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Smith v. State (1/29/2016) ap-2487

Smith v. State (1/29/2016) ap-2487

                                                     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 @ akcourts.us
  



                IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



JOHN L. SMITH JR.,  

                                                                    Court of Appeals No. A-12089  

                                    Appellant,                    Trial Court No. 3KN-12-613 CR  



                           v.                                                  O P I N I O N  



STATE OF ALASKA,  



                                    Appellee.                       No. 2487 - January 29, 2016  



                  Appeal from the Superior Court, Third Judicial District, Kenai,  

                                    

                  Carl Bauman, Judge.  



                  Appearances:        Elizabeth      D.    Friedman,       Assistant      Public  

                  Advocate, Appeals and Statewide Defense Section, and Richard  

                  Allen, Public Advocate, Anchorage, for the Appellant. Amanda  

                                                                                         

                  L. Browning, Assistant District Attorney, Kenai, and Craig W.  

                  Richards, Attorney General, Juneau, for the Appellee.  

                                            



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

                                                       

                  Superior Court Judge. *  

                                                 



                                                                    

                  Judge  SUDDOCK,  writing  for  the  Court  and  concurring  

                  separately.  



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



Constitution and Administrative Rule 24(d).  


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

                      John L. Smith Jr. pled guilty to failure to render assistance to an injured                                    



                                                                1  

person   after   an   automobile   accident.                                                                                          

                                                                    At  sentencing,  Smith  argued  that  the  traffic  



                                                                                                                                  

accident was unavoidable because the child he struck had darted across the roadway  



                                                                                                                                       

directly into the pathway of Smith's oncoming car.  He submitted a report by an expert  



                                                                                                                                         

who concluded that Smith was not at fault.  But the judge's sentencing remarks were  



                                                                                                                                 

ambiguous as to whether he in fact found Smith to be at fault, and whether he enhanced  



                                                                                                                                           

Smith's sentence because of this.   This is problematic because the record does not  



                                                            

support a finding that Smith was at fault.  



                                                                                                                                      

                      Smith objected to several allegations contained in the presentence report.  



                                                                                                                                            

The judge ruled that the challenged allegations were speculative and that he would not  



                                                                                                                                             

rely on them.  But he declined to strike them from the presentence report as required by  



                          

Criminal Rule 32.1(f)(5).  



                                                                                                                                            

                      Smith was sentenced to 7 years with 3 years suspended.  He appeals his  



                                                                  

sentence as excessive, arguing that the judge relied upon unproven assumptions about  



                                                                                                                                       

Smith's degree of fault.  Because we perceive a substantial possibility that the judge  



                                                                                                          

relied on such speculation in sentencing Smith, we remand for resentencing.  



                              

           Facts and proceedings  



                                                                                                                                       

                      Around 6:00 p.m. on April 17, 2012, Smith was driving his SUV along  



                                                                                                                                           

Kalifornsky Beach (or K-Beach) Road in Kenai at approximately fifty-five miles per  



                                                                                                                                        

hour, the posted speed limit.   T.T.,  a  seven-year-old child, was playing with other  



                                                                                                                                      

children at a large puddle near the side of the road opposite to Smith's lane of travel.  



                                                                                                                                       

Christine Posey, a witness to the accident, testified to the grand jury that after she drove  



                                                                                                                                        

by the children playing to her right, she looked in her rear-view mirror and saw a "little  



      1    AS 28.35.060.  



                                                                    - 2 -                                                                2487
  


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

girl on a bike," followed by a "little one," approaching the road.  The girl on the bicycle  

                                                                                                                          



stopped at the roadside, but the smaller child appeared to hesitate, and then "she darted  

                                                                                                                           



out on the road."  Posey said she saw smoke from burnt rubber as Smith's oncoming  

                                                                                                                      



SUV braked and veered to its right.  She did not see the actual impact.  

                                                                                                 



                     Smith was on felony probation at the time and had been released on bail  

                                                                                                                               



following his arrest on a petition to revoke his probation.  Because he had absconded  

                                                                                                                     



from his third-party custodian, a warrant for his arrest was outstanding at the time of the  

                                                                                                                                 



accident.   As nearby adults approached to render aid, Smith fled the scene; he was  

                                                                                                                               



arrested several days later.  

