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Lane v. State (9/16/2016) ap-2519

Lane v. State (9/16/2016) ap-2519

                                                                             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                                                   



LENNIE  LANE  III,  

                                                                                                                                              

                                                                                                    Court of Appeals No. A-11019  

                                                                                                                                                             

                                                     Appellant,                                 Trial Court No. 3AN-08-13841 CR  



                                       v.  

                                                                                                                 O  P  I  N  I  O  N  

                                                                                                                                              

STATE  OF  ALASKA,  



                                                     Appellee.                                    No. 2519 - September 16, 2016  

                                                                                                                                                        



                          Appeal   from  the   Superior   Court,  Third  Judicial                                                District,  

                                                                                                                                

                          Anchorage, Michael R. Spaan, Judge.  

                                                                                    



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

                                                                                                                                  

                          and  Statewide  Defense  Section,  and  Richard  Allen,  Public  

                                                                                                                                   

                          Advocate, Anchorage, for the Appellant.   Timothy W. Terrell,  

                                                                                                                                   

                          Assistant   Attorney   General,   Office   of   Criminal   Appeals,  

                                                                                                                               

                          Anchorage, and Craig W. Richards, Attorney General, Juneau,  

                                                                                                                                   

                          for the Appellee.  Renee McFarland, Assistant Public Defender,  

                                                                                                                               

                          and Quinlan Steiner, Public Defender, Anchorage, for  amicus  

                                                                                                                                   

                          curiae Alaska Public Defender Agency.  

                                                                                                      



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

                                                                                                                                   

                          District Court Judge.*  

                                                      

                                                                     



                                       

                          Judge MANNHEIMER.  



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



Constitution and Administrative Rule 24(d).                            


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

                                            At the conclusion of a jury trial, the defendant in this case, Lennie Lane III,                                                                                                                                                   



 was   found   guilty   of   first-degree   sexual assault,                                                                                                    second-degree   physical assault,                                                                           and  



 evidence tampering.                                                



                                            Following the trial, but prior to sentencing, Lane's attorney filed a motion                                                                                                                                      



 asking the superior court to make a post-verdict finding (under the procedures set forth                                                                                                                                                                               



 in AS 12.47.060) that Lane was "guilty but mentally ill".                                                                                                                              



                                            Prompted   by   the   defense   attorney's   motion,   the   superior   court   held   a  



 hearing at which the court heard testimony from the psychologist who had previously                                                                                                                                                                  



 examined   Lane.     But   more   importantly,   the   prosecutor   and   Lane's   attorney   both  



 stipulated  that Lane should be found guilty but mentally ill.                                                                                                                                      Based on the attorneys'                         



 stipulation,   the   superior court declared Lane to be guilty but mentally ill.                                                                                                                                                                    And later,   



 following Lane's sentencing, the superior court incorporated this finding into its written                                                                                                                                                                      



judgement - adding the words:                                                                              "The Court has                                          determined that the [d]efendant is                                                                             



 [g]uilty, but mentally ill."                                                      



                                            Because   of   the   court's   "guilty   but   mentally   ill"   finding,   Lane   became  



 statutorily entitled to mental health treatment while he is in prison (as long as he remains                                                                                                                                                                  

                                                                                                                                                               1  But at the same time, because of this  

 dangerous because of a mental disease or defect).                                                                                                                                                                                                                           



 finding, Lane suffered a significant legal detriment:  he became ineligible for parole or  

                                                                                                                                                                                                                                                                                 



 furlough release as long as he is receiving  this mental health treatment,  and he will  

                                                                                                                                                                                                                                                                            



 potentially face a petition for involuntary mental commitment when he completes his  

                                                                                                                                                                                                                                                                              



                                                                                       2  

 sentence of imprisonment.  

                                                                                            



                                            Because  of  these  adverse  consequences  of  a  "guilty  but  mentally  ill"  

                                                                                                                                                                                                                                                                              



 verdict, this Court examined the record to make sure that Lane had knowingly concurred  

                                                                                                                                                                                                                                                        



            1         AS 12.47.050(a)-(b);                                              State v. Clifton                                , 315 P.3d 694, 699 (Alaska App. 2013).                                                                                      



            2  

                                                                                                                                                                       

                      AS 12.47.050(d)-(e); Clifton, 315 P.3d at 699.  



                                                                                                                                      - 2 -                                                                                                                                2519
  


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

                                                                                                                          

in his attorney's request for the superior court to enter this verdict.  The record showed  



                             

just the opposite.  



