DONOVAN v. STATE, A-10315 (Alaska App. 6-1-2011)

MARK DONOVAN, Appellant, v. STATE OF ALASKA, Appellee.

Court of Appeals No. A-10315.Court of Appeals of Alaska.
June 1, 2011.Page 1

Appeal from the Superior Court, Third Judicial District, Kenai, Anna Moran, Judge, Trial Court No. 3KN-05-697 CR.

Douglas O. Moody, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Timothy W. Terrell, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.

Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.

BOLGER, Judge.

Mark Donovan pleaded no contest to third-degree assault and violation of his release conditions as part of a plea agreement. He conceded four aggravating factors and the judge relied on those factors when he imposed the negotiated sentence. But Donovan later filed a motion to correct an illegal sentence, alleging that those factors should have been proved to a jury beyond a reasonable doubt. After the trial courtPage 2
denied his motion, he moved to “convert” the proceeding into an application for post-conviction relief in order to avoid the statute of limitations. On appeal, Donovan argues that the limitations period should have been equitably tolled to allow him to file a new claim for ineffective assistance of counsel. We conclude that the superior court’s failure to recognize and apply the doctrine of equitable tolling was not plain error.


Mark Donovan assaulted his girlfriend at their apartment in Kenai in May 2005. He was indicted on a single count of second-degree assault, [fn1] and the State later charged him with three misdemeanors arising from the same incident. Donovan and the State entered into a plea agreement in which the State amended the charge to third-degree assault, and Donovan pleaded no contest. He also pleaded no contest to a charge that his conduct violated his conditions of release on a misdemeanor assault charge.[fn2] The State dismissed the two remaining misdemeanor counts.

The State relied on four statutory aggravating factors under AS 12.55.155 at sentencing: (1) Donovan’s conduct was the most serious conduct included in the definition of the offense;[fn3] (2) Donovan was on conditions of release for a charge of fourth-degree assault;[fn4] (3) Donovan’s offense was a felony enumerated in AS 11.41 and was committed against his live-in girlfriend;[fn5]
and (4) Donovan’s girlfriend previouslyPage 3
provided testimony or evidence against Donovan in an unrelated case.[fn6] Donovan stipulated to the aggravating factors. Superior Court Judge Charles T. Huguelet sentenced Donovan to forty-eight months’ imprisonment with forty months suspended on the felony count and six months’ imprisonment with five months suspended on the misdemeanor count. The judgment was entered on December 30, 2005.[fn7]

On August 13, 2007, Donovan filed a pro se motion under Alaska Criminal Rule 35(a), alleging that his sentence was illegal because the judge imposed an aggravated sentence without submitting the aggravating factors to a jury, as required by Blakely v. Washington.[fn8]

On December 14, 2007, Superior Court Judge Anna Moran denied Donovan’s motion. She ruled that Donovan had conceded the aggravating factors as part of his plea agreement and that a Rule 35(a) motion is “an improper method of attacking a sentence imposed following a plea agreement.” She ruled that Donovan should have moved to withdraw from the agreement rather than seeking to eliminate the portions of the sentence that he now found unfavorable.

On January 8, 2008, Donovan filed a motion to “convert” his Rule 35(a) motion into an application for post-conviction relief. In this motion, Donovan abandoned his earlier claim that he was sentenced in violation of Blakely. Instead, Donovan now argued that his trial attorney had not adequately explained that Donovan would be giving up his right to a jury trial if he entered into the plea agreement. In other words, Donovan now claimed that he had received ineffective assistance of counsel.Page 4

However, the superior court entered its judgment against Donovan on December 30, 2005, and, at that time, AS 12.72.020(a)(3) declared that an application for post-conviction relief had to be filed within two years of the date of judgment. This deadline had expired by the time Donovan filed his “motion to convert” in January 2008. Thus, even if the superior court had converted Donovan’s Rule 35(a) motion to an application for post-conviction relief, that application would have been untimely unless the superior court also had made the conversion retroactive — that is, unless the court treated the original filing date of Donovan’s Rule 35(a) motion as the filing date of the application for post-conviction relief.

Judge Moran denied Donovan’s motion to retroactively convert his Rule 35(a) motion into an application for post-conviction relief. In particular, the judge concluded that Donovan had no justification for failing to raise his ineffective assistance of counsel claim within the two years allowed by AS 12.72.020(a)(3).

Donovan now appeals the superior court’s ruling. He argues for the first time that the superior court should have granted his motion under the doctrine of equitable tolling and that Judge Moran committed plain error by not applying that doctrine to extend the limitations period for filing an application for post-conviction relief.


Donovan did not raise the doctrine of equitable tolling in the trial court, so now he must show plain error.[fn9] To constitute plain error, an error must be so obviousPage 5
that it should have been apparent to any competent judge and so prejudicial that the failure to correct it would perpetuate manifest injustice.[fn10]

We recently held that the statute of limitations in the post-conviction relief statute is not extended during the pendency of a motion for correction of an illegal sentence under Criminal Rule 35(a).[fn11] The applicant in that case did not raise the issue of equitable tolling in the trial court, and we held that it was not plain error for the court to fail to recognize and apply this doctrine.[fn12]

