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Olson v. State (9/23/2016) ap-2521

Olson v. State (9/23/2016) ap-2521

                                                                                           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:    



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                                 IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                                    



GLENN  OLSON,  

                                                                                                                                                                      

                                                                                                                      Court of Appeals No. A-12141  

                                                                                                                                                                                     

                                                              Appellant,                                              Trial Court No. 3DI-14-097 CI  



                                              v.  

                                                                                                                                     O  P  I  N  I  O  N  

                                                                                                                                                                      

STATE  OF  ALASKA,  



                                                              Appellee.                                            No. 2521 - September 23, 2016  

                                                                                                                                                                                  



                               Appeal   from  the   Superior   Court,  Third  Judicial                                                                 District,  

                                                                                                                                                     

                               Dillingham, Patricia L. Douglass, Judge.  

                                                                                                         



                               Appearances: Glenn Olson, in propria persona, Wasilla, for the  

                                                                                                                                                                    

                               Appellant.                   Michael   Sean  McLaughlin,  Assistant   Attorney  

                                                                                                                                                     

                               General, Office of Criminal Appeals, Anchorage, and Craig W.  

                                                                                                                                                                   

                               Richards, Attorney General, Juneau, for the Appellee.  

                                                                                                                                                     



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

                                                                                                                                                      

                               Superior Court Judge.*  

                                                                                   



                                             

                               Judge MANNHEIMER.  



                               This appeal requires us to decide whether a criminal judgement is "void"                                                                                  



(as that term is used in habeas corpus jurisprudence) if,                                                                              at the defendant's trial,                                 the  



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



Constitution and Administrative Rule 24(d).                                        


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

                                                                                                                               

government relied on evidence obtained in violation of the Fourth Amendment.  For the  



                                                                                                              

reasons explained here, we conclude that such judgements are not void.  



                                                                                     

           Underlying facts of the case, and Olson's direct appeal  



                                                                                                                              

                    In 2010, Glenn Olson was convicted of second-degree sexual assault and  



                                                                                                                              

fourth-degree assault (upon different victims).  Olson appealed these convictions to this  



                                                                                                                        

Court, and we affirmed his convictions in Olsen v. State, unpublished, 2013 WL 596524  



                                 

(Alaska App. 2013).  



                                                                                                                             

                    (Our prior decision uses the spelling "Olsen" because Olson himself used  



                                                                                                                         

that spelling of his name when he litigated the earlier appeal.  Olson represented himself  



                                                                                                                           

in that appeal and, in all of his pleadings, he styled himself "Glenn:Olsen".   See Court  



                                                                                                                               

of Appeals File No. A-10782.  Olson again represents himself in the current appeal, but  



                                                              

he now spells his name "Glenn Olson".)  



                                                                                                                                     

                    As we described in our 2013 decision in  Olsen,  Olson was present at a  



                                                                                                                             

Dillingham residence along with two other men and a woman.  Olson told the two men  



                                                                                                                               

to leave the house, and then he grabbed the woman by the hair and pulled her toward the  



                                                                                                                          

bedroom.  When the two men tried to intercede on the woman's behalf, Olson fought  



                                                                                                                                

them off.  The two men then went to a neighbor's house and summoned the police.  



                                                                                                                             

                    When the police officers arrived,  they found the two men outside, and they  



                                                                                                                              

heard yelling from inside the residence.                         The  men  told the officers that Olson had  



                                                                                                                                     

threatened them with a knife.  Based on this information, the officers entered the house.  



                                                                                                                              

In a bedroom, the officers found the woman face-down on a mattress, with her pants and  



                                                                                                                             

underwear pulled down, and with Olson on top of her.  The woman was so drunk that,  



                                                                                                                      

even when the officers intervened to stop the assault, she could not coherently converse  



                             

with the officers.  



                                                              - 2 -                                                          2521
  


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

                                                                                                                                

                    Based on these events, the State charged Olson with sexual assault in the  



                                                                                                                              

second degree (for sexually assaulting the woman while she was incapacitated), and with  



                                                                                             

assault in the fourth degree (for assaulting one of the men).  



                                                                                                                                

                    Prior to trial, Olson filed a motion to suppress all of the evidence that the  



                                                                                                                         

police observed or discovered inside the house.   Olson claimed that the police illegally  



                                                                                                                                 

entered the residence because (1) they entered without permission and (2) there were no  



                                                                                                                        

exigent circumstances to justify the entry.  Following an evidentiary hearing, the superior  



                                                                                                                               

court concluded that the officers' entry was justified by exigent circumstances, in that  



                                                                                                                                

the officers had reasonable grounds to believe that an assault was occurring inside the  



            

house.  