                                  



                    T.T.'s  injuries  were  not  life-threatening,  but  she  suffered  a  partially  

                                                                                                                       



collapsed lung, abrasions, a black eye, a fractured upper jaw or palate, and a loose tooth.  

                                                                                                                            



She spent two days in a hospital.  

                                      



                    The grand jury indicted Smith not only for leaving the scene of an injury  

                                                                                        



accident but also for causing the accident:  for first-degree assault (recklessly causing  

                                                                                                                         



serious physical injury by means of a dangerous instrument); second-degree assault  

                                                                                                                          



(recklessly causing serious physical injury); third-degree assault (recklessly causing  

                                                                                                                         



physical injury by means of a dangerous instrument); and third-degree assault (with  

                                                                                                                             



criminal negligence causing physical injury by means of a dangerous instrument).  

                                                                                                            



                    Pursuant toaRule 11 agreement, the State dismissed the assaultcounts, and  

                                                                                                                                



Smith pled guilty to leaving the scene. In advance of sentencing, Smith filed a report by  

                                                                                                                                 



an accident reconstruction expert who concluded that Smith was at most traveling fifty- 

                                                                                                                             



seven miles per hour.  The expert noted that the children may not have been visible to  

                                                                           



drivers, such as Smith, in the far lane.  He concluded that Smith was unable to stop  

                                                                                                                              



despite his best efforts, and that he was not at fault for the accident.  

                                                                                          



                    The  presentence  report  author  concluded  that  "[h]itting  this  girl  with  

                                                                                                                              



[Smith's] vehicle was an accident."  And the State in its sentencing remarks did not  

                                                                                                                                



                                                               -  3 -                                                         2487
  


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

accuse Smith of bad driving.                                                                                                        But the judge nonetheless appeared to blame Smith for                                                                                                                                                                                           



causing the accident:                               



                                                            [O]ther drivers appeared to note children playing ... in a mud                                                                                                                                                                                   

                                                           puddle near the highway.                                                                                            So other people were cautious. ...                                                                                                             

                                                            So one could speculate that if the defendant were impaired by                                                                                                                                                                                                   

                                                            any consumption of drugs, maybe his reaction was just a                                                                                                                                                                                                             

                                                           titch, a small amount, slower[.]                                                                  

                                                                                          . . . .    

                                                                                         This is a little different than a child darting out from                                                                                                                                                               

                                                           behind   a   tree   or   an   obstruction   along   a   highway.    These  

                                                            children were visible from a distance and observed by other                                                                                                                                                                                        

                                                            drivers to be visible from a [distance].                                                                             

                                                                                          . . . .  

                                                                                         Missing probation officer appointments, having had at                                                                                                                                                                                 

                                                            least one or two hot UAs, these things happened prior to the                                                                                                                                                                                                 

                                                            accident.   The degree to which they may have contributed is                                                                                                                                                                                                       

                                                            speculation.   Possible that he was impaired[.]                                                                                                        

                                                                                          . . . .  

                                                                                         The conduct in question here was offensive.                                                                                                                                                               It's not   

                                                           what the community expects a driver to do, even if the driver                                                                                                                                                                                    

                                                            is not high or is not speeding.                                                                                                    The conduct here suggests the                                                                                             

                                                            driver knew that what he did was wrong and was trying to get                                                                                                                                                                                                 

                                                            away with it.                                              ...   I think it is offensive for drivers not to slow                                                                                                                                     

                                                            down when children are playing near a roadway.                                                                                                                             



                                                           Leaving the scene of an injury accident is a non-classified felony with a                                                                                                                                                                                                                                                        



                                                                                                                                                     2  

sentencing range of 0 to 10 years.                                                                                                                                                                                                                                                                                                                                            

                                                                                                                                                              As noted, the court sentenced Smith to 7 years with  



                                                                                                                                                                                         

3 years suspended.  This sentence appeal followed.  



