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Warlick v. State (7/25/2014) ap-2421

Warlick v. State (7/25/2014) ap-2421

                                                             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
  

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                   IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



MICHAEL D. WARLICK JR.,                                       )  

                                                              )            Court of Appeals No. A-10821 

                                      Appellant,              )            Trial Court No. 4FA-07-780 CR  

                                                              ) 

                  v.                                          )                       O P I N I O N  

                                                              )  

STATE OF ALASKA,                                              )  

                                                              )  

                                      Appellee.               )               No. 2421 -  July 25, 2014  

                                                              )  



                     Appeal  from  the  Superior  Court,  Fourth  Judicial  District,  

                     Fairbanks, Randy M. Olsen, Judge.  



                     Appearances: Hannah E. King, Assistant Public Defender, and  

                     Quinlan Steiner, Public Defender, Anchorage, for the Appellant.  

                     Diane  L.  Wendlandt,  Assistant  Attorney  General,  Office  of  

                     Special Prosecutions and Appeals, Anchorage, and Michael C.  

                                                            

                     Geraghty, Attorney General, Juneau, for the Appellee.  



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

                     District Court Judge.*  

                                                       



                     Judge HANLEY.  



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



Constitution and Administrative Rule 24(d).  


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

                    Michael D. Warlick Jr. applied for and obtained a state identification card  



using another person's name and identifying information.   He was charged with two  

                                                                                          



crimes:  second-degree forgery and fraudulently applying for a state identification card.  

              



Under the terms of a plea agreement, Warlick ultimately pleaded guilty to second-degree  

                             



forgery under AS 11.46.505(a)(2), and the State dismissed the fraudulent application  



charge.  



                    Prior to his sentencing, Warlick filed a motion asking the superior court to  

                                                                                                         



declare, as a matter of law, that his conduct did not constitute the offense of second- 

                                                                                



degree forgery. The court denied the motion, and Warlick now appeals. For the reasons  

                                                                                                                 



explained here, we affirm the superior court's ruling.  



         Facts and proceedings  



                    On January 31, 2007, Jason Corgill entered the Delta Junction office of the  

                                                                                                   



Division of Motor Vehicles (DMV) and applied for a state identification card.  The DMV  

                                                                                                          



clerk recalled issuing an identification card several months earlier to another person  



under the name "Jason Corgill." The clerk contacted the state troopers, who investigated  

                                                 



the incident and discovered that the person who applied for the earlier identification card  

                                                                       



was actually Michael Warlick Jr.  Warlick had used Corgill's identifying information and  



had signed Corgill's name on the application form. Based on Warlick's false application,  

                                                                            



DMV issued an identification card to him.  The card was in Corgill's name, but it had  

                                                         



Warlick's photograph.  



                    Warlick left the country shortly after obtaining the false identification card,  

                                            



and the troopers learned that there was an outstanding federal warrant for his arrest.  In  



2009, Warlick was arrested in Texas and returned to Alaska to face federal charges.  



                                                               2                                                          2421
  


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

                    The      State     charged        Warlick         with      second-degree           forgery        under  



AS 11.46.505(a)(2) (forgery of a public record) and fraudulently applying for a state  



identification card under AS 18.65.310(c). Under the terms of a plea agreement, Warlick  

                                                                                           



pleaded guilty to the forgery charge and the State dismissed the fraudulent application  

                                



charge.  



                    Shortly before his sentencing, Warlick filed a motion asking the superior  

                                                                  



court to declare, as a matter of law, that the facts alleged by the State could not support  

                                                            



a conviction for second-degree forgery.  The  court denied this motion, and Warlick  



appeals this ruling.  



                    Before addressing the merits of Warlick's arguments, we must point out the  

                                                                                                  



irregular procedural posture of the case.  As noted above, Warlick's conviction arises  



from a plea bargain:  Warlick agreed to plead guilty to the forgery charge in exchange  

                                                                                        



for the State's dismissal of the fraudulent application charge.  Now, Warlick asks this  



Court to declare that his forgery conviction is invalid.  