                                                                                                                        

                     (See State v. Gibson, 267 P.3d 645, 659 (Alaska 2012), where our supreme  



                                                                                                                           

court  explained the "emergency aid" doctrine - the doctrine that authorizes police  



                                                                                                                                  

officers to enter a residence without a warrant when they "have reasonable grounds to  



                                                                                                                                

believe there is an emergency at hand and an immediate need for their assistance in the  



                                                    

protection of life or property".)  



                                                                                                                                 

                    Following Olson's conviction on the sexual assault and assault charges, he  



                                                                                                                          

filed an appeal in which he argued (among other things) that the superior court should  



                                                                                                                         

have granted his suppression motion.  More specifically, Olson argued that the officers  



                                                                                                                        

who  entered  the residence had no grounds for believing that there was an ongoing  



                                                                                                                                   

emergency, and that they had no other justification for entering the residence without a  



                

warrant.  



                                                                                                                                

                    In our decision in Olsen, we concluded that, under the facts found by the  



                                                                                                                                

superior court, the officers' warrantless entry into the residence was justified under the  



                                                               - 3 -                                                          2521
  


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

emergency aid doctrine.                                    See   Olsen   at *3; see                             also this Court's later order denying                               

Olson's petition for rehearing.                                      1  



                                                                                                                                                                              

                Olson's petition for post-conviction relief,and his current petition for writ  

                                       

               of habeas corpus  



                                                                                                                                                                                        

                               In  2014  (i.e.,  after  this  Court  affirmed  Olson's  convictions  on  direct  



                                                                                                                                                                                    

appeal), Olson filed a petition for post-conviction relief - superior court  file number  



                                                                                                                                                                                               

3DI-14-040 CI - in which he attacked his convictions on the ground that much of the  



                                                                                                                                                                                          

evidence against him was the fruit of an allegedly unlawful arrest.   The superior court  



                                                                                                                                                                                              

dismissed this petition because it was barred by the provisions of AS 12.72.020(a).  



                                                                                                                                                                                        

                               Olson then filed a petition for writ of habeas  corpus (the present case),  



                                                                                                                                                                                             

again attacking his convictions on the ground that much of the evidence against him was  



                                                                                                                                                                                       

the fruit of an allegedly unlawful arrest.  The superior court ruled that this habeas corpus  



                                                                                                                                                                                               

action was barred by law, and Olson now appeals the superior court's dismissal of his  



                                                      

habeas corpus petition.  



                                                                                                                                                                                          

                               In his brief to this  Court, Olson acknowledges that he was barred from  



                                                                                                                                                                                    

raising  his  illegal  arrest   claim  in  a  petition  for  post-conviction  relief.                                                                                                  Under  



                                                                                                                                                                                               

AS 12.72.020(a), post-conviction relief litigation can not be based on a challenge to the  



        1      "[This Court] upheld the officers' entry [into the                                                          residence] because we concluded                      



that, under the facts found by the superior court, the entry was justified under the emergency                                                                                 

aid exception to the warrant requirement."                                                   Order [on] Petition for Rehearing dated April 1,                                                     

2013 (concurrence of Judge Mannheimer).                        



                                                                                              - 4 -                                                                                         2521
  


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

                                                                                       2  

evidence that was admitted at the defendant's trial,                                     nor can it be based on a claim that                   



                                                3  

was raised on direct appeal.                        



                       But Olson argues that, precisely because he is barred from pursuing his  

                                                                                                                                               



illegal arrest claim in post-conviction  relief litigation,  he is authorized to pursue this  

                                                                                                                                              



claim in a petition for writ of habeas corpus.  

                                                                              



                       Olson acknowledges that,  under  Alaska Civil Rule 86(m),  petitions for  

                                                                                                                                               



post-conviction relief have largely superseded writs of habeas corpus as the method for  

                                                                                                                                               

                                                                            4   He also acknowledges that in Hertz v.  

collaterally  attacking a criminal conviction.  

                                                                                                                                                 



State,  8 P.3d 1144 (Alaska App.  2000),  this Court held that a criminal defendant is  

                                                                                                                                                 



generally not entitled to pursue habeas corpus litigation in instances where a petition for  

                                                                                                                                               



post-conviction relief would be barred.  

