659, 662-63 (Alaska App.1985). Second, Sledge also argues that the trial court erred in refusing to refer his case to the three-judge panel for sentencing. Our decision to remand this case for further proceedings may render sentencing issues moot. Consequently, we decline to comment upon them at this time. Should the trial court, on remand, reinstate Sledge's conviction, Sledge may reinstate his sentencing appeal in this court.
10398637
Oliver Andrew HOFSTAD and Sarah Angelette Hofstad, Appellants, v. STATE of Alaska, Appellee
Hofstad v. State
1988-11-18
No. S-2048
1351
1353
763 P.2d 1351
763
Pacific Reporter 2d
Alaska Supreme Court
Alaska
2021-08-10T16:59:32.179770+00:00
CAP
Before MATTHEWS, C.J., and RABINO WITZ, BURKE, COMPTON, and MOORE, JJ.
Oliver Andrew HOFSTAD and Sarah Angelette Hofstad, Appellants, v. STATE of Alaska, Appellee.
Oliver Andrew HOFSTAD and Sarah Angelette Hofstad, Appellants, v. STATE of Alaska, Appellee. No. S-2048. Supreme Court of Alaska. Nov. 18, 1988. Fred W. Triem, Petersburg, for appellants. William F. Cummings, Asst. Atty. Gen., Grace Berg Schaible, Atty. Gen., Juneau, for appellee. Before MATTHEWS, C.J., and RABINO WITZ, BURKE, COMPTON, and MOORE, JJ.
1356
8003
FACTS MATTHEWS, Chief Justice. On May 20, 1983, the State of Alaska filed a complaint against Oliver Hofstad, Sarah Hofstad, and the City of Petersburg, seeking to take, by eminent domain, property owned by the Hofstads in Petersburg. The state also filed a declaration of taking, and deposited $27,900 into the registry of the court. The Hofstads filed an answer and counterclaim on June 16, 1983. On July 13, 1983, the state sent to the Hofs-tads a stipulation for disbursement of the funds. This stipulation required the signature of a representative of the City of Petersburg acknowledging that the city had no claim against the condemned premises. The Hofstads did not return the stipulation to the state until January 3, 1984. In September 1985, the Hofstads and the state stipulated to a settlement of the case. The parties agreed that $30,450 should be paid as just compensation for the taking of the property. The state also agreed to pay certain sums of interest on the award. The parties disagreed, however, as to whether the state should be required to pay interest on the amount of the state's initial deposit of $27,900 for the period from June 16, 1983 through January 3, 1984. On November 8, 1985, the Hofstads moved for an award of interest on the sum that was deposited by the court. The Hofs-tads argued that the state should have informed them of their right to withdraw funds without prejudice. In addition, the Hofstads argued that the state's refusal to comply with certain discovery requests impeded their ability to withdraw the funds. The trial court ruled that the "delay of withdrawal of funds was solely due to actions of the Hofstads, and not the state, [and therefore the Hofstads are not entitled to] interest during the period in question." DID THE TRIAL COURT ERR IN REFUSING TO ALLOW PREJUDGMENT INTEREST ON THE FUNDS DEPOSITED BY THE STATE WITH THE COURT AS ESTIMATED JUST COMPENSATION? The Hofstads make three arguments as to why they are entitled to prejudgment interest on the amount deposited with the court. First, they argue that they were not free to withdraw the funds because the state did not send the stipulation regarding the release of the funds until July 13, 1983, and that the stipulation required a release from the city. Second, they argue that AS 09.55.440 does not allow risk-free withdrawal of funds because it requires a con-demnee to return funds plus interest if the final award by the court is less than the amount withdrawn. Finally, the Hofstads argue that the state's failure to furnish discovery prejudiced them, and prevented them from making an informed decision with regard to the withdrawal of the funds. Each of these arguments lacks merit. In Russian Orthodox Catholic Church of N. Am. v. Alaska State Hous. Auth., 498 P.2d 737 (Alaska 1972), we discussed the payment of interest on funds deposited with the court: "In situations where the failure to withdraw funds on deposit in the registry of the court is attributable to the delay of the property owner, no interest should be allowed on the portion of the award so deposited." Id. at 743. We then cited, in a footnote, two cases in which the failure of the property owner to apply for the withdrawal of funds on deposit was held to constitute a delay attributable to the property owner and eliminated the right to interest. See Atlantic Coastline Rail Co. v. United States, 132 F.2d 959, 962-63 (5th Cir.1943); United States v. 0.45 Acres, 151 F.2d 114 (2nd Cir.1945). The Hofstads did not make a motion to withdraw the deposited funds as allowed by AS 09.55.440(b). The Hofstads' failure to make such a motion constitutes a delay attributable to them, and therefore no interest is payable on the amount deposited by the state. The Hofstads first argue that they were not free to withdraw the funds because the state did not send its stipulation for release of the funds until July 13, 1983, and that that stipulation required a release from the city. This argument lacks merit. Alaska Statute 09.55.440(b) allows a party to make a motion to the court for withdrawal of funds on deposit. The Hofstads could have made this motion any time after making an appearance in the case. Thus, it was unnecessary for the Hofstads to wait for the stipulation from the state prior to withdrawing funds. As the Hofstads never made a motion pursuant to AS 09.55.440, any delay in withdrawal is attributable to them and the timing with regard to the state's stipulation is irrelevant. The Hofstads next argue that AS 09.55.440 does not allow a risk-free withdrawal of funds. Alaska Statute 09.55.-440(b) requires that if the actual amount awarded as just compensation is less than the amount withdrawn, then the con-demnee must pay back the excess to the state. The Hofstads argue that this may put the condemnee in "double jeopardy:" If the condemnee withdraws the deposited money and the court enters a judgment that just compensation is less than the state has estimated (and deposited); the condemnee will have to repay the excess to the state (plus interest). A more prudent course is to leave the money on deposit until a final order fixes the exact amount of just compensation. This argument also lacks merit. If the condemnee is truly concerned about having to pay an excess back to the state, it is free to withdraw the funds on deposit and place them in an interest bearing account. In this way, if the condemnee is required to pay such an excess, the funds will be readily available. Finally, the Hofstads argue that the state's failure to furnish discovery prejudiced the Hofstads and prevented them from making an informed decision with regard to withdrawal of the funds. The Hofstads argue that without the requested discovery they were unable to determine if it was prudent to withdraw the funds. The Hofstads are again incorrect. First, the Hofstads did not seek formal discovery from the state until April 1984, several months after the Hofstads actually had withdrawn the deposited funds. Second, the state's failure to respond to the Hofs-tads' informal discovery requests did not prejudice the Hofstads. As previously discussed, the Hofstads could have withdrawn the funds and placed them in an interest bearing account. Then, if it turned out the amount withdrawn exceeded the actual award, they would have the excess readily available. Thus, it was unnecessary for the Hofstads to assess the value of the land prior to withdrawal of the funds and the state's failure to respond was not prejudicial. CONCLUSION The Hofstads are not entitled to interest on the amount of funds deposited by the state with the court. The Hofstads were free to make a motion to the court to withdraw the funds pursuant to AS 09.55.-440. Because they did not do so, any delay is attributable to them and no interest is payable on the amount deposited. AFFIRMED. .Alaska Statute 09.55.440(b) provides: Upon motion of a party in interest and notice to all parties, the court may order that the money deposited or a part of it be paid immediately to the person or persons entitled to it for or on account of the just compensation to be awarded in the proceedings. If the compensation finally awarded exceeds the amount of money deposited, the deposit shall be offset against the award. If the compensation finally awarded is less than the amount of money deposited, the court shall enter judgment in favor of the plaintiff and against the proper parties for the amount of the excess. . See supra note 1. . The Hofstads do not argue that their failure to make a motion under AS 09.55.440 was in reliance on the state's sending the stipulation.
10331970
THANE NEIGHBORHOOD ASSOCIATION, Alaskans for Juneau, Appellants, v. CITY AND BOROUGH OF JUNEAU, Appellee, and Echo Bay Alaska, Inc., Intervenor-Appellee
Thane Neighborhood Ass'n v. City & Borough of Juneau
1996-09-06
No. S-6710
901
910
922 P.2d 901
922
Pacific Reporter 2d
Alaska Supreme Court
Alaska
2021-08-10T17:01:11.631102+00:00
CAP
Before COMPTON, C.J., RABINOWITZ, MATTHEWS and EASTAUGH, JJ., and CARPENETI, J., Pro Tern.
