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Thompson v. State (11/24/00) ap-1707
Thompson v. State (11/24/00) ap-1707
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers are
encouraged to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
CARL THOMPSON, )
) Court of Appeals No. A-7448
Appellant, ) Trial Court No. 4FA-S86-2644 CR.
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1707 - November 24, 2000]
)
Appeal from the Superior Court, Fourth Judicial
District, Fairbanks, Niesje J. Steinkruger, Judge.
Appearances: Carl Thompson, pro se, Lompoc,
California, for Appellant. Douglas H. Kossler, Assistant Attorney
General, Office of Special Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, Stewart, Judge,
and Rabinowitz, Senior Supreme Court Justice. [Mannheimer, Judge,
not participating.]
COATS, Chief Judge.
Carl Thompson was convicted of murder in the first degree
for killing his ex-wife, Dixie Gutman, and convicted of tampering
with physical evidence by disposing of her body. We affirmed
Thompson's conviction in Thompson v. State. [Fn. 1] In that 1989
decision, we remanded Thompson's case for resentencing. The
superior court amended Thompson's sentence on June 1, 1989.
Thompson then filed a petition for writ of habeas corpus in federal
court arguing, as he had in his state appeal, that his confession
had been obtained in violation of his Miranda rights. [Fn. 2]
Thompson's claim was ultimately rejected by the federal courts and
the United States Supreme Court rejected Thompson's petition for
certiorari in 1999. [Fn. 3]
On June 7, 1996, Thompson filed an application for post-
conviction relief. [Fn. 4] In this 1996 application, Thompson
raised three main points. First, he argued that the voluntariness
of his confession should be reconsidered due to newly-discovered
evidence. [Fn. 5] On this issue, he relied in part on the August
1995 affidavit of Lisa Huffaker, his girlfriend at the time of the
offense. [Fn. 6] Thompson claimed that Lisa Huffaker had put a dose
of Mepergan in his sandwich which had caused him to become confused.
[Fn. 7] He argued that this was newly-discovered evidence which the
court should reconsider on the question whether his confession was
voluntary. [Fn. 8] We rejected Thompson's claim. [Fn. 9] We stated
It is arguable that Thompson could relitigate
the voluntariness of his confession if he established that the
evidence which he sought to present was newly discovered evidence.
But an applicant seeking post-conviction relief on the basis of
newly discovered evidence must meet the same burden as a defendant
who files a timely motion under Criminal Rule 33 for a new trial
based on newly-discovered evidence. [Fn. 10]
We concluded that Judge Steinkruger did not err in dismissing
Thompson's application because he had not met the stringent standard
to be entitled to a new trial on the basis of newly-discovered
evidence. [Fn. 11] We also rejected Thompson's second claim, that
his counsel had been ineffective. [Fn. 12] However, we remanded the
case to have the superior court determine whether Thompson was
denied his right to testify at trial. [Fn. 13]
In August of 1998, Thompson filed a motion asking the
superior court to relax the time limit for filing a motion for a new
trial. Thompson recognized that a motion for a new trial based on
newly-discovered evidence had to be made within 180 days after a
final judgment. But he claimed that a final judgment had not been
issued in his case because he had continued to litigate his petition
for habeas corpus in federal court. Judge Steinkruger denied
Thompson's motion to relax the time limits.
In December of 1998, Thompson filed an Alaska Criminal
Rule 33 motion for a new trial. In July of 1999, Judge Steinkruger
summarily dismissed the Rule 33 motion. In June of 1999, Thompson
filed a motion for reduction of sentence, as well as a motion for
appointment of counsel. Judge Steinkruger denied both of these
motions in July of 1999. Thompson now appeals on three different
points: the dismissal of the Rule 33 motion; the denial of the
motion to reduce his sentence under Rule 35(b)(1); and the denial
of his motion to appoint counsel to bring a Rule 35(a) motion to
reduce sentence.
Alaska Criminal Rule 33 provides that:
A motion for a new trial based on the
ground of newly discovered evidence may be made only before or
within 180 days after final judgment but if an appeal is pending the
court may grant the motion only on remand of the case. [Fn. 14]
Thompson appears to recognize that his motion is not timely, but
argues that the time limits of Criminal Rule 33 can be extended if
the applicant meets the standards of AS 12.72.020(b)(1)(B). Alaska
Statute 12.72.020(a)(3) and (4) set out time limits for filing an
application for post-conviction relief. Alaska Statute
12.72.020(b)(2) sets out an exception for meeting those time limits
for newly-discovered evidence.
But the pleading in question is not an application for
post-conviction relief. Thompson filed a motion for a new trial.
Therefore, AS 12.72.020 does not apply to his motion for a new
trial. If Thompson were filing an application for post-conviction
relief, he would be disqualified under AS 12.72.020(a)(6) because
he has filed a previous application for post-conviction relief.
Thompson also argues that Judge Steinkruger erred in
denying his motion to reduce his sentence. Motions to reduce
sentence are brought under Criminal Rule 35(b)(1), which provides
that:
The court . . . may modify or reduce
a sentence within 180 days of the distribution of the written
judgment upon a motion made in the original criminal case.
