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Hannam v. State (6/13/2014) ap-2416

Hannam v. State (6/13/2014) ap-2416

                                                     NOTICE  

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

         Pacific Reporter.  Readers are encouraged to bring typographical or other formal  

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



                                  303 K Street, Anchorage, Alaska  99501
  

                                             Fax:  (907) 264-0878
  

                            E-mail:  corrections @ appellate.courts.state.ak.us
  



                IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



THOMAS S. HANNAM,                                     )  

                                                      )            Court of Appeals No. A-11561 

                                      Appellant,      )            Trial Court No. 3PA-11-1268 CR  

                                                      )                 t/w 3PA-12-1492 CI 

                  v.	                                 )  

                                                      )                   O P I N I O N  

STATE OF ALASKA,                                      )  

                                                      )  

                                      Appellee.	      )               No.  2416 - June 13, 2014  

                                                      )  



                  Appeal from  the District Court, T         hird  Judicial District, Palmer,  

                  David Zwink, Judge.  



                  Appearances:   Thomas   Hannam,   pro   se,   Palmer,   for   the  

                  Appellant.  Eric A. Senta, Assistant District Attorney, Palmer,  

                  and  Michael  C.  Geraghty,  Attorney  General,  Juneau,  for  the  

                  Appellee.  



                  Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley,  

                  District Court Judge.*  

                                                



                  Judge ALLARD.  



                  Thomas  S.  Hannam  pleaded  guilty  to  misdemeanor  driving  under  the  



influence.  He argues that there was not an adequate factual basis for his guilty plea, and  

                                                                                                 



     *   Sitting  by  assignment  made  pursuant  to  article  IV,  section  16  of  the  Alaska  



Constitution and Administrative Rule 24(d).  


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

that the district court therefore erred in accepting the plea.  For the reasons explained  



below, we find no merit to this claim and affirm the decision of the district court.  



         Facts and proceedings  



                   At approximately 2:00 a.m. on May 23, 2011, Alaska State Trooper J.  



Calhoun  stopped  Hannam  for  a  traffic  violation.    During  this  contact,  the  trooper  



observed that Hannam had bloodshot and watery eyes, a strong odor of alcohol, slurred  



speech,  difficulty  forming  sentences,  a  staggering  gait,  and  poor  manual  dexterity.  



Hannam  failed  to  complete  the  horizontal  gaze  nystagmus  test,  and  he  declined  to  

                                                                                                       



participate in any further field sobriety tests.  



                   Hannam  was  arrested  for  driving  under  the  influence.                           He  was  then  

                                                                                                          



transported to the trooper station, where he refused to submit to a breath test.  Some time  

                                                           



later, at the jail, Hannam took two portable breath tests, and both tests indicated an  

                                                                                                           



alcohol level of .000.  



                                                                                                       1 

                   The State charged Hannam with driving under the influence,  fourth-degree 



                                                2  

                                                                                                    

misconduct involving  a weapon                    (for possessing  a handgun  while intoxicated),  and  

refusal to submit to a chemical test.3  

                                                      He was also cited for having an open container of  



                                4  

alcohol in his vehicle.    



                                                                                                   

                   The case was resolved by a Rule 11 plea agreement.  Hannam agreed to  



plead guilty to driving under the influence, and the State agreed to dismiss the other  



     1    AS 28.35.030.  



     2    AS 11.61.210(a)(1).  



     3    AS 28.35.032(a).  



     4    AS 28.35.029.  



                                                             2                                                        2416
  


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

charges.  At the change of plea hearing, the district court judge asked Hannam if he   



understood that by entering his guilty plea he was admitting to operating a motor vehicle  



while under the influence of alcohol.  Hannam responded: "I do understand that."  



                      After further discussion with Hannam about the rights he was giving up by  

                                                                                                      



pleading guilty, the judge found that Hannam was "acting in a knowing, voluntary and  

                                                                                                         



intelligent manner" and that there was "an adequate factual basis for the charge."  The  

                                                                                                                          



judge then accepted the plea and entered a judgment convicting Hannam of driving under  

                                                                                                                           



the influence.  Hannam appeals.  



            Why we conclude there was an adequate factual basis for the plea  



                      Hannam claims that the district court should not have accepted his guilty  

                                                                                                                                 



plea because there was an inadequate factual basis for the plea.  To support this claim,  

                                                                                                            



Hannam relies primarily on the fact that two portable breath tests at the jail showed an  

                                                                                                                   



alcohol level of .000 percent.  



