WEAVER v. ANCHORAGE, A-10052 (Alaska App. 11-12-2008)

BRUTUS CLAY WEAVER, Appellant v. MUNICIPALITY OF ANCHORAGE, Appellee.

Court of Appeals Nos. A-10052 A-10061.Court of Appeals of Alaska.
November 12, 2008.

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.

Appeal from the District Court, Third Judicial District, Anchorage, Stephanie Rhoades, Judge., Trial Court Nos. 3AN-07-1564 Cr.
3AN-07-3486 Cr.

Brutus Clay Weaver, in propria persona, Anchorage, for the Appellant.

Amy K. Doogan, Assistant Municipal Prosecutor, and James N. Reeves, Municipal Attorney, Anchorage, for the Appellee.

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

MEMORANDUM OPINION
MANNHEIMER, Judge.

Brutus Clay Weaver appeals his convictions (under the Anchorage Municipal Ordinances) for driving under the influence and breath-test refusal (File No. A-10052), and for violating the conditions of his release (File No. A-10061).Page 2

Weaver challenges several of the district court’s evidentiary rulings at his DUI trial. He also argues that his conviction for breath-test refusal should be set aside because, even though he refused the breath test, he later exercised his right to an independent chemical test. Weaver also claims that his trial attorney was ineffective.

In addition, Weaver raises several sentencing arguments, including the argument that his composite sentence is excessive.

For the reasons explained here, we reject Weaver’s various attacks on his convictions and sentences. However, having examined the record, we conclude that Weaver’s 6-month sentence for violating the conditions of his release must be deemed concurrent to his other two sentences — because the sentencing judge did not designate whether this sentence was to be consecutive or concurrent. Accordingly, Weaver’s composite sentence is only 1½ years.

Underlying facts

At Weaver’s trial for DUI and breath-test refusal, the Municipality presented evidence that Weaver was arrested for driving while intoxicated after he backed his vehicle into another vehicle. Following his arrest, Weaver refused to submit to a breath test, but he did exercise his right to an independent blood test. This test showed that Weaver’s blood alcohol level was .16 percent — i.e., twice the legal limit.

At a separate trial, Weaver was convicted of violating the conditions of his release in his DUI / breath-test refusal case, based on evidence that he left the presence of his third-party custodian and consumed alcohol.

The district court held a combined sentencing hearing on these two cases. Based on the fact that Weaver had more than three dozen prior convictions — including nineteen convictions for violating conditions of release, another conviction for violatingPage 3
the terms of a restraining order, and five convictions for trespass — District Court Judge Stephanie Rhoades concluded that Weaver was a worst offender. Judge Rhoades inferred, from this series of offenses, that Weaver was a person who believed that rules did not apply to him. Judge Rhoades also declared that Weaver’s testimony at trial had been incredible and disingenuous.

Judge Rhoades also found, based on Weaver’s six prior convictions for driving under the influence, some dating back to the 1970s, that Weaver had a longstanding problem with alcohol. And the judge found, based on the number of times that Weaver had been ordered to undergo alcohol treatment, that Weaver had low prospects for rehabilitation.

Focusing on the need to deter Weaver and others, and to express community condemnation for Weaver’s crimes, Judge Rhoades sentenced Weaver to serve 360 days in jail for driving under the influence, and to serve a consecutive 180 days for breath-test refusal. The judge also imposed 180 days to serve for Weaver’s offense of violating the conditions of his release, but she did not specify whether that sentence was consecutive to, or concurrent with, Weaver’s other two sentences.

