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Garland v. State (12/7/2007) ap-2131

Garland v. State (12/7/2007) ap-2131

                             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


TERRANCE A. GARLAND, )
) Court of Appeals No. A-9790
Appellant, ) Trial Court No. 3SP-05-95 CR
v. )
)
STATE OF ALASKA, ) O P I N I O N
)
Appellee. )
) No. 2131 December 7, 2007

          Appeal  from the Superior Court,  Third  Judi
          cial  District,  Sand Point, Daniel  Schally,
          Judge.

          Appearances:  Morgan White, Assistant  Public
          Defender,   and   Quinlan   Steiner,   Public
          Defender,   Anchorage,  for  the   Appellant.
          Michelle    Tschumper,   Assistant   District
          Attorney,  Anchorage, and Talis  J.  Colberg,
          Attorney General, Juneau, for the Appellee.

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

          STEWART, Judge.
          MANNHEIMER, Judge, concurring.
          
          Terrance A. Garland appeals the superior courts  denial
of  his  request  to  strike a portion of the presentence  report
prepared following his change of plea.  Garland sought to exclude
a  report that was compiled by a California sheriffs office as  a
result  of  an  investigation  into  a  possible  sexual  assault
committed  by  Garland.   We affirm the  superior  court  because
Garland  declined to enter a testimonial denial of the assertions
in the report.
     
          Background facts and proceedings
          In  December  2005,  a  Sand Point  policeman  filed  a
complaint charging Garland with one count of first-degree  sexual
abuse of a minor.1  On May 16, 2006, Garland filed a request  for
a  change  of  plea,  informing the court that  the  parties  had
reached  a  plea  agreement.  According to the  request,  Garland
would enter a plea to one count of second-degree sexual abuse  of
a   minor.2   Garland  also  agreed  to  concede  that  statutory
aggravator   AS   12.55.155(c)(10)  applied   (Garlands   conduct
constituting  the offense was among the most serious  within  the
definition  of  the offense).  According to the  plea  agreement,
Garland agreed that the court would impose a 6-year term  with  3
years  suspended if the court accepted the plea  agreement.   The
agreement  called for the Department of Corrections to prepare  a
standard  presentence  report and for the court  to  impose,  and
Garland  to  agree to, the usual conditions of probation  imposed
for sex offenders.
          The  State  filed an information charging second-degree
sexual abuse of a minor.  Garland waived indictment and entered a
no  contest  plea.  Superior Court Judge pro tem  Daniel  Schally
ordered a presentence report.
          The  presentence  report included  a  report  from  the
Shasta  County  Sheriffs Department in California that  was  more
than  thirty  pages  long.  The report addressed  a  1997  sexual
assault in which Garland was the identified suspect.
          Pursuant  to Criminal Rule 32.1(d)(5), Garland objected
to  the  Shasta  County  report, claiming  that  the  report  was
irrelevant,  that it was hearsay, and that the sentencing  judges
reliance  on  this  information would violate Garlands  right  to
confrontation.  In its opposition, the State pointed out that  if
Garland  intended to dispute this information, he had to enter  a
testimonial  denial  and submit to cross-examination.  In  reply,
Garland claimed that the information in the Shasta County  report
was  not  relevant to the courts sentencing decision because  the
parties had reached a plea agreement.  Therefore, Garland argued,
the  Shasta  County report should be deleted because it  was  not
relevant  to  the  courts decision whether  to  accept  the  plea
agreement or the courts decision on what probation conditions  to
impose.   Judge  Schally  declined to delete  the  Shasta  County
report.

          Discussion
          Garland renews his argument on appeal.  Garland  relies
on  our discussion in Evans v. State3 of the responsibility of  a
sentencing  judge  when  a defendant disputes  allegations  in  a
presentence report of misconduct other than the offense for which
the defendant was convicted.4  Garland points out that we held in
Evans  that former Criminal Rule 32.1 required a judge to resolve
          disputed allegations in a presentence report, or, if the judge
expressly elected not to resolve a disputed allegation, to delete
the allegation.5
          However, in Evans, unlike this case, the defendant took
the  stand,  denied  the allegations under  oath,  and  subjected
himself  to cross-examination.6  Furthermore, the Alaska  Supreme
Court  substantially amended Criminal Rule 32.1 after  the  Evans
decision.7   Criminal Rule 32.1(f)(5) provides in pertinent  part
as follows:
               The court shall enter findings regarding
          any  disputed  assertion in  the  presentence
          report.   Any  assertion that  has  not  been
          proved shall be deleted from the report;  any
          assertion that has been proved only  in  part
          shall    be    modified   in   the    report.
          Alternatively,  if the court determines  that
          the disputed assertion is not relevant to its
          sentencing decision so that resolution of the
          dispute  is  not warranted, the  court  shall
          delete  the assertion from the report without
          making any finding.
          The  present rule requires a sentencing court to  enter
findings on disputed assertions in the presentence report.  If an
assertion in the presentence report is not relevant to the courts
sentencing decision, the court has the option to avoid resolution
of  the issue by simply deleting the assertion.  However, Garland
does  not  argue  that the amendment to the  rule  enacting  Rule
32.1(f)(5) eliminated the requirement that a defendant  take  the
stand and testify subject to cross-examination in order to deny a
hearsay  allegation  of  verified  misconduct  contained   in   a
presentence report.8
          Because  Garland did not take the stand  and  deny  the
allegations in the Shasta County report, the superior  court  was
not  faced with a disputed assertion that the superior court  was
required  to  resolve.  Accordingly, the superior court  was  not
required to delete the Shasta County report.


