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Jones v. State (9/14/2012) ap-2373

Jones v. State (9/14/2012) ap-2373

                                              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 



DARIN L. JONES, 

                                                           Court of Appeals No. A-10487 

                               Appellant,                 Trial Court No. 3PA-03-129 Civ 



                       v. 

                                                                  O   P  I N  I  O  N 

STATE OF ALASKA, 



                               Appellee.                 No. 2373     -   September 14, 2012 



                Appeal    from   the   Superior   Court,   Third   Judicial  District, 

                Anchorage, Eric A. Aarseth, Judge. 



                Appearances:   Dan S. Bair, Assistant Public Advocate, Appeals 

                &   Statewide    Defense    Section,   and   Rachel   Levitt,  Public 

                Advocate,   Anchorage,   and   Darin   Jones,  in   propria   persona, 

                Juneau, for the Appellant. Michael Sean McLaughlin, Assistant 

                Attorney General, Office of Special Prosecutions and Appeals, 

                Anchorage, and John J. Burns, Attorney General, Juneau, for the 

                Appellee. 



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

                Judges. 



                MANNHEIMER, Judge.
 

                BOLGER, Judge, dissenting.
 



                Darin L. Jones appeals the superior court's denial of his petition for post- 



conviction relief.  Jones argues that the superior court committed error when it denied 


----------------------- Page 2-----------------------

his request to be transported from prison to attend the evidentiary hearing on his claims 



- thus forcing him to testify at the evidentiary hearing by telephone. 



                For the reasons explained in this opinion, weagree with Jones that the court 



should have ordered the Department of Corrections to transport him to the evidentiary 



hearing,   so   that   he   could   present   his   testimony   in   person.  This   error   affected   the 



litigation of two of Jones's claims for post-conviction relief.              We therefore vacate the 



portion of the superior court's order denying those two claims, and we direct the superior 



court to hold a new evidentiary hearing on those claims. 



        Underlying facts 



                In September 2000, Darin Jones was indicted for first-degree murder in 



connection with the killing of Shane Rogers. Jones was represented by Assistant Public 



Advocate Darrel Gardner.   On the day that Jones's trial was scheduled to begin (May 2, 



2002), Gardner informed the superior court that Jones and the State had reached a plea 



agreement.       Under   the   terms   of   this   agreement   (as   described   by   Gardner   and   the 



prosecutor), Jones would plead no contest to a reduced charge of second-degree murder, 



and there would be a sentencing cap of 25 years to serve, with "suspended time and 



probation terms ... open to the court". 



                Upon hearing this description of the plea bargain, the judge presiding over 



the proceedings - Superior Court Judge Dan Hensley - addressed Jones personally: 



                         The Court: [Y]our lawyer [has] told me that ... you've 

                reached an agreement [with the State].            I'm going to restate 

                what I think the agreement is, [and] then I'm going to ask you 

                if I [described] it correctly. 



                        Jones :   Yes. 



                                                  - 2 -                                             2373
 


----------------------- Page 3-----------------------

                        The Court: All right. ... [Y]ou would plead no contest 

                to [the count] of the indictment which alleges murder in the 

                second degree. [And] if I accepted your plea, the State would 

                dismiss all the other counts ... .   [Your plea of] no contest to 

                murder in the second degree ... would also establish that you 

                violated your probation in [case number] [3AN-]99-4327. ... 

                [Also,]   there   would   be   ...   an   agreement   concerning   your 

                sentence - which would be [that] the most active jail time 

                I could give you [is] 25 years for both cases, but I would be 

                free to impose additional suspended time if I thought that was 

                appropriate, and [the]length ofprobation[and the]conditions 

                of probation would be subject to my discretion ... .   Did I set 

                out the agreement accurately? 



                        Jones :   Yes, sir. 



After further discussion concerning the rights that Jones was giving up by entering this 



plea, the superior court accepted Jones's plea. 



                The following September, Judge Hensley sentenced Jones for the second- 



degree murder conviction and the probation revocation in the earlier felony case.   Jones 



received a composite term of 50 years' imprisonment with 27 years suspended. 



