Opinion
Court of Appeals No. A-11157 Trial Court No. 3KN-11-85 CR Trial Court No. 3HO-10-208 CR No. 5983
11-20-2013
DARREL W. VANDERGRIFF, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Darrel W. Vandergriff, in propria persona, Hudson Correctional Facility, Colorado, for the Appellant. Timothy W. Terrell, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Smith, Superior Court Judge.*
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.
MEMORANDUM OPINION
AND JUDGMENT
Appeal from the Superior Court, Third Judicial District, Kenai, Anna M. Moran, Judge.
Appearances: Darrel W. Vandergriff, in propria persona, Hudson Correctional Facility, Colorado, for the Appellant. Timothy W. Terrell, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Smith, Superior Court Judge.
Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution and Administrative Rule 24(d).
Judge SMITH.
Darrel W. Vandergriff was convicted of felony driving under the influence. On appeal, he challenges various aspects of his sentence. He claims that (1) the superior court erred when, without considering his ability to pay, it imposed a $10,000 fine and required him to obtain alcohol treatment and to use an ignition interlock device on his vehicle; (2) the court erred when it failed to order an alcohol treatment evaluation prior to his sentencing; (3) his sentence violates his right to be free from cruel and unusual punishment; (4) he was entitled to Nygren credit against his sentence for time spent on bail with a third-party custodian; (5) his right to appointed counsel at sentencing was violated; (6) the court should have recommended to the Department of Corrections that he serve his sentence at a Community Residential Center; (7) the court failed to issue findings of fact and conclusions of law when it denied his post-sentencing motions; and (8) the alcohol treatment requirement of his sentence violates the double jeopardy clause because it was not part of the court's oral pronouncement of sentence.
For the reasons explained below, we remand this case to the superior court for reconsideration of Vandergriff's claim that the court should have recommended that he serve his sentence at a Community Residential Center. We conclude that Vandergriff's other claims lack merit.
Background
In June 2010, in Homer, Vandergriff committed a misdemeanor DUI and some other offenses. He entered a plea to DUI, first-degree harassment, and second-degree harassment.
About seven months later, in January 2011,in Kenai, Vandergriff was again arrested for DUI and other offenses, including third-degree assault. Because of Vandergriff's prior DUI convictions, this DUI was a felony offense. In addition to charging Vandergriff with several new offenses, the State filed a petition to revoke his probation in the Homer case. Although Vandergriff was briefly represented by the Public Defender Agency, he ultimately chose to represent himself.
Both cases were resolved in a single plea agreement. Vandergriff was sentenced to 3 years with no time suspended in the Kenai case. He was also ordered to pay a $10,000 fine and to participate in alcohol treatment. The court revoked Vandergriff's driver's license for life, and required him to use an ignition interlock device on his vehicle for 60 months if he regained his driving privileges. In the Homer case, Vandergriff was sentenced to serve all 390 days of his suspended time.
About two months later, Vandergriff moved in both cases to modify his sentence. Soon after, he filed a second motion asking for Nygren credit for fourteen days he spent in the custody of a third-party custodian.
In a written order, the superior court denied Vandergriff's post-sentence motions in part. Vandergriff appeals.
Discussion
The superior court was not constitutionally required to consider Vandergriff's ability to pay before imposing the $10,000 fine and the alcohol-treatment and ignition-interlock-device requirements
Vandergriff claims that the trial judge violated his rights to due process and equal protection by not considering his ability to pay before imposing a $10,000 fine, requiring him to participate in alcohol treatment and, if he regained his driving privileges, requiring him to use an ignition interlock device.
All three are mandatory under AS 28.35.030(n)(1) and AS 28.35.030(h).
We disagree. Imposing a fine and imposing restitution are substantially similar. We have previously held that it is not unconstitutional to impose restitution for the full amount of a victim's losses without inquiring into the defendant's ability to pay. A sentencing court need only consider a defendant's ability to pay when setting the method of payment — for instance, the frequency and amount of the defendant's payments. We find no reason for courts to treat criminal fines any differently.
Hodges v. State, 158 P.3d 864, 868 (Alaska App. 2007).
Id.
Additionally, enforcement of criminal fines and court-ordered restitution are handled by the same statute, AS 12.55.051. Subsection (a) of that statute provides that "[i]f the defendant defaults in the payment of a fine ... or ... restitution[,] the court may order the defendant to show cause why the defendant should not be sentenced to imprisonment for nonpayment[.]" Importantly, a defendant cannot be "imprisoned solely because of the inability to pay." The hearing required by AS 12.55.051(a) protects Vandergriff's due process rights.
AS 12.55.051(a).
