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State v. Clifton (12/27/2013) ap-2409

State v. Clifton (12/27/2013) ap-2409

                                                  NOTICE
  

         The text of this opinion can be corrected before the opinion is published in the  

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         errors to the attention of the Clerk of the Appellate Courts:   



                                303 K Street, Anchorage, Alaska  99501
  

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              IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



STATE OF ALASKA,  

                                                               Court of Appeals No. A-10941  

                                  Petitioner,                Trial Court No. 3AN-06-8223 CR  



                         v.  

                                                                        O  P  I  N  I  O  N 

KARAN V. CLIFTON,  



                                  Respondent.                 No. 2409  -  December 27, 2013  



                 Petition for Review from the Superior Court, Third Judicial  

                                            

                 District, Anchorage, Philip R. Volland, Judge.  



                 Appearances:      Timothy   W.   Terrell,   Assistant   Attorney  

                 General,   Office   of   Special   Prosecutions   and   Appeals,  

                 Anchorage, and John J. Burns, Attorney General (opening  

                 brief),  and  Michael  C.  Geraghty,  Attorney  General  (reply  

                                 

                 brief),  Juneau,  for  the  Petitioner.       Josie  Garton,  Assistant  

                                                                

                 Public  Defender,  and  Quinlan  Steiner,  Public  Defender,  

                 Anchorage, for the Respondent.  


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

                    Before:  Mannheimer, Chief Judge, Bolger, Supreme Court   

                               *                                         **                                        

                    Justice  , and Coats, Senior Judge                    . 
 



                    Judge MANNHEIMER.
  



                                                                                                            

                    In 1982, the Alaska legislature extensively revised the law that defines how  



                                                                                                                             1 

                                                                                                                

a person's mental disease or defect affects their responsibility for criminal conduct.    As  



                                                                     

part of that revision, the legislature created a new type of verdict in criminal cases:  the  



verdict of "guilty but mentally ill".  



                    The present case involves several potential constitutional problems relating  



to the "guilty but mentally ill" verdict.  Because of these problems, the superior court  

                                                                                                               



concluded that it was unconstitutional to subject defendants to this verdict.  



                    As we explain in this opinion, the legislature has changed the manner in  

                                                                          



which the "guilty but mentally ill" verdict is litigated in the trial court.  We conclude that  

                                                                                                



these new procedures apply to Clifton's case, and that these new procedures resolve  



many of the issues in this case.  



                    There are yet other issues presented in Clifton's case - issues that we will  

                                                                                                                   



explain and resolve during the course of our opinion. But our ultimate conclusion is that  

                                                                                  



the  new  procedures  relating  to  the  "guilty  but mentally  ill"  verdict are  sufficient  to  

                                                                                                           



answer the superior court's constitutional objections.  We therefore remand this case to  

                                                                                                                          



the superior court to allow the parties to litigate whether Clifton should be found "guilty  

                                                                                                            



but mentally ill".    



          *    Sitting  by  assignment  made  pursuant  to  Article  IV,  Section  16  of  the  Alaska  



Constitution and Administrative Rule 24(d).  



          **   Sitting  by assignment            made  pursuant   to  Article  IV,   Section  11  of  the  Alaska  



Constitution and Administrative Rule 23(a).  



          1    See SLA 1982, ch. 143,  22.   



                                                                -2-                                                          2409
  


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

          Introduction  



                    The present case arises from the State's prosecution of Karan V. Clifton for  

                                                                                                    



attempted  murder,  and   the  possibility  that  Clifton  might  be  found  "guilty  but  

                                      



mentally ill".   



                    A  verdict  of  "guilty  but  mentally  ill"  constitutes  a  finding  that  (1)  the  

                                                    



government has proved all the elements of the charged offense (including all required  



culpable mental states), plus an additional finding that (2) because of mental disease or  

                                                                                                    



defect,  the  defendant  "lacked    ...  the  substantial  capacity  either  to  appreciate  the  

                                                            



wrongfulness of [their] conduct or to conform [their] conduct to the requirements of  

                                                                                                         

law." 2                                             

            When a defendant is found "guilty but mentally ill" (instead of merely "guilty"),  



                                                                                                                

the  defendant  must  receive  treatment  for  their  mental  illness  while  they  serve  their  



                                                                                                

sentence, and the defendant is ineligible for parole or furlough release while they are  



receiving this mental health treatment.  



                    As we are about to explain, there was substantial reason to believe that  



                                    

Clifton suffered from a mental disease or defect that substantially affected her cognition  



and  behavior  at  the  time  of  the  attempted  murder.    Nevertheless,  Clifton's  defense  



attorney announced (before trial) that Clifton would not rely on a defense of insanity or  

                                                                                    



on a defense of diminished capacity based on mental disease or defect.   



                    In  response,  the  prosecutor  suggested  that  the  State  might  invoke  the  



procedure codified in the pre-2012 version of AS 12.47.060.   This statute applied to  

                                                                                               



cases  where  a  defendant  suffering  from  a  mental  disease  or  defect  was  tried  and  



convicted of a crime, but no evidence of the defendant's mental disease or defect was  



          2    AS 12.47.030(a).  



                                                              -3-                                                           2409  


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

introduced at trial - so that the jury was never asked to consider whether the defendant  

                                



should be found "guilty but mentally ill" (as opposed to simply "guilty").   



                    The pre-2012 statute allowed for a post-verdict procedure in which the  



prosecutor - or the court, on its own motion - could raise the issue of whether the  

                           



defendant should be found "guilty but mentally ill".  If the issue was raised, the trial  

                                          



judge was required to make a post-verdict finding as to whether the defendant was shown  

                                                                                                  



to be guilty but mentally ill, using a "preponderance of the evidence" standard of proof.  

                                                                                                                    



If so, the judge then entered a verdict of "guilty but mentally ill", and this verdict had the  

                                                                                                           



same legal effect as if the issue had been litigated at the defendant's trial and the jury had  

                                                                                                   



returned a verdict of "guilty but mentally ill".  



                    In  Clifton's  case,  the  superior  court  ruled  that  this  procedure  was  



unconstitutional, and the State petitioned us to review the superior court's decision.  



          Underlying facts of Clifton's offenses  



                    Clifton worked as a respiratory therapist at an Anchorage long-term care  



facility.  She apparently believed that she was under covert government surveillance, and  

                                                       



that there was a government conspiracy to sabotage her life and physically harm her.  



After  Clifton  told  her  supervisor  and  other  co-workers  about  this  conspiracy,  her  

                      



employer decided to require Clifton to undergo a psychiatric fitness examination.   



                    On August 2, 2006, Clifton attended a meeting with her supervisor, Steven  

                                                                                         



Mayer, and her employer's human resources manager, Kathleen Manion.  During this  



meeting, Mayer informed Clifton that she would have to undergo a psychiatric evaluation  



before she could return to work.  Clifton became agitated; she declared that she would  

                                                                                                           



not submit to the examination, and she accused Mayer and Manion of trying to destroy  

                  



her life and her livelihood.  



                                                              -4-                                                        2409
  


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

                    A few  moments later, Clifton drew a semi-automatic pistol from her purse,  

                                                                                                           



shoved the barrel against Mayer's ribs, and pulled the trigger.  Fortunately, Clifton had  

                                                            



neglected to "rack" the pistol's slide (to chamber a round), so no bullet fired.   



                    Mayer was able to tackle Clifton and take the pistol away from her.  Manion  

                                                         



ran for help, and several other employees came to assist Mayer in restraining Clifton  



until the police arrived.  



                    When the police later examined Clifton's pistol, they found that it was  



loaded with five rounds of ammunition. The police found another fully loaded magazine  

                                                                                                 



for the pistol in Clifton's purse, as well as another six loose rounds of ammunition.  



