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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
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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
| MICHAEL SCOTT HOLLSTEIN, | ) |
| ) Court of Appeals No. A-9780 | |
| Appellant, | ) Trial Court No. 3PA-05-3021 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2148 February 15, 2008 |
| ) | |
Appeal from the District Court, Third Judi
cial District, Palmer, John W. Wolfe, Judge.
Appearances: Carmen E. Clark, Ingaldson,
Maassen & Fitzgerald, Anchorage, for the
Appellant. Jarom B. Bangerter, Assistant
District Attorney, and Roman J. Kalytiak,
District Attorney, Palmer, and Talis J.
Colberg, Attorney General, Juneau, for the
Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Michael Scott Hollstein was charged with driving under
the influence.1 Hollsteins attorney decided to argue that
Hollsteins arrest had been illegal. She filed an eleven-page
motion in which she argued that the officer who arrested
Hollstein had lacked probable cause to believe that he was under
the influence.
However, instead of labeling her motion a motion to
suppress, the defense attorney labeled it a motion to dismiss
specifically, a Motion to Dismiss [for] Lack of Probable Cause to
Arrest. And, rather than seeking suppression of the evidence
against Hollstein, the defense attorney argued for outright
dismissal. The concluding sentences of the motion read:
Applying the appropriate [legal] standard[,]
there [was] no driving misconduct to suggest
impairment. Nor did the officer observe
sufficient signs of alcohol impairment[,] as
opposed to simple [alcohol] consumption[,] to
justify Hollsteins arrest ... .
Consequently, the charges must be dismissed.
In response, the prosecutor filed a
pleading in which he argued that the facts
known to the officer did, in fact, establish
probable cause for Hollsteins arrest.
After considering the parties
pleadings, District Court Judge John W. Wolfe
concluded that he did not need to resolve the
issue of whether there was probable cause for
Hollsteins arrest. Instead, Judge Wolfe
focused on the fact that Hollsteins attorney
was asking for dismissal of the charge as
opposed to suppression of the evidence. The
judge issued the following order:
This matter comes [before the court] for
consideration [of] the defendants Motion to
Dismiss because the defense asserts [that]
the officer lacked probable cause to arrest.
Assuming arguendo [that] the officer did lack
probable cause at the time he arrested the
defendant, the motion fails to cite any legal
authority for the proposition that dismissal
is an appropriate remedy.
For this reason[,] the motion is hereby
denied.
One might suppose that, having
received such an order from Judge Wolfe, the
defense attorney would simply re-file her
motion as a motion to suppress. But instead,
the defense attorney filed a motion for
reconsideration in which she argued again
that outright dismissal of criminal charges
is the proper remedy whenever a defendants
arrest is not supported by probable cause.
As a backup argument, Hollsteins
attorney suggested that Judge Wolfe should
have treated her earlier pleading as a
mislabeled motion to suppress, and that the
judge should then have held a hearing on the
issue of whether there was probable cause for
Hollsteins arrest.
Judge Wolfe denied this motion for
reconsideration.
After Judge Wolfe denied the motion
for reconsideration, the defense attorney and
the prosecutor decided to resolve Hollsteins
case through a Cooksey plea. That is, the
parties agreed that Hollstein would enter a
plea of no contest to the DUI charge, with
Hollstein reserving his right to challenge
Judge Wolfes rulings on appeal.2
In particular, the parties agreed
that Hollstein reserved the right to argue
(1) that his arrest had not been supported by
probable cause or, in the alternative, (2)
that Judge Wolfe at least should have held an
evidentiary hearing so that the issue of
probable cause (or lack thereof) could be
litigated.
The problem is that, under Alaska
law, a litigant who wishes to raise an issue
on appeal must show that the issue was
adequately preserved in the lower court
which means not only that the litigant
presented the issue to the lower court, but
also that the lower court ruled on that
issue.3
Moreover, in the context of Cooksey
pleas, an issue preserved for appeal must be
dispositive of the defendants case. We held
in Miles v. State, 825 P.2d 904, 906 (Alaska
App. 1992), that an issue is dispositive for
Cooksey purposes only if resolution of the
issue in the defendants favor would either
legally preclude the government from pursuing
the prosecution or would leave the government
without sufficient evidence to survive a
motion for judgement of acquittal at the
conclusion of the governments case.
At Hollsteins change-of-plea
hearing, his defense attorney, the
prosecutor, and Judge Wolfe all agreed that
Hollsteins appellate issues were properly
preserved, and that they were dispositive of
Hollsteins criminal case. But this is
clearly wrong.
As explained above, Judge Wolfe
never issued a ruling on the merits of
Hollsteins claim that the police lacked
probable cause to arrest him. Instead, Judge
Wolfe first ruled that a motion to dismiss
was the wrong procedural vehicle to raise
such a claim and then, on reconsideration,
the judge declined to treat the defense
attorneys motion to dismiss as a mislabeled
motion to suppress.
Because Judge Wolfe never decided
whether Hollsteins arrest was supported by
probable cause, Hollsteins argument that the
police had no probable cause to arrest him is
not adequately preserved for appeal.
Hollstein did adequately preserve
the issues of whether Judge Wolfe should have
treated his motion to dismiss as a motion to
suppress, and whether Judge Wolfe should then
have granted Hollstein an evidentiary hearing
on the suppression issue. But these issues
are not dispositive of Hollsteins case.
Even if Judge Wolfe abused his
discretion when he declined to treat
Hollsteins motion to dismiss as the
equivalent of a motion to suppress, and when
he failed to order an evidentiary hearing,
these errors would only mean that Hollstein
is entitled to engage in further litigation
of his underlying claim i.e., his claim that
there was no probable cause for his arrest,
and that he is therefore entitled to
suppression of much of the evidence against
him. And even assuming that Hollstein should
have been accorded the right to further
litigate his claim, this does not mean or
even suggest that Hollstein would prevail on
that claim.
In other words, even if we agreed
with Hollstein that Judge Wolfe should have
allowed him to litigate the merits of the
probable cause issue, our decision would not
be dispositive of Hollsteins case.
For these reasons, Hollsteins
Cooksey plea is improper. One of the issues
presented on appeal (Hollsteins claim that
there was no probable cause for his arrest)
would be dispositive, but it is not
adequately preserved because the lower court
never reached the merits of this claim. The
remaining issues (Hollsteins procedural
claims) are adequately preserved, but they
are not dispositive of his case. We must
therefore dismiss this appeal for lack of
jurisdiction. Miles, 825 P.2d at 907.
This appeal is DISMISSED. Because
Hollstein entered his no contest plea in
reliance on his ability to challenge Judge
Wolfes rulings on appeal, Hollstein must now
be given an opportunity to withdraw his plea.
Accordingly, this case is REMANDED to the
district court to allow Hollstein to withdraw
his plea.
_______________________________
1 AS 28.35.030(a).
2See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).
3See, e.g., Sengupta v. University of Alaska, 139 P.3d 572,
581 (Alaska 2006) (To preserve a claim based on [the
lower] courts failure to rule on a motion, a party must
make every effort to request and obtain a ruling before
proceeding to trial.) (quoting Taylor v. Johnston, 985
P.2d 460, 467 (Alaska 1999)); Bryant v. State, 115 P.3d
1249, 1258 (Alaska App. 2005) (Normally, an appellant
may only appeal issues on which he has obtained an
adverse ruling from the trial court.); Mahan v. State,
51 P.3d 962, 966 (Alaska App. 2002) (To preserve an
issue for appeal, an appellant must obtain an adverse
ruling.).
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