               2             AS 28.35.060(a) & (c).  



                                                                                                                                                                                       - 4 -                                                                                                                                                                                   2487
  


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

           Why we remand for resentencing  

                                          



                     The judge's sentencing remarks strongly suggest that he found that Smith  

                                                                                                                            



had not driven prudently, that Smith may have been impaired by drugs at the time, and  

                                                                                                                                



that Smith fled the scene because he knew he was at fault for causing the accident.  The  

                                                                                                                               



judge expressed his displeasure with drivers who fail to slow for children, implying that  

                                                                                                                                



 Smith was among this group.  

                                    



                     Smith had earlier moved to dismiss the assault counts in the indictment,  

                                                                                                                    



arguing that they were not supported by the grand jury testimony.  But the judge denied  

                                                                                                                           



the motion, mistakenly interpreting the testimony as tending to prove that other drivers  

                                                                                                                          



had been more careful than Smith.  He stated, "Witness Karl Ferlen testified that he had  

                                                                                                                                



heard other drivers, shortly before this incident, slow down and honk at the kids playing  

                                                                                                                          



near the road with a couple of dogs." (emphasis added) However, Ferlen did not testify  

                                                                                                                            



that he heard vehicles slowing for the children.  He testified that he saw cars slow down  

                                                                                                                             



to avoid several roaming dogs that were apparently with the children - but he never  

                                                                                                                            



testified that cars otherwise slowed due to the proximity of children to the road.  

                                                                                                                   



                     It is unclear whether the judge persisted in this mistaken reading of the  

                                                                                                                                



evidence at the time of sentencing.  But the judge's sentencing remarks suggest that he  

                                                                                                                                  



considered Smith to be at fault for causing the accident and that he believed that Smith  

                                                                                                                            



may  have  been  high  on  drugs.                    The  judge  did  not  explain  how  he  derived  these  

                                                                                                                            



conclusions from the evidence, or how he squared this with the contrary conclusion of  

                                                                                                                                  



 Smith's expert characterizing the accident as unavoidable.  And the judge's remark that  

                                                                                                                               



 Smith's flight "suggests" a consciousness of guilt for causing the accident adds to our  

                                                                                                      



unease that the judge may have increased Smith's sentence without a firm evidentiary  

                                                                                                                    



basis; the judge did not discuss plausible alternative explanations for Smith's flight, such  

                                                                                                                              



as the outstanding arrest warrant, or even simple panic.  

                                                                            



                                                               -  5 -                                                         2487
  


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

                            Given the ambiguity of the judge's remarks, which approach but stop just                                                                       



 short of an actual finding of fault, we are unable to discern whether he was merely                                                                               



 speculating that Smith might be at fault, or whether he reached a firm conclusion to that                                                                                 



 effect.   If the judge was merely speculating, he erred by injecting speculation into the                                               



                        3 

                                                                                         

 sentencing.   If, in contrast, he arrived at a firm conclusion that Smith was at fault, we  



                                                                                                                                                                                

 find that conclusion to be clearly erroneous.   We find no support in the record for a  



                                                                                                                                                                          

 conclusion that Smith's speed, driving, attentiveness, or state of sobriety rendered him  



                                                                                                                                                                      

 at fault for the accident.   Since we perceive a substantial possibility that the judge  



                                                                                                                                                                 

penalized Smith based on an unsupported finding of fault, we must vacate the sentence  



                                  

 and remand for resentencing.  



                                                                                                                                              

               Why we remand for the sentencing judge to strike speculative allegations  

                                                           

             from the presentence report  



                                                                                                                                                                              

                            Smith filed written objections to several allegations lodged against him in  



                                                                                                                                                                       

the presentence report.  At the sentencing hearing, the judge acknowledged that these  



                                                                                                                                         

 allegations  were  unproven  and  speculative,  or  not  germane  to  sentencing,  but  he  



                                                                                                                                                                              

repeatedly refused to strike them from the report.  Smith appeals the court's refusal to  



                                                                                                                          

redact the speculative allegations.  We agree that the court erred.  