                About four months later, in January 2003, Jones filed a pro se petition for 



post-conviction       relief  in   which    he   challenged      various    aspects   of   Gardner's 



representation. A new lawyer was appointedto representJones, and this lawyer prepared 



and filed an amended petition. In its final form, Jones's petition contained nine separate 



assertions regarding ways in which Gardner's representation of Jones was allegedly 



incompetent. 



                Superior Court Judge Eric A. Aarseth scheduled an evidentiary hearing on 



Jones's petition for July 25, 2008.         At that time, Jones was housed at the Red Rock 



prison in Arizona (under contract with the Alaska Department of Corrections). 



                                                - 3 -                                            2373
 


----------------------- Page 4-----------------------

                In advance of the evidentiary hearing, Jones's attorney filed a motion 



asking the superior court to order the Department of Corrections to transport Jones to 



Anchorage, so that Jones could attend the hearing and testify in person, rather than by 



telephone.   However, this motion did not specify what Jones wished to testify about. 



                There is a statute, AS 33.30.081(e) - (f), that governs this type of request. 



Under the provisions of this statute, a court may not order the transportation of a prisoner 



who is a party or witness in a civil action - such as post-conviction relief litigation - 



unless (1) the court provides a reasonable opportunity for the State to comment on the 



proposed transportation, and (2) "the court determines ... that the prisoner's personal 



appearance is essential to the just disposition of the action". The statute directs the court 



to   consider   alternatives   to   the   prisoner's   personal   appearance,   including   holding   a 



deposition within the prison facility, or having the prisoner give telephonic testimony. 



                Pursuant to this statute, the Departments of Corrections and Public Safety 



filed an opposition to Jones's request to be transported from Arizona to Anchorage.   In 



their opposition, the two Departments took the position that if the resolution of Jones's 



claims turned on Jones's credibility as a witness, then he should be brought back to 



Alaska so that he could testify in person.          However, the Departments pointed out that 



Jones had failed to explain the nature of the testimony he intended to give at the hearing, 



and   thus   Jones   had   failed   to   explain   why   his   personal   appearance   was   required. 



Specifically, theDepartments argued thatJones had failed to makeonecrucialallegation: 



he had failed to allege that any of the issues to be decided at the hearing hinged on his 



credibility as a witness. 



                Here is the pertinent passage of the Departments' opposition: 



                        Jones    has   stated   no  persuasive     reason   [why]    his 

                personal presence is necessary for the just disposition of this 

                hearing.    Although Jones states he will testify, he does not 



                                                 - 4 -                                            2373
 


----------------------- Page 5-----------------------

                state the substance of his testimony and why he cannot testify 

                telephonically.   If the substance of Jones testimony does not 

                call his credibility into question, he should not be transported 

                and   [he] should   testify   telephonically.     See Richard B.   v. 

                [Alaska] Dept. of Health [and Social Services] , 71 P.3d 811, 

                828 (Alaska 2003) (lack of credibility-dependent testimony 

                supports denial of motion for transport). 



                Judge Aarseth denied Jones's request to be transported back to Alaska for 



the evidentiary hearing.        However, the judge also rejected the position taken by the 



Departments of Corrections and Public Safety -the position that Jones's request should 



be denied because Jones had failed to identify any issue where his personal credibility 



as a witness might make a difference to the outcome.   Instead, Judge Aarseth ruled that 



it   was  irrelevant  whether   he,   as   fact-finder,   would   be   required   to   assess   Jones's 



credibility as a witness.       The judge declared that he could assess Jones's credibility 



equally well, regardless of whether Jones testified in person or by telephone. 



                Here is the wording of Judge Aarseth's order: 



                        The     Petitioner    requests    the   Court    to  order    his 

                transport[ation] from Red   Rock Facility in Eloy,   Arizona 

                [back to Alaska] for his ... evidentiary hearing.            The Court 

                does not require his presence in the courtroom.              The Court 

                can     adequately     determine      Mr.    Jones'    credibility    via 

                telephonic testimony. 



                The evidentiary hearing on Jones's petition for post-conviction relief was 



ultimately held on October 10, 2008.  Both Gardner and Jones testified at this hearing 



- Gardner in person, and Jones by telephone.   However, the testimony at this hearing 



was not confined to the nine allegations of incompetence contained in Jones's petition. 