Vandergriff separately asserts that imposing a fine that an indigent person cannot hope to pay violates equal protection. He contends that, because he is indigent, when he is placed on mandatory parole he will be immediately re-incarcerated because he is unable to pay the fine. But as we just explained, under AS 12.55.051(a), a defendant is entitled to a hearing before he or she can be re-incarcerated for failing to pay a fine, and cannot be "imprisoned solely because of the inability to pay."
Vandergriff makes the same claims with regard to the costs of alcohol treatment and the ignition interlock device. We need not resolve these claims because they are not ripe. These claims will be presented if, at the time of his release, Vandergriff cannot satisfy these requirements because of his inability to pay. We note, however, that the due process concerns underlying AS 12.55.051(a) may also apply to a defendant's inability to pay for alcohol treatment or an ignition interlock device.
Vandergriff also cursorily claims that failing to hold an evidentiary hearing to determine his ability to pay violated the rule of lenity. Under the rule of lenity, ambiguities in criminal statutes are construed against the government. Vandergriff has not explained how the rule of lenity applies in his case, nor has he identified any statutes he believes are ambiguous.
See, e.g., George v. State, 988 P.2d 1116, 1117-18 (Alaska App. 1999).
In sum, the trial judge committed no error by not considering Vandergriff's ability to pay his fine or other costs before she sentenced him.
The superior court did not commit plain error when it failed to order an alcohol treatment evaluation prior to sentencing
Alaska Statute 28.35.030(h) requires a sentencing court to order a person convicted of felony DUI to obtain an alcohol treatment evaluation before sentencing. The superior court did not order an alcohol evaluation prior to sentencing Vandergriff in the Kenai case. Vandergriff argues that this failure violated due process and that, because of this error, the superior court was precluded from ordering alcohol treatment as a condition of his sentence.
AS 28.35.030(h) provides:
The court shall order a person convicted under this section to satisfy the screening, evaluation, referral, and program requirements of an alcohol safety action program if such a program is available in the community where the person resides, or a private or public treatment facility approved by the Department of Health and Social Services, under AS 47.37 to make referrals for rehabilitation treatment or to provide rehabilitative treatment. If a person is convicted [of felony DUI] under (n) of this section, the court shall order the person to be evaluated as required by this subsection before the court imposes sentence for the offense.
Because Vandergriff did not object to the lack of an evaluation when the superior court and the parties discussed alcohol treatment, he must now show plain error. To establish plain error, Vandergriff must show, among other things, that the error was "substantially prejudicial."
Potts v. State, 712 P.2d 385, 390 (Alaska App. 1985), superseded by statute on other grounds as stated in Braun v. State, 911 P.2d 1075, 1078 (Alaska App. 1996).
Vandergriff argues that if he had been evaluated for alcohol treatment prior to sentencing, "mitigators may have resulted, that likely would have resulted in a downward departure from the 3 years presumptive minimum [term] Vandergriff was facing." But it was Vandergriff's burden to prove mitigating factors, and he has not identified any particular mitigating factor that might have been established by an alcohol treatment evaluation. Furthermore, Vandergriff not only did not object to the lack of an evaluation, he told the court that he would refuse to participate in alcohol treatment. We fail to see how he was substantially prejudiced by the court's failure to order an evaluation. Vandergriff has not shown plain error.
Mancini v. State, 841 P.2d 184, 188 (Alaska App. 1992) (citing AS 12.55.155(f)).
The superior court did not err when it ordered Vandergriff to participate in alcohol treatment in the written judgment
Vandergriff next asserts that the requirement that he obtain alcohol treatment should be removed from the written judgment because the superior court did not orally pronounce that requirement when he was sentenced. Vandergriff relies on the rule that a court's oral pronouncement of a sentence governs over the written judgment should the two conflict.
Once a sentence has been meaningfully imposed, it may not, at a later time, be increased. "The double jeopardy clause generally forbids a court from reconsidering a sentence and altering it to the defendant's disadvantage." Where a conflict exists between an orally imposed sentence and a subsequently issued written judgment, the oral pronouncement governs. "The written judgment can be amended to reflect a more severe sentence only when the contemporaneous record establishes beyond a reasonable doubt that the sentencing judge intended to impose this sentence." Any reasonable debate regarding the sentencing judge's intention must be resolved in favor of the defendant.
Sonnier v. State, 483 P.2d 1003, 1005 (Alaska 1971).
Alvin v. State, 42 P.3d 1156, 1159 (Alaska App. 2002).
Graybill v. State, 822 P.2d 1386, 1388 (Alaska 1991).
Alvin, 42 P.3d at 1159 (footnotes omitted).