                                                                                                          

          A description of how this issue was litigated in the superior court  



                                                                                                                           

                     As we described earlier,  the superior court held a hearing after Lane's  



                                                                                                                                

attorney  filed  a  post-trial motion  asking the  superior  court  to  find  Lane  guilty  but  



                                                                                                                          

mentally ill.   At this hearing, the prosecutor expressed surprise at the unusual circum- 



                                                                                                                             

stance that a defendant would ask the court for a guilty but mentally ill verdict - since,  



                                                                                                                       

in the words of the prosecutor,  such verdicts are "[generally] viewed as a negative,  



                                                                                                                 

because a [defendant] who is guilty but mentally ill ... is not eligible for discretionary  



                                                                                                                              

parole." The prosecutor suggested that "perhaps [we should get] a few words from [the]  



                    

defendant."  



                                                                                                                                  

                     But  instead of addressing Lane personally,  the superior court spoke  to  



                                                                                                                                 

Lane's attorney, asking him if it was "[his] goal" to have the court find Lane guilty but  



                                                                                                                             

mentally ill.  Lane's attorney confirmed that this was, indeed, his goal - and he asked  



                                                                                                                     

the court to make that finding "right now", without waiting for any further psychiatric  



                                                                                                                                 

evaluations, to "foreclose any possibility that the doctors would not find [Lane] to be  



                      

mentally ill."  



                                                                                                                                

                     The superior court then heard testimony from the psychologist who had  



                                                                                                                                  

previously examined Lane.  The psychologist told the judge that she diagnosed Lane as  



                                                                                                                       

having a delusional disorder - and that, with this diagnosis, Lane fit the legal definition  



                                           

of "guilty but mentally ill".  



                                                                                                                             

                     Immediately after the psychologist offered the opinion that Lane might  



                                                                                                                        

properly  be  found  guilty  but  mentally  ill,  the  following colloquy  occurred  between  



                                                                       

Lane's attorney, the court, and Lane himself:  



                                                               - 3 -                                                          2519
  


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

  

                                                                                       

          Defense Attorney : I'll accept that.  [To Lane:]  Do you  

                        

want to accept that?  



                                          

          Lane :  What's that?  



                                                                                         

          Defense Attorney :  Would you like the court now to  

                                                                             

determine that you're mentally ill, so you can be sentenced  

                              

under that statute?  



                                                                                    

          Lane :   Well,  I'd like to give  this  -  I've got some  

                                                                                      

letters here.  I don't understand what's being said.  But I've  

                                                                                      

got some letters I want the judge to look at, since I have filed  

                                                                                  

an  attorney  grievance  [against  you]  pertaining  to  [your]  

                                 

conduct during trial.  



                                                                                 

           The Court:  Okay.   Mr. Lane, ... we [have] vacated  

                                                                                       

your  sentencing.   We'll get it [rescheduled] as soon as  we  

                                                                                      

can.      I will make the finding,  based on the testimony and  

                                                                                       

materials I have, that Mr. Lane is guilty but mentally ill.  



                                                                                       

            Now, as far as the grievance with your lawyer, you  

                                                                                        

could  file an appeal [raising] ineffective representation, [or  

                                                                                    

you could] contact the Bar Association.  But giving me some  

                                                                                    

letters - there's nothing I could do with them right now,  

                                                                                    

because Mr. Buchholdt is ably representing you at this point,  

okay?  



                                                                                       

          Lane :  Well, ... my case is still in review, and I'm just  

                                                                                           

- and I had another attorney that wanted to be here ... for a  

                                                           

merit appeal or post-conviction relief.  



                                                                                          

           The Court:   Okay.              But  ...  [w]e've got to [enter] a  

                                                                 

judgment before you could appeal, okay?  



                                                                                       

          Lane :  So ... when are you saying that you would like  

                                                                                         

to sentence me?  ...  I'd rather not do it today.  I'd rather be  



                                           - 4 -                                                          2519
  


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

                                                                                                            

                    committed back to the hospital.   If you can hear me out on  

                              

                    that.  



                                                                                                                  

                               The Court: Well, look, here's what's going to happen.  

                                                                                                           

                     ...    Once  I  enter  the  judgment  and  find  you  guilty  but  

                                                                                                  

                    mentally ill, the statutes provide that you need to be provided,  

                                                                                                     

                    and must be provided, mental health help.   Now, it doesn't  

                                                                                                          

                    provide  that  you  necessarily  are  going to  be  in  API  [the  

                                                                                                          

                    Alaska        Psychiatric         Institute].          The       Department            [of  

                                                                                                        

                    Corrections] could have you in custody and provide those  

                                                                                                            

                     services.  [Addressing the psychologist, who was still on the  

                                                        

                    phone:]  Am I correct, Doctor?  



                                                                                                             

                              Psychologist : He would not be [at API].  He would be  

                                                                                    

                    in [Department of Corrections] custody.  