                In a pre-hearing affidavit filed by Jones, and in his opposition to the State's 



motion   for   summary   dismissal   of   the   case,   Jones   claimed   that   he   would   not   have 



                                                 - 5 -                                             2373
 


----------------------- Page 6-----------------------

accepted the State's proposed plea bargain if he had understood that the 25-year cap 



specified in the sentencing agreement applied only to his active term of imprisonment 



(his   "time   to   serve"),   and   that   he   might   receive   an   additional   suspended   term   of 



imprisonment over and above the 25-year cap. 



                During   the   October   2008   evidentiary   hearing,   Jones   reiterated   these 



assertions in his telephonic testimony.   Indeed, the greater portion of Jones's testimony 



at   the   evidentiary   hearing   was   devoted   to   lengthy   and   repeated   assertions   that   he 



misunderstood the terms of his sentencingagreement with the State, and that his sentence 



exceeded the limits of what he had agreed to. 



                According to Jones, he believed that the sentencing agreement limited his 



sentence to a total of 25 years (including both time to serve and suspended time).   Thus, 



according to Jones, his ultimate sentence - 25 years to serve plus an additional 27 years 



suspended - exceeded the sentence allowed under the plea agreement, at least as he 



understood it. 



                Jones testified that, immediately after this sentence was imposed, he turned 



to his attorney (Gardner) and told him that he wanted to withdraw his plea because the 



sentence was more severe than allowed under the terms of the sentence agreement. 



According to Jones, Gardner answered that he could not do that - and then Gardner 



"walked out of the courtroom". 



                Jones testified that he communicated again with Gardner the next day, 



telling him that he wanted to "appeal this".   Several weeks later, Gardner responded to 



Jones in a letter dated October 11, 2002.   In this letter, Gardner told Jones that he could 



                                                  - 6 -                                             2373
 


----------------------- Page 7-----------------------

not appeal his sentence, and that (in Jones's paraphrasing), "[if] you don't like it, file 

[for] post-conviction relief." 1 



                After Jones made these assertions during his telephonic testimony, Judge 



Aarseth exercised his power to call witnesses (see Alaska Evidence Rule 614), and he 



re-summoned Gardner to the stand. 



                Under      questioning     by    Judge    Aarseth    (and    then,   under    follow-up 



questioning by both the prosecutor and Jones's post-conviction relief attorney), Gardner 



testified that his plea discussions with Jones centered on how much time Jones would 



have   to   serve   -   and   that   the   amount   of   suspended   time   "really   [didn't]   matter". 



According to Gardner, Jones took the offered bargain because it placed a limit of 25 



years on his time to serve. 



                Gardner explained that the State's proposed plea bargain called for Jones's 



sentence to be limited to 25 years to serve, but that the superior court could impose 



    1   The text of the October 11th letter actually reads: 



                    Enclosed is a copy of the final written judgment in your case. 

                Because the court followed the terms of the Rule 11 agreement 

                and imposed a sentence of no more than 25 years actual jail time 

                to serve, there is no right to a sentence appeal.   I understand that 

                after   your   sentencing,    you   spoke   with   Leslie   Hiebert   and 

                complained that you believed that you had received ineffective 

                assistance     of  counsel.     You   do   have   the  right  to  file  an 

                application     for   post-conviction     relief  alleging    ineffective 

                assistance of counsel.   You would be appointed new counsel to 

                represent     you   on   such    an   application.      It  is  also  my 

                understanding       that  our   office   has   already   sent   you   the 

                appropriate application form for you to fill out and file with the 

                court. 



                    At this point, there is nothing else for me to do on your case. 

                I wish you the best of luck in the future, Darin. 



                                                  - 7 -                                             2373
 


----------------------- Page 8-----------------------

additional suspended jail time, "up to [a combined total of] 99 years". Gardner declared 



that he had explained this to Jones. 



                Gardner conceded that it waspossible that he did not explicitly talk to Jones 



about the potential suspended portion of the sentence.               But Gardner declared that this 



scenario was very unlikely:  "[G]iven the ... background of the case, and ... how much 



we went back and forth about the offer, ... [I believe] I would have discussed with him 



... the fact that he could get more than the 25 years, but it would be suspended." Gardner 



added, "I believe that he understood that - that there could be a suspended [component] 



on top of [the time to serve]." 