                      Alaska  Criminal  Rule  11(f)  requires  that  "[t]he  court  shall  not  enter  a  



judgment upon a plea of guilty without first being satisfied that there is a reasonable  



basis for the plea."  The purpose of the rule is to ensure that the conduct the defendant  

                                                                              



is admitting actually amounts to a violation of the offense to which he is entering a guilty  

                                                                                                   

plea.5  

            Before finding that there is an adequate factual basis for a plea,  



      5    See  Charles  Alan  Wright  and  Andrew  D.  Leipold,  1A  Federal  Practice  and  



Procedure: Criminal 4th ,  179, at 264-65 (2008):  



                       The goal of [the factual basis requirement in federal law] is to prevent                       

                       a defendant who committed no crime from pleading guilty to one, and   

                      to prevent a defendant who is guilty of a lesser offense from pleading  

                                                               

                       guilty to a higher charge.  A person may know what he or she has done,  

                                                                                                                           (continued...)  



                                                                       3                                                                 2416
  


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

                    The court should satisfy itself, by inquiry of the defendant or        

                    the  attorney  for  the  government,  or  by  examining  the  

                    presentence report, or otherwise, that the conduct which the  

                                                                            

                    defendant  admits  constitutes  the  offense  charged  in  the  

                                                                                     

                    indictment or information or an offense included therein to  

                    which the defendant had pleaded guilty.6  

                                                                                  



                    While complex and doubtful situations might require the court to engage  



in a more searching inquiry, in simple cases this rule may be satisfied by the reading of  

                                                                                                                 

the charge and the defendant's subsequent plea.7  

                                                                         In Swensen v. Anchorage, the Alaska  



                                                                                                                     

Supreme  Court  found  an  adequate  factual  basis  for  the  defendant's  guilty  plea  to  



                               

operating under the influence where the complaint contained a sworn statement by the  



                                                                                     

arresting officer that Swensen was weaving on the road, his breath smelled strongly of  

alcohol, and his balance was poor, his eyes bloodshot, and his speech slurred.8  



                                                                                      

                    Swensen controls our decision in this case.  Here, the sworn statement of  



                                                                      

the arresting officer in support of the criminal complaint stated that, at the time of the  



                              

stop, Hannam had  bloodshot, watery eyes, a strong odor of alcohol, slurred speech,  



                                                                                              

difficulty forming sentences, poor manual dexterity, and that he staggered as he walked.  



                                                                                                               

The affidavit also stated that a half-empty liquor bottle was found under the back seat of  



the vehicle Hannam was driving, and that Hannam failed to complete the horizontal gaze  



     5    (...continued)
  



                    but not be sufficiently knowledgeable about the law to recognize that
  

                    these acts do not constitute the offense he is accused of committing. 
 



     6    Ulak v. State, 238 P.3d 1254, 1257 (Alaska App. 2010).  



     7    Swensen  v.  Anchorage,  616  P.2d  874,  880-81  (Alaska  1980)  (citing  State  v.  



Sutherland , 483 P.2d 576, 578 (Ariz. App. 1971)).  



     8    Swensen, 616 P.2d at 881.  



                                                               4                                                         2416
  


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

nystagmus test and refused to submit to any other field sobriety tests or the Datamaster  



breath test.  



                    Hannam argues that the electronic recording of the stop does not support  



the facts alleged in the arresting officer's affidavit and that the results of his later portable  

                                                                                                     



breath tests at the jail provided objective evidence that he was not intoxicated.  But at the  

                                                                                                 



change of plea hearing, the court's task was not to weigh the credibility of conflicting  

                                                                         



evidence or to assess whether the State's evidence was strong enough for a jury to return  

                                                                                                       



a guilty verdict.  Rather, the court's duty was to ensure only that there was a factual basis  

                                                                                 



for Hannam's plea and that the conduct Hannam admitted - driving under the influence  

                             



of alcohol - constituted the offense to which he entered a guilty plea.  We find no error  

                                                                                                               



in the court's decision to accept Hannam's plea.  



                    Hannam  also asserts that he had winnable defenses to the State's other  

                                  



charges which were dismissed as part of the plea agreement.  To the extent that Hannam  

                                                                                               



wishes  to  claim  that  the  attorney  who  represented  him  at  the  time  of  his  plea  was  



ineffective, or that for some other reason he should be allowed to withdraw his plea to  

                                                                                                                       



correct  manifest  injustice,  he  must  pursue  those  claims  in  an  application  for  post- 

conviction relief in the district court.9  



          Conclusion  



                    We AFFIRM the judgment of the district court.  



     9    See AS 12.72.010.  



                                                               5                                                            2416  

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