Thompson was originally sentenced in 1987 and, after this court
vacated his sentence, was resentenced in 1989. Therefore, his 1999
motion to reduce his sentence was untimely under Criminal Rule
35(b)(1).
The state points out that the legislature created a
special exception to the 180-day limit contained in the current
version of Rule 35. [Fn. 15] This exception contains provisions
which authorize defendants to bring a motion to reduce sentence in
the following situations:
(i) if the defendant was sentenced before the
enactment of this section of the 1995 Session Law of Alaska and the
defendant took an appeal, the defendant must obtain a sentence
reduction within 120 days of the day jurisdiction is returned to the
trial court under Appellate Rule 507(b).
(ii) if the defendant petitions for certiorari
at the U.S. Supreme Court, the 120 days starts to run when the Court
denied relief. [Fn. 16]
Thompson argues that under the exception, the 120-day time
limit for filing his motion to reduce his sentence should have
started to run when the United States Supreme Court denied
certiorari as to his federal habeas corpus action. He argues that
his motion was therefore timely within the legislative exception to
the time constraints provided for in Criminal Rule 35(b)(1). But
we agree with the state's position that the legislature intended to
require a defendant filing a Rule 35(b) motion for a reduction of
sentence to apply for the reduction after completion of the appeal
in his original case. To allow a defendant to apply for a sentence
reduction after his collateral attack was completed would allow a
defendant to bring a motion for a sentence reduction at any time.
A defendant would merely have to file a federal habeas corpus action
or an application for a post-conviction relief and then pursue it
to the United States Supreme Court. When the United States Supreme
Court denied certiorari, the defendant could apply for a sentence
reduction. This was not the legislature's intention. Thompson's
motion, therefore, does not fall within the exception. We
accordingly conclude that Judge Steinkruger did nor err in denying
Thompson's motion to reduce sentence.
Thompson next argues that Judge Steinkruger erred in
denying his motion to appoint counsel to bring a Rule 35(a) motion
to reduce sentence. As we have previously noted, Thompson's motion
to reduce his sentence is untimely. Therefore, Judge Steinkruger did
not err in failing to appoint counsel to pursue this motion.
AFFIRMED.
FOOTNOTES
Footnote 1:
768 P.2d 127 (Alaska App. 1989).
Footnote 2:
Thompson v. Keohane, 34 F.3d 1073 (9th Cir. 1994).
Footnote 3:
Thompson v. Keohane, 34 F.3d 1073 (9th Cir. 1994); 516 U.S. 99,
116 S.Ct. 457 (1995); 145 F.3d 1341 (9th Cir. 1998); 525 U.S. 1158,
119 S.Ct. 1066-67, 143 L.Ed.2d 70 (1999).
Footnote 4:
Thompson v. State, Memorandum Opinion and Judgment No. 3897
(Alaska App., October 14, 1998).
Footnote 5:
Id. at 2-3.
Footnote 6:
Id.
Footnote 7:
Id.
Footnote 8:
Id.
Footnote 9:
Id. at 5.
Footnote 10:
Id. at 4 (citations omitted).
Footnote 11:
Id. at 4-5.
Footnote 12:
Id. at 10.
Footnote 13:
Id.
Footnote 14:
Alaska R. Crim. P. 33.
Footnote 15:
Alaska R. Crim. P. 35, note to SCO 1240 states:
Notwithstanding Rule 35, Alaska Rules of
Criminal Procedure, as amended in secs. 29-31 of this Act, the trial
court, under Rule 35(b), as amended by the Act, may reduce the
sentence of a defendant sentenced before the effective date of this
section if the defendant took an appeal and the sentence reduction
occurs within 120 days of the day that jurisdiction is returned to
the trial court under Rule 507(b), Alaska Rules of Appellate
Procedure, unless the defendant petitions the United States Supreme
Court for certiorari, in which case the 120 days commences on the
day that the Supreme Court denies relief.
Chapter 79 section 42, SLA 1995, reprinted in Alaska R. Crim. P.
35, note to SCO 1240.
Footnote 16:
See Id. (Emphasis added). In the Court of Appeals of the State of Alaska
Carl Thompson, )
) Court of Appeals No. A-07448
Appellant, )
v. ) Order
)
State of Alaska, )
)
Appellee. ) Date of Order: November 24, 2000
)
Trial Court Case # 4FA-86-02644CR
Before: Coats, Chief Judge, Stewart, Judge, and
Rabinowitz, Senior Supreme Court Justice. [Mannheimer,
Judge, not participating.]
It is Ordered:
1. The State's motion to publish is GRANTED.
2. Memorandum Opinion and Judgment No. 4292, issued on
October 11, 2000, is WITHDRAWN and is SUPERSEDED by Opinion No.
1707, to be issued on November 24, 2000.
Entered at the direction of the Court.
Clerk of the Appellate Courts
Deputy Clerk
Distribution:
COA Judges
Central Staff Attorneys
Judge Niesje J. Steinkruger
Trial Court Appeals Division
West Publishing Company
Douglas Kossler
OSPA
310 K Street #308
Anchorage AK 99501
Carl Thompson (ID #90712-011
3901 Klein Blvd. USP Lompoc
(C-Unit)
Lompoc CA 93436