                                                                                                   

                               The Court: Okay.  But the services would be provided  

                                                                                                        

                    to him.   ...  [And being sentenced is] going to make it easier  

                                                                                                           

                    for you to get to the startingline as far as any appeal or ... any  

                                                                                                  

                    other post-conviction relief matters, once there's a judgment.  

                                                                                   

                     ...  So you tell me what you want to do.  



                                                                                                             

                              Lane :  I'm not prepared to go to sentencing today.  



                                                                    

                               The Court:  Very good.  



                                                                                                                          

                    This was the last that anyone said about the "guilty but mentally ill" verdict  



                         

at the hearing.  



                                                                                                                      

                    This  record  does  not  show  that  Lane  made  a  knowing  and  voluntary  



                                                                                                                                      

decision to have his attorney ask the court to enter a verdict of "guilty but mentally ill".  



                                                                                                                                 

The only time that Lane personally said anything about this issue was in the portion of  



                                                                                                                               

the proceedings that we have just quoted - when Lane's attorney asked him if he was  



                                                                                                                        

willing to accept the psychologist's opinion that he should be found guilty but mentally  



                                                               - 5 -                                                          2519
  


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

ill.   Lane responded to his attorney's question by saying that he did not understand what                                                                                                                                            



his attorney was talking about - and that he wished to complain about the quality of his                                                                                                                                                   



attorney's representation.                                               



                                      Almost immediately after Lane made these comments, and despite the fact                                                                                                                             



that Lane                      had just declared that he did not understand what his attorney was talking                                                                                                                        



about, the judge announced that he was finding Lane guilty but mentally ill.                                                                                                                                         



                    Why we reverse the superior court's ruling that Lane should be adjudged                                                                                                            

                   guilty but mentally ill                                



                                                                                                                                                       3                                                                                    4  

                                                                                                                                                           and in several earlier cases,                                                         a  

                                      As this Court noted in                                             State v.                Clifton                                                                                                        



finding that a defendant is guilty but mentally ill is "a new type of verdict in criminal  

                                                                                                                                                                                                                             



cases" - a novel verdict created by the legislature in 1982 when it enacted AS 12.47,  

                                                                                                                                                                                                                                  

the  chapter  relating  to  mental  illness  and  criminal  responsibility. 5                                                                                                                                 In  particular,  

                                                                                                                                                                                                                     



AS 12.47.040, AS 12.47.050(a), and AS 12.55.145(f) allspeak of the "verdict" of "guilty  

                                                                                                                                                                                                                                 



but mentally ill".  

                                                  



                                      As we explained in  Clifton, a "guilty but mentally ill"  verdict rests on a  

                                                                                                                                                                                                                                                



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

                                                                                                                                                                                                                                             



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

                                                                                                                                                                                                                                           



substantial capacity either to appreciate the wrongfulness of their conduct or to conform  

                                                                                                                                                                                                                            



their conduct to the requirements of law."  Clifton, 315 P.3d at 700-01.  

                                                                                                                                                                                                             



          3        Clifton, 315 P.3d at 697, 699-700.                                                              



         4         See, e.g., Lord v. State , 262 P.3d 855, 856 (Alaska App. 2011); Lewis v. State , 195  

                                                                                                                                                                                                                                         

P.3d 622, 637 (Alaska App. 2008).  

                                                                                                



          5        See  SLA 1982, ch. 143,  22.                                                   



                                                                                                                    - 6 -                                                                                                               2519
  


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

                                       In the present case, Lane did not enter a "guilty but mentally ill" plea before                                                                                                                   



trial, nor was he found "guilty but mentally ill" by the jury at his trial.                                                                                                                          Instead, Lane was                         



simply found "guilty" at his trial - and then Lane's attorney filed a post-trial motion                                                                                                                                               



under AS 12.47.060, asking the superior court to enter "guilty but mentally ill" verdicts                                                                                                                                           



instead of the "guilty" verdicts that the jury had reached.                                                                                                            



                                       This is the first time that this Court has encountered a post-trial defense                                                                                                                  



request for a verdict of "guilty but mentally ill", and it is not clear how to categorize such                                                                                                                                               



a   request   for   purposes   of   criminal   procedure.     When   we   asked   the   parties   for  



supplemental briefing on this issue, we suggested that Lane's attorney was offering to                                                                                                                                                              

                                                                                                                                                                                     6      However,  the Public  

have Lane enter a post-trial plea of "guilty but mentally ill".                                                                                                                                                                        



Defender Agency (appearing as amicus curiae) suggests that Lane's attorney was not  

                                                                                                                                                                                                                                                 



offering a plea, but was rather offering to have Lane waive his right to jury trial on the  

                                                                                                                                                                                                                                                  



additional finding that distinguishes a verdict of "guilty but mentally ill" from a verdict  

                                                                                                                                                                                                                                    



of "guilty".  