                    Based  on  this  incident,  Clifton  was  indicted   for  attempted  murder  

                                                                                              



(attempting to kill Mayer). Clifton was also charged with third-degree assault for placing  

                                                                                                                  



Manion in fear of imminent serious physical injury.  Following a trial in the superior  

                                                                                



court, a jury found Clifton guilty of these crimes.  



                    However, as we are about to explain in the next section of this opinion,  

                                                                 



Clifton has not yet been sentenced for these offenses.  



          Underlying facts pertaining to the question of whether, consistent with  

          Clifton's constitutional rights, Clifton's trial judge could make a post-trial  

                                                                                                       

          determination as to whether she should be found "guilty but mentally ill"  

                                                                      

          rather than simply "guilty"    



                    (a)  How the issue arose  



                    About one year after Clifton was indicted, while she was still awaiting trial,  

                                                                                           



Clifton's defense attorney asked the superior court to hold a hearing to determine if  



Clifton was competent to stand trial. The court sent Clifton to be evaluated at the Alaska  

                                                                             



Psychiatric Institute, locally known as "API".  



                                                              -5-                                                         2409
  


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

                    Clifton was initially evaluated by psychologist Lois Michaud.  Michaud  

                                                                                           



concluded that Clifton was not competent.  The State then asked for a second opinion,  

                                                                                 



so the court ordered another evaluation, this time by psychiatrist David Sperbeck.  



                    Both  Michaud  and  Sperbeck  concluded  that  Clifton  suffered  from  a  



"delusional disorder" of the "persecutory type".  In August 2008, the superior court  



concluded that Clifton was not competent to stand trial, and the court ordered that Clifton  

                                                                                                    



receive treatment at API in the hope that she would recover sufficiently to stand trial.  



                    During  the  ensuing  months,  Clifton  was  re-evaluated  by  Michaud  and  



Sperbeck, and also by another clinician, Fred Wise.  In late January 2009, the superior  

                 



court  concluded  that  Clifton  was  competent  to  stand  trial,  and  Clifton's  trial  was  

                                                                                    



scheduled for later that year.  



                    In advance of trial, the State raised the issue  of whether Clifton would  

                                                                                         



defend the charges on the basis of mental disease or defect.  Clifton's attorney declared  

                                                                                         



that Clifton did not intend to rely on either the defense of insanity or the defense of  



diminished capacity (i.e., lack of culpable mental state because of mental disease or  

                                               



defect).  In other words, Clifton's defense attorney purposely chose not to introduce any  

                                                                                                         



evidence  of  her  mental  illness,  even  though  this  evidence  was  arguably  relevant  to  



assessing Clifton's mental state at the time of the crime.  



                    The prosecutor indicated that even if Clifton chose not to raise a defense  



based on mental illness at trial, if the jury found her guilty at trial, the State might invoke  



the procedure codified in AS 12.47.060 (i.e., the pre-2012 version of that statute) and ask  

                                                                  



the trial judge to make a post-trial finding that Clifton was "guilty but mentally ill".  



                                                              -6-                                                        2409
  


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

                    (b)    The definition and consequences of a "guilty but mentally ill"  

                                                                                   

                           verdict under Alaska law  



                 As this Court explained in Lewis v. State , 195 P.3d 622, 637 (Alaska App.  

                                                                                                     



2008), a verdict of "guilty but mentally ill" constitutes a finding (1) that the government  

                                                                



has proved all the elements of the charged offense (including all required culpable mental  

                                                                                            



states),  plus  an  additional  finding  (2)  that  because  of  mental  disease  or  defect,  the  



defendant "lacked  ... the substantial capacity either to appreciate the wrongfulness of  



[their]  conduct  or  to  conform  [their]  conduct  to  the  requirements  of  law."    See  



AS 12.47.030(a).  



                 The consequences of a "guilty but mentally ill" verdict are spelled out in  

                                                                                                     



AS 12.47.050.  Subsection (a) of this statute declares that when a defendant is found  



guilty but mentally ill, the defendant receives a normal sentence for the crime - but  



while the defendant is serving this sentence, the Department of Corrections is required  

                                              



to provide mental health treatment to the defendant as long as the defendant continues  



to suffer from a mental disease or defect that causes the defendant to be "dangerous to  

                                                                                   



the public peace or safety".  See AS 12.47.050(b).   



                 While the defendant is receiving this mental health treatment, the defendant  

                                                                                   



is not eligible for parole and can not be released on furlough except to a secure setting.  

                                                                                                    



See AS 12.47.050(d).  



                 Finally, under subsection (e) of the statute, if the defendant is still receiving  

                                                                                    



this mental health treatment as the defendant nears the end of their sentence, and if the  

                                                                                 



Commissioner of Corrections has good cause to believe that the defendant still suffers  



from a mental illness that causes them to be dangerous, the Commissioner is required to  



file a petition for the defendant's involuntary civil commitment under AS 47.30.700.   



                                                             -7-                                                        2409
  


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

                    In sum, a verdict of "guilty but mentally ill" means that a defendant becomes   



entitled to mental health treatment during the service of their sentence, but it also means     



that the defendant is ineligible for parole and furlough release as long as this mental  



health treatment is required, and it also means that the defendant may face a petition for  

                                                 



involuntary commitment at the end of their sentence.   



                    Whenever a defendant raises a defense of insanity or diminished capacity  

                                                                                        



(based on mental disease or defect) at trial, "guilty but mentally ill" is one of the potential  

                                                                                          



verdicts that the jury must consider.  See AS 12.47.040(a).  



                    But the post-trial procedure at issue in Clifton's case - a procedure whereby  

                                                                   



the trial judge could make a post-trial finding that Clifton was guilty but mentally ill -  



was expressly authorized by the pre-2012 version of AS 12.47.060.   



                    This  former  version  of  AS  12.47.060(a)  declared  that,  in  cases  where  a  



criminal defendant did not present evidence of mental disease or defect to support a  

                                                                                                                                  



defense  of  insanity  or  a  defense  of  diminished  capacity,  and  if  the  defendant  was  

                                   



convicted,  "the  defendant,  the  prosecuting  attorney,  or  the  court  on  its  own  motion  

                                                                           



[could] raise the issue of whether the defendant [was] guilty but mentally ill."   



                    If the court or either party raised the issue of whether the defendant should  



be found guilty but mentally ill, the court was required to hold a hearing on this issue  



(either  before,  or  at,  the  defendant's  sentencing  hearing).    Based  on  the  evidence  



presented at this hearing, and on any other relevant evidence presented at the defendant's  

                                                                                     



trial, the court was to determine whether the defendant had been shown to be guilty but  



mentally ill, using a "preponderance of the evidence" standard of proof.  See the pre- 

                                                                           



2012 version of AS 12.47.060(b) - (c).   



                    If the court concluded that the defendant was guilty  but mentally ill, the  

                                                                                                                



court's  decision  had  the  same  legal  effect  as  if  the  jury  had  returned  a  "guilty  but  

                                                                



mentally ill" verdict at trial:  the defendant became entitled to receive mental health  



                                                                       -8-                                                                2409
  


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

treatment, and the defendant was subject to the same restrictions on parole and furlough  

                                                              



release.  



                    (c)	   The litigation leading to the present appeal, and a description  

                                                                                              

                           of the superior court's decision  



                 Two  months  after  the  jury  found  Clifton  guilty,  and  while  Clifton  was  



awaiting  sentencing,  the  State  filed  a  motion  (pursuant  to  the  pre-2012  version  of  



AS 12.47.060) asking the superior court to hold a hearing to determine whether Clifton  

                                                     



should be found "guilty but mentally ill".  