                About six months after this evidentiary hearing, Judge Aarseth issued a 



written order denying Jones's petition for post-conviction relief.   In Sections III and V 



of that order, Judge Aarseth addressed Jones's claim that he should be allowed   to 



withdraw his plea because he did not understand the terms of the sentencing agreement. 



                Judge Aarseth acknowledged that, according to Jones's testimony at the 



hearing,   Jones   believed   that   his   total   sentence   (including   both   time   to   serve   and 



suspended time) would be capped at 25 years.   However, Judge Aarseth found that the 



evidence, taken as a whole, refuted Jones's testimony on this issue. The judge concluded 



that   "[the]   evidence   showed   [that]   Mr.   Jones   understood   the   agreement"   -  i.e., 



understood that the agreement included the possibility of suspended jail time over and 



above the maximum 25 years to serve. 



        Jones's claim on appeal, and the State's defense to that claim 



                On appeal, Jones claims that the superior court committed error when it 



denied his request to be transported to the evidentiary hearing so that he could give his 



testimony about the plea bargain in person, rather than by telephone. The State responds 



                                                  - 8 -                                             2373
 


----------------------- Page 9-----------------------

that Judge Aarseth's ruling on Jones's transportation request was correct - because, 



at the time of that ruling, the judge had no reason to believe that the outcome of the 



evidentiary hearing would hinge on Jones's credibility as a witness. 



                The State concedes that if Judge Aarseth had known that Jones intended to 



testify that he misunderstood the terms of the plea bargain, or that his sentence did not 



comport with the plea bargain, then the judge should have granted Jones's request to be 



transported to the evidentiary hearing - because resolution of these claims might hinge 



on Jones's credibility as a witness.           But the State argues that Judge Aarseth had no 



reasonable way of knowing that these issues would be raised. 



                The State points out that Jones's petition for post-conviction relief - i.e., 



the final form of the petition, as drawn up by Jones's new attorney - made no mention 



of any claim that Jones misunderstood the terms of the plea bargain, or that Jones's 



sentence   did   not   comport   with   the   terms   of   the   plea   bargain.  This   claim was   not 



developed until the evidentiary hearing itself, when Jones gave his testimony on this 



subject. 



                The State further points out that, in Jones's request for transportation to the 



evidentiary hearing, he asserted that he intended to take the stand at the hearing, but he 



gave no description of what subjects he intended to testify about.                In particular, Jones 



again made no mention of any claim that he misunderstood the terms of the plea bargain, 



or that his sentence did not comport with the plea bargain. 



                Given these circumstances, the State argues, Jones failed to provide Judge 



Aarseth with any reason to believe that his ultimate resolution of Jones's petition for 



post-conviction relief might hinge on Jones's credibility as a witness.                And because a 



judge's ruling must be assessed in light of the circumstances known to the judge at the 



time, the State concludes that Judge Aarseth correctly denied Jones's request to be 



transported to the evidentiary hearing. 



                                                 - 9 -                                             2373
 


----------------------- Page 10-----------------------

                 We agree with the State that, at the time Judge Aarseth made his ruling, 



Jones   had   not   given   the   judge   reasonable   notice   that   he   intended   to   assert   that   he 



misunderstood  a material element of the plea agreement,   or   (alternatively)   that his 



sentence exceeded the bounds of the plea agreement. 



                 But as we have already explained, when Jones presented his testimony at 



the evidentiary hearing, it became clear to everyone that this was Jones's primary claim. 



Even though Jones's testimony about misunderstanding the plea bargain did not relate 



to any of the claims of ineffective assistance of counsel articulated in Jones's petition, 



Judge   Aarseth   did   not   rule   that   Jones's   testimony   was   irrelevant   and   should   be 



disregarded.      Instead, the judge effectively allowed Jones to supplement his claims to 



include this new one. Indeed, after Judge Aarseth heard Jones's testimony on this issue, 



the judge took it upon himself to call Gardner to the witness stand again, so that Gardner 



could   address   Jones's   assertions   concerning   the   sentencing   provisions   of   the   plea 



agreement, and Jones's understanding of these sentencing provisions. 