THANE NEIGHBORHOOD ASSOCIATION, Alaskans for Juneau, Appellants, v. CITY AND BOROUGH OF JUNEAU, Appellee, and Echo Bay Alaska, Inc., Intervenor-Appellee.
THANE NEIGHBORHOOD ASSOCIATION, Alaskans for Juneau, Appellants, v. CITY AND BOROUGH OF JUNEAU, Appellee, and Echo Bay Alaska, Inc., Intervenor-Appellee. No. S-6710. Supreme Court of Alaska. Sept. 6, 1996. Eric Smith, Anchorage, for Appellants. John R. Corso, City & Borough Attorney, Juneau, for Appellee City & Borough of Juneau. James F. Clark, Terry L. Thurbon, Robertson, Monagle & Eastaugh, Juneau, for Intervenor-Appellee Echo Bay Alaska. Before COMPTON, C.J., RABINOWITZ, MATTHEWS and EASTAUGH, JJ., and CARPENETI, J., Pro Tern. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.
4934
32079
OPINION MATTHEWS, Justice. Echo Bay Alaska, Inc., applied to the City and Borough of Juneau in November 1990 for a large mine permit for the AJ Mine. The proposed mine is located four miles from downtown Juneau. The tailings that will result from the processed ore are to be pumped into a tailings pond created by constructing a dam in Sheep Creek Valley. The proposed dam mil be 332 feet high and 750 feet long. If the mine goes into production 100 million tons of tailings are expected to be produced and pumped into the pond. The excess water from the tailings pond will be discharged into Gastineau Channel. The discharge from the tailings pond to the channel could be as great as 250 cubic feet per second. The City and Borough of Juneau Planning Commission (Commission) approved the application in a notice of decision issued on May 14, 1993. The approval was subject to a set of conditions. The permit was to be issued after a financial warranty was paid and after Echo Bay agreed to the conditions and signed a mitigation agreement. Approval of the tailings dam and impoundment and the discharge of wastewater was withheld until additional information was provided. Appellants, Thane Neighborhood Association (TNA) and Alaskans for Juneau (AEJ), appealed the Commission's decision to the City and Borough of Juneau Assembly (CBJ) on June 7, 1993. Echo Bay was granted permission to participate as a party. The CBJ heard oral argument on August 30, 1993, and issued a decision denying the appeal on September 22, 1993. TNA and AFJ then appealed to the superior court and Echo Bay was permitted to intervene. On October 26, 1994, the superior court affirmed the decision of the CBJ. In this appeal, the appellants argue that the "CBJ impermissi-bly used a 'phased' approach in approving" the permit and that the CBJ's finding that issuance of the permit complied with standards set forth in the CBJ mining ordinance is not supported by substantial evidence. In December 1995 CBJ and Echo Bay filed a supplemental brief, and TNA and AFJ filed a response addressing the issue of whether the "Planning Commission [could] assure future compliance with the substantive standards for mining operations . by imposing permit conditions requiring future performance rather than by demanding pre-application-approval demonstration of future ability to comply." THE CODE The review of large mine permits is governed by the Code of the City and Borough of Juneau (CC & B J) 49.65 (1989). CC & B J 49.65.110 provides in part: "It is the purpose of this article to foster the development of a safe, healthy and environmentally sound mining industry while protecting the overall interests of public health, safety and the general welfare and minimizing the environmental and surface effects of mining projects for which an exploration notice or mining permit is required." The procedure for obtaining a large mine permit is governed by CC & BJ 49.65.130. CC & BJ 49.65.130(b) requires an application for a large mine permit to be submitted in the form of a report containing sufficient information so that the department can, after reviewing the application, evaluate, in accordance with the standards of subsection 49.65.135(a), the impacts[ ] described in this subsection that the mining operation may have on the city and borough. The application shall contain a map on a scale of 1:63,360 or a more detailed scale, a description of the mine site and affected surface; a description and timetable of the proposed mining operation, including all roads, buildings, processing and related facilities; a description and timetable of proposed reclamation of affected surface; a description of proposals for the sealing of open shafts, adits and tunnels upon the completion or temporary cessation of mining operations; a description of methods to be used to control, treat, transport and dispose of hazardous substances, sewage and solid waste; and a description of other potential environmental, health, safety and general welfare impacts, as well as neighboring property impacts and measures to be taken to mitigate their adverse effects. The application shall also contain additional information normally prepared by the operator for its feasibility studies and mining plans, including information establishing the right to use the affected surface, labor force char- acteristies and timing, payroll projections, anticipated duration of the mining operation, construction schedules, infrastructure description, and other information reasonably requested by the department in the preapplication conference held pursuant to Section 49.15.330(b)_ (Emphasis added.) Likewise, CC & BJ 49.15.130(b), which governs applications for land use permits in general, provides that "[a]n application is complete when it contains all of the information necessary to determine if the development will comply with all of the requirements of the permit applied for." CC & B J 49.65.130(f) requires the Community Development Department (Department) to conduct an application review, which shall include, but not be limited to, the following determinations: whether air and water quality will be maintained in accordance with federal, state, and city and borough laws, rules and regulations; where sewage, solid waste, hazardous and toxic materials will be properly contained and disposed of in accordance with federal, state, and city and borough laws, rules and regulations; the extent to which the operator will agree to mitigate adverse impacts on the city and borough; whether the mining operation will be conducted in such a way as to minimize safety hazards to the extent reasonably practicable and will mitigate adverse impacts on the public and on neighboring properties such as those from traffic overloading, noise, dust, unsightly visual aspects, surface subsidence, avalanches, landslides and erosion; and whether appropriate historic sites will be protected.[ ] CC & BJ 49.65.130(f) further provides: The department shall form a recommendation as to whether the permit should be approved_ The department's recommendation may include such conditions or stipulations as the department deems to be reasonably necessary to mitigate any adverse environmental, health, safety, or general welfare impacts which may result from the proposed mining operation.... If the [planning] commission determines that the application, with stipulations or conditions[ ] as appropriate, satisfies the standards of Sections 49.65.135 and 49.15.330, it shall approve the application. . The primary requirements for a large mine permit are contained in CC & BJ 49.65.135 (1989), which states: STANDARDS FOR ISSUANCE OF PERMITS AND CONDUCT OF OPERATIONS. (a) In determining whether to recommend issuance of a permit, the [community development] department shall require that: (1) The mining operations be conducted in accordance with this article, Section 49.15.330,[ ] and any other applicable provisions of the city and borough code in such a way as to mitigate adverse environmental, health, safety and general welfare impacts; (2) Air and water quality be maintained in accordance with federal, state, and city and borough laws, rules and regulations; (3) Hazardous and toxic materials, sewage, and solid waste be properly contained and disposed of in accordance with applicable federal, state, and city and borough, laws, rules and regulations; (4) The operator conduct all mining operations according to the standards of the city and borough, as contained in this article, Section 49.15.330, the permit, and any other applicable provisions of the city and borough code, so as to minimize to the extent reasonably practicable safety hazards and to control and mitigate adverse impacts on the public and neighboring properties, such as from traffic overloading, noise, dust, unsightly visual as pects, surface subsidence, avalanches, landslides and erosion; (5) Appropriate historic sites designated as significant by the city and borough be protected; (6) Reclamation of the affected surface be in accordance with the approved reclamation plan of the operator; and (7) With respect to a large mine permit application, the operator negotiate and enter into a mitigation agreement with the city and borough.... (b) Reclamation of all affected surfaces shall be completed as soon as is reasonable after affected surface areas are no longer being used in exploration and mining operations. Reclamation shall include the following: cleanup and disposal of dangerous, hazardous or toxic materials; regrading of steep slopes of unconsolidated material to create a stable slope; backfilling underground shafts and tunnels to the extent appropriate; adequate pillaring or other support to prevent subsidence or sloughing; plugging, or sealing of abandoned shafts, tunnels, adits or other openings; adequate steps to control or avoid soil erosion or wind erosion; control of water runoff; revegetation of tailings and affected surface areas with plant materials that are capable of self-regeneration without continued dependence on irrigation and equipment where appropriate; rehabilitation of fisheries and wildlife habitat; and any other conditions imposed by the commission. Subsequent to the issuance of a permit or the grant of authority under an exploration notice, the operator's compliance shall be measured against the requirements contained in that permit or the conditions of the exploration notice and the operator's plans submitted with the permit application or the notice. THE LARGE MINE PERMIT After making its determination, the Commission issued a notice of decision, granting approval for the application for a large mine permit subject to a set of conditions. The notice of decision lists the six requirements that are applicable to all conditional use permits as set forth at CC & BJ 49.15.330 and the twenty-one requirements set forth in the mining ordinance (CC & BJ 49.65.100-195), and states its