                 In response, Clifton's attorney filed a pleading attacking the constitutionality  

                                                                                                    



of this post-trial procedure on several grounds.  



                 The superior court held a hearing to receive evidence on the issue of Clifton's  

                                                                   



mental  health,  and  then  the  court  allowed  the  parties  to  file  another  round  of  legal  



memoranda.  



                 Ultimately,  the  superior  court  concluded  (using  a  "preponderance  of  the  



evidence" standard of proof) that Clifton was suffering from a mental disease or defect  

                                                                                   



at the time of her offenses, and that this mental disease or defect rendered her "guilty but  

                                                                                     



mentally ill" because she was unable to conform her conduct to the requirements of the  

                                                        



law.    However,  the  superior  court  also  concluded  that  it  would  violate  Clifton's  

                                                                                                       



constitutional rights to equal protection and due process of law if the court were to find  

                                                                                                  



her guilty but mentally ill.  



                 In reaching this conclusion, the superior court relied on the fact that Clifton  



had never asserted a defense based on mental disease or defect.  But the superior court's  

                                                                                                     



ruling rested primarily on two legal conclusions.  



                                                              -9-	                                                        2409
  


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

                  First, the superior court held that AS 12.47.050(d) is unconstitutional to the  

                                                                                               



extent that it bars guilty but mentally ill defendants from being released on parole as long  



as they are receiving mental health treatment.  The court ruled that guilty but mentally  

                                                                              



ill  defendants  have  a  "limited  fundamental  liberty  interest"  in  being  released  on  

                                                                                                      



mandatory parole when their good time credit equals the time remaining to be served in  

                                                     



their  sentence.    The  court  further  found  that  the  State  had  failed  to  articulate  a  

                                                                   



"compelling interest" to justify the statutory prohibition on parole release.   



                  Second, the superior court held that the procedure specified in the pre-2012  

                                                                                              



version of AS 12.47.060 - the procedure under which the trial judge made a post-trial  

                                           



determination as to whether the defendant was guilty but mentally ill (as opposed to  

                                                                                    



simply  guilty)  -  violated  a  defendant's  Sixth  Amendment  right  to  trial  by  jury  as  



interpreted in Blakely v. Washington , 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403  



(2004).   



                  As we have already described, a "guilty but mentally ill" verdict rests on a  



finding of fact over and above the specific elements of the defendant's crime - an  



additional finding that, because of mental disease or defect, the defendant "lacked ... the  

                                                                                               



substantial  capacity  either  to  appreciate  the  wrongfulness  of  [their]  conduct  or  to  

                                                                 



conform [their] conduct to the requirements of law."  And, if that finding is made, the  

                                      



defendant is subject to a harsher sentence - because the defendant becomes ineligible  

                                                                                       



for mandatory parole release (as long as they suffer from a mental disease or defect that  

                                                                                                    



renders them dangerous).  



                  Because of this, and based on the Supreme Court's decision in Blakely , the  

                                           



superior court concluded that defendants are entitled to a jury trial on the question of  



whether they are "guilty but mentally ill", and that defendants are further entitled to  



demand that the government prove this allegation beyond a reasonable doubt.   



                                                              -10-                                                          2409
  


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

                 The pre-2012 version of AS 12.47.060 specified that this decision was to be  

                                                                                                      



made by the trial judge, and that the judge was to use a "preponderance of the evidence"  



standard of proof.  Accordingly, the superior court concluded that this pre-2012 statute  

                                                                    



was unconstitutional.  



          Clifton's proposed alternative rationale for upholding the superior court's  

                                                                                          

          decision  



                 As  we  just  explained,  the  superior  court  found  (as  a  factual  matter)  that  

                                                                                                              



Clifton was "guilty but mentally ill" as that phrase is defined in AS 12.47.030(a) - that,  

                                                                                                  



because of mental disease or defect, Clifton lacked the ability to conform her conduct to  

                                                                                                            



the  requirements  of  the  law.    However,  the  superior  court  decided  that  it  would  be  



unconstitutional to enter this verdict against Clifton.   



                 Before we address the various aspects of the superior court's decision, we  



must  address  a  separate  argument  raised  by  Clifton  on  appeal.    Clifton  argues  that,  

         



regardless of the legal merit of the superior court's constitutional analysis, the superior  

                                                                                                               



court's decision can be affirmed on a separate, independent ground.  



                 As we noted earlier, the superior court held a post-trial evidentiary hearing  

                                                                   



to  investigate  the  State's  assertion  that  Clifton  was  guilty  but  mentally  ill.    At  that  



hearing, the superior court heard testimony from Dr. David Sperbeck.   



                 Dr. Sperbeck was one of the people who evaluated Clifton before trial, when  

                                             



her competency to stand trial was at issue.  In her brief to this Court, Clifton contends  

       



that when Dr. Sperbeck testified at the post-trial evidentiary hearing, he impermissibly  



relied on the results of the earlier competency examination.   



                 Specifically,  Clifton  asserts  that,  because  of  her  privilege  against  self- 



incrimination, the results of the competency examination could be used solely for the  



                                                             -11-                                                        2409
  


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

purpose of evaluating her competency to stand trial - and that it was unconstitutional  



to allow Dr. Sperbeck to testify about statements Clifton made during the competency   



examination when Sperbeck's testimony was offered for the separate purpose of proving   



that Clifton was guilty but mentally ill.   



                      In her brief to this Court, Clifton asserts that the superior court "did not rule  

                                   



on this issue".  Nevertheless, Clifton urges us to affirm the superior court's decision on  

                                                                                                                              



this basis, because "this [C]ourt may affirm [a lower court's ruling] on any grounds  

                                                               



apparent in the record".  



                      The main problem with Clifton's argument is that the superior court did rule  

                                                                                    



on this issue - and the superior court's ruling is directly adverse to Clifton's position.  

                                                                                                                           



                      On pages 7 through 10 of its written decision, the superior court expressly  



addressed Clifton's contention that, when Dr. Sperbeck testified as a government witness  



at the post-trial evidentiary hearing, Sperbeck impermissibly relied, at least in part, on  



his  earlier  examination  of  Clifton  to  determine  her  competency  to  stand  trial.    The  



superior court rejected the factual  basis of Clifton's argument:  



                           

                                     [This]   court   does   not   find   persuasive   Clifton's  

                                                  

                         argument that Dr. Sperbeck's opinion that Clifton could not  

                                                                                  

                         conform  her  conduct  to  the  requirements  of  the  law  was  

                         impermissibly influenced by his [earlier] evaluation [of] her  

                                                                                

                         competency to stand trial.  Sperbeck testified that he could set  

                         aside  this  [earlier]  evaluation[,]  and  the  court  accepts  this  

                                                              

                         assessment.                 The   court   finds   Dr.   Sperbeck   to   be   an  

                                                    

                         experienced and professional forensic expert who is capable  

                                                         

                         of  making  objective  assessments  when  required,  and  who  

                         would           acknowledge                  improper             influence             by       another  

                                       

                         assessment.  



                                                                             -12-                                                                        2409
  


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

                 For   these   reasons,   we   reject Clifton's              suggestion   that the         superior  court  



violated her privilege against self-incrimination when the court relied on Dr. Sperbeck's   



testimony in the post-trial evidentiary hearing.  



                 We now turn to the constitutional issues presented by the superior court's  



refusal to enter this verdict against Clifton.   



                 The next section of our opinion explains why we must vacate the superior  



court's finding that Clifton was guilty but mentally ill - why the post-trial procedures  

                                                                



that the superior court used in Clifton's case were an unconstitutional denial of Clifton's  

                                                                  



right to trial by jury.  