                 Moreover,whenJudgeAarseth issued his final decisionon Jones'spetition, 



the judge addressed this plea bargaining issue, and he resolved this issue against Jones 



- because he found that the evidence, taken as a whole, refuted Jones's testimony. 



                 In   other   words,   even   though   Jones's   testimony   about   the   sentencing 



agreement did not relate to any of the claims presented in his petition for post-conviction 



relief, Judge Aarseth allowed Jones to litigate this new claim, and the judge resolved this 



claim on the merits. In arriving at his decision, Judge Aarseth expressly rejected Jones's 



testimony on this issue.  The judge concluded that, in light of the evidence as a whole, 



Jones's testimony was not credible. 



                 As we explained earlier, when Jones made his request for transportation to 



the evidentiary hearing, the Departments of Corrections and Public Safety took the 



position that Jones should be transported to the hearing if his credibility as a witness was 



                                                  -  10 -                                             2373
 


----------------------- Page 11-----------------------

going to be an issue.       And now, on appeal, the State concedes that this is the rule that 



governs requests for transportation. 



                If Judge Aarseth had shared this view of the matter, then we have little 



doubt that the judge would have declined to adjudicate the sentencing issue based on 



Jones's telephonic testimony.   Instead, he would have interrupted the proceedings and 



would have ordered that Jones be brought to the hearing. 



                But Judge Aarseth did not deny Jones's request for transportation on the 



basis suggested by the Departments of Corrections and Public Safety. That is, the judge 



did not deny Jones's request on the basis that none of the issues to be litigated turned on 



Jones's     credibility   as  a  witness.      Rather,   Judge    Aarseth    denied    the  request    for 



transportation because he believed that he could adequately evaluate Jones's credibility 



regardless   of   whether   Jones   testified   in   person   or   by   telephone   - and   that   it   was 



therefore irrelevant whether any of the issues to be litigated turned on Jones's credibility 



as a witness. 



                 Our dissenting colleague, Judge Bolger, argues that it was incumbent on 



Jones to renew his request for transportation once it became clear that the issues litigated 



at the hearing - in particular, the question of Jones's alleged understanding of the 



sentencing agreement - would turn on Jones's credibility as a witness. 



                Butgiven thenatureofJudgeAarseth's ruling, it would havebeen pointless 



for Jones's attorney to seek reconsideration on the ground that Jones's credibility as a 



witness was now clearly in question.             Judge Aarseth's response to such a motion for 



reconsideration would presumably have been the same - that it was irrelevant whether 



any of the issues to be litigated turned on Jones's credibility as a witness, because the 



judge could adequately evaluate Jones's credibility even if he testified by telephone. 



                For this reason, we do not believe that Jones waived this issue by failing to 



renew his request for transportation at the evidentiary hearing. 



                                                 -  11 -                                            2373
 


----------------------- Page 12-----------------------

                 Our remaining task is to decide whether it was error not to bring Jones back 



to Alaska for the evidentiary hearing after it became clear that the court's resolution of 



the major issue litigated at that hearing (Jones's understanding of the sentence bargain) 



would turn on Jones's credibility as a witness. 



         When must a defendant be allowed to testify in person at an evidentiary 

        hearing on a petition for post-conviction relief? 



                 Alaska law supports the State's general position that a defendant should be 



transported to a post-conviction relief trial or evidentiary hearing if the defendant shows 



that the outcome of the litigation might hinge on their credibility as a witness. 



                 In Richard B. v. Alaska Department of Health and Social Services, 71 P.3d 



811 (Alaska 2003), one of the issues presented on appeal was whether the superior court 



abused its discretion under AS 33.30.081 when the court refused to order the Department 



of Corrections to transport a prisoner to Bethel so that he could testify in person at a 



proceeding to terminate his parental rights.  Id. at 826. 



                 On appeal to the supreme court, the State argued that the prisoner had failed 



to show that the superior court abused its discretion because the prisoner had failed to 



identify any instance where the superior courthad found his testimony less than credible, 



or   where   the   superior   court's   assessment   of   the   prisoner's   credibility   as   a   witness 



materially affected the outcome of the trial.  Id. at 827. 