findings for each of these requirements. TNA and AFJ argue that the findings and conditions in the notice of decision evidence a lack of compliance with the code. They argue that the CBJ used a " 'phased' approach in approving the large mine permit." They point to three ways in which they believe the CBJ engaged in phasing. First, the Commission withheld approval of the dam, the tailings pond and marine water discharges until further information was provided, yet granted the permit for the remainder of the project. Second, the Commission approved the permit, yet required Echo Bay to provide further information on certain matters. Third, the Commission imposed as a condition that Echo Bay obtain necessary permits from other agencies. Echo Bay and CBJ argue that this phasing is consistent with the code. CBJ argues "[t]he purpose of the mining ordinance and the Commission is to grant permits, not to deny them." CBJ and Echo Bay argue that "the CBJ mining ordinance does not vest the commission with discretion to disapprove a large mine permit application when the standards for permit issuance have been met," relying on CC & BJ 49.65.130(f), which states that "if the commission determines that the application, with stipulations or conditions as appropriate, satisfies the standards of Sections 49.65.135 and 49.15.330, it shall approve the application." (Emphasis added.) CBJ and Echo Bay also contend that the mining ordinance can be satisfied by including permit conditions which incorporate the requirements of the ordinance — it is not necessary to determine in advance whether the plans submitted in the permit application will satisfy those requirements. CBJ argues that the purpose of the ordinance "is to mandate compliance not predict it." DISCUSSION This court must determine to what extent the City and Borough of Juneau's code allows phasing when evaluating large mine permit applications. This is a question of statutory interpretation which does not involve agency expertise. Thus, this court will use its independent judgment. See Marlow v. Municipality of Anchorage, 889 P.2d 599, 602 n. 1 (Alaska 1995) (reviewing zoning commission's and board's constructions of zoning ordinance under independent judgment standard, as issues presented were "pure questions of statutory construction which d[id] not involve agency expertise"). A. Did the Commission Err by Granting a Large Mine Permit Which Excluded the Tailings Dam and Impoundment and Wastewater Discharge? In this case, CC & BJ 49.65.135(a)(2) requires that "water quality be maintained in accordance with federal, state, and city and borough laws, rules and regulations." In its findings concerning the AJ Mine, the Commission stated that it could not "conclusively determine at this time with current information that the proposed treatment system will maintain water quality in accordance with federal, state and local laws, rules and regulations." The Commission further found that "[t]he available data shows that the federal limit for total suspended solids (TSS) will not be met by the marine water discharge." CC & BJ 49.65.135(a)(4) provides that a mine operator must "conduct all mining operations . so as to minimize to the extent reasonably practicable safety hazards." The staff had various concerns about the safety of the AJ Mine's proposed tailings dam. The Commission responded to these problems by withholding approval of the tailings dam and impoundment and the marine wastewater discharge components of the project. The Commission decided that it would determine whether to approve the tailings dam and impoundment and the marine wastewater discharge after the receipt of further information. While the Juneau code does have provisions allowing the Commission to put conditions on a permit, see CC & BJ 49.15.330(g), 49.65.130(f), there is nothing in the code to support granting the permit for a project as a whole, while excepting one part of a project. Past decisions of this court make clear that phasing a project by permitting it in stages is disfavored. Three of our recent cases provide considerable guidance as to what sorts of permit approval "phasing" techniques are appropriate and what kinds are not: Trustees for Alaska v. Gorsuch, 835 P.2d 1239 (Alaska 1992); Trustees for Alaska v. State, Department of Natural Resources, 851 P.2d 1340 (Alaska 1993); and Kuitsarak Corp. v. Swope, 870 P.2d 387 (Alaska 1994). In Gorsuch, we held that in granting mining permits, "[Department of Natural Resources (DNR) ] may not ignore cumulative effects of mining and related support facilities . by permitting facilities separately." 835 P.2d at 1246. We ruled that when DNR reviews a mining permit application, it must "consider the probable cumulative impact of all anticipated activities which will be a part of a 'surface coal mining operation,' whether or not the activities are part of the permit under review." Id. "If DNR determines that the cumulative impact is problematic," we stated, "the problems must be resolved before the initial permit is approved." Id. We explained that "[tjhis type of 'concept approval' is necessary to avoid a situation where, because of industry investment and reliance upon a past mining permit approval, DNR might feel compelled to approve a subsequent permit for a related but environmentally unsound facility." Id. at 1246 n. 6. We added that "[i]n some cases, this may require concurrent, as opposed to serial, review of separate, related permit applications," while "[i]n other cases, anticipated problems resulting from cumulative impacts may require that approval of an initial permit be conditioned upon satisfactory resolution of the problems anticipated in subsequent permits." Id. This court split in Gorsuch on whether an access/haul road for the mining operation could be permitted under a separate mining permit. The majority determined that a specific regulation implied that separate permitting was allowed and that cumulative impacts could be adequately considered under separate permitting in that instance. Id. at 1245-46. Justice Rabinowitz, joined by Justice Matthews, dissented, arguing that the appli cable regulations prohibited separate permitting, and that a single permit was necessary to ensure that the cumulative effects of the mining operation would be adequately considered. Id. at 1250-51. Justice Rabinowitz contended that "[e]ourts have disallowed segmentation of a proposed project . to assure that the cumulative effects of the project are adequately considered_" Id. at 1251. Justice Rabi-nowitz cited Thomas v. Peterson, 753 F.2d 754, 760 (9th Cir.1985), for the proposition that "allowing consideration of cumulative impacts after a portion of [a] project is already approved" swings the balance in favor of project approval even if the project would have been disapproved had all components of the project been considered in the initial permit application. Gorsuch, 835 P.2d at 1251. In Trustees for Alaska v. State, Department of Natural Resources, 851 P.2d 1340, 1341 (Alaska 1993) (Camden Bay II), DNR's approval of a sale of oil and gas leases was challenged. A regulation required DNR to identify known geophysical hazard areas, and prohibited approval of development in such areas until measures to minimize geophysical hazards were provided. Id. at 1343. DNR identified the entire sale area as a geophysical hazard area. Id. DNR intended to consider particular geophysical hazards on a lease-site-by-lease-site basis, requiring lessees to submit plans to mitigate potential geophysical hazards before approval to develop a specific lease site would be given. Id. at 1343-44 & n. 7. We disapproved DNR's approach. We held that DNR was required to identify known or substantially possible hazard areas before approving the lease sale as a whole. Id. at 1344-45. We explained that "deferring a careful and detailed look at particularized geophysical hazards to later stages of the development process . entails certain practical risks." Id. at 1344. Such deferral "may tend to mask appreciation of any cumulative environmental threat that would otherwise be apparent if DNR began with a detailed and comprehensive identification of [the] hazards." Id. We again noted that "the more segmented an assessment of environmental hazards [is], the greater the risk that prior permits will compel DNR to approve later, environmentally unsound permits." Id. Another regulation at issue in Camden Bay II required DNR to identify important historic sites. Id. at 1345. DNR purportedly attempted to comply with this regulation by requiring the lessees to report on such sites and to try to preserve such sites, arguing that the regulation did not state when historic sites had to be identified. Id. at 1345 & n. 9. We held that DNR had not complied with the regulation, and that DNR was required to identify known historic sites before approving the initial sale. Id. at 1346. We explained that evaluation of historic sites on a lease-site-by-lease-site basis ran "the risk of undervaluing the cumulative cultural significance of the region as a whole," and that the lessees would have an incentive to underreport historic sites. Id. We added that our holding that the regulation at issue required identification of historic sites before approval of the initial sale did "not mean that more intensive duties are not required by this regulation at later stages of development." Id. We also ruled in Camden Bay II, however, that DNR did not have to examine transportation routes and utility sites before approving the initial sale because "[u]ntil exploration is proposed and, in all likelihood, until and unless a commercially exploitable discovery is made, there will be no occasion for siting, designing or constructing transportation and utility routes." Id. We further decided that DNR was not required "to evaluate the effectiveness of [environmental harm mitigation] measures before even receiving detailed development proposals," since DNR would not be able to assess "detailed mitigation measures even before knowing which activities it needs to mitigate." Id. at 1347. In Kuitsarak Corp. v. Swope, 870 P.2d 387 (Alaska 1994), DNR approved offshore prospecting permits in a region without conducting an in-depth analysis of the effects of mining in the region. Id. at 391 n. 13, 394 & n. 21. DNR contended that it lacked sufficient information to conduct such an analysis and that it would be easier to do the analysis when specific mining activities were performed. Id. at 391 n. 13, 394 n. 21. We rejected this procedure. We found that DNR had not adequately considered the potential and cumulative impacts of mining in the region. Id. at 