        



                                       To decide Lane's case, we need not definitively resolve whether Lane's  

                                                                                                                                                                                                                                      



attorney's action should be viewed as an offer of a plea or, instead, as a waiver of Lane's  

                                                                                                                                                                                                                                       



right to jury trial on the element that distinguishes a verdict of "guilty but mentally ill"  

                                                                                                                                                                                                                                                  



from a verdict of "guilty". Under both views, the proceedings in the superior court suffer  

                                                                                                                                                                                                                                          



from the same flaw:  the court failed to obtain Lane's personal and knowing approval of  

                                                                                                                                                                                                                                                     



the defense attorney's proposed waiver of Lane's procedural rights.  

                                                                                                                                                                                                     



                                       If the defense attorney's action is viewed as an offer of a plea, the superior  

                                                                                                                                                                                                                                   



court failed to abide by the provisions of Alaska Criminal Rule 11(c).  This rule requires  

                                                                                                                                                                                                                                    



a  court  to  address  the  defendant  personally   to  make  sure  that  the  defendant  

                                                                                                                                                                                                                            



(1)  understands  what  allegations  they  are  conceding,  (2)  understands  the  general  

                                                                                                                                                                                                                                    



          6        Lane v. State                        , unpublished, 2015 WL 428340, *6 (Alaska App. 2015).                                                                                                        



                                                                                                                       - 7 -                                                                                                                   2519
  


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

                                                                                                                                

consequences of making that concession, and  (3) understands that they are giving up  



                                                                                                                               

their  right  to  jury  trial  and  their  right  to  demand  that  the  government  prove  the  



                                                            

allegations beyond a reasonable doubt.  



                                                                                                                        

                    The superior court did none of that here.   Even though Lane's attorney  



                                                                                                                           

proposed an action that would deprive his client of the possibility of discretionary parole  



                                                                                                                            

or furlough so long as Lane continued to suffer from mental illness, the superior court  



                                                                                                                                      

never asked Lane if he understood this, and if he concurred in his attorney's request.  



                                                                                                                               

Indeed,  the  superior  court  granted  the  attorney's  request  even  though,  during  the  



                                                                                                                                    

discussion of the plea, Lane openly declared, "I don't understand what's being said."  



                                                                                                                              

                    It  is  true  that  Criminal Rule  11(c)  speaks  only  of  pleas  of  guilty  and  



                                                                                                                          

no contest.  But Criminal Rule 11 was formulated at a time when there was no verdict  



                                                                                                                                  

of "guilty but mentally ill".  If the defense attorney's action in this case is viewed as a  



                                                                                                                             

post-trial offer of a plea of "guilty but mentally ill",  the provisions of Criminal Rule  



                                                   

11(c) would apply to that offer.  



                                                                                                                                   

                     (See also Alaska Professional Conduct Rule 1.2(a), which declares that a  



                                                                                                                             

defense attorney in a criminal case "shall abide by [their] client's decision ... as to [the]  



                                                                                                                   

plea  to  be entered".              Here,  the record indicates that Lane did not even understand  



                                                                                                                               

what his attorney was doing when the attorney asked the court to find Lane guilty but  



                       

mentally ill.)  



                                                                                                                                   

                    Alternatively,  if the defense attorney's action in this case is viewed as a  



                                                                                                                          

proposed waiver of Lane's right to jury trial on the element that distinguishes a verdict  



                                                                                                                            

of "guilty but mentally ill" from a verdict of "guilty", the superior court failed to abide  



                                                                                                                                      

by the procedural requirements that apply to such partial waivers of the right to jury trial.  



                                                                                                                             

                    As  we  spelled out in  Tallent v. State, 951 P.2d 857, 865 (Alaska App.  



                                                                                                                                  

1997), and McGlauflin v. State, 857 P.2d 366, 368-69 (Alaska App. 1993), when a  



                                                                                                                         

defendant proposes to waive their right to jury trialon one or more elements of a charged  



                                                               - 8 -                                                          2519
  


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

                                                                                                                    

offense, this waiver can not be made through counsel.  It must be made by the defendant  



                                                                                                                             

personally - and the court can not accept the defendant's waiver until the  court has  



                                                                                                              

ascertained that the defendant understands the right that is being waived.  



          Conclusion  



                                                                                                                             

                    Because the superior court failed to address Lane personally and verify that  



                                                                                                                              

Lane understood and assented to his attorney's action, we REVERSE the portion of the  



                                                                                                                             

superior court's judgement which declares Lane to  be "guilty but mentally ill".                                             We  



                                                                                                                       

direct the superior court to amend the judgement so that it reflects only the jury's verdicts  



                    

of "guilty".  



                                                                                                                 

                    We further direct the superior court to immediately notify the Department  



                                                                        

of Corrections of this change in Lane's status.  



                                                              - 9 -                                                         2519
  

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