                                                                                                                                                                          

                            For example, Smith objected to allegations in the presentence report that  



                                                                                                                                                                          

he flushed drugs down the toilet at a motel before he and two others were arrested.  The  



                                                                                                                                                                           

judge ruled that he did not intend to rely on the allegation.  The report also alleged that  



                                                                                                                                                                      

 Smith "consistently" failed urinalysis tests (he argued that he had failed only two tests).  



                                                                                                           

 The judge concluded he did not need to resolve the conflict.  



       3      See Donlun v. State, 550 P.2d 369, 371 (Alaska 1976);  Galaktionoff v. State, 486 P.2d   



 919, 924 (Alaska 1971).  



                                                                                    -  6 -                                                                               2487
  


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

                     Smith further objected to an allegation that he had a reputation as a drug  

                                                                                                                              



dealer.  But the court overruled the objection because the implicit assertion that Smith  

                                                                                                                     



was in fact a drug dealer could possibly be true:  

                                                                   



                     I  mean,  the  statement  may  well  be  true,  that  may  be  his  

                                                                                                            

                     reputation within local law enforcement. I take it that you are  

                                                                                                             

                     denying that he's a drug dealer.  Your denial is noted, but no  

                                                                                                             

                     change to the PSR.  

                                           



 Similarly, the report included an allegation that a drug user claimed that he could only  

                                                                                                                              



stay clean if his dealer, Smith, was incarcerated; the judge discounted the allegation as  

                                                                                                                                  



self-serving and not worthy of belief.  

                                                 



                     The report's author opined that Smith fled the scene because he was high  

                                                                                                                              



on drugs, or because he was transporting them.  The court ruled:  

                                                                                           



                     I'm not going to strike it.  I don't give particular credence to  

                                                                                                              

                     it.  The reason I'm not going to strike it is, if I understand  

                                                                                               

                     correctly, [theauthor]wasthedefendant'sassigned probation  

                                                                                                   

                     officer, so he's got some basis more than Joe Blow on the  

                                                                                                            

                     street to have an opinion.   But his opinion is speculation,  

                                                                                              

                     bottom line.  I'm not going to strike it from the evaluation  

                                                                                                 

                     portion of the PSR.  

                                           



Likewise, the report's author opined that "[i]f no one else was around to help and to  

                                                                                                                                  



notify  the  proper  authorities  then  there  would  have  been  a  good  chance  that  the  

                                                                                                                        



Defendant's actions [in leaving the scene] could have cost this little girl her life."  The  

                                                                                                                               



judge stated, "I see this just as speculation by the author," but "I'm not going to require  

                                                                                                                          



that the PSR be changed."  

                          



                     Smith also objectedto anallegation implicating himinahigh-speed vehicle  

                                                                                                                           



chase by the Anchorage police.  The State had agreed to withdraw the allegation from  

                                                                         



a pending petition to revoke Smith's probation. But the judge both refused to rule on the  

                                                                                                                                 



                                                               -  7 -                                                         2487
  


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

defense objection to inclusion of the allegation in the presentence report and to redact the                                                                                                                                                                               



allegation.  



                                           In each oftheaboveinstances,                                                                   the judge either acknowledged the unproven                                                                  



and speculative nature of the allegation, or he declined to make a factual finding because                                                                                                                                                                 



he considered the matter to be irrelevant to sentencing.                                                                                                                                  Nonetheless, he repeatedly                              



refused   to   redact   the   challenged   assertions   from   the   presentence   report.     Because  



Criminal Rule 32.1(f)(5) requires a court to redact material that a judge finds to be                                                                                                                                                          



unproven or irrelevant, this was error:                                                                 



                                           The    court    shall    enter    findings    regarding    any    disputed  

                                           assertion in the presentence report. Any assertion that has not                                                                                                                      

                                          been    proved    shall    be    deleted    from    the    report    ...    .  

                                           Alternatively,   if   the   court   determines   that   the   disputed  

                                           assertion is not relevant to its sentencing decision so that                                                                                                                     

                                           resolution of the dispute is not warranted, the court shall                                                                                                                   

                                           delete   the   assertion   from   the   report  without   making   any  

                                           finding.  