395-96. We noted that DNR's argument that it was difficult to obtain the information necessary to perform a proper evaluation of the impacts of mining in the region was undermined by evidence of federal studies similar to the studies which DNR needed to do. Id. at 396. We stated that "[o]nce the initial impact of mining on the region has been assessed, any unforeseen occurrences or conditions that are revealed during exploration can be dealt with by DNR through use of stipulations and conditions imposed on mining." Id. (emphasis added). We disapproved of DNR's use of conditions to require the development of plans to minimize potential dangers as a substitute for a complete analysis of the potential dangers. See id. at 396 n. 27. We can draw three general, guiding principles concerning when and in what manner "phasing" or "segmentation" is permissible from Gorsuch, Camden Bay II, and Kuit-sarak. First, unless a specific statute or regulation allows phasing, phasing is disfavored. Compare Gorsuch, 835 P.2d at 1245-46 (regulation interpreted as permitting phasing) with Gorsuch, 835 P.2d at 1250-51 (Rabinowitz, J., dissenting) (regulation interpreted as prohibiting phasing). Where a statute is silent or ambiguous, phasing should generally not be allowed. See Camden Bay II, 851 P.2d at 1345—46 (regulation silent on when historic sites must be identified, but best interpreted as requiring identification of known sites at initial permitting stage). Second, phasing is prohibited if it can result in disregard of the cumulative potential environmental impacts of a project. See Kuitsarak, 870 P.2d at 396 n. 30; Camden Bay II, 851 P.2d at 1344, 1346; Gorsuch, 835 P.2d at 1246. The more interlinked the components of a project are and the greater the danger that phasing will lead to insufficient consideration of cumulative impacts, the greater the need to bar phasing. Compare Gorsuch, 835 P.2d at 1245-46 (separate permitting permissible so long as DNR determines that cumulative impacts will not be problematic) with Gorsuch, 835 P.2d at 1250-51 (Rabinowitz, J., dissenting) (unified permitting process necessary to ensure adequate consideration of cumulative effects). Third, conditions and stipulations may be used to address unforeseen occurrences or unforeseen situations that may arise during exploration or development, but permit conditions may not serve as a substitute for an initial pre-permitting analysis that can be conducted with reasonably obtainable information. See Kuitsarak, 870 P.2d at 395-96 & n. 27 (approving possible use of conditions to deal with unforeseen events but disapproving use of conditions as substitute for feasible, complete analysis). Thus, phasing through the use of conditions is prohibited where it is feasible to obtain the information necessary to determine whether environmental standards will be satisfied before granting an initial permit, but allowed where it is impractical or impossible to create detailed development plans without conducting additional physical exploration. See Camden Bay II, 851 P.2d at 1343-47 (geophysical hazards and historic sites can be investigated during initial permitting stage but transportation routes and mitigation measures cannot be analyzed without further exploration and planning). Based on these principles the Commission should not have granted the AJ Mine permit while excepting major portions of the project. The tailings dam and impoundment and the marine wastewater discharge system are integral components of the mining project; they are significantly interlinked to other parts of the project. If extensive redesigns to these components become necessary, the mining project could have a significantly greater environmental impact. Phasing the approval of those components could therefore cause the cumulative impacts of the mining project to be inadequately considered. After the Commission granted Echo Bay the large mine permit for the project as a whole, the United States Environmental Protection Agency (EPA) disapproved the pro posal for the dam at Sheep Creek, and Echo Bay abandoned the plan to build the dam there. The EPA's action will undoubtedly force major redesigns in the mine project. This sequence of events illustrates the dangers of CBJ's improper use of phasing — the initial approval for most components of the AJ Mine may cause CBJ to fail to take into account the cumulative impacts of the redesigns made necessary by the change in the location of the tailings dam. For these reasons we conclude that the Commission erred in granting permit approval of the project while deferring consideration of important portions of the project. B. Did the Commission Err by Granting the Permit, Yet Imposing as a Condition that Echo Bay Provide Further Information? As noted, the Commission found that it could "not conclusively determine at this time with current information that the proposed treatment system will maintain water quality in accordance with federal, state and local laws, rules and regulations." In addition, the Commission found that "[t]he available data shows that the federal limit for total suspended solids (TSS) will not be met by the marine water discharge." In addition to withholding approval of a portion of the project, the second way the Commission responded to this problem was to place conditions into the permit requiring the project "to comply with federal and state water quality standards." The Commission should not have granted the AJ mine permit without knowing whether the plan that was submitted to it would satisfy water quality standards.. The ordinance requires that an application contain enough information for the Department and the Commission to make determinations as to impacts and compliance. First, CC & BJ 49.65.130(f) requires the Department to conduct an application review, form a recommendation and provide the recommendation to the Commission. CC & BJ 49.65.130(b) provides that the application must contain "sufficient information so that the Department can, after reviewing the application, evaluate, in accordance with the standards of subsection 49.65.135(a), the impacts described in this subsection that the mining operation may have on the city and borough." That subsection includes "a description of other potential environmental, health, safety and general welfare impacts." Subsection 49.65.135(a)(2) provides that "[a]ir and water quality be maintained in accordance with federal, state, and city and borough laws, rules and regulations." Second, after the Department provides the recommendation, the Commission must determine whether the "application, with stipulations or conditions as appropriate satisfies the standards of Sections 49.65.135 and 49.15.330." CC & BJ 49.65.130(f). CC & BJ 49.65.330(e)(1)(B) in turn provides that the Commission shall determine whether the application is complete. CC & BJ 49.15.130(b) provides that "[a]n application is complete when it contains all of the information necessary to determine if the development will comply with all of the requirements of the permit applied for." Thus the ordinance requires that (1) the application contain sufficient information for the Department to determine the environmental impacts of the mining operation; and (2) the Commission determine whether the application contains the information necessary to determine whether it will comply with water quality rules and regulations. The Commission's statement that it did not have enough information to determine whether the system would adhere to water quality standards makes it clear that the application failed to meet either of these requirements. Without this information, the Department lacked sufficient information to determine the environmental impacts of the project. In addition, without this information the Commission could not have determined that the application was complete. This interpretation of the code is further supported by Kuitsarak, 870 P.2d at 394-96. In Kuitsarak, DNR did not gather necessary information regarding environmental impacts before granting an offshore prospecting permit. Id. Similarly, in this case, further information on water quality was necessary before the Commission could grant the min- tog permit, or even consider the application complete. CONCLUSION The Juneau Planning Commission engaged in impermissible phasing in its approval of the AJ Mine permit. The Commission deferred approval of components of the mine which are interlinked with other components, creating an unacceptable danger that cumulative impacts would not be sufficiently analyzed. The Commission utilized conditions as a substitute for evaluations that could have been conducted with feasibly obtainable information. The Commission reacted by placing conditions on the permits and deferring approval of mine components when it was faced with data that the proposed mine projects would not comply with Juneau code requirements or when it did not have sufficient information to determine whether the requirements would be met. If allowed to use such phasing in response to defects in mining applications, the Commission could grant approval to any permit application no matter how deficient it is, making the Juneau code virtually meaningless and Commission decisions effectively unreviewable. For these reasons, we REVERSE the decision of the superior court and REMAND this case to the court with directions to vacate the decisions of the Juneau Assembly and of the Commission granting the mine permits, and to REMAND to the Commission for further proceedings to accordance with this opinion. . CC & BJ 49.80.120 defines "impact" as used in CC & BJ 49.65 as "the reasonably foreseeable effects or consequences of a mining operation." . These required determinations track the "standards for issuance of permits and conduct of operations" put forth in CC & BJ 49.65.135. . CC & BJ 49.15.330(g) allows the Commission to place seventeen kinds of enumerated conditions, as well as "other conditions as may be reasonably necessary," on a conditional use permit. .CC & BJ 49.15.330 contains the general standards for obtaining a conditional use permit in Juneau. . AFJ and TNA argue that "an applicant simply cannot demonstrate compliance with all applicable requirements unless it first has obtained the necessary permits from other agencies." The code does not necessarily require this level of demonstration of compliance, but at the very least, the application must contain the "information necessary to determine" whether the project will comply. CC & BJ 49.15.130(b). . The issues regarding the existence or lack of substantial evidence to support various CBJ findings are mooted by our decision.