Id.
Here, the superior court obviously intended to require Vandergriff to participate in alcohol treatment. When discussing the sentence, the judge said, "I plan to do an [alcohol treatment] program before he's eligible to get his license back. If he doesn't do it, he'd be in contempt of ... court but not in violation of conditions of probation or anything else." The transcript of the sentencing hearing thus establishes, beyond reasonable doubt, that the judge intended to order alcohol treatment. Accordingly, the written judgment does not violate Vandergriff's right not to be placed in double jeopardy.
Vandergriff's claim that his felony sentence violates his right to be free from cruel and unusual punishment
Vandergriff asserts that his sentence amounts to cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution because it is disproportionate to his crime. But Vandergriff does not identify any portion of his sentence, apart from the alcohol treatment requirement, that he believes is disproportionate to his offenses. And with regard to alcohol treatment, he argues only that the court could not lawfully impose the treatment requirement because it did not obtain a pre-sentence alcohol treatment evaluation.
This claim of error is presented in such a cursory fashion that we cannot reasonably address it. When an opening brief merely mentions a claim, with no substantive argument of the issue and no citation to pertinent legal authority, the claim may be deemed waived. Because Vandergriff only mentions that his composite sentence amounts to cruel and unusual punishment, we conclude that he has waived the claim.
Berezyuk v. State, 282 P.3d 386, 398 (Alaska App. 2012); Adamson v. Univ. of Alaska, 819 P.2d 886, 889 n. 3 (Alaska 1991).
Vandergriff was not entitled to credit against his sentence for fourteen days he spent on bail with a third-party custodian
Under AS 12.55.025(c) and Aygren v. State, a defendant is entitled to credit against his sentence for time spent in custody pending trial if the detention was in connection with the offense for which sentence was imposed. The general test for whether a defendant is entitled to credit against his sentence for time spent on court-ordered release is whether the conditions of release imposed "substantial restrictions on [the defendant's] freedom of movement and behavior."
658 P.2d 141 (Alaska App. 1983), superseded by statute as stated in McKinley v. State, 275 P.3d 567 (Alaska App. 2012). AS 12.55.027, enacted in 2007, is more restrictive than the Nygren line of cases with respect to when a defendant is entitled to credit against his sentence for time spent in non-prison residential programs. See McKinley, 275 P.2d at 573. However, those differences are not relevant here.
Matthew v. State, 152 P.3d 469, 473 (Alaska App. 2007) (quoting Lock v. State, 609 P.2d 539, 545 (Alaska 1980)). See also AS 12.55.027(c).
Vandergriff claims that he was entitled to fourteen days of Nygren credit for the period of time he spent in the custody of a third-party custodian. In particular, he argues that he is entitled to Nygren credit because his bail release conditions required him to remain within sight and sound of his custodian twenty-four hours a day. We have already rejected this basis for Nygren credit. In McKinley v. State, we explained that "a court order for twenty-four hour third-party custody does not establish that such a release approximates custodial incarceration."
215 P.3d 378 (Alaska App. 2009).
Id. at 381 (citing Ackermann v. State, 716 P.2d 5, 6 (Alaska App. 1986)). See also Thiel v. State, 762 P.2d 478, 486 (Alaska App. 1988), abrogated on other grounds by Matthew v. State, 152 P.3d 469 (Alaska App. 2007).
The superior court did not err when it denied Vandergriff's request for Nygren credit based on the release condition requiring him to remain within sight and sound of his custodian twenty-four hours a day.
The court did not violate Vandergriff's right to appointed counsel at sentencing
On the day that Vandergriff entered his plea and was sentenced, the trial judge released Vandergriff's appointed counsel, an assistant public defender, and allowed Vandergriff to represent himself. After advising him of the dangers of self-representation, the court found that Vandergriff was competent to represent himself.
Vandergriff now claims that his right to counsel was violated. He does not assert that he was not competent to represent himself, or that his waiver of the right to counsel was not valid. Rather, Vandergriff contends that the judge erred because she did not offer to appoint him a new public defender. But Vandergriff never indicated that he wanted another attorney. Nor did he show that he was entitled to different counsel to represent him at public expense.
See, e.g., Bentley v. State, 393 P.2d 225, 230-31 (Alaska 1964) (upholding refusal to appoint new counsel, finding that state was not "obliged to appoint counsel in whom [the criminal defendant] had confidence" so long as appointed counsel was "capable"); Mute v. State, 954 P.2d 1384, 1385 (Alaska App. 1998) (quoting Monroe v. State, 752 P.2d 1017, 1020 (Alaska App. 1998)) ("the right to effective assistance of counsel 'does not encompass the right to reject appointed counsel and have new counsel appointed in the absence of any showing of cause for such change'"); Annas v. State, 726 P.2d 552, 557 (Alaska App. 1986) ("The trial court fulfills its obligation under the United States and Alaska Constitutions when it makes available to a defendant a competent attorney. A defendant is not entitled to pick and choose among appointed counsel.").