                                           While a presentence report is an important document to a sentencing judge,                                                                                                                                            



it has an enduring impact on a defendant. The report may affect a defendant's life for the                                                                                                                                                                                 



                                                                                                                                                                                                                           4  

duration of his incarceration and during his later probation or parole.                                                                                                                                                                                                 

                                                                                                                                                                                                                                  It is critical that  



                                                                                                                                                                                                                                                                        

the report be free of speculative allegations that unfairly characterize a defendant or that  



                                                                                                                                                                                                                                                                        

are groundlessly inflammatory.  Here, the sentencing judge failed to redact just this sort  



                                                                                                                                                                                                                                                                 

of material from Smith's presentence report.  Accordingly, we direct the judge to redact  



                   

those allegations.  



                                                                                                                                                                                                                                                                           

                                           And although it is not a contested issue in this appeal, we note that by  



                                                                                                                                                                                                                                                                                

structuring the sentencing hearing as he did, the judge failed to follow Rule 32.1 in a  



                                                                                                                                                                                                                                                                 

different way. Even though the prosecutor pointed out that the defense objections would  



           4         See Davison v. State, 307 P.3d 1, 3 (Alaska App. 2013).  



                                                                                                                                   -  8 -                                                                                                                             2487
  


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

take considerable time to resolve and would require active participation by the State, the  

                                                                                                                                 



judge directed Smith's attorney to litigate his objections during the time allotted for  

                                                                                                                                



defense counsel's sentencing argument, just prior to the court's imposition of sentence.  

                                                                                                                       



But Rule 32.1 implicitly requires that objections to the presentence report be resolved  

                                                                                                                        



before the parties present their sentencing arguments.  The parties are entitled to know  

                                                                                                                             



the facts that the judge will consider prior to their arguments. Here the State had already  

                                                                                                                          



completedits sentencing argument beforethesematters werelitigated. They should have  

                                                                                                                              



been resolved at the outset of the sentencing hearing.  

                                                                      



           Conclusion  



                     We VACATE Smith's sentence and REMAND this case to the superior  

                                                                                                                        



court for redactions fromthe presentence report and for resentencing. The superior court  

                                                                                                                              



shall resolve these matters within sixty days from the date of this opinion. If at that point  

                                                                                                                             



 Smith has objections to the presentence report or to the sentence imposed, he may file  

                                                                                                                    



a supplemental brief within thirty days thereafter.  The State shall then have thirty days  

                                                                                                                              



to file responsive briefing.  We retain jurisdiction.  

                                                           



                                                               -  9 -                                                         2487
  


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

 Judge SUDDOCK, concurring.                                                                   



                                                                In the course of researching this opinion, I learned that I as a superior court                                                                                                                                                                                                                                                  



judge   have   labored   under   a   significant   misconception  about   how   challenges   to  



 allegations in a presentence report are to be resolved.                                                                                                                                                                                                   And my misconception extended                                                                                       



 beyond allegations in a presentence report to oral allegations made by probation officers,                                                                                                                                                                                                                                                                                        



 guardians ad litem, police officers, or victims.                                                                                                                                                                          I understood that such allegations could                                                                                                                            



 be taken as proved unless a defendant successfully controverted them via a testimonial                                                                                                                                                                                                                                                                         



 denial   under  oath.     I   now   realize   that   this   view   significantly   over-  simplifies   the  



 applicable law. Accordingly, I write to share my recently acquired understandings, that                                                                                                                                                                                                                                                                                                                



 they may perhaps aid judges or lawyers in dealing with these issues.                                                                                                                                                                                                                               