10396377
Stephen J. STEWART, Appellant, v. STATE of Alaska, Appellee
Stewart v. State
1988-11-10
No. A-2422
515
518
763 P.2d 515
763
Pacific Reporter 2d
Alaska Court of Appeals
Alaska
2021-08-10T16:59:32.179770+00:00
CAP
Before BRYNER, C.J., and COATS and SINGLETON, JJ.
Stephen J. STEWART, Appellant, v. STATE of Alaska, Appellee.
Stephen J. STEWART, Appellant, v. STATE of Alaska, Appellee. No. A-2422. Court of Appeals of Alaska. Nov. 10, 1988. William R. Satterberg, Jr., Law Offices of William R. Satterberg, Jr., Fairbanks, for appellant. Marlin D. Smith, Asst. Dist. Atty., Harry L. Davis, Dist. Atty., Fairbanks, and Grace Berg Schaible, Atty. Gen., Juneau, for ap-pellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.
1588
9839
OPINION BRYNER, Chief Judge. Magistrate Paul K. Verhagen tried Stephen J. Stewart and found him guilty of DWI, AS 28.35.030. Stewart appeals, alleging that the court committed error in denying his motion to dismiss and in sentencing him as a second DWI offender. We affirm the court's denial of the motion to dismiss but remand for further proceedings on the sentencing issue. On July 23, 1987, while transporting a prisoner north on the Parks Highway, Alaska State Trooper Ellis noticed a car parked on the side of the highway near mile 262 in an area that was not a normal vehicle turnout. The driver, Stewart, appeared to be slumped over his seat. About-an hour later, on his return trip, Ellis spotted Stewart's car on the side of the highway at mile 283. Its engine was running, its headlights were on, and Stewart again appeared to be slumped over in his seat. Ellis pulled his car in behind Stewart, walked up to Stewart's car, and opened the door to the driver's side. According to the trooper, he was concerned that Stewart might have a medical problem, might be sleeping, or might be drunk. Upon opening the door, Ellis smelled a strong odor of alcohol and saw that Stewart's eyes were bloodshot and watery. Ellis asked Stewart for identification. Stewart fumbled with his wallet and had trouble taking his license out. Ellis asked Stewart to perform several field sobriety tests. Stewart failed the tests and was arrested for DWI. Stewart moved to dismiss the DWI charge on two grounds. First, he contended that his right to privacy was violated when the door to his car was opened by the trooper. Stewart also argued that the trooper lacked probable cause to make a warrantless stop and search of the car. The court denied the motion. Stewart renews these arguments on appeal. Stewart's arguments assume that Trooper Ellis' actions amounted to a warrantless search. In our view, however, the limited intrusiveness of the trooper's conduct warrants treating the case under the law dealing with investigative stops. In Coleman v. State, 553 P.2d 40 (Alaska 1976), the Alaska Supreme Court held that an investigative stop is permissible where "the police officer has a reasonable suspicion that imminent public danger exists or serious harm to persons or property has recently occurred." Id. at 46. Relying on Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the court noted that the central inquiry is "the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security." Coleman, 553 P.2d at 44. According to the court, the governmental interest justifying the official intrusion must be balanced against the invasion of the constitutionally protected interests of the private citizen. The court concluded: [T]he police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion_ And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search "warrant a man of reasonable caution in the belief" that the action taken was appropriate? Id. at 45. The test enunciated in Coleman was met in the present case. Trooper Ellis believed that Stewart might be drunk, sleeping, or having a medical problem. Stewart was slumped over the wheel of his car, apparently unconscious. The car was running. An hour earlier, Ellis had seen Stewart slumped over the wheel of his car approximately twenty-one miles further away. Ellis obviously had a legitimate interest in determining whether Stewart required assistance. Because Stewart's car was running, Ellis also had an immediate interest in ensuring that Stewart's presence behind the wheel did not pose a public danger. The interference with Stewart's right to privacy was minimal when weighed against such important societal interests. The fact that Ellis could have conceivably attempted to accomplish his purpose less intrusively by first knocking on Stewart's window is not determinative. Ellis had a reasonable suspicion that Stewart either posed an imminent risk of driving while intoxicated or needed immediate medical attention. The trooper was thus justified in opening the car door for the limited purpose of making contact with Stewart. Moreover, even assuming that Ellis' action constituted a warrantless search and seizure, the minimal intrusion in this case would be independently justified under the emergency exception to the warrant requirement. Anchorage v. Cook, 598 P.2d 939, 942 (Alaska 1979). We conclude that there was no violation of the fourth amendment in the present case. Stewart also contends that the court erred when it sentenced him as a second DWI offender. He bases his argument solely on the fact that, at the sentencing hearing, the only evidence of a prior conviction offered by the state was a computer printout of his driving record. The printout indicated that Stewart was convicted of DWI on October 3, 1984. When Stewart objected to the computer printout, the state requested a continuance to obtain proper documentation. Stewart opposed any continuance, arguing that he had a right to be sentenced without further delay and that, in the absence of proper evidence establishing a prior DWI conviction, the court was required to treat him as a first offender. The court denied the state's motion for a continuance and elected to rely on the computer printout and sentence Stewart as a second DWI offender. In so doing, the court placed the burden on Stewart to move for modification of his sentence if he could establish that he had not previously been convicted. On appeal, Stewart argues that the trial court erred in relying on the computer printout to establish his prior conviction. Stewart further maintains that, because the state was not prepared with documentary evidence establishing a prior conviction, he was entitled to be treated as a first DWI offender. We agree that the trial court erred in relying on the computer printout to sentence Stewart as a second DWI offender. We believe the issue to be governed by AS 12.55.145(b), which states: When sentence is imposed under this chapter [Chapter 55, Title 12], prior convictions not expressly admitted by the defendant must be proved by authenticated copies of court records served on the defendant or on the defendant's counsel at least twenty days before the date set for imposition of sentence. Although the mandatory minimum sentences for DWI are set out in AS 28.35.-030(c), the offense has expressly been made a class A misdemeanor. See AS 28.-35.030(b). DWI offenders are therefore subject to the general sentencing provisions of AS 12.55.135. Since DWI sentences are subject to the general sentencing provisions of AS 12.55.135, they qualify as sentences imposed "under this chapter" for purposes of AS 12.55.145(b). Alaska Statute 12.55.145(b) clearly contemplates that the prosecution must ordinarily bear the burden of proving prior convictions by recourse to authenticated copies of court records. Given the provisions of AS 12.55.-145(b), the trial court erred in relying on a computer printout of Stewart's prior record and in placing upon Stewart the burden of establishing that he had not previously been convicted. It does not follow, however, that Stewart was entitled to be treated as a first DWI offender. The notice requirements of AS 12.55.145 were plainly drafted with the expectation that sentencing hearings would normally be scheduled for a date substantially later than the date of the verdict or the entry of a plea of guilty or no contest. The expectation accurately reflects the typical procedure for felony sentencing but not for misdemeanor sentencing, which typically follows immediately upon the adjudication of guilt. Literal compliance with the notice requirements of AS 12.55.145 in misdemeanor cases would in effect require the issue of prior convictions to be addressed prior to an adjudication of guilt, a process that would appear to be both premature and highly inefficient. In the present case, the state was not prepared to proceed at the sentencing hearing with formal proof of Stewart's prior DWI conviction. Our prior decisions suggest that when a mandatory minimum sentence is prescribed for a repeat offender, it would be inappropriate for the court to sentence the defendant as a first offender merely because the state has failed to obtain proof of the prior conviction in time for sentencing. See, e.g., Hartley v. State, 653 P.2d 1052 (Alaska App.1982). The normal recourse under such circumstances is a continuance. See, e.g., Kelly v. State, 663 P.2d 967, 974 (Alaska App.1983). In the present case, Stewart's objections to a continuance were based entirely upon the inconvenience and expense of a delay in the sentencing proceedings. These objections do not outweigh the state's legitimate interest in establishing Stewart's prior record of convictions. Thus, although reliance on the computer printout was inappropriate in the absence of an express admission of a prior conviction by Stewart, AS 12.55.145(b), we hold that, under the circumstances, the state was entitled to a brief continuance in order to obtain the appropriate documents. The conviction is AFFIRMED. The sentence is VACATED, and this case is REMANDED for resentencing.