          The     post-trial       procedures         prescribed         in   the    pre-2012   version            of  

                                  

          AS  12.47.060  violated  the  Sixth  Amendment  right  to  jury  trial  as  

          interpreted in Blakely v. Washington   



                 In Blakely v. Washington , the United States Supreme Court held that the  



Sixth Amendment guarantees criminal defendants the right to trial by jury (and the right  

                                                                                        



to demand proof beyond a reasonable doubt) on any question of fact which, if resolved  

                                                                                                       



in the government's favor, will subject the defendant to a greater maximum sentence than  

                                                                              

would otherwise apply to the defendant's crime. 3  

                                                                            



                 Clifton stands convicted of attempted murder and third-degree assault.  Under  



                                                                                                            

the provisions of AS 33.20, she would normally be entitled to good time credit equal to  



one-third of her composite sentence, and she would be entitled to release on mandatory  



parole when that good time credit equals the unserved portion of her active sentence of  

                           



imprisonment.   



          3    Blakely , 542 U.S. at 303-04, 124 S.Ct. at 2537.  



                                                             -13-                                                           2409  


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

                       This good time credit, and the accompanying right to mandatory parole, is                                                      



not a discretionary aspect of Clifton's sentence.  The superior court has no sentencing  



 authority  to  diminish  Clifton's  good  time  credit,  or  to  declare  her  ineligible  for  

                                                                                                                                             



mandatory parole.  Forster v. State , 236 P.3d 1157, 1171 (Alaska App. 2010).   



                       Rather, Clifton's eligibility for mandatory parole can be restricted only if she  

                                                                                                                      



is found guilty but mentally ill - only if the government proves that, because of mental  

                                                                                                                             



 disease  or  defect,  Clifton  lacked  the  substantial  capacity  either  to  appreciate  the  



wrongfulness of her conduct or to conform her conduct to the requirements of the law.  

                                                          



                       In Forster , we held that when a finding of fact will deprive a defendant of  



their normal eligibility for mandatory parole, the defendant is entitled to demand trial by  

                                                    



jury on that issue of fact, and to demand that the government prove that fact beyond a  

                                         



reasonable doubt.  236 P.3d at 1170-72.  See also Alleyne v. United States , __ U.S. __,  

                                                                                                  



 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) (holding that there is a right to jury trial under  

                                                                                                                     



the Sixth Amendment with respect to any finding of fact that triggers, or increases, a  

                                                                            

mandatory minimum sentence). 4  

                                                                  



                       As we explained earlier, the post-trial procedure described in the pre-2012  



                                                                              

version of AS 12.47.060  (the version of the statute that was in effect when Clifton's case  



                                                                                                                                                     

was litigated) authorized the trial judge to determine whether the defendant should be  



                                    

 found "guilty but mentally ill", and it directed the judge to use a "preponderance of the  



 evidence" standard of proof when making this decision.   



             4      The United States Supreme Court's decision in Alleyne implicitly overrules the  



Alaska Supreme Court's contrary interpretation of the right to jury trial in                                                               State v. Malloy,  

46 P.3d 949 (Alaska 2002).  In Malloy , the Alaska Supreme Court held that a defendant has  

no right to jury trial with respect to a finding of fact that increases the applicable mandatory         

minimum sentence but does not increase the defendant's potential maximum sentence.                                                                                 Id.  

 at 956-57.  



                                                                                 -14-                                                                          2409
  


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

                      Because this statute designated the judge as the finder of fact rather than the                                  



jury, and because this statute called for proof by a preponderance of the evidence rather     



than proof beyond a reasonable doubt, the statute violated the Sixth Amendment right  



to jury trial as interpreted in Blakely .  



                      Normally, the next question would be whether this Court should strike down  

                                                                                                            



the  statute  in  its  entirety  or,  instead,  modify  the  statutory  procedures  to  make  them  

                                                                                       



comply with Blakely .  But this question has been mooted by an action of the legislature  

                                                                           



-  because,  in  2012,  the  legislature  amended  AS  12.47.060  to  make  its  procedures  

comply with Blakely . 5  



                      Subsection (a) of the current statute declares that if the defendant is not going  



                                                                                                                                        

to rely on a defense of mental disease or defect, and if the State wishes to litigate the  



question of whether the defendant should be found guilty but mentally ill, the State must  



notify the defendant and the court before the trial.  If the underlying charges against the  

                                                                                                         



defendant  are  to  be  tried  by  a  jury,  the  post-verdict  determination  of  whether  the  

                                                                                                        



defendant should be found "guilty but mentally ill" must be decided by the same jury  



 (unless both parties agree to waive a jury on that issue).  And the statute specifies that  

                                                                                                                     



the standard of proof on this issue is "beyond a reasonable doubt".   



                      In a separate provision of the same session law, the legislature declared that  

                                                                                                      



these procedural changes apply "to [all] proceedings occurring on or after the effective  

                                                                                                                                 



date of this Act", regardless of whether the defendant committed their underlying offense  

                                

"before, on, or after the effective date of this Act." 6  

                                                                                                   



                                                                            

                      In other words, if this Court sends Clifton's case back to the superior court  



                      

 for  a  new  post-trial  determination  of  whether  Clifton  should  be  found  "guilty  but  



             5     SLA 2012, ch. 70,  6 & 7.  



             6     SLA 2012, ch. 70,  17.  



                                                                             -15-                                                                            2409  


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

mentally  ill",  the  legislature  has  already  declared  that  the  newly  enacted,  Blakely- 

                                                                                



compliant procedures will apply.  



          Whether there is a constitutionally adequate basis for the legislature's  

          distinction between defendants who are simply "guilty" and defendants  

          who are "guilty but mentally ill"  



                  As we explained in the preceding section of this opinion, a defendant who  



is found "guilty but mentally ill" is subject to a more severe sentence than a defendant  

                                                                                                          



who is simply found "guilty".  When a defendant is found guilty but mentally ill, they  

                                                                                          



must receive mental health treatment until they no longer suffer from a mental disease  

         



or  defect  that  renders  them  dangerous.    See  AS  12.47.050(b).                              And  as  long  as  this  

                                                                                                            



mandated mental health treatment continues - i.e., as long as the defendant suffers from  

                                                                                             



a mental disease or defect that renders them dangerous - the defendant is not eligible  

                                                                                         



for release on parole or furlough.  



                  Clifton concedes that the State has a legitimate interest in protecting the  

                                             



public from people who are dangerous and who pose an increased risk of recidivism.  



But Clifton argues that the means chosen by the legislature to advance this goal - the  



statutes  pertaining  to  the  verdict  of  "guilty  but  mentally  ill"  -  are  not  sufficiently  

                                   



tailored to survive constitutional scrutiny.  



                  Clifton first argues that the "guilty but mentally ill" verdict is constitutionally  

                                                                                              



flawed   because   the   legislature   has   unreasonably   equated   "mental   illness"   with  

                                                                                                              



"dangerousness".   



                  We do not read AS 12.47 as equating "mental illness" with "dangerousness".  

                                   



Under AS 12.47.030(a), proof that a defendant suffered from mental illness at the time  

                                                                                                                       



of the offense is not enough to support a verdict of "guilty but mentally ill".  Rather, the  

                                                           



government  must  prove  that  the  defendant  suffered  from  a  mental  illness  and  that,  



                                                              -16-                                                          2409
  


----------------------- Page 17-----------------------

because of this mental illness, the defendant lacked the substantial capacity to appreciate  

                                                                                   



the wrongfulness of their conduct or to conform their conduct to the requirements of the  

                                                                                              



law.   