                 The supreme court declared that "where the credibility of a party or witness 



will likely affect the outcome of the case, it will be important for the [trial] court to see 



and hear the person testify." Ibid.        On this issue, the court quoted its earlier decision in 



Whitesides v. Alaska Division of Motor Vehicles, 20 P.3d 1130, 1137 (Alaska 2001): 



                                                  -  12 -                                             2373
 


----------------------- Page 13-----------------------

                      [T]he potential for empathy and nuanced understand- 

               ing is much greater in person-to-person communications than 

               in any of the various forms of telecommunicating. Likewise, 

               when a party is denied an in-person hearing before a trier of 

               fact, there is a risk that the party will be less able to convey 

               the message that his story is the truth. 



Richard B., 71 P.3d at 827-28. 



               However, the supreme court concluded that, under the circumstances of 



Richard B.'s case, the superior court's refusal to order him brought to Bethel was not an 



abuse of discretion - because, even though Richard B. expressed a desire to be present 



at the trial, and to testify at the trial, he "did not [identify] what specific information he 



intended to convey through his testimony that would depend on his credibility, nor did 



he present the court with any basis on which to believe that the outcome of the case 



would depend upon his presence."  Id. at 828.   The supreme court held that, "[w]ithout 



a specific offer of credibility-dependent evidence[,] or a [specification] ... of any material 



issues he intended to dispute, the [superior] court was well within its authority to deny 



Richard's motion for transport."  Ibid. 



               The supreme court expressed the same view of the matter in Seth D. v. 



Alaska Department of Health and Social Services , 175 P.3d 1222 (Alaska 2008). Again, 



the question presented on appeal was whether the superior court abused its discretion 



under AS 33.30.081 when it refused to order the Department of Corrections to transport 



a prisoner to the site of a parental rights termination trial, so that the prisoner could give 



live testimony at the trial.  Id. at 1226. 



               By coincidence, Seth D. completed his sentence while the termination trial 



was still in progress, so he was able to attend the last two days of the trial and testify in 



person.   Ibid. The supreme court concluded that, given this fact, even if the superior 



court abused its discretion in not ordering the Department to transport Seth to the trial, 



                                            -  13 -                                       2373
 


----------------------- Page 14-----------------------

the error was harmless.  Id. at 1229.          The supreme court cautioned, however, that the 



superior court's denial of Seth's request to be transported to the trial would have been 



"problematic" if Seth "[had] not been fortuitously released from prison mid-trial." Ibid. 



                Two members of the court - Justices Fabe and Carpeneti - were more 



forceful in their condemnation of the superior court's ruling: 



                Our case law makes clear that the trial court erred in ruling 

                that Seth's telephonic testimony   "was   adequate for   a fair 

                trial."   Only the fortuity of Seth D.'s release from prison 

                before the conclusion of his hearing rendered the superior 

                court's decision to deny transport harmless error. 



Id. at 1233. 



                Thesupremecourt'sdecisions inRichard B. and Seth D. areconsistent with 



its earlier decision in Fajeriak v. State, 520 P.2d 795 (Alaska 1974), and this Court's 



decision in State v. Jones, 759 P.2d 558 (Alaska App. 1988), both dealing with the 



question of whether a prisoner seeking post-conviction relief should be allowed to 



personally attend the trial or evidentiary hearing.   In Fajeriak, the supreme court stated 



that a prisoner seeking post-conviction relief must be allowed to testify in person when 



"[the prisoner's] testimony will be material and ... founded on personal knowledge". 520 



P.2d at 803.      And in Jones, this Court echoed the holding in Fajeriak; we stated that 



"[i]f the disputed issues involve facts within the personal knowledge of the applicant, the 



applicant's presence is required[.]" 759 P.2d at 566. 



                See also Henry v. State, 861 P.2d 582, 592-94 (Alaska App. 1993), where 



this Court held that, despite the telephonic participation provisions of Criminal Rule 



38.1(a),   it   is   unlawful   for   a   judge   to   conduct   a   sentencing   by   telephone   when   the 



defendant objects and asserts the right to stand face-to-face with the judge. 



                                                 -  14 -                                           2373
 


----------------------- Page 15-----------------------

               Based on these prior decisions, we conclude that a defendant must be 



transported to a post-conviction relief evidentiary hearing when the defendant intends 



to testify at the hearing and the outcome of the hearing may turn on the defendant's 



credibility as a witness. 