Weaver’s request to introduce character evidence concerning one of thegovernment’s witnesses

At Weaver’s DUI/breath-test refusal trial, Weaver’s attorney sought to introduce evidence concerning the character of Charles McCracken, the owner of the truck that Weaver ran into. In particular, the defense attorney sought to introduce evidence suggesting that McCracken had engaged in Social Security fraud, and that McCracken had forged rent receipts.Page 4

When Weaver’s attorney started to impeach McCracken with questions about alleged Social Security fraud, and when the defense attorney tried to introduce rent receipts that the attorney suggested were forged, the Municipality objected and demanded to know the relevance of this evidence. Weaver’s attorney responded that the evidence was probative of the fact that “[McCracken] lied [in the past], and he’s lying now.” When Judge Rhoades gave the defense attorney a chance to supplement this offer of proof, the defense attorney told the judge that he had nothing else to offer.

Weaver’s attorney also tried to introduce evidence that McCracken owed Weaver rent money, and that McCracken was subject to eviction. This evidence, the attorney explained, was relevant to show that McCracken was angry with Weaver — both at the time of the DUI incident and when he testified at Weaver’s trial.

Judge Rhoades prohibited the defense attorney from pursuing the issues of Social Security fraud and forged rent receipts. She did, however, allow the defense attorney to elicit evidence that there was an ongoing rent dispute between Weaver and McCracken, and that McCracken was potentially biased against Weaver because of this rent dispute and because Weaver wanted to evict McCracken.

On appeal, Weaver argues that Judge Rhoades should have allowed him to introduce the rest of his evidence about McCracken’s alleged fraudulent acts.

Under the Alaska Rules of Evidence, a litigant is entitled to attack a witness by introducing evidence of their character for dishonesty. However, our evidence rules generally do not allow a litigant to pursue this method of impeachment by introducing evidence of a witness’s specific dishonest or fraudulent acts. Under Alaska Evidence Rules 405 and 608, when a litigant attempts to prove a witness’s character for dishonesty, the litigant is limited to reputation or opinion evidence concerning the witness’s lack of honesty. See also Evidence Rule 404(b)(1), which prohibits the introduction of evidence of a person’s other bad acts when that evidence is offered solelyPage 5
to prove that the person characteristically engages in such acts and that (as a consequence) the person probably acted true to character on the occasion being litigated.

The one exception to this principle is found in Evidence Rule 609, which allows a litigant to try to prove a witness’s character for dishonesty by introducing evidence that the witness has previously been convicted of a crime involving dishonesty or false statement.

As explained above, when Weaver’s attorney was asked to explain why evidence of McCracken’s alleged fraudulent acts might be admissible, the attorney responded that this evidence was probative of the fact that “[McCracken] lied [in the past], and he’s lying now.” The Alaska Rules of Evidence expressly forbid the introduction of evidence of a witness’s past acts of dishonesty for this purpose.

The situation is different, however, with respect to McCracken’s alleged acts of dishonesty that gave rise to a rent dispute and to continuing ill-will between McCracken and Weaver. Here, the probative force of the evidence did not rest on proof of McCracken’s actual character for dishonesty. Rather, it rested on Weaver’s belief that McCracken had engaged in acts of dishonesty, and the resulting rent dispute between the two men — a dispute that potentially gave McCracken a motive to testify falsely against Weaver, or at least to shade his testimony against Weaver’s interests.

Judge Rhoades correctly perceived that evidence concerning theexistence of the rent dispute was probative and admissible, even if the rules prohibited evidence of McCracken’s alleged specific acts of dishonesty. Accordingly, she allowed Weaver’s attorney to introduce evidence of the rent dispute, and of the ill-will between Weaver and McCracken, so that the jury could be apprised of McCracken’s potential bias against Weaver.

At the same time, however, Judge Rhoades reasonably concluded that the details of the rent dispute between McCracken and Weaver were collateral to the issuePage 6
of McCracken’s potential bias — and that litigation of these details (many of which were disputed by McCracken) would lead to confusion and waste of time. Thus, Judge Rhoades did not abuse her discretion when, under Evidence Rule 403, she precluded Weaver’s attorney from introducing evidence concerning the specific transactions, conduct, and disagreements underlying the rent dispute.