                                A defendant's objection to allegations at sentencing                                                                                                                                               



                                                                Alaska Criminal Rule 32.1(d)(5) requires that a defendant's objections to                                                                                                                                                                                                                                                                       



 allegations in a presentence report, or to other factual allegations that will foreseeably be                                                                                                                                                                                                                                                                                                                 



 raised at sentencing, be filed in advance of the sentencing hearing.                                                                                                                                                                                                                                                              A defendant who                                                  



 objects to the accuracy of a                                                                                           factual allegation must disclose "any information upon which                                                                                                                                                                                                         



 the defendant intends to rely to refute the objected-to information."                                                                                                                                                                                                                                                              Rule 32.1(f) then                                               



 provides for a hearing (which can take place prior to the sentencing hearing or at its                                                                                                                                                                                                                                                                                            



 outset).   Under Rule 32.1(f)(5), the court may make findings regarding each disputed                                                                                                                                                                                                                                                                                          

 assertion.     The   applicable   standard   is  proof   by   a   preponderance   of   the   evidence.1  



                                                                                                                                                                                                                                                                                                                                                                                    

 Alternatively, a judge may decide that it is not necessary to resolve a factual conflict  



                                                                                                                                                                                                                                                                                                                                                                2  

                                                                                                                                                                                                                                                                                                                                                                                              

 because the outcome would not affect the sentence, and so it is irrelevant.                                                                                                                                                                                                                                                                                              The judge  



                                                                                                                                                                                                                                                                                                                                                                                                  

 must then redact or reject any allegation that is unproven or irrelevant.  The court must  



                  1             Brakes v. State, 796 P.2d 1368, 1373 n.5 (Alaska App. 1990).
  



                 2               Alaska R. Crim. P. 32.1(f)(5).
  



                                                                                                                                                                                                -  10 -                                                                                                                                                                                               2487
  


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

designate a redacted presentence report as the "approved version," and serve it on the                                                             

Department of Corrections within seven days of the sentencing hearing.                                                        3  



                                                   

            The use of hearsay at sentencing  



                                                                                                                                        

                       Alaska case law also imposes an additional procedural safeguard regarding  



                                                                                                                                        

the use of hearsay at sentencing hearings, that of initial "verification."  As we explained  



                                                                                                  4  

                                                                                                                                                      

in our recent unpublished decision in Nickoli v. State,                                              this term connotes at least a  



                                                                                               

minimal confirmation of the reliability of the hearsay statement.  



                                                                                                                   5  

                                                                                                                                                   

                       Nickoli was charged with sexual abuse of a minor.                                               At sentencing, the  



                                                                                                                                           

child's guardian ad litem alleged previously undisclosed abuse by "men in [the child's]  



                                                 6  

                                                                                                                                        

home on an ongoing basis."                          The judge overruled defense counsel's hearsay objection  



                                                                                                                                           

to this allegation and subsequently enhanced Nickoli's sentence because "it appears  



                                                                                     7  

                                                                        

[sexual abuse by Nickoli] has happened before." 



                                                                                                                                                    

                       We  reversed  Nickoli's  sentence,  noting  that  hearsay  allegations  at  



                                                                                                                           

sentencing must rise to a minimal threshold level of corroboration or substantiation:  



                                                                                                                              

                       In  Nukapigak  v.  State,  our  Supreme  Court  held  that  a  

                                                                                                                              

                        sentencing judge is entitled to consider hearsay allegations of  

                                                                                                                   

                       past bad behavior provided that the information is verified  

                                                                                                                             

                        and  the  defendant  is  given  the  opportunity  to  deny  it  or  

                                                                                                                    

                       present contrary evidence of his own.                                    The court defined  

                                                                                                                           

                        "verified"   to   mean   "corroborated   or   substantiated   by  



      3     Id.  



      4     2014 WL 7005579 (Alaska App. Dec. 10, 2014) (unpublished).  



      5     Id. at *1.  



      6     Id. at *2.  



      7     Id. at **2-3.  



                                                                       - 11 -                                                                   2487
  


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

                         supporting data of information." The court further noted that                                             

                         "a   bare   accusation  or   the   mere   fact   of   an   arrest   is   not  

                         sufficient   to   support   a   conclusion   that   a   defendant   has  

                         previously   engaged   in   criminal   conduct."     However,   the  

                         threshold for verification remains low, and the "supporting                               

                         data or information" may be contained in the hearsay account                                      

                         itself,         provided               the       account              "appears              minimally  

                         trustworthy."8  



                                                                                                                                               

Since the guardian ad litem in Nickoli had offered no credible source of her allegation,  



                                                                                                                                    

and since she had but vaguely referred to "the men" in the child's home,  her bare  



                                                                                                                                                 

allegation stood unverified.  Because the State also offered no corroborating evidence,  



                                                                                                                                                    

the judge could not rely on the allegation, even though the defense presented no rebuttal  



                                                                                                 

evidence, and certainly no testimonial denial under oath.  