10331102
Rodney AHWINONA, Appellant, v. STATE of Alaska and Clarence Jackson, Appellees
Ahwinona v. State
1996-08-16
No. S-6750
884
889
922 P.2d 884
922
Pacific Reporter 2d
Alaska Supreme Court
Alaska
2021-08-10T17:01:11.631102+00:00
CAP
Before COMPTON, C.J., RABINOWITZ, MATTHEWS and EASTAUGH, JJ., and SHORTELL, Justice, Pro Tem.
Rodney AHWINONA, Appellant, v. STATE of Alaska and Clarence Jackson, Appellees.
Rodney AHWINONA, Appellant, v. STATE of Alaska and Clarence Jackson, Appellees. No. S-6750. Supreme Court of Alaska. Aug. 16, 1996. Rodney Ahwinona, pro se, Anchorage. Raymond M. Funk, Assistant Attorney General, Fairbanks, and Bruce M. Botelho, Attorney General, Juneau, for Appellees. Before COMPTON, C.J., RABINOWITZ, MATTHEWS and EASTAUGH, JJ., and SHORTELL, Justice, Pro Tem. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.
3382
20804
OPINION EASTAUGH, Justice. I. INTRODUCTION This case concerns the effect of a personal injury release executed by Rodney Ahwinona in 1991. The superior court granted a Civil Rule 12(b)(6) motion dismissing a 1994 lawsuit Ahwinona brought against two of the releasees. We affirm. II. FACTS AND PROCEEDINGS Rodney Ahwinona suffered a broken leg while he was in custody of the State of Alaska, Department of Corrections (DOC), and riding on a snowmachine driven by Clarence Jackson, a DOC employee. Through his attorney, Ahwinona sued Jackson, the State, and the Maniilaq Association for personal injury damages arising out of the accident. At the time of the accident, Ahwinona was incarcerated at a rehabilitation camp run by Maniilaq. The accident occurred while Ahwinona was being transported to Kotzebue to obtain supplies. The complaint was filed November 2, 1990, in the superior court in Nome. On May 21, 1991, Ahwinona signed a document entitled "Release of All Claims." It recited that for consideration of $6,000, re ceipt of which was acknowledged, Ahwinona "hereby releases and forever discharges Clarence Jackson, the Maniilaq Association, and the State of Alaska." Ahwinona's signature was affixed before a notary public. His attorney signed an attached "Attorney's Representation" dated May 28 stating that she had explained and discussed the nature and purpose of the release with Ahwinona and that to the best of her knowledge, "my client understands the nature and effect of this document and assents to its terms." On May 15, prior to signing the release, Ahwinona executed a document entitled "Special Power of Attorney," which permitted his attorney "as my attorney-in-fact" to endorse and cash "the settlement check in the amount of $6,000.00" and sign release documents in the case "against the State of Alaska, Clarence Jackson, and Maniilaq Association." That power was also executed before a notary. On June 24 Ahwinona's attorney sent to Ah-winona a letter which enclosed his "full and final settlement check in the amount of $4,000.00 and a copy of your Settlement Sheet." The settlement sheet, countersigned by Ahwinona on June 18, acknowledged that the "full settlement amount" was $6,000 and that $4,000 was the "total due client" after deduction of attorney's fees. The attorney's trust account check to Ahwinona in the amount of $4,000 bore the notation "Full & Final Settlement." In April 1994 Ahwinona filed in the superi- or court in Anchorage a pro se complaint against Jackson and the State. He claimed personal injury damages arising from the snowmachine accident and other damages from the alleged failure of Jackson and the State to honor the settlement agreement. Ahwinona attached to his new complaint copies of various documents, including the release of all claims, the attorney's representation, the special power of attorney, the $6,000 settlement check payable jointly to Ahwinona and his attorney (apparently issued by the insurer for Maniilaq Association), the letter from Ahwinona's attorney conveying the settlement check, and the settlement sheet discussed above. The State and Jackson filed an answer to Ahwinona's complaint, raising the 1991 settlement and release as a defense. The State then moved to dismiss pursuant to Civil Rule 12(b)(6), asserting that the claims were barred by the prior settlement. In support, the motion to dismiss relied upon Ahwinona's 1994 complaint and the documents which Ah-winona attached to that complaint, including the 1991 release and attorney's representation. Ahwinona opposed the motion in an un-sworn memorandum which asserted that the release he signed released only Maniilaq Association. He asserted that when he agreed to settle, he expected settlement from all three defendants, including the State and Jackson, but learned "while in the process of signing [the] release for Maniilaq Association" that the State was not going to pay for the settlement. He also asserted that the State's lawyers did not send him release papers to sign to release the State and Jackson "formally." He further asserted that Jackson and the State were responsible for his injury, and that they had agreed to settle but then "turned around" and said that they were not going to pay for the settlement. The trial court granted the State's motion to dismiss and dismissed Ahwinona's claims with prejudice. Ahwinona sought reconsideration, and elaborated on his theory that the State and the Department of Law had agreed to settle but "went back on their word" when they failed to pay the settlement and provide a release of liability for him to execute. It appears to have been Ahwinona's theory that the State could not settle the claims against itself and Jackson unless the State itself paid the settlement proceeds to Ahwinona and provided him with a release document authored by the Attorney General's Office. It was also apparently his theory that the check and the release did not discharge the State's responsibility to settle the claims against the State and Jackson. The trial court denied the motion for reconsideration. The State moved for entry of final judgment. Ahwinona filed an unsworn statement in opposition, asserting that when he agreed to settle with all the defendants, he was expecting settlement from each defendant in the amount of $6,000. The trial court entered final judgment against Ahwinona. Ahwinona appeals. III. DISCUSSION It is uncertain what documents the trial court considered apart from the complaint. Normally, if the trial court in deciding a Rule 12(b) motion to dismiss relies on "matters outside the pleadings," the motion is to be treated as one for summary judgment, and resolved in accordance with Rule 56. Alaska R. Civ. P. 12(c). Maynard v. State Farm Mutual Auto. Ins. Co., 902 P.2d 1328, 1329 (Alaska 1995); Shotting v. Dillingham City Sch. Dist., 617 P.2d 9, 11 n. 4 (Alaska 1980). In Brice v. State, 669 P.2d 1311, 1314 (Alaska 1983), we summarized the three alternatives available to a reviewing court when it is unclear whether the trial court relied on matters outside the pleadings. We stated: The reviewing court may either (1) reverse the decision and remand for proper consideration as either a Rule 12(b)(6) motion or a Rule 56 summary judgment motion; (2) review the decision as if it were á Rule 12(b)(6) decision, with accompanying exclusion of the materials external to the pleadings; or (3) review the decision as if it were the grant of summary judgment after conversion of the Rule 12(b)(6) motion to one for summary judgment. Id. (citing Martin v. Mears, 602 P.2d 421, 427 (Alaska 1979)). In this case the documents evidencing the prior settlement and terms of the release were attached to Ahwinona's 1994 complaint. Under these circumstances, the trial court could properly rely upon these materials in deciding the State's motion to dismiss under Rule 12(b)(6) without converting it into a motion for summary judgment under Rule 56. Industrial Constructors Corp. v. Bureau of Reclamation, 15 F.3d 963, 964-65 (10th Cir.1994); Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir.), cert. denied, — U.S. —, 114 S.Ct. 2704, 129 L.Ed.2d 832 (1994); Hall v. Bellmon, 935 F.2d 1106, 1112 (10th Cir.1991); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1555 n. 19 (9th Cir. 1990); Chester County Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3d Cir.1990); Morton v. Becker, 793 F.2d 185, 187 (8th Cir.1986); Sullivan v. United States, 788 F.2d 813, 815 n. 3 (1st Cir.1986); Quiller v. Barclays Am./Credit, Inc., 727 F.2d 1067, 1069 (11th Cir.1984), cert. denied, 476 U.S. 1124, 