Weaver’s request to introduce photographs depicting the damage that heinflicted on McCracken’s vehicle

At trial, Weaver’s attorney sought to introduce photographs of the damage done to McCracken’s vehicle when Weaver backed into it. The defense attorney told Judge Rhoades that the photographs were offered to show that the damage to McCracken’s vehicle was so minor that the situation did not warrant a 911 call (i.e., did not warrant an emergency call as opposed to a non-emergency call to the police department).

Judge Rhoades concluded that the photographs were not relevant — because neither the fact that McCracken’s vehicle was damaged, nor the amount of that damage, was at issue in Weaver’s trial. The judge noted that Weaver was not charged with leaving the scene of the accident or with any other crime that hinged on the amount of damage to property, and she further noted that Weaver conceded that he hit McCracken’s truck.

This was a reasonable response to the defense offer of proof, and Weaver’s attorney offered no other argument in favor of admitting the photographs. Accordingly, we conclude that Judge Rhoades’s ruling on this issue was proper.

In its brief to this Court, the Municipality addresses the issue of whether Judge Rhoades should have acted sua sponte to impose sanctions on the Municipality forPage 7
late disclosure of the photographs. We do not believe that Weaver’s brief raises this issue.

But assuming that this issue is raised, it was not plain error for Judge Rhoades to fail to impose sanctions sua sponte. After the photographs were produced, Judge Rhoades offered Weaver’s attorney time to review the photographs. The defense attorney never indicated that he needed additional time to examine or investigate the photographs. Moreover, Weaver took the stand at trial and testified about the photographs. And, on appeal, Weaver does not point to any prejudice that he might have suffered as a result of the late disclosure.

Weaver’s argument that his decision to have an independent blood testcured his refusal to submit to the breath test

On appeal, Weaver argues that even though he refused to submit to a breath test following his arrest for DUI, he subsequently “cured” this refusal when he exercised his right to an independent blood test. This argument is not preserved for appeal.

At trial, the Municipality asked Judge Rhoades to issue a protective order forbidding Weaver’s attorney from making this argument to the jury — and, in response, Weaver’s attorney conceded that Alaska law does not allow a DUI defendant to avoid the requirements of the breath test law by offering to submit to another form of chemical test.

Moreover, even if this argument had been preserved, this Court has already rejected this argument. See Hamilton v. Anchorage, 878 P.2d 653,655 (Alaska App. 1994), where this Court held that motorists who are arrested for DUI must comply with the implied consent law (i.e., the law that requires them to submit to a breath test), and that a motorist’s offer to take another chemical test does not cure the refusal.Page 8
Weaver’s claims of ineffective assistance of counsel

Weaver argues his trial attorney’s representation was incompetent in various respects. But in each instance cited by Weaver, the competence of his attorney’s acts and omissions can not be evaluated based solely on the record of the district court proceedings. Instead, the competence or incompetence of these acts and omissions can not be evaluated without hearing the attorney’s explanations, and without examining the factors that may have gone into the attorney’s decision-making. Accordingly, these claims can not be raised on direct appeal. If Weaver wishes to pursue these claims, he must file a petition for post-conviction relief.See Burton v. State, 180 P.3d 964, 968-69 (Alaska App. 2008); Sharp v.State, 837 P.2d 718, 722 (Alaska App. 1992); Barry v. State,675 P.2d 1292, 1295-96 (Alaska App. 1984).

Weaver’s sentencing claims

Weaver raises a number of claims relating to the district court’s sentencing decision.

First, Weaver contends that, even though he technically has nineteen prior convictions for violating the conditions of his release, most of those prior convictions (eighteen of them) should be deemed to constitute a single conviction because (according to Weaver) they arose from a single continuing course of conduct. As a consequence, Weaver argues, Judge Rhoades should have considered him to be only a third-time offender when it came to Weaver’s sentencing for violating the conditions of his release.

Weaver did not make this argument to the district court, so he must now show plain error.Page 9

Weaver’s argument is premised on AS 12.55.145(a)(1)(C), a subsection of the statute that contains the rules for assessing whether a defendant’s prior felony convictions should be counted separately, or should merge, when determining the defendant’s status as a first, second, or third felony offender for purposes of Alaska’s presumptive sentencing law.