                    When a defendant negotiates a plea bargain with the State, he cannot "claim  

                                                                                               



the benefit of the portions of the agreement that he likes [and], at the same time, mount[]  

                                                                                            

an appellate attack on the portions that he does not like."1  

                                                                                     Instead, if a defendant pleads  



                                                                                       

guilty to a charge and later claims that his conduct did not constitute the crime, he may  



                                                   

seek to rescind the agreement, but he cannot ask the trial court (or this Court) to enforce  



                                                        

the provisions of the agreement that are to his advantage and relieve him of those he  

dislikes.2  



     1    Grasser v. State, 119 P.3d 1016, 1018 (Alaska App. 2005).   



     2    Wooley v. State, 221 P.3d 12, 20 (Alaska App. 2009).  



                                                               3                                                           2421  


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

                       Thus, Warlick is asking this Court for relief to which he is not entitled.                                               If  



this  Court  were  to   grant  this  relief,  Warlick  would  receive  an  unjustified  windfall  



because the other charge against him was dismissed under the assumption that he would         



be convicted of second-degree forgery.    



                       This means that, even if we were to rule in Warlick's favor on the legal  

                                                                                                   



issues  presented  in  this  appeal,  we  would  not  reverse  his  second-degree  forgery  

                                                                                      



conviction.  Instead, we would remand this case to the superior court to give Warlick an  



opportunity to withdraw his plea, with the understanding that, if he did, the parties would  

                                                

return to their pre-plea positions.3  



                                                                                                                    

                       However,  for  the  reasons  we  are  about  to  explain,  we  conclude  that  



Warlick's claims have no merit.  



          Why we reject Warlick's attacks on his forgery conviction  



                       The       State        charged          Warlick          with        second-degree                forgery         under  



AS 11.46.505(a)(2).  Under this subsection of the statute (in the context of Warlick's  



conduct), the State was required to prove that Warlick, (1) acting with intent to defraud,  

                  



(2)  falsely  made  or  completed  a  written  instrument,  or  knowingly  uttered  a  forged  

                                                                                                                                    



instrument, and that (3) this written instrument was (or purported to be) a public record.  



                       By pleading guilty, Warlick admitted the underlying conduct alleged by the  



State - i.e., that he submitted an application to DMV for a state identification card, that  

                                                                                            



he claimed in this application to be another person, and that he signed this other person's  

                                                                                                    



                                             4  

name  on  the  application.     Warlick  contends,  however,  that  this  conduct  did  not  



      3    See id. at 20.  



      4    See Scott v. State, 928 P.2d 1234, 1237 (Alaska App. 1996) (A plea of no contest and                  



                                                                                                                             (continued...) 



                                                                        4                                                                      2421  


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

constitute second-degree forgery for two reasons:                              first, he argues that an application for  



a    state     identification          card     is    not     a    "public       record"        within       the     meaning         of  



                                  5 

AS  11.81.900(b)(54) ;  and  second,  he  argues  that  he  did  not  act  with  an  "intent  to  



defraud" as defined in AS 11.46.990(11).  



                     We turn first to Warlick's argument that his application for an identification  



card was not a "public record" within the meaning of AS 11.81.900(b)(54).  



                     Under the facts of Warlick's case, the pertinent part of this statute declares  

                                                                                                           



that Warlick's application for an identification card constitutes a "public record" if the  



application was (1) a document "developed or received under law or in connection with  

                                                                      



the transaction of official business" by DMV, and if (2) the document was "preserved or  

                                                                                        



appropriate  for  preservation"  by  DMV  as  evidence  of  its  "organization,  function,  



policies, decisions, procedures, operations, or other activities[.]"  



                     It  is  clear  that  Warlick's  application  for  an  identification  card  was  a  



document that was both "developed" and "received" by DMV in connection with the  

                                                                    



transaction of its official business.  It is also clear that this application was "preserved"  

                                                                               



by DMV as evidence of its operations.  