                  Similarly,         the     mandatory           mental       health       treatment         prescribed          in  



AS 1247.050(b) - and the concomitant restriction on parole and furlough eligibility -  

                                                                                             



does not apply to all mentally ill offenders.  Rather, it only applies to defendants who  



have been found "guilty but mentally ill" and who  continue to suffer from "a mental  



disease or defect that causes [them] to be dangerous to the public peace or safety".  



                  Clifton nevertheless argues (referring to the facts of her own case) that it is  

                                                                                                                        



unreasonable   and   arbitrary   for   the   legislature   to   draw   a   distinction   between  

                                                                                     



(1) defendants who commit attempted murder and who suffer from a mental disease or  

                                                                                                                     



defect that deprives them of the substantial capacity to appreciate the wrongfulness of  



their conduct or to conform their conduct to the requirements of the law, versus (2) all  

                                                                                                         



other defendants who commit attempted murder.   



                  In particular, Clifton asserts that there is no good reason to impose additional  

                                                                   



restrictions on the parole eligibility of defendants in the first category - no good reason  

                   



to conclude that defendants in the first category pose a greater danger to the public than  

                                                                                                          



defendants in the second category.  



                  We disagree.  The legislature could reasonably conclude that if a defendant  

                                                                                                                



suffers from a mental disease or defect that deprives them of the substantial capacity to  

                                                                                                   



appreciate the wrongfulness of criminal conduct, this fact is important to any assessment  

                                                                                          



of whether the defendant can safely be released on parole or furlough.  The legislature  

                                                                               



could likewise conclude that, even when a defendant does appreciate the wrongfulness  

                                                                                  



of the criminal conduct, if the defendant nevertheless suffers from a mental disease or  

                                                               



defect  that  deprives  them  of  the  substantial  capacity  to  control  their  behavior  and  



                                                               -17-                                                          2409
  


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

conform   their   conduct   to   the   requirements   of   the   law,   this   too   is   important   to  any  



assessment of whether the defendant can be safely released on parole or furlough.  



                 The legislature could reasonably conclude that defendants who are found  



guilty but mentally ill (under either of the two clauses of the statutory definition) will be  

                                                                                                                   



significantly less receptive to parole supervision and control.  



                 We accordingly conclude that the legislature had sufficient justification for  

                                                                  



classifying  these  defendants  differently  (for  parole  and  furlough  purposes)  from  

                                                                                                    



defendants who commit the same crimes but who do not suffer from a mental disease or  

                                                 



defect that deprives them of the substantial capacity to appreciate the wrongfulness of  



their conduct or to conform their conduct to the requirements of the law.  



                 In the superior court's written decision in Clifton's case, the court noted a  



second, related problem:  A verdict of "guilty but mentally ill" only establishes that,  



at the time the defendant committed the offense, the defendant suffered from a mental  

                                                     



disease or defect which caused them to lack the substantial capacity to appreciate the  



wrongfulness of their conduct or to conform their conduct to the requirements of the law.  

                                                                                                              



But the continuing consequences of that verdict - the defendant's ineligibility for parole  

                                                



or furlough release - rest on the assumption that the defendant continues to suffer from  



a mental disease or defect that renders them dangerous.  And the provisions of AS 12.47  

                                                       



do not include any procedure by which a defendant can show - either at sentencing or  



later, during the service of their sentence - that they no longer suffer from a mental  

                                                                                                        



disease or defect that renders them dangerous.  



                 We  noted  this  same  problem  more  than  twenty  years  ago,  in  Monroe  v.  

State . 7                                                                                       

            In footnote 4 of Monroe , 847 P.2d at 90, we declared that defendants who are  



found guilty but mentally ill "must be provided some procedural mechanism to seek  



          7   847 P.2d 84 (Alaska App. 1993).  



                                                           -18-                                                        2409  


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

eligibility  for  parole  [and]  furlough  by  demonstrating  [their]  lack  of  continued  



dangerousness."  But we did not delve further into this issue in Monroe because we  



concluded that the issue was not yet ripe:  Monroe had received a lengthy sentence, so  

                                                                



"[r]egardless  of  his  mental  condition,  Monroe  would  be  ineligible  for  discretionary  

parole for an extended period of time." 8  

                                                              



                                                                                

                 The superior court likewise concluded that this issue was not ripe in Clifton's  



case.   



                 Clifton has not yet been sentenced, but she stands convicted of attempted  



murder,   and   she   therefore   faces   a   mandatory   minimum   sentence   of   5   years'  

imprisonment. 9  Clifton also stands convicted of a separate third-degree assault, and she  

                                                                                                                      

must receive a partially consecutive sentence for this crime. 10  

                                                                                             



                 Under the provisions of AS 33.16.090(b)(7), Clifton will not be eligible to  



apply for discretionary parole until she serves the 5-year mandatory minimum sentence  



for  attempted  murder,  or  one-third  of  her  actual  sentence  for  attempted  murder  

                       



(whichever is greater), plus  one-quarter of the consecutive portion of the sentence she  



receives for third-degree assault.   



                 For this reason, the superior court concluded that it was premature to decide  

                                                                                             



this due process issue in Clifton's case, and the court made no ruling on the merits of this  

                                                                                                         



issue.  



          8    Id. at 90 n. 4.  



          9    See AS 12.55.125(b).  



          10   See AS 12.55.127(c)(2)(F).  See also  Scholes v. State                    , 274 P.3d 496, 500 (Alaska   



App. 2012) (construing this statute to require a sentencing court to impose at least one day  

of the other sentence consecutively).  



                                                             -19-                                                        2409
  


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

          Whether  the  consequences  of  a  "guilty  but  mentally  ill"  verdict  -  in  

         particular, the restriction on parole and furlough release - can lawfully  

          be imposed on defendants who do not raise a defense at trial based on     

          mental disease or defect  



                 Clifton argues that even if the legislature had an adequate basis for drawing   



a distinction between defendants who are "guilty" and defendants who are "guilty but  



mentally ill", it is nevertheless unlawful to subject a defendant to the consequences of  



a "guilty but mentally ill" verdict unless the defendant has affirmatively raised a defense  

                                                                               



based on mental disease or defect.   



                 As Clifton notes in her brief to this Court, there are two main consequences  

                                                           



of  a  "guilty  but  mentally  ill"  verdict:    the  Department  of  Corrections  is  required  to  



provide mental health treatment to the defendant, and the defendant is ineligible for  



parole and furlough release while receiving this mental health treatment.   



                 But as Clifton acknowledges, when the superior court declared the "guilty  



but mentally ill" verdict unconstitutional, the court did not consider, and did not rely on,  

                                                                                                   



the assertion that a "guilty but mentally ill" verdict leads to compulsory mental health  



treatment.        Rather,  the  superior  court  relied  on  the  fact  that  this  verdict  leads  to  a  

                   



restriction on a defendant's eligibility for parole and furlough release.  



                 Indeed, the relevant statute - AS 12.47.050(b) - does not explicitly say that  



defendants  who  are  found  guilty  but  mentally  ill  are  thereby  subject  to  compulsory  



mental health treatment.  Rather, the statute says that the Department of Corrections is  

                                                                                    



required to "provide" mental health treatment to defendants who are found guilty but  

                                                                                                 



mentally ill, and that the Department shall determine the course of this treatment.  It is  

                                                                                                                         



arguable that defendants in this situation are free to reject the Department's proposed  



course of treatment - although this would seemingly mean that defendants who did not  

               



spontaneously get better would never be released on parole or furlough.  