But this determination — i.e., the assessment of whether a person is a first, second, or third felony offender — applies only to sentencing for felonies covered by the presumptive sentencing law. Weaver was being sentenced for a misdemeanor, and it made no difference to the district court’s sentencing authority whether Weaver was a first, second, third, or twentieth offender.

Moreover, Weaver did not present any evidence to Judge Rhoades concerning the circumstances of the eighteen convictions that he now argues must be merged — and the judge made no findings on these matters. Consequently, there is no record from which this Court might evaluate Weaver’s claim that these eighteen convictions should, in fairness, have been treated as if they were only one.

For these reasons, we conclude that Weaver has failed to demonstrate plain error.

Weaver next argues that Judge Rhoades should have found his violation of the conditions of his release to be mitigated under two provisions of AS 12.55.155(d): (d)(9) — that Weaver’s conduct was among the least serious included within the definition of the offense, and (d)(12) — that the harm caused by Weaver’s conduct, both in his present offense and in all of his prior offenses, has been consistently minor and inconsistent with a substantial term of imprisonment.Page 10

(In his brief, Weaver refers to the second of these mitigators by its former designation (d)(13). It has now been renumbered.[fn1])

Again, because Weaver did not present his arguments about mitigators to Judge Rhoades, he must now show plain erorr.

We first note that the aggravating factors listed in AS 12.55.155(c) and the mitigating factors listed in AS 12.55.155(d) apply only to sentencing for felonies covered by the presumptive sentencing law. Weaver was being sentenced for a misdemeanor, and it made no difference to the district court’s sentencing authority whether Weaver proved the two mitigating factors that he now proposes.

Second, the evidence presented at Weaver’s trial does not manifestly prove that his conduct was among the least serious included within the definition of violating the conditions of one’s release. As explained above, Weaver was accused of violating the terms of his bail release from charges of DUI and breath-test refusal. According to the Municipality’s evidence, when the police went to check on Weaver’s compliance with his conditions of release, they found that he had violated the conditions in two ways. First, the police found Weaver alone in his apartment, without his third-party custodian. Weaver told the police that he did not know where his third-party custodian was. In addition, the police found that Weaver had been drinking alcoholic beverages.

At Weaver’s sentencing, Judge Rhoades stated that even though she considered Weaver to be a worst offender (based on his prior record), and even though she believed that Weaver deserved a maximum sentence, nevertheless Weaver’s present offense was not the worst conduct imaginable within the definition of that crime.

But the fact that a defendant’s conduct is “not the worst” does not mean that the defendant’s conduct is “among the least serious”. Given the facts of Weaver’s case,Page 11
we conclude that Judge Rhoades did not commit plain error when she failed to sua sponte apply mitigator (d)(9) — even by analogy only — to Weaver’s sentencing for this misdemeanor.

Turning to Weaver’s argument involving mitigator (d)(12) (consistently minor harm, inconsistent with a substantial term of imprisonment), we note that even under Weaver’s view of his situation, Judge Rhoades could properly classify him as a third offender for violating the conditions of his release. Moreover, Weaver’s specific violation of the conditions of his release in the present case — in particular, his return to drinking alcoholic beverages — appears to be quite serious when viewed in the context of Weaver’s many convictions for DUI.

In addition, to the extent that Weaver’s argument hinges on the assertion that he has never caused serious physical harm to others, we note that the “harm” referred to in mitigator (d)(12) is not limited to physical harm inflicted on others. It also encompasses the danger posed by the defendant’s conduct to persons and property. For instance, inIson v. State, 941 P.2d 195, 198-99 (Alaska App. 1997), we held that the sentencing court properly rejected this mitigator for a defendant convicted of felony DUI who, although he had never hurt anyone by his driving, had “repeatedly demonstrated that he [would] not obey society’s rules governing driving”.