                     Warlick claims, however, that an application for an identification card (or  



any other state benefit) cannot constitute a "public record" because it contains personal  



facts  -  facts  such  as  the  applicant's  name,  mailing  address,  hair  color,  and  social  

                                                               



     4     (...continued)  



                                                             

a  plea  of  guilty  have  the  same  effect.    They  are  both  an  admission  of  the  well-pleaded  

elements of the charge.  After a no contest or guilty plea, no issue of fact remains.) (citing  

1 Charles Alan Wright & Andrew D. Leipold, Federal Practice and Procedure: Criminal  

177, at 662-64 (2d ed. 1982)).     



     5     At the time of Warlick's offense, the definition of "public record" was codified in AS                   



11.81.900(b)(53) (2006). 



                                                                   5                                                             2421
  


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

security number.  Warlick argues that these identifying details are not evidence of the   



DMV's   "organization,   function,   policies,   decisions,   procedures,   or   operations."  



                        This  is  incorrect.    Part  of  DMV's  official  function  is  to  keep  records  

                                                                                                       



pertaining to (1) who has applied for an identification card, and (2) who has been issued  

                                                                                                                               



one.  In addition, DMV must determine whether applicants are validly entitled to receive  

                                                                                                              



the  identification  cards  they  have  applied  for  -  or,  as  in  Warlick's  case,  the  

                                                                                                                                        

identification card they have already received.6  



                        Thus, the personal information included in the application is an important  



component of both DMV's recordkeeping and its decisionmaking.  We accordingly  



reject Warlick's argument that, because his application for a state identification card  

                                                          



contained identifying information that was not generated by DMV itself, the application  



could not qualify as a "public record."  



                        Warlick  also  argues  that  the  term  "public  record"  does  not  include  all  



documents that fit within the definition found in AS 11.81.900(b)(54), but only those  

                                                                                                                                       



documents that have independent "legal efficacy."  To support this assertion, Warlick  



points to language in the Commentary to the Tentative Draft of the Alaska Criminal  



Code  which  states  that  "the  forgery  article  prohibits  conduct  which  is  essentially  

preparatory to theft."7  

                                         From this, Warlick reasons that the primary aim of the statutes  

                                                                                                   



outlawing  forgery  is  to  "deter  harm  to  the  pecuniary,  property,  or  legal  right[s]  of  



another,"  and that only a document with "apparent legal efficacy" can work these types  

                                                                                                    



of harm.  Warlick then asserts that a false application for a state identification card -  

                                                                                                                                            



      6     See AS 18.65.310.  



      7     Alaska Criminal Code Revision Part III, at 82 (Tent. Draft 1977).  



                                                                            6                                                                        2421  


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

as opposed to the false identification card itself - does not have this type of "legal   



efficacy."  



                     We disagree with Warlick's contention for two reasons.  



                     First, while it may be true that a primary purpose of the forgery statutes is  

                                                               



to prevent or deter theft, the legislature did not include an independent "legal efficacy"  

                                                                          



requirement in its definition of "public record."  



                     Second, treating a false application for an identification card as a "public  

                                                                                                                     



record" promote s the aim of preventing or deterring theft because, generally, a person  



submits a false application for an identification card with the intention of causing DMV  

                                                                                  



to issue the false identification card, and this false identification card can then be used  



to commit theft or other fraud.  



                     Warlick next argues that false applications for identification cards should  



not be included within the definition of "public record" because the legislature did not  

                                                                                                            



intend for the forgery statutes to cover fraudulent applications for identification cards.  



Instead, Warlick contends, the legislature wanted this criminal conduct to be punished  

                                            

under the second-degree unsworn falsification statute.8  



                     The second-degree unsworn falsification statute, AS 11.56.210(a)(1), states  



that  a  person  commits  this  crime  if,  "with  intent  to  mislead  a  public  servant  in  the  

                                                                                                   



performance of a duty, the person submits a false written or recorded statement that the  



person does not believe to be true ... in an application for a benefit."  Warlick reasons  



that if an application for a state benefit constitutes a public record for purposes of the  



     8    AS 11.56.210.  



                                                                   7                                                               2421  


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

forgery statute, then there would be no need for the legislature to also create the offense  

                                                  



of unsworn falsification.  