                                                            -20-                                                       2409
  


----------------------- Page 21-----------------------

                  (We do not speak here of the Department's separate authority to administer  

                                                                                     



mental health treatment to prison inmates who, because of mental disease or defect, pose  

                                                                        



a threat to the safety of persons in the prison environment.  Rather, the question is the  



Department's authority to administer mental health treatment under AS 12.47.050, which  



addresses a different concern: prisoners who, because of mental disease or defect, would  

                                                                                                             



pose a danger to the public safety if they were released on parole or furlough.)  



                  We need not resolve these issues of statutory interpretation and a defendant's  

                                                                                                           



potential right to refuse various forms of treatment - because these issues were not  



litigated in the superior court, and the superior court made no rulings concerning them.  

                                               



                  Instead,  we  turn  to  the  issue  that  the  superior  court  did  decide:    Is  it  

                                                                                                               



constitutional to restrict a defendant's eligibility for parole or furlough release if (1) the  

                                                                                                                           



defendant suffers from a mental disease or defect that renders the defendant dangerous  

                                                                                                



to the public, but (2) the defendant chooses not to raise a defense to the underlying  

                                                                             



criminal charge based on  mental disease or defect?  



                  In her brief to this Court, Clifton asserts that it is fundamentally unfair for the  



legislature to give "disparate treatment [to] defendants who have not placed their mental  

                                                                  



illness at issue".  But Clifton's brief does not explain what this "disparate" treatment is.  

                                                                                  



                  It is true that, under the provisions of AS 12.47.040(a), a defendant who  



raises the affirmative defense of insanity knows that, as a consequence, the jury will be  

                                                   



given the option of finding the defendant "guilty but mentally ill".  But this same statute  

                                          



also declares that the jury must be instructed on the "guilty but mentally ill" verdict in  



all other cases where evidence of the defendant's mental disease or defect was admitted  



at trial.   



                  Alaska  law  does  not  require  a  defendant's  approval  before  the  State  

                                                      



introduces evidence of the defendant's mental disease or defect. Under AS 12.47.020(a),  

                                                                                                  



                                                               -21-                                                           2409
  


----------------------- Page 22-----------------------

such evidence "is admissible whenever it is relevant to prove that the defendant did or  

                                                                                                                         



did not have a culpable mental state which is an element of the crime [charged]."   



                 AS 12.47.020(a) limits the admissibility of this evidence only in the sense  



that if a defendant wishes to introduce evidence of their  mental disease or defect to  

                                                                                        



negate  a culpable mental state, the defendant must give the State and the trial court  

            



advance notice.  



                 Thus,  under  AS  12.47.020(a),  the  State  can  introduce  evidence  of  a  



defendant's mental disease or defect if this evidence is relevant to support the State's  



allegations concerning the defendant's mental state.  And if such evidence is admitted  



at trial, AS 12.47.040(a) declares that the jury must be instructed on the verdict of "guilty  

                                                                                



but mentally ill".  



                 The procedure set forth in AS 12.47.060 (i.e., the post-verdict assessment of  

                                                                                      



whether a defendant should be found guilty but mentally ill) applies only in cases where  

                                                                                                     



neither the State nor the defendant presents evidence of the defendant's mental disease  



or defect during the litigation of the defendant's guilt.  



                 But even in the cases covered by AS 12.47.060  -  i.e.,  cases  where  no  

                                                                             



evidence  of  the  defendant's  mental  illness  is  presented  at  trial,  and  the  litigation  



regarding  the  "guilty  but  mentally  ill"  verdict  occurs  after  the  jury  has  found  the  

                                                                                                                  



defendant guilty - (1) the elements of the "guilty but mentally ill" verdict are the same,  



(2) the State bears the burden of proving those elements beyond a reasonable doubt, (3)  

                                                                                                                   



the defendant is entitled to demand that the same jury decide both the underlying offense  

                                                                               



and the question of whether the defendant is guilty but mentally ill, and (4) the same  

                                                                               



consequences attach to any resulting verdict of "guilty but mentally ill".  



                 Reading between the lines of Clifton's brief, it appears that Clifton is arguing  



that  even  though  she  may  suffer  from  a  mental  disease  or  defect  that  rendered  her  

                            



dangerous - either because it deprived her of the capacity to understand that attempted  

                                                                      



                                                              -22-                                                        2409
  


----------------------- Page 23-----------------------

murder is wrong, or because it deprived her of the capacity to control her behavior and  

                                               



refrain from trying to commit murder - she nevertheless has a constitutional right not  



to be subjected to the consequences of a "guilty but mentally ill" verdict because she  



affirmatively chose not to raise a defense to the underlying attempted murder charge  

                                                                          



based on this mental disease or defect.   



                 Clifton's brief offers little direct discussion of this legal contention, and scant  

                                                                  



legal authority to support it.  Nor is there some self-evident constitutional impediment  



to the State seeking a more severe form of sentence based on an assertion about the  



defendant's mental state (above and beyond the elements of the charged offense), so long  

                                     



as (1) the defendant receives adequate advance  notice  and (2) the procedures under  

                                                                                     



which this factual assertion is litigated comply with Blakely .  



                 At its core, Clifton's argument appears to be that a "guilty but mentally ill"  

                                                                                                         



verdict is the "price" that a defendant risks if the defendant raises a defense based on  

                                                                                                                    



mental disease or defect and is unsuccessful - and that the State is barred from exacting  

                                                                      



this price if the defendant does not raise a mental illness defense.  



                 We do not view the matter in this way.  As we have explained, a "guilty but  

                                                                                                                  



mentally ill" verdict represents findings of fact that are relevant to the assessment of a  

                     



defendant's dangerousness - relevant to gauging the risks that the defendant would  



pose to the public if they were released on parole or furlough.  If a defendant suffers  



from  a  mental  disease  or  defect,  and  if  that  mental  disease  or  defect  rendered  the  



defendant  substantially  incapable  of  understanding  that  their  criminal  behavior  was  



wrong, or substantially incapable of refraining from engaging in that criminal behavior  

                                                       



even though they understood that it was wrong, then there is a reasonable basis for  

                                                         



concluding that the defendant would be less receptive to supervision and control if they  

                                                                                                                        



were released on parole or furlough.  



                                                              -23-                                                        2409
  


----------------------- Page 24-----------------------

                  A  defendant  who  suffers  from  this  sort  of  mental  disease  or  defect  may  



choose not to raise a defense based on mental illness at trial.  And there will be times (as  

                              



in Clifton's case) when the State is likewise willing to litigate guilt or innocence without  

                                                                                                     



introducing evidence of the defendant's mental illness.  In such cases, evidence of the  



defendant's mental disease or defect will be relevant only if the defendant is convicted,  

                                                                                                 



because it is relevant to the type of disposition that the sentencing court should impose  

                                                                                                      



on the defendant - in particular, the restriction on parole and furlough release that arises  

                                                                        



from a finding that the defendant is "guilty but mentally ill".  



                  The post-verdict procedure that Clifton attacks - the procedure specified in  

                                                            



AS  12.47.060  -  is  a  method  that  allows  the  State  to  present,  and  the  defendant  to  

       



confront, evidence of (1) the defendant's mental disease or defect and (2) the potential  

                                                                                                      



link  between  that  mental  illness  and  the  defendant's  capacity  to  appreciate  the  

                              



wrongfulness of their conduct or their capacity to conform their conduct to the law.  



There  is  no  apparent  constitutional  impediment  to  having  the  State  seek  parole  and  

                                                                                



furlough restrictions in a post-verdict proceeding, so long as the procedures for litigating  

                                                                            



this question comply with Blakely .  



                  The current version of AS 12.47.060 does apparently comply with Blakely .  