          Conclusion
          The judgment of the superior court is AFFIRMED.
MANNHEIMER, Judge, concurring.

          I write separately to more fully explain my analysis of
the  legal issues presented in this appeal.  These issues concern
the  relationship  between Alaska Criminal Rule  32.1(d),  Alaska
Criminal  Rule  32.1(f), and this Courts decisions  in  Evans  v.
State, 23 P.3d 650 (Alaska App. 2001), and Hamilton v. State, 771
P.2d  1358  (Alaska  App.  1989)  decisions  which  hold  that  a
sentencing   judge  can  rely  on  verified  hearsay  information
contained  in  the pre-sentence report for proof of  the  matters
asserted,  unless  the defendant offers a testimonial  denial  of
that information and submits to cross-examination.1
          Garland was initially indicted for first-degree  sexual
abuse of a minor.  He and the State proposed to resolve the  case
by  having  Garland  plead no contest to the  reduced  charge  of
second-degree  sexual abuse of a minor.  In  addition,  the  plea
agreement  called for Garland to receive a specific sentence:   6
years imprisonment with 3 years suspended.
          Before   deciding  whether  to  accept  this   proposed
disposition  of  the  case, Superior Court Judge  Daniel  Schally
ordered a pre-sentence report.  When this pre-sentence report was
prepared,  it  contained  information concerning  a  1997  sexual
assault case in which Garland was the suspect.
          Alaska  Criminal  Rule 32.1(d)(5)  states  that,  if  a
defendant objects to any information in the pre-sentence  report,
the  defendant shall notify the court and the government  of  the
objection, shall state the basis for the ... objection, and shall
supply  any information upon which the defendant intends to  rely
in  refuting  the  objected-to information  in  the  pre-sentence
report.
          Garland filed an objection to the information about the
1997  sexual  assault.  However, Garland did not directly  assert
that  this information was untrue, nor did he offer any  contrary
information.   Rather, Garland argued that  the  information  was
irrelevant,  that it was hearsay, and that the sentencing  judges
reliance  on  this  information would violate Garlands  right  to
confrontation.
          Garland  argued  that  the information  was  irrelevant
because  his plea agreement called for imposition of a  specified
sentence.   Thus,  Garland  contended,  the  information  had  no
significance   because  his  sentence  would  remain   the   same
regardless of whether he committed the 1997 sexual assault.   But
Judge  Schally  had not yet decided whether to  accept  the  plea
agreement  and the fact that Garland might have committed another
sexual offense had obvious relevance to Judge Schallys decision.
          Garland  also argued that the information was  hearsay.
This is clearly correct:  the information was derived from out-of-
court  statements that were being offered to prove the  truth  of
the  matters asserted.2  However, under the Alaska Supreme Courts
decision  in Nukapigak v. State, 562 P.2d 697 (Alaska 1977),3   a
sentencing  judge  can  rely on hearsay statements  if  they  are
sufficiently  verified to appear trustworthy  and  the  defendant
[is]  given the opportunity to deny [the truth of the statements]
or present contrary evidence of his own.4
          Garland argues that the government can not rely on such
          hearsay accusations unless those accusations have led to a grand
jury indictment or to some other form of criminal charge that has
been  independently  screened and declared  to  be  well-founded.
Garland  is wrong.  The hearsay accusations in Nukapigak included
third-hand hearsay accusations made by villagers, communicated to
the village council, and then passed on to the author of the pre-
sentence  report.   It seems that none of these  accusations  had
ever  been the subject of a criminal charge.  And yet the  Alaska
Supreme Court held that the sentencing judge could properly  rely
on this information.
          Finally,  Garland  argued that use of  the  information
regarding  the  1997 sexual assault would violate  his  right  of
confrontation.  But we held in Evans and Hamilton that a criminal
defendant has only a limited right of confrontation in sentencing
proceedings.   Before a defendant can demand that the  government
support  its sentencing allegations with in-court testimony,  the