106 S.Ct. 1992, 1993, 90 L.Ed.2d 673 (1986); 2A James W. Moore, Moore's Federal Practice ¶ 12.09[3] n. 6, at 12-107 (2d ed.1995); 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1357, at 299 (2d ed.1990). Therefore, under alternative two outlined in Brice, we can review the superior court decision as a Rule 12(b)(6) motion with reference to the documents attached by Ahwinona to his complaint. The release documents attached to Ahwinona's complaint are clear on their face. They compel a conclusion as a matter of law that Ahwinona agreed to settle his claims against Maniilaq, Jackson, and the State for a total of $6,000, and that Ahwinona received the agreed-upon consideration. The settlement clearly contemplated payment of a single consideration of $6,000 to discharge all three defendants. The settlement clearly did not contemplate payment by each defendant of the $6,000 consideration recited in the release. Nothing Ahwinona subsequently argued to the court permits a different conclusion. His assertion that the State and Jackson had not been released because the State had failed to provide the check and a separate release is irrelevant. It does not matter which defendant paid or advanced the settlement proceeds, or which defense attorneys prepared the release documents. Consequently, as a matter of law, Ahwinona's claim is one for which relief cannot be granted. The superior court correctly granted the State's Rule 12(b)(6) motion. Because we have the discretion to review the superior court's decision as if that court converted the State's motion to a summary judgment motion, Brice, 669 P.2d at 1314 (citing Douglas v. Glacier State Telephone Co., 615 P.2d 580, 591-92 (Alaska 1980)), we alternately review and affirm the superior court decision under that standard. After the court granted the motion to dismiss, denied Ahwinona's motion for reconsideration, and was considering entry of final judgment, Ahwinona asserted that he understood he would be paid $6,000 by each defendant. This was the first time he expressly made this factual assertion. Ahwinona did not make this assertion in any sworn documents. Nonetheless, disregarding the fact that this unsworn assertion was not timely raised and did not qualify as evidence creating a genuine fact dispute, Ahwinona's misunderstanding of the terms of the release raised no material factual issue. In Witt v. Watkins, 579 P.2d 1065 (Alaska 1978), we articulated the test for setting aside a release: Once the party relying on a release establishes that it was given with an understanding of the nature of the instrument, the burden is on the releasor to show by clear and convincing evidence that the release should be set aside. Factors that may be considered are the manner in which the release was obtained including whether it was hastily secured at the instigation of the releasee; whether the relea-sor was at a disadvantage because of the nature of his injuries; whether the relea-sor was represented by counsel; whether he relied on representations of the releasee or a physician retained by the releasee and whether liability was seriously in dispute. The relative bargaining positions of the parties and the amount to be paid should also be considered. Id. at 1069-70. Ahwinona presents no persuasive argument that his signing of the release was coereed, the result of disadvantaged bargaining ability due to his injury or otherwise, or founded on representations made to him by the State or Jackson or their agents. Rather, Ahwinona's claim is based on his misunderstanding of the settlement agreement. Ahwinona states "[wjhen I agreed with the defendants to settle out of court, I was expecting settlement of six thousand dollars from each of the defendants." In support of this expectation, Ahwinona argues that "[t]he release of liability signed by me states that each side bear their own cost and attorney's fees. That means specifically that . the state has its own cost for personal injury; . [and] Clarence Jackson has his own cost for personal injury." When he settled in 1991 Ahwinona was represented by counsel who attested to the fact that she explained the release and that Ahwinona understood "the nature and effect of [the release] and assent[ed] to its terms." Absent any showing of coercion or fraud, Ahwinona's mistaken understanding of the release is not sufficient to set it aside. See Mitchell v. Mitchell, 655 P.2d 748, 753 (Alaska 1982) (refusing to set aside a settlement, stating that the releasor's mistake was "legally irrelevant because the [settlement] clearly and unambiguously dismisses the entire lawsuit."). Despite Ahwinona's misinterpretation, the release clearly discharges all claims against the State and Jackson arising out of the snowmobile incident. Even if we assume Ahwinona was seeking reformation of the release to reflect his alleged understanding of the release terms, Ahwinona fails to raise material fact issues sufficient to succeed on such a claim. Therefore, Ahwinona did not raise any genuine issues of material fact sufficient to avoid the clear terms of the release and the effect of the prior settlement. IV. CONCLUSION Given the record before it, the superior court could not permissibly have denied judg ment to the State of Alaska and Clarence Jackson. It consequently did not err in dismissing Ahwinona's complaint. Accordingly, we AFFIRM the trial court's entry of final judgment against Ahwinona. . See also Murat v. F/V Shelikof Strait, 793 P.2d 69, 75 (Alaska 1990) (stating that unauthenticated documents can be considered in support of a motion when no timely objection to the documents is made, relying on "the well-recognized principle that a failure to timely raise any eviden-tiary objection constitutes waiver of that objection and permits the court to consider the proffered evidence") (citing Kvasnikoff v. Weaver Bros., Inc., 405 P.2d 781, 784 (Alaska 1965) (holding that unauthenticated documents may be considered in support of a motion for summary judgment where the documents were not objected to or their authenticity disputed)). . In Brock v. Rogers & Babler, Inc., 536 P.2d 778, 782 (Alaska 1975), we held that the respondent in a summary judgment motion "must set forth specific facts showing that he could produce admissible evidence reasonably tending to dispute the movant's evidence. Assertions of fact in pleadings and memoranda are not admissible evidence and cannot be relied upon for the purposes of summary judgment." (Citations omitted.) . Ahwinona's mistaken belief that he would receive $6,000 from each defendant is not a sufficient basis for reformation of the release. "Reformation of an instrument is the proper remedy where it is alleged that the instrument does not conform to the actual intentions of the parties." D.M. v. D.A., 885 P.2d 94, 96 (Alaska 1994) (citing Oaksmith v. Brusich, 774 P.2d 191, 197 (Alaska 1989)). Under Alaska law, the equitable remedy of reformation is available only in certain well-defined circumstances. These include situations involving mistake of fact, fraud, mutuality of mistake, and cases in which "a party executes a written instrument knowing the intention of the other party as to the terms to be embodied therein, and knowing that the writing does not accurately express that intention.'' Lathrop Co. v. Lampert, 583 P.2d 789, 790 (Alaska 1978) (footnotes omitted) (quoting Holiday Inns of America, Inc. v. Peck, 520 P.2d 87, 94 (Alaska 1974)). See also Riley v. Northern Commercial Co., 648 P.2d 961, 969 (Alaska 1982) ("The general rule is that reformation is not available to obtain relief from a unilateral mistake."). Ahwinona does not argue that the State or Jackson knew of his alleged understanding of the intended release terms or that they induced this mistaken understanding.
10320742
Pier HALE, Appellant, v. ANCHORAGE SCHOOL DISTRICT, Appellee
Hale v. Anchorage School District
1996-08-16
No. S-6180
268
271
922 P.2d 268
922
Pacific Reporter 2d
Alaska Supreme Court
Alaska
2021-08-10T17:01:11.631102+00:00
CAP
Before COMPTON, C.J., and RABINOWITZ, MATTHEWS, EASTAUGH and FABE, JJ.
Pier HALE, Appellant, v. ANCHORAGE SCHOOL DISTRICT, Appellee.
Pier HALE, Appellant, v. ANCHORAGE SCHOOL DISTRICT, Appellee. No. S-6180. Supreme Court of Alaska. Aug. 16, 1996. Michael J.. Jensen, Chancy Croft Law Office, Anchorage, for Appellant. James M. Bendell, Anchorage, for Appel-lee. Before COMPTON, C.J., and RABINOWITZ, MATTHEWS, EASTAUGH and FABE, JJ.