                    The flaw in Warlick's reasoning is illustrated by this Court's decision in  

Gottlieb v. State.9                                                                                              

                            The defendant in  Gottlieb applied for a medical license and falsely  



                                                                                                                    

stated in his application that he had completed certain post-graduate training.  Based on  

this false representation, Gottlieb was convicted of forgery.10  

                                                                                            But on appeal, this Court  



                                                                           

concluded that a forgery conviction was improper under these facts.  Although the State  



proved that Gottlieb's application for the medical license contained false assertions of  



fact, those assertions did not misrepresent Gottlieb's identity as the person who prepared  



and submitted the application.  Thus, the application was not "falsely made" as defined  

                                                                                      

in AS 11.46.580(a)(3), and Gottlieb's conduct was not forgery.11  



                    Gottlieb demonstrates that Alaska's forgery statutes criminalize certain  



                                                                                        

types of false applications, but not all false applications.  A person may commit second- 



                                                                                

degree unsworn falsification by knowingly including one or more false statements in an  



                                                                                              

application for a state benefit, with the intent to mislead a public servant.  But, as we held  



                                                  

in  Gottlieb,  this  conduct  does  not  constitute  forgery  unless  the  false  statements  



                                           

misrepresent the identity of the applicant.  Therefore, contrary to Warlick's assertion,  



forgery and unsworn falsification are distinct crimes.  



                    For  this  same  reason,  we  reject  Warlick's  argument  that  his  forgery  

                                                                                                               



conviction violates the Pirkey/Olsen rule - the rule declaring that the equal protection  



clause is violated when the criminal statutes prescribe both felony and misdemeanor  

                                                         



     9    175 P.3d 664 (Alaska App. 2008).  



     10    Id.  at 666.  



     11    Id. at 669.  



                                                               8                                                            2421  


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

punishments  for  exactly  the  same  act  committed  under  the  same  circumstances  by  

persons in like situations. 12  



                     We now turn to Warlick's second major contention:                                      that the facts of his   



case   do   not   establish   that   he   acted   with   an   intent    to    defraud   as   defined   in  



AS 11.46.990(11).  Under this statute, "intent to defraud" is defined as "an intent to                                 



injure someone's interest which has value[,] or an intent to use deception."  



                     Warlick asserts that, under this definition, the State was required to prove  

                                                



that when he submitted his false application for an identification card, he intended to  

                                                                                    



harm the pecuniary interests of another.  



                     While the statutory definition of "intent to defraud" clearly encompasses  



the intent to harm another person's pecuniary interests, it also encompasses a person's  

                                                                                              



"intent to use deception."  This term, "deception," is defined in AS 11.81.900(b)(18)(A)  

                                                                                                 



as including the act of knowingly "creat[ing] or confirm[ing] another's false impression  

                                                                         



that the defendant does not believe to be true, including false impressions as to law or  

                                              



value and false impressions as to intention or other state of mind."  



                     Here, Warlick conceded (by his guilty plea) that he made a false application  

                                                                         



for an identification card using Jason Corgill's identifying information, that he submitted  



this false application to DMV, and that he received an identification card with Corgill's  

                                                                                                              



identifying  information  but  with  his  own  photograph.    These  facts  give  rise  to  a  



reasonable inference that Warlick applied for and procured this false identification card  

                                          



so that he could use it to mislead people about his identity - conduct that falls squarely  

                                                                                                  



within the definition of "deception."  Thus, the facts of Warlick's case support a finding  

                                                                                                         



that he acted with intent to defraud.  



      12   See Bell v. State, 598 P.2d 908, 912-14 (Alaska 1979); State v. Pirkey, 281 P.2d 698  



(Or. 1955); Olsen v. Delmore,  295 P.2d 324 (Wash. 1956). 



                                                                     9                                                                 2421  


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

             Conclusion  



                              For the reasons explained in this opinion, we AFFIRM the judgment of the     



superior court.  



                                                                                                    10                                                                                      2421
  

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