                                                     



As currently drafted, this statute essentially calls for a bifurcated trial, in front of the  



same finder of fact, in cases where neither party wishes to introduce evidence of the  



defendant's  mental  disease  or  defect  on  the  question  of  the  defendant's  guilt  or  



innocence, but one or both parties nevertheless wish to litigate - in a sentencing context  



- the issue of whether the defendant should be found guilty but mentally ill.  



                  First,  the  jury  hears  the  evidence  pertaining  to  the  defendant's  guilt  or  

                            



innocence and reaches a decision.  Then, if the jury finds the defendant guilty, the jury  

                                                                                                                         



hears the evidence pertaining to the defendant's mental disease or defect and decides  

                                                                            



whether the defendant should be found "guilty but mentally ill".   



                                                               -24-                                                          2409
  


----------------------- Page 25-----------------------

                 Because (as this Court held in Forster) the defendant faces an increased  



maximum  sentence  if  the  jury  decides  in  the  government's  favor  on  this  issue,  the  



defendant is entitled to trial by jury and to proof beyond a reasonable doubt.  The current  

                                          



version of AS 12.47.060 guarantees both of these rights.   



                 To  the  extent  that  Clifton  might  be  arguing  something  else,  beyond the  

                                                                                                        



contentions we have just discussed here, we conclude that the argument is inadequately  

                                                                                 



briefed and therefore waived.  



          Whether  it  would  violate  the  constitutional  guarantee  against  double  

         jeopardy if we now ordered the superior court to hold a trial on the issue  

                                                                                                      

          of whether Clifton should be found "guilty but mentally ill"  



                 To sum up the discussion thus far:   



                 We have concluded that the legislature has a valid basis for distinguishing  



between defendants who are simply "guilty" of a crime and defendants who are "guilty  

                                                                    



but mentally ill" because, at the time of their offense, they suffered from a mental disease  

                                                                                                          



or  defect  that  deprived  them  of  the  substantial  capacity  either  to  appreciate  the  



wrongfulness of their conduct or to conform their conduct to the requirements of the law.  

                                                                          



                 We   have   further   concluded   that   it   is   constitutional   to   impose   the  

                                                                         



consequences of a "guilty but mentally ill" verdict on a defendant - i.e., to restrict the  

                                                                                 



defendant's parole and furlough release - so long as the government is forced to prove  

                                                                                                        



the factual assertions underlying the finding of "guilty but mentally ill" using procedures  

                                                 



that comply with Blakely .  



                 Thus, the superior court was wrong when the court concluded that it would  



be unconstitutional to subject Clifton to a guilty but mentally ill finding.  



                 The remaining question is what to do in Clifton's case.  The State asks us to  

                                                                     



remand Clifton's case to the superior court, so that a jury trial can be held on the issue  

                                                                                                        



                                                              -25-                                                        2409
  


----------------------- Page 26-----------------------

of whether Clifton should be found "guilty but mentally ill".  Clifton argues that any new  

     



trial would violate the double jeopardy clause.  



                  As we are about to explain in more detail, we conclude that a new trial will  

                                                                                        



not violate the double jeopardy clause.  We reach this conclusion for two reasons.   



                  First, Clifton repeatedly urged the superior court to bifurcate the proceedings  

                                                                                           



- to hold separate trials on the issues of (1) whether Clifton was guilty of the criminal  

                                                               



charges and (2) whether Clifton was guilty but mentally ill.   



                  The defense attorney assured the trial judge that even if the trial jury was not  

                                      



offered  a  "guilty  but  mentally  ill"  verdict,  the  State  would  have  a  later  opportunity  

                                                                                              



(if Clifton was convicted at trial) to pursue a post-verdict hearing on this issue under  

                                                                                                                   



AS 12.47.060.   



                  Second,  the  United  States  Supreme  Court  has  declared  that  states  can  

                                                                                              



lawfully enact procedures which call for a separate, second trial on aggravating factors  

                                                                                                  



(for example, a defendant's prior convictions) if the existence of the aggravating factor  

                                                                           



"is a distinct issue", "essentially independent of the determination of [the defendant's]  

                                                                                                          



guilt on the underlying substantive offense."  Oyler v. Boles, 368 U.S. 448, 452; 82 S.Ct.  

                                                                                                  



501, 503-04; 7 L.Ed.2d 446 (1962).  



                  Clifton's  attorney  repeatedly  assured  the  superior  court  that  the  issue  of  



Clifton's mental illness had no relevance to the question of her guilt of the underlying  



crimes.  The defense attorney took this position during his arguments to the trial judge  

                                                                                                                     



-  arguments that ultimately proved successful - that Clifton's jury should not be  

      



instructed on the "guilty but mentally ill" verdict.  



                  Given these circumstances, we conclude that Clifton abandoned any double  

                                                                                                                    



jeopardy claim that she might otherwise have had.  



                                                               -26-                                                          2409
  


----------------------- Page 27-----------------------

               (a)  The pertinent aspects of the superior court litigation  



                    As we explained at the beginning of this opinion, the superior court and the  

                                                                           



parties engaged in pre-trial discussions concerning Clifton's mental illness and the role  

                                                            



that evidence of that illness might play at Clifton's trial.  



                    The prosecutor wanted to have the jury instructed on the verdict of "guilty  

                                                                                                    



but mentally ill", but Clifton's attorney urged the trial judge to reject the State's request.  

                                                                     



                    The defense attorney told the court that it would be inappropriate to instruct  

                                                                                  



the  jury  on  the  "guilty  but  mentally  ill"  verdict  because  (according  to  the  defense  

                                                                                                                 



attorney) the question of whether Clifton was guilty of attempted murder and third- 



degree assault "[did] not implicate [her] mental condition in the slightest".  



                    The defense attorney told the court that he did not intend to litigate any  

                                                                            



defense based on mental disease or defect.  The defense attorney declined to recite the  

                                                                   



exact details of his planned defense, but he assured the court that he "[would not] argue  

                                                                  



that [Clifton's] mental condition impacted her ability to form the requisite [culpable]  



mental state.  ...  Our defense does not implicate [her] mental condition."  



                    Upon hearing the defense attorney's remarks, the trial judge suggested that  

                                           



a "guilty but mentally ill" verdict should still be given to the jury, even if the defense  

                                                                                                               



attorney did not intend to raise a defense based on mental disease or defect, because it  

                                        



appeared likely that Clifton's case was going to be litigated in such a way as to raise  

                                                              



questions about her mental condition.  The defense attorney disagreed:   



                      

                              Defense  Attorney :    I  don't  believe  so.  Certainly,  

                    nothing we're going to do - you know, ... we've not made  

                    [a] final decision whether Ms. Clifton's going to testify or  

                    not, so ... I can't say [with] absolute certainty, but I think  

                            

                    there's definitely ways in which we can go about the trial  

                    without  reference  to  her  mental  condition,  without  that  



                                                              -27-                                                          2409
  


----------------------- Page 28-----------------------

                                                         

                    becoming an issue that the jury needs to dwell upon.  We're  

                                    

                    not going to be arguing that her mental condition impacts her  

                                                         

                    culpability in any way. We're not going to argue that she had  

                    a diminished capacity because of a mental defect or illness.  

                    You know, this is going to be a straightforward defense.  



                    In response to the defense attorney's remarks, the prosecutor told the judge:  



"And if that's all it is, Your Honor, then we don't have an issue."  In other words, the  



                                                                                                                 

State would not press its request to have the jury instructed on the "guilty but mentally  



ill" verdict.   