1610
10227
OPINION COMPTON, Chief Justice. I. INTRODUCTION Pier Hale appeals the superior court's af-firmance of a Workers' Compensation Board decision denying her claim for certain medical expenses. The Board held that the Anchorage School District was not required to pay Hale's physical therapist for treatments in excess of the Board's standard treatment frequency because the physical therapist failed to submit a conforming treatment plan within the statutory period. The Board also held that the School District was required to pay Hale's chiropractor for ten treatments. We affirm the former holding and reverse the latter. II. FACTS AND PROCEEDINGS The following facts are taken from Anchorage Sch. Dist. v. Hale, 857 P.2d 1186 (Alaska 1993) (Hale I), the first appeal of this case: On September 26, 1988, Pier Hale suffered injuries to her back and right shoulder while working as a teachers' assistant for the Anchorage School District. She received medical attention for these injuries at the Providence Hospital Emergency Room on October 2nd. Three days later her doctor recommended that she undergo daily therapy for these injuries for two weeks. This therapy began on October 7, 1988, at Anchorage Physical Therapists. Since daily therapy would exceed the number of compensable treatments allowed under the Alaska Workers' Compensation Board's (Board) continuing treatment guidelines, 8 Alaska Administrative Code (AAC) 45.082(f) (1992), Hale was required to gain Board approval for the excess treatments if she wanted her employer to pay for them. The Board can give such approval only if the employee's doctor furnishes the employer -with a detailed treatment plan within fourteen days after starting the treatments. AS 23.30.095(c). On October 7, Physical Therapists prepared a treatment plan, but failed to include the statutorily required information regarding the "objectives, modalities, frequency of treatments, and reasons for the frequency of treatments." AS 23.30.095(c). Physical Therapists did not prepare a full treatment plan until November 1, 1988, after the statutory period for filing the plan had expired. The School District issued a controversion notice for Hale's physical therapy, arguing that it had not received the treatment plan within the statutory period and thus was not required to compensate Hale for continuing treatments in excess of the regulation's frequency standards. The School District subsequently paid for some but not all of Hale's treatments. Hale filed an application for adjustment of claim with the Board seeking payment for her treatments in excess of the Board's frequency standards. The Board denied this request, limiting Hale to compensation for the number of treatments allowed under the Board's guidelines. The Board based its decision solely upon Physical Therapists' failure to file a timely, conforming treatment plan. Hale appealed the Board's decision to the superior court on the ground that the Board's standards and procedures for compensation for continuing similar treatments are invalid. The superior court held that 8 AAC 45.082(f) is invalid, reversed the Board's decision, and remanded the ease to the Board for further consideration. The School District then filed this petition for review. Id. at 1187-88 (footnotes omitted). In Hale I we held that 8 AAC 45.082(f) was a valid exercise of the Board's rulemaking authority. Id. at 1188-91. We reversed and remanded for further proceedings. Id. at 1191. On remand, the superior court affirmed the Board on the medical expenses issue, holding that the School District was not required to pay Physical Therapists for treatments in excess of the Board's frequency standards, based on Physical Therapists' failure to file a timely treatment plan. The superior court also affirmed the Board's order requiring the School District to pay for ten chiropractic treatments Hale received from Dr. Kenneth Ketz. Hale appeals. III. DISCUSSION A. Standard of Review When the superior court acts as an intermediate appellate court, we review the merits of the underlying administrative decision, giving no deference to the superior court's determination. Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 903 (Alaska 1987). We review the Board's denial of Hale's medical expenses claim under the independent judgment test, since whether Physical Therapists failed to file a treatment plan in accordance with AS 23.30.096(e) is a question of law involving no agency expertise. See Handley v. State, Dep't of Revenue, 838 P.2d 1231, 1233 (Alaska 1992). We review the Board's factual finding that Dr. Ketz was entitled to reimbursement for ten chiropractic treatments under the substantial evidence test. Id. B. Physical Therapists' Treatments Hale argues that Physical Therapists complied with AS 23.30.095(c) by submitting a treatment plan within fourteen days after it was determined that Hale would need continuing treatment. Hale misreads AS 23.30.095(c) by assuming that a health care provider's obligation to file a treatment plan turns on the indefinite or continuous nature of the recommended treatment. In fact, the obligation to file a treatment plan is entirely dependent on the frequency, not the duration, of treatments. By its plain language, AS 23.30.095(c) requires a physician or health care provider to submit a conforming treatment plan "if the course of treatment will require more frequent outpatient visits than the standard treatment frequen-cy_" AS 23.30.095(c). If the treatments exceed the standard treatment frequency, then a plan must be submitted "within 14 days after treatment begins." Id. The standard treatment frequency for the first month of any treatment is three treatments per week. 8 AAC 45.082(f). On October 7 Hale began receiving daily physical therapy at Physical Therapists. It was therefore incumbent on Physical Therapists to submit a conforming treatment plan by October 21, in order to be paid for treatments in excess of the standard treatment frequency. AS 23.30.095(c). This was the Board's conclusion. We agree. Hale argues that the Board's reading of AS 23.30.095(c) places an unfair burden on the health care provider by requiring it to anticipate, at the outset, that the prescribed treatment will continue "for some indefinite period of time." As the statutory analysis outlined above makes clear, Physical Therapists needed no "clairvoyance" to comply with AS 23.30.095(c). Once it began a course of treatment of daily physical therapy, the fourteen-day notification period of AS 23.30.095(c) commenced. Regardless of when Hale's treating physician determined that Hale would need long-term physical therapy, Physical Therapists was required to submit a conforming treatment plan within fourteen days after October 7, the date it began physical therapy in excess of the standard treatment frequency. C.Dr. Ketz's Treatments On April 24, 1989, Hale began a course of treatment with Dr. Kenneth Ketz. On April 27 Dr. Ketz filed a treatment plan calling for chiropractic treatments in excess of the standard treatment frequency. The Board found that the plan was timely filed; that it conformed with AS 23.30.095(c); and that the treatments called for in the plan were likely to improve Hale's condition. See 8 AAC 45.082(g). The effect of these findings was to make the School District responsible for all of Dr. Ketz's treatments, including those in excess of the standard treatment frequency. After reviewing the payments the School District had already made to Dr. Ketz, the Board determined that the School District still owed Dr. Ketz for eleven treatments. Later in the same decision, the Board held, without explanation, that Dr. Ketz was entitled to payment for ten treatments. The Board's initial finding that Dr. Ketz was owed for eleven treatments was correct. The Board's later conclusion that Dr. Ketz was owed for ten treatments is not supported by substantial evidence. We therefore reverse, and direct the Board on remand to enter an order requiring the School District to pay Dr. Ketz for eleven treatments. IV. CONCLUSION We AFFIRM the Board's holding that the School District was not required to pay Physical Therapists for treatments in excess of the standard treatment frequency. We REVERSE the Board's holding that the School District must pay Dr. Ketz for ten chiropractic treatments. The case is REMANDED to the Board for an order requiring the School District to pay Dr. Ketz for eleven treatments. . AS 23.30.095(c) provides in part, When a claim is made for a course of treatment requiring continuing and multiple treatments of a similar nature . the physician or health care provider shall furnish a written treatment plan if the course of treatment will require more frequent outpatient visits than the standard treatment frequency for the nature and degree of the injury and the type of treatments. The treatment plan shall be furnished to the employee and the employer within 14 days after treatment begins. The treatment plan must include objectives, modalities, frequency of treatments, and reasons for the frequency of treatments. If the treatment plan is not furnished as required under this subsection, neither the employer nor the employee may be required to pay for treatments that exceed the frequency standard. . Hale argues in her reply brief that the Board should have excused Physical Therapists' failure to file a timely treatment plan. See AS 23.30.095(c) ("The board shall, however, excuse the failure to furnish notice [of injury and treatment] within 14 days when it finds it to be in the interest of justice to do so."). This argument was not made below and is therefore waived. See Nenana City Sch. Dist. v. Coghill, 898 P.2d 929, 934 (Alaska 1995); see also Alaska R.App.P. 212(c)(3) (A reply brief "may raise no contentions not previously raised in either the appellant's or appellee's briefs.").
End of preview.

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@misc{ccap,
    title={Cleaned Caselaw Access Project},
    author={Enrico Shippole, Aran Komatsuzaki},
    howpublished{\url{https://huggingface.co/datasets/TeraflopAI/Caselaw_Access_Project}},
    year={2024}
}
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