More important, the trial judge made clear that Vandergriff could change his mind about proceeding pro se. She told Vandergriff "if you change your mind later on, or things get tough, you can reapply [for appointed counsel] and we can talk about that[.]" Later on, she again reminded Vandergriff that "if it turns out you really think you do need the help of an attorney[,] we'll get an attorney back in here[.]" At the sentencing hearing, after his attorney was released, Vandergriff never said he needed, or wanted, another attorney. Vandergriff therefore has not shown that he was denied his right to counsel.
Why the superior court should reconsider Vandergriff's request that the court recommend that he serve his sentence at a Community Residential Center, if the Department of Corrections determines that placement is appropriate
Vandergriff asserts that the superior court judge was either unaware of, or else forgot, that she had the authority under AS 12.55.015(e) to recommend that he serve his sentence at a Community Residential Center. Vandergriff intimates that the judge promised she was going to recommend placement in a Community Residential Center and then did not follow through on that promise.
AS 12.55.015(e)(1)-(2) provides that "[i]f the defendant is ordered to serve a definite term of imprisonment, the court may recommend that the defendant serve all or part of the term" in a correctional restitution center or by electronic monitoring.
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At a hearing on February 11, 2011, before he entered his plea, Vandergriff asked the sentencing judge if she would be willing as part of his plea agreement to recommend that he be remanded to the Cordova Center, a Community Residential Center. The judge expressed skepticism that she had the authority to remand Vandergriff to a Community Residential Center, given his felony offense, but she acknowledged that she could make a recommendation to the Department of Corrections.
Court: I certainly would recommend you to be released or furloughed to continue your alcohol treatment if the Parole Board or whoever, the classification committee, thought that was appropriate.Before accepting Vandergriff's plea, the judge emphasized several times that she could not guarantee that Vandergriff would be released to a halfway house. Vandergriff acknowledged this:
Vandergriff: Yeah, Your Honor, if they say that on paper it would help.
Vandergriff: As long as... it's mentioned in the sentencing that it's recommended ...
Court: I'd only recommend it if in fact you were doing it in conjunction with a treatment program ...
Vandergriff: Sure.
No such recommendation was included in the judgment. Consequently, after the judgment was issued, Vandergriff asked the superior court to modify his sentence "to include the recommendation pursuant to AS 12.55.015(e) that the defendant serve his sentence at a Community Residential Center." The court ruled that Vandergriff's "request to order him to a CRC is DENIED because where Defendant is housed is solely within the discretion of the Department of Corrections."
From this record, it appears that the sentencing judge believed that, in his post-sentence motion, Vandergriff had asked the court to order his remand to a Community Residential Center. In fact, Vandergriff only asked the court to recommend to the Department of Corrections that he be placed in a Community Residential Center, as had been discussed at the change of plea hearing. Because it does not appear that the superior court ruled on this request, Vandergriff's case is remanded for reconsideration of this issue.
The superior court was not required to issue findings of fact and conclusions of law when it denied Vandergriff's post-sentencing motions
Vandergriff complains that the superior court did not make adequate findings of fact and conclusions of law when it denied his post-sentence motions. He relies on Civil Rule 52. But even if that rule applied here, it expressly states that "findings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 or on any other motion except as provided in Civil Rule 41(b)." Rule 41(b) requires findings of fact and conclusions of law only when a civil court enters an involuntary dismissal of a case. In other words, even if Civil Rule 52 applied in this case, the judge was not required to issue written findings of fact and conclusions of law when she ruled on Vandergriff's motions.
Criminal Rule 12(d)—not Civil Rule 52—more aptly applies in a criminal case. But Criminal Rule 12(d) only requires a court to "state its essential findings on the record" when "factual issues are involved in determining amotion to suppress evidence." So even under the criminal rules, the judge was not required to make findings of fact and conclusions of law when she denied Vandergriff's post-sentence motions.
The superior court issued a written decision resolving Vandergriff's post-sentence motions. Although its rulings were terse, Vandergriff has not shown that this caused him prejudice, and the court's rulings were adequate for appellate review.
Conclusion
Vandergriff's case is REMANDED for reconsideration of Vandergriff's request that the superior court recommend that he be placed in a Community Residential Center. In other respects, the judgment of the superior court is AFFIRMED.