                                                                                                                                                 

            Integration  of  hearsay  challenge  procedures  and  the  requirements  of  

                                         

             Criminal Rule 32.1  



                                                                                                                                                             

                         Thus Criminal Rule 32.1 should, as a practical matter, be read in light of the  



                                                                                                                                                              

case law regarding "verification."                                   The first  procedural step  is a defense notice of  



                                                                                                                                                      

objection to allegedly unverified hearsay.  Such an objection puts the State to its burden  



                                                                                                                                                                

of corroboration or substantiation. As explained in Nukapigak v. State, "verification" is  



                                                                                                                                                              

a term of art connoting a modest burden  on  the State to  minimally  corroborate or  



                                                   9  

                                                                                                                                                     

substantiate the allegation.                            Verification demonstrates that the allegation is neither  



                                                                                                                                     

unsupported speculation nor mere fiction.  Hearsay can be verified by its own internal  



                                                                                                         

content, as in the case of a detailed police investigative report.  



      8     Id.   at *3 (citing Nukapigak v. State, 562 P.2d 697, 701 (Alaska 1977)) (citations   



omitted).  



      9     Nukapigak, 562 P.2d at 701 n.2.  



                                                                           -  12 -                                                                        2487
  


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

                                   If a hearsay allegation is sufficiently corroborated or substantiated but the                                                                                                             



defendant wishes to challenge the allegation, the defense bears the burden of producing                                                                                                                   



evidence, which the State may controvert. The defense may challenge the allegation via                                                                                                                                       



a testimonial denial under oath by the defendant, but that is not the only avenue of                                                                                                                                           



challenge. Thedefensemayalso                                                         produceotherequivalentevidence,                                                            including testimony  

of other witnesses, testimony at the trial, or expert reports offered at sentencing.                                                                                                                                10  



                                                                                                                                                                                                       

                                   Thus, under Rule 32.1(f)(5), read together with the holding of Nukapigak,  



                                                                                                                                                                                                                       

the court must redact or reject any challenged allegation if 1) the court finds that it rests  



                                                                                                                                                                                                                       

on unverified hearsay, 2) the court finds the allegation, hearsay or non-hearsay, to be  



                                                                                                                                                                                                                               

unproven after the defense has met its burden of providing testimonial evidence or its  



                                                                                                                                                                                                                                

equivalent, or 3) the judge determines that the allegation is not relevant to sentencing or  



                                                                                              11  

                                                                                        

otherwise elects not to rely upon it. 



                                                                                                                                                                                                                         

                                   During my pro tempore  assignment to the Court of Appeals, I have seen  



                                                                                                                                                                                                                           

these issues arise with surprising frequency.   Trial courts are busy institutions, and  



                                                                                                                                                                                                        

resolution of challenged allegations can take substantial time. And the rules themselves  



                                                                                                                                                                                                               

are  not  particularly  intuitive,  especially  in  light  of  the  treatment  afforded  hearsay  



                                                                                                                                                                                                                           

allegations under the holding of Nukapigak .   But these rules go to the heart of due  



                                                                                                                                                                                                                        

process fairness at sentencing, and so the effort required to learn them and to apply them  



                                                                                                                                                                                                                 

routinely, both on the part of judges and of attorneys, seems to me well worth the trouble.  



         10       Cleveland v. State, 258 P.3d 878, 886 (Alaska App. 2011);                                                                                        see also Davison                          , 307 P.3d  



 1, 4 (Alaska App. 2013).  



         11       Alaska R. Crim. P. 32.1(f)(5).  



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