The type of equitable tolling that Donovan raises in this appeal requires the proof of three elements: (1) that Donovan’s pursuit of his Rule 35(a) motion to correct an illegal sentence gave the State fair notice of Donovan’s underlying claim of ineffective assistance of counsel; (2) that the State’s ability to gather evidence relating to the ineffective assistance of counsel claim was not prejudiced by Donovan’s delay in expressly articulating that claim; and (3) that Donovan acted reasonably and in good faith when he initially filed a Rule 35(a) motion rather than an application for post-conviction relief.[fn13]

For purposes of the first element of this test, Donovan’s initial Rule 35(a) pleadings would not give fair notice of his subsequent ineffective assistance of counsel claim unless his initial illegal sentence claim rested on essentially the same facts as his later ineffective assistance of counsel claim. But here, Donovan’s ineffective assistance of counsel claim rested on substantially different facts.Page 6

Donovan’s initial Rule 35(a) claim was based on the fact that the superior court sentenced Donovan in reliance on aggravating factors that were never submitted to a jury. Donovan argued that this procedure violated Blakely. After the superior court ruled that this procedure did not violate Blakely (because Donovan stipulated to the aggravating factors), Donovan changed his argument: he conceded that he was sentenced in conformity with Blakely, but he argued for the first time that he never would have entered into the plea agreement if his attorney had informed him that he was entitled to a jury trial on these aggravating factors and that he would be waiving his right to a jury trial if he stipulated to these factors. This new argument is substantially different than the Blakely claim he raised in his Rule 35(a) motion.

We addressed a similar case where a post-conviction applicant filed an application alleging that his right to testify had been violated.[fn14]
After extended litigation, the applicant filed an amended application adding several new claims of ineffective assistance of counsel.[fn15]
The trial court dismissed these new claims because they were beyond the statute of limitations, and we affirmed this dismissal.[fn16] We noted that the trial court properly concluded that the applicant did not adequately establish his own diligence in pursuing these new claims.[fn17]Page 7

The same reasoning applies to Donovan’s case. We conclude that the trial court’s failure to recognize and apply the doctrine of equitable estoppel to toll the statute of limitations in this case was not an obvious error.

In addition, it is not obvious that Donovan suffered any prejudice when the court foreclosed his ineffective assistance of counsel claim. There was no obvious prejudice because at least one of the aggravating factors Donovan now contests was established independently of his concession.

One of the aggravating factors that Donovan conceded was based on an allegation that his felony offense was committed while Donovan was on pretrial release on a misdemeanor assault charge in case number 3KN-05-655 CR.[fn18] In 3KN-05-655 CR, Donovan faced a charge of assault in the fourth degree, allegedly committed on May 4, 2007, six days before the incident that comprised Donovan’s felony charge.

When Donovan pleaded no contest to the felony assault charge, he also pleaded no contest to a charge that he had violated his conditions of release in case number 3KN-05-655 CR. His plea established that he was on release for this misdemeanor assault charge when he committed his felony offense.[fn19] Since the undisputed facts establish that Donovan was on release for a misdemeanor assault charge at the time he committed the present offense, any error in depriving him of a jury trial on this aggravating factor was harmless beyond a reasonable doubt.[fn20]Page 8

Moreover, this single aggravating factor was sufficient to establish the sentencing court’s authority to impose an aggravated sentence as part of the negotiated plea bargain.[fn21] Under these circumstances, the superior court’s order denying Donovan’s motion to convert his Rule 35(a) motion did not cause Donovan any obvious prejudice.


We therefore AFFIRM the superior court’s order denying Donovan’s motion to convert his Rule 35(a) motion to an application for post-conviction relief.

[fn1] AS 11.41.210(a)(1).

[fn2] AS 11.56.757(b)(2).

[fn3] AS 12.55.155(c)(10).

[fn4] AS 12.55.155(c)(12).

[fn5] AS 12.55.155(c)(18)(A).

[fn6] AS 12.55.155(c)(28).

[fn7] See Alaska R. Crim. P. 32.3(a)(3) (“The date of entry of a criminal judgment is the date the judgment is put on the official electronic record. . . .”).

[fn8] 542 U.S. 296 (2004).

[fn9] Cleveland v. State,241 P.3d 504, 507 (Alaska App. 2010).

[fn10] Burton v. State, 180 P.3d 964, 968 (Alaska App. 2008).

[fn11] Cleveland, 241 P.3d at 506-07.

[fn12] Id. at 507.

[fn13] Krause v. Matanuska-Susitna Borough,229 P.3d 168, 177 (Alaska 2010).

[fn14] Thompson v. State, Mem. Op. J. No. 4780,2003 WL 22405385, at *1 (Alaska App. Oct. 22, 2003).

[fn15] Id.

[fn16] Id. at * 9 (“[A ] prisoner should not be able to assert a claim otherwise barred by the statute of limitations merely because he asserted a separate claim within the limitations period.” (quotingUnited States v. Duffus, 174 F.3d 333, 338 (3d Cir. 1999))).

[fn17] Id. at *10.

[fn18] See generally AS 12.55.155(c)(12). A related section of the statute, AS 12.55.155(f(1), provides that this factor may be proven to a judge rather than presented to a trial jury.

[fn19] See Ulak v. State, 238 P.3d 1254, 1256 (Alaska App. 2010) (“A plea of . . . no contest constitutes an admission that establishes the truth of the charge for sentencing purposes.”).

[fn20] Baker v. State, 182 P.3d 655, 658 (Alaska App. 2008).

[fn21] See Malutin v. State,198 P.3d 1177, 1187 (Alaska App. 2009).Page 1