                                                                                 

                    But the trial judge was not yet satisfied. He asked the defense attorney what  



would happen if the jury heard evidence during the trial suggesting that Clifton suffered  



from mental illness, and the jury sent a note to the court asking whether this evidence  

                                                    



should make any difference to their decision.  The defense attorney answered:  



                      

                              Defense Attorney :   I think the thing to do is ... write  

                    them back a note say[ing], "This is not something you've  

                    been  instructed  on.    ...    You  haven't  heard  any  evidence  

                    relating  to  [this  issue],  and  so  it  shouldn't  enter  your  

                    [consideration of the case]."  



The defense attorney then added:  



                      

                              Defense Attorney :  And I think it's important to note,  

                                                                                                     

                    too, that this isn't the [State's] last chance to pursue a ["guilty  

                                                     

                    but mentally ill"] verdict.  Should Ms. Clifton be convicted,  

                           

                    ...  12.47.060 provides the procedure through which the State  

                                                                                         

                    can ask [that] her conviction ... be amended to a ["guilty but  

                                                                          

                    mentally ill"] verdict.  And that's done outside the presence  

                                                                         

                    of [the] jury.  ...  That's another issue altogether.  ...  It's not  

                                                                      

                    as  though  this  is  the  last  chance  to  seek  a  ["guilty  but  

                    mentally ill"] verdict.  



                                                               -28-                                                          2409
  


----------------------- Page 29-----------------------

                    This  discussion continued for many more pages of transcript, with                                      the  



defense attorney repeatedly objecting to any suggestion that Clifton's jury should be  



instructed concerning the verdict of "guilty but mentally ill".  Again, the defense attorney  



repeatedly asserted that Clifton's mental illness would have no relevance to the jury's  



determination of her guilt or innocence of attempted murder and third-degree assault.  



                    After hearing these arguments, the trial judge concluded that he would have  

                                                                   



to hear the evidence at the trial before he could make an informed decision as to whether  

                                                                                                               



to instruct the jury about the "guilty but mentally ill" verdict.  



                    A little later in the trial, the defense attorney presented a different argument  

                                                



in an effort to head off a "guilty but mentally ill" verdict:  he told the trial judge that,  

                                                   



under Alaska law, "the defense controls whether or not a ["guilty but mentally ill"]  



verdict can be introduced to the jury" - that, without the defendant's acquiescence, the  

                                                                                 



jury could not be given this option.  The defense attorney also reiterated his position that  



a "guilty but mentally ill" verdict "[was] absolutely unnecessary in this case".  



                    Ultimately,  the  trial  judge  acceded  to  the  defense  attorney's  position:  



Clifton's trial jury was not instructed on the verdict of "guilty but mentally ill".  



               (b)  How this procedural history relates to the double jeopardy issue  



                    In State v. Dague, 143 P.3d 988 (Alaska App. 2006), this Court discussed  

                                 

the United States Supreme Court's decisions in Graham v. West Virginia 11  

                                                                                                               and Oyler v.  

Boles 12  

                                                                             

            - cases where the Supreme Court rejected double jeopardy challenges to a state  



          11   224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917 (1912).   



          12   368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962).   



                                                              -29-                                                           2409  


----------------------- Page 30-----------------------

procedure that allowed the State to litigate certain aggravating factors in a second jury  

                        



trial.  See Dague , 143 P.3d at 1006-07 & 1012.  

                 



                     We construed  Graham and  Oyler as allowing state legislatures to enact  

                                                                                                                         



procedures that call for a second, separate jury trial on aggravating factors "whenever the  

                                                                



sentence enhancement was based on facts 'essentially independent of the determination  

                                    



of guilt on the underlying substantive offense'."  Dague , 143 P.3d at 1012 (quoting  



 Oyler, 368 U.S. at 452, 82 S.Ct. at 503).  



                     The current version of AS 12.47.060 creates a procedure that is well within  

                                                                                                           



the boundaries of Graham and Oyler - because AS 12.47.060 (as now written) does not  

                                                         



call for separate trials, but rather a bifurcated trial in front of the same jury.  



                     This type of bifurcated trial is not possible in Clifton's case, because the  



jury  that  found  Clifton  guilty  of  attempted  murder  and  third-degree  assault  was  

                                        



discharged  long ago.  That jury was discharged without reaching any decision as to  

                   



whether Clifton should be found "guilty but mentally ill" - but this is because Clifton's  

                                                                                                  



attorney did everything within his power to prevent the jury from being instructed on the  

                                                                               



possibility of a "guilty but mentally ill" verdict.   



                     As a technical matter, the elements that the State must prove to establish  

                                            



that  a  defendant  is  "guilty  but  mentally  ill"  are  distinct  from  the  elements  of  the  

                                                                                                                           



defendant's underlying offense.  The State must prove all the elements of the charged  



offense (including all required culpable mental states), plus  the State must prove that,  

                                                 



because of mental disease or defect, the defendant lacked the substantial capacity either  

                              



to  appreciate  the  wrongfulness  of  their  conduct  or  to  conform  their  conduct  to  the  

                                                                                                     



requirements of the law.   



                     There will, of course, be times when the effects of a defendant's mental  



illness will be relevant to the jury's assessment of the defendant's guilt - in particular,  

                                                                                                     



the jury's assessment of whether the defendant acted with a required culpable mental  



                                                                -30-                                                          2409
  


----------------------- Page 31-----------------------

state.  In such cases, evidence of the defendant's mental illness will have overlapping  

           



relevance - both to the State's proof of the elements of the charged offense, and to the  



State's proof of the additional elements needed to support a "guilty but mentally ill"  

            



verdict.  



                    But when Clifton's trial judge suggested that Clifton's mental illness might  

                                                                                      



have this kind of overlapping relevance in the present case, Clifton's defense attorney  



repeatedly assured the judge that Clifton's case would be litigated in such a way that the  

                                                                       



existence of Clifton's mental illness - and the related questions of whether that mental  

                                                           



illness rendered Clifton incapable of appreciating the wrongfulness of her conduct, or  

                                                         



incapable  of  conforming  her  conduct  to  the  requirements  of  the  law  -  would  be  



irrelevant to the jury's decision.  



                    In the end, Clifton's jury received no instruction on the verdict of "guilty  



but mentally ill".  And later, when the jury concluded its deliberations and the trial judge  

                                                                                                       



accepted the jury's verdicts and asked if the jury should be discharged, Clifton's attorney  

                                                            



said that he had no objection.  



                    The  prosecutor likewise said that she had no objection.  But as we have  

                             



explained, this was after the defense attorney assured the judge and the prosecutor that  

                                                        



the State would be free to pursue a "guilty but mentally ill" verdict after the trial was  



over - pursuant to the then-existing provisions of AS 12.47.060.   



                    Under these circumstances, we reach the same conclusion that we reached  

                                                              



in Dague :  Clifton, through the actions of her attorney, waived any right she might  

                                                  



otherwise have had to insist that a single jury decide both (1) her guilt of the underlying  

                                                 



charges and (2) the question of whether, because of mental disease or defect, she lacked  



the substantial capacity to appreciate the wrongfulness of her conduct or to conform her  

                                                                                                        



conduct to the requirements of the law.  



                                                              -31-                                                        2409
  


----------------------- Page 32-----------------------

                   We therefore conclude that the superior court can now lawfully convene  

                                                                                          



another jury to determine whether Clifton should be found guilty but mentally ill.  



                   (In  her  brief,  Clifton  raises  various  arguments  concerning  the  type  of  



evidence that will be admissible or inadmissible at this renewed trial.  These issues are  

                                                                                                   



best left for the superior court.)  



         Conclusion  



                   The decision of the superior court is REVERSED, and Clifton's case is  

                                                                                                  



remanded to the superior court for a trial on the question of whether Clifton should be  



found guilty but mentally ill.  



                                                          -32-                                                    2409
  

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