defendant  must  deny the allegations under oath  and  submit  to
cross-examination.  Garland did not do that.  Thus, the inclusion
of hearsay information in the pre-sentence report did not violate
Garlands right of confrontation.
          In  other  words, Judge Schally properly  rejected  all
three of Garlands objections to the inclusion of this information
in the pre-sentence report.
          On appeal, Garland raises two new claims.
          First,  he argues that this Courts decisions  in  Evans
and   Hamilton  contravene  the  Alaska  Constitutions  guarantee
against compelled self-incrimination (Article I, Section 9).   As
just explained, Evans and Hamilton stand for the proposition that
if  Garland wished to contest the information concerning the 1997
sexual assault, he had to take the stand, deny the assault  under
oath,  and  submit to cross-examination.  Garland  asserts  that,
because he might still be prosecuted for the 1997 sexual assault,
it  is  unconstitutional to require him  to  give  testimony  and
submit to cross-examination concerning this event.
          Garland  did  not raise this argument in  the  superior
court,  so  he  must now show plain error.  He has not  done  so.
Garland  makes  the  bald assertion that the rule  of  Evans  and
Hamilton is unconstitutional, but he offers no legal authority to
support  his  position.  Whatever merit Garlands  argument  might
have,  it  is  no more than debatable.  Reasonable  judges  could
conclude that this Courts decisions in Evans and Hamilton do  not
contravene the Alaska Constitution.  Thus, Garland has failed  to
show plain error.5
          Second,  Garland argues that once Judge Schally decided
to  adopt  the proposed plea agreement, the judge was obliged  to
delete  the  information concerning the 1997 sexual assault  from
the pre-sentence report.
          Garland  relies  on  Alaska Criminal  Rule  32.1(f)(5),
which  states that if the [sentencing] court determines that  [a]
disputed  assertion is not relevant to its sentencing decision[,]
so  that  resolution of the dispute is not warranted,  the  court
shall  delete  the assertion from the report without  making  any
finding.
          Garland points out that, when this matter was discussed
at  the sentencing hearing, Judge Schally declared that the  1997
          sexual assault [was] not necessarily relevant to the sentence
that  [he was] going to impose.  Garland argues that, given Judge
Schallys  conclusion  that  the  1997  sexual  assault  was   not
relevant,  the judge was obliged under Rule 32.1(f)(5) to  delete
all mention of that incident from the pre-sentence report.
          Garlands argument fails for two reasons.
          First,  although the 1997 sexual assault may no  longer
have been relevant to Judge Schallys sentencing decision after he
decided  to  accept  the proposed negotiated sentence,  the  1997
sexual  assault was obviously relevant to Judge Schallys decision
to  accept  or  reject that negotiated sentence.   Judge  Schally
never said otherwise.
          Second,  Rule 32.1(f)(5) applies only to assertions  of
fact  that  are disputed.  As I pointed out above, and  as  Judge
Stewart  points out in the lead opinion, Garland never  fulfilled
the  procedural  requirements  for  contesting  the  pre-sentence
reports  information about the 1997 sexual assault.   Thus,  this
information was not disputed for purposes of Rule 32.1(f).
          For  these  reasons, I concur in this Courts resolution
of Garlands appeal.

_______________________________
     1 AS 11.41.434(a)(3)(A), (B).

     2 AS 11.41.436(a)(2).

     3 23 P.3d 650 (Alaska App. 2001).

     4 Id. at 651-52.

     5 Id. at 651.

     6 Id.

     7 See Supreme Court Order No. 1464, effective March 5, 2002.

      8  See  Hamilton v. State, 771 P.2d 1358, 1362-63   (Alaska
App.  1989);  see  also Nukapigak v. State,  576  P.2d  982,  984
(Alaska  1978) (accepting the use of verified hearsay information
at sentencing).

     1 Evans, 23 P.3d at 652; Hamilton, 771 P.2d at 1362-63.

     2 See Alaska Evidence Rule 801(c).

     3 Affirmed on rehearing, 576 P.2d 982 (Alaska 1978).

      4  Nukapigak,  562 P.2d at 701; affirmed on rehearing,  576
P.2d at 984-85.

      5  Cooper  v. State, 153 P.3d 371, 373 (Alaska App.  2007);
Simon v. State, 121 P.3d 815, 820 (Alaska App. 2005).

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