For these reasons, we conclude that Judge Rhoades did not commit plain error when she failed to sua sponte apply mitigator (d)(12) — even by analogy only — to Weaver’s sentencing.

Finally, Weaver contends that his composite sentence — which he describes as a sentence of 2 years to serve — is excessive.

Having independently evaluated the record in this case (both Weaver’s conduct in the present cases and his record of prior offenses), we doubt that a composite sentence of 2 years to serve would have been clearly mistaken. However, we need notPage 12
decide that question — because Weaver did not receive a composite sentence of 2 years to serve.

At Weaver’s sentencing hearing, Judge Rhoades sentenced him to serve 360 days for DUI, another 180 days for breath-test refusal, and another 180 days for violating the conditions of his release. The judge specifically declared that Weaver’s sentences for DUI and breath-test refusal were to be served consecutively, but she failed to specify whether Weaver’s sentence for violating the conditions of his release was consecutive to or concurrent with his other two sentences.

Because Judge Rhoades did not designate this sentence as either consecutive or concurrent, Weaver’s sentence is — by law — concurrent with his other two sentences. This Court has already held that when a sentencing judge has the authority to impose a defendant’s sentences either consecutively or concurrently, and the judge does not specify whether the sentences are to run consecutively or concurrently, they are concurrent.[fn2] Therefore, Weaver’s composite sentence is 1½ years to serve.

When this Court reviews a composite sentence imposed for two or more criminal convictions, “we assess whether the combined sentence is clearly mistaken, given the whole of the defendant’s conduct and history.”[fn3] Given the record in this case, and given Judge Rhoades’s findings at the sentencing hearing, we conclude that this composite sentence is not clearly mistaken.

Here, Judge Rhoades found that Weaver was a worst offender and that his prospects for rehabilitation were very low. These conclusions find ample support in the record, given Weaver’s extensive and continuous criminal history.Page 13

Weaver is not a youthful offender; he was forty-nine years old at the time he committed the crimes in this case. This was Weaver’s seventh DUI and, even by Weaver’s count, his third violation of the conditions of his release. Weaver’s DUI was serious: his blood alcohol level was .16 percent (twice the legal limit), and he hit another vehicle. Judge Rhoades found that Weaver had been given the opportunity to receive alcohol treatment at least six times in the past. And, as we noted above, Weaver’s violation of the conditions of his release in this case included leaving the presence of his third-party custodian and drinking alcoholic beverages.

All told, Weaver had more than three dozen prior criminal convictions. Even if we were to adopt Weaver’s view of his eighteen prior convictions for violating the conditions of his release, that would still leave two dozen prior criminal convictions.

Given all of this, Judge Rhoades could properly find that it was necessary to impose a lengthy term of imprisonment. Even though Judge Rhoades acknowledged that Weaver’s violation of the conditions of his release was not the worst imaginable, Weaver’s life-long criminal activity — including a series of alcohol-related offenses and a history of disobeying court orders — supports Judge Rhoades’s sentencing decision. For all these reasons, we conclude that Weaver’s composite sentence of 1½ years to serve is not clearly erroneous.

Conclusion

To the extent that the written judgements issued by the district court state or suggest that Weaver’s sentence for violating the conditions of his release is to be served consecutively to his other two sentences, or to the extent that those written judgements are silent on this issue, they must be amended to clearly reflect that this sentence is concurrent with the other two.Page 14

In all other respects, the judgements of the district court are AFFIRMED.

[fn1] See SLA 2005, ch. 2, § 19.

[fn2] See Smith v. State, 187 P.3d 511, 519 (Alaska App. 2008);Paige v. State, 115 P.3d 1244, 1246 (Alaska App. 2005); Baker v.State, 110 P.3d 996, 1002-03 (Alaska App. 2005).

[fn3] Brown v. State, 12 P.3d 201, 210 (Alaska App. 2000) (citations omitted).Page 1