        Conclusion 



               Of the several issues litigated by Jones  in these post-conviction   relief 



proceedings, resolution of two of the issues hinged to some degree on Jones's credibility 



as a witness:   (1) the controversy regarding the terms of the sentencing agreement (the 



controversy which we have described at some length in this opinion), and (2) a separate 



claim that Gardner did not inform Jones of his right to seek appellate review of the 



superior court's denial of a pre-sentencing motion to withdraw his plea. 



               Accordingly,   we   VACATE   the   superior   court's   decision   of   these   two 



issues, and we direct the superior court to hold a new evidentiary hearing on these issues, 



with Jones given the opportunity to testify in person at the hearing. 



               With     respect  to  Jones's   other  claims   for  post-conviction    relief,  the 



judgement of the superior court is AFFIRMED. 



                                              -  15 -                                        2373
 


----------------------- Page 16-----------------------

BOLGER, J., dissenting. 



                I disagree with the decision to address the issue identified in the lead 



opinion, because Jones failed to preserve this issue for appellate review. At the time 



Jones made his motion for a transport order, he did not make any showing that he had 



material testimony to offer on the issue he now relies upon. 



                Jones's amended application for post-conviction relief alleged that his trial 



attorney committed several acts of malpractice, including negligent handling of Jones's 



mental health issues, failure to notify Jones that he could appeal a motion to withdraw 



his plea of no contest, and failure to file a motion to suppress Jones's confession. These 



were the only claims that were at issue when Jones filed his one-page motion for a 



transport order. The application did not include any claim that Jones should be allowed 



to withdraw his plea because he did not understand the sentencing agreement. On the 



contrary,theapplicationaffirmatively alleged thatJones'ssentencing agreement "capped 



the time to be served at twenty-five years." (Emphasis added). 



                Under AS 33.30.081(f), a prisoner is not entitled to be transported for a 



post-conviction hearing unless he establishes that his "personal appearance is essential 



to the just disposition of the action." To satisfy this burden, a prisoner must "demonstrate 



to the court what specific information he intend[s] to convey through his testimony that 



w[ill] depend on his credibility" and the "basis on which to believe that the outcome of 

the case w[ill] depend upon his presence."1 The court must weigh a variety of factors to 



determine whether to grant such a request: 



                In   making   its   determination   the   trial   court   may   take   into 

                account      the  costs   and    inconvenience      of   transporting    a 

                prisoner from his place of incarceration to the courtroom, any 



    1   Richard B. v. State, Dep't of Health and Soc. Servs., 71 P.3d 811, 828 (Alaska 2003). 



                                                 -  16 -                                              2373 


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                 potential   danger   or   security   risk   which   the   presence   of   a 

                 particular inmate would pose to the court, the substantiality 

                 of the matter at issue, the need for an early determination of 

                 the matter, the possibility of delaying trial until the prisoner 

                 is   released,   the   probability   of   success   on   the   merits,   the 

                 integrity of the correctional system, and the interests of the 

                 inmate in presenting his testimony in person rather than by 

                 deposition.2 



A prisoner is not entitled to transportation unless he shows that he has testimony to offer 

on a material issue.3 



                 The   statute   also   requires   the   requesting   party   to   pay   for   the   costs   of 

transportation before the prisoner is transported.4  If the requesting party is the prisoner, 



and the court concludes that he is indigent, then he may be required to advance only a 

portion of those costs.5 



                 Jones did not make any offer of the testimony he intended to present at the 



post-conviction hearing. Jones's one-page motion did not mention AS 33.30.081(f) or 



discuss any of the factors the court was required to consider. In particular, Jones's 



motion did not notify the court that Jones wanted to testify to support a claim that he did 



not understand his sentencing agreement. The superior court judge had no reason to 



identify   this issue as a material issue because Jones did not raise this claim in   his 



    2   Id. at 827 (quoting B.H. v. W.S. (In re F.H.) 283 N.W.2d 202, 209 (N.D. 1979)). 



    3   Id . at 832; see also McCracken v. State, 518 P.2d 85, 92 (Alaska 1974) (noting that 



"federal courts have always possessed the power to refuse to compel the production of a 

prisoner at an evidentiary hearing on the prisoner's petition for post-conviction relief when 

his physical presence was not necessary"). 



    4   AS 33.30.081(g). 



    5   AS 33.30.081(h). 



                                                   -  17 -                                             2373
 


----------------------- Page 18-----------------------

amended application. In my opinion, Jones has failed to preserve this issue for appellate 



review. 



                The lead opinion forgives Jones's waiver because Jones chose to give 



telephonic testimony on this sentence-bargain issue at the post-conviction hearing, the 



issue was contested by the State, and it was decided by the judge. The lead opinion thus 



shifts the burden to the trial judge to renew Jones's pretrial motion for transportation sua 



sponte. This shift is contrary to the rule this court has followed on many prior occasions. 



If   circumstances   change   during   the   trial,   it   is   the  movant's  burden   to   renew   any 



unsuccessful pretrial motions. 



                For example, in Pease v. State, the defendant made an unsuccessful pretrial 

motion for severance.6 On appeal, the defendant relied on the trial evidence to support 



his claim that he had been prejudiced.7 This court held that "if circumstances arise during 



trial that undermine the judge's earlier decision" the defendant has a duty to renew the 



motion during trial "to allow the trial judge to consider the actual circumstances as they 

arise at trial."8  Because the defendant did not renew his motion at trial, this court limited 



its appellate review to the information presented with the defendant's original pretrial 

motion.9 



                Likewise, in Waters v. State, the defendant made an unsuccessful pretrial 

motion to suppress his confession.10         This court explained why the defendant was not 



entitled to take advantage of trial evidence to support his pretrial motion: 



    6   54 P.3d 316, 322 (Alaska App. 2002). 



    7   Id. 



    8   Id. 



    9   Id. 



    10  64 P.3d 169, 170-71 (Alaska App. 2003). 



                                                 -  18 -                                           2373
 


----------------------- Page 19-----------------------

                 Although we have indicated that evidence developed at trial 

                 can be used to support the lower court's ruling on a pre-trial 

                 motion, ... such evidence can not be used to attack a pre-trial 

                 ruling unless the proponent of the motion affirmatively asks 

                 the trial judge to re-examine the pre-trial ruling in light of the 

                 newly-developed evidence. ... Therefore, if a party believes 

                 that later-developed evidence has shown that the trial court's 

                 pre-trial   findings   are   erroneous,   it   is   that   party's   duty   to 

                 apprise the trial court of the situation and affirmatively seek 

                 a re-determination of the pre-trial issue.11 



This explanation thus supports the general rule of waiver: "The normal rule is that, 



absent plain error, a party challenging a trial court's ruling may not rely on an argument 



or on evidence that was not brought to the trial court's attention at the time the trial court 

made its ruling."12 



                 In this case, the lead opinion concludes that it would have been pointless 



for Jones to renew his pretrial motion for transportation because of the wording of the 



pretrial order. But I expect that the superior court judge would have worded his pretrial 



decision   differently   if   Jones   had   made   an   adequate   motion   with   a   citation   to   the 



procedures required under AS 33.30.081(f), a discussion of the factors listed in Richard 

B.,13  and an offer of proof of the testimony for which his transportation was requested. 



    11  Id. at 171 (emphasis in original). 



    12  Id .; see also Khan v. State, 204 P.3d 1036, 1039 (Alaska App. 2009) (holding that the 



defendant waived the right to appeal his pretrial motion for a change of venue by his failure 

to renew the motion after jury selection), rev'd on other grounds, 278 P.3d 893 (Alaska 

2012); Beuter v. State, 796 P.2d 1378, 1384 (Alaska App. 1990) (holding that a defendant 

waived his appeal regarding an unsuccessful motion to compel discovery when he failed to 

renew his request when the discovery became relevant). 



    13   71 P.3d at 827. 



                                                   -  19 -                                              2373
 


----------------------- Page 20-----------------------

               Moreover, if Jones had renewed his request for a transportation order 



during the post-conviction hearing, then the judge could have made a decision on the 



motion based on a full review of the circumstances at that time, including the nature of 



Jones's    testimony,   the  timing  of  the  request,  and   the  expense   of  the  requested 



transportation. In my opinion,   it is inappropriate to address the issue   at this point, 



because these circumstances have never been presented to the superior court for review. 



                                            - 20 -                                        2373
 

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