                                                                     



                       But Olson relies on a passage from Hertz where this Court stated that if a  

                                                                                                                                                  



defendant claims that the judgement against them is void, then the defendant might be  

                                                                                                                                                



entitled to pursue a petition for writ of habeas corpus even though an action for post- 

                                                                                                                                           



conviction relief would be barred:  

                                                           



                         

                                  It is of the historical essence of habeas corpus that it  

                                                                                                                           

                       lies  to  test   proceedings  so   fundamentally  lawless  that  

                                                                                                                      

                       imprisonment pursuant to them is not merely erroneous but  

                                                                                                                        

                       void.        Hence,  the  familiar  principle  that  res  judicata  is  

                                                                                                                          

                       inapplicable in habeas corpus proceedings ... is really but an  

                                                                                                                         

                       instance of the larger principle that void judgments may be  

                                                                                                                         



      2    AS   12.72.020(a)(1).   



      3    AS   12.72.020(a)(2).   



      4     See   Grinols  v.  State,   10  P.3d 6             00,  609-610  (Alaska   App.  2000),  where  this  Court  



upheld  the c   onstitutionality  of  Civil  Rule   86(m)  against  the c   ontention  that  it  constituted  an  

unlawful  limitation  or  suspension  of  the w                     rit  of  habeas  corpus.   



                                                                      - 5 -                                                                  2521
  


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

                                                                                                           

                     collaterally impeached.  [Quoting McCracken v. Corey, 612  

                                                                     

                     P.2d 990, 992 (Alaska 1980).]  



                                                                                                      

                               We agree with that general premise - that a person  

                                                                                                     

                     held  under  a  void  judgment  can  seek  redress  in  habeas  

                                                                                                  

                     corpus.       ...   Arguably,  if a post-conviction relief applicant  

                                                                                                          

                     raised  a  claim  that  the  underlying criminal judgment  was  

                                                                                                            

                     void,  a  procedural  bar  under  AS  12.72.020(a)  might  be  

                                                

                     unconstitutional.  



                           

Hertz, 8 P.3d at 1148.  



                                                                                                                              

                     Olson contends that he falls under this exception.   He argues that he was  



                                                                                                                    

unlawfully arrested, that much of the evidence against him should have been suppressed  



                                                                                                                         

as the fruit of  this unlawful arrest, and that therefore the resulting judgement entered  



                                                                                                                               

against him is void.  And because the judgement is purportedly void, Olson claims that  



                                                                                                                             

he is entitled  to  attack that judgement via a petition for writ of habeas corpus, even  



                                                                                                                             

though he would be barred from petitioning for post-conviction relief based on this same  



                                   

claim of illegal arrest.  



                                                                                          

           Why we reject Olson's claim that his judgement is "void"  



                                                                                                                     

                     Olson's argument ultimately rests on the premise that a criminal conviction  



                                                                                                                                

is "void" if the prosecution's case was based on evidence obtained in violation of the  



                                                                                                                       

Fourth Amendment.  This premise is mistaken.   Although there is no Alaska appellate  



                                                                                                                                

case on point, the courts of other states have consistently held that the government's use  



                                                                                                                        

of evidence obtained through an unlawful search or seizure does not make the resulting  



                                                                                   

judgement "void" for purposes of habeas corpus law.  



                                                                                                                           

                     See Munnerlyn v. State, unpublished, 2014 WL 260986, *2 (Ark. 2014);  



                                                                                                                             

Smith v. State, unpublished, 1983 WL 1015, *1 (Ark. 1983); People v. Cahan, 287 P.2d  



                                                               - 6 -                                                          2521
  


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

                                                                                                                                  

6, 7 (Cal. App. 1955); Hamm v. Jones, 353 S.W.2d 544, 545 (Ky. App. 1962); State v.  



                                                                                                                                 

Dunn, 74 S.E. 1014 (N.C. 1912); Lowe v. Fortner, unpublished, 2012 WL 1080274, *3  



                                                                                                                       

(Tenn. Crim. App. 2012); Archer v. State , 851 S.W.2d 157, 160 n. 2 (Tenn. 1993).  



                                                                                                                                  

                     This principle - that the introduction of evidence obtained in violation of  



                                                                                                                                

the Fourth Amendment does not make a resulting judgement "void" - is mirrored in the  



                                                                                                                                

Alaska Supreme Court's decision in Moreau v. State, 588 P.2d 275 (Alaska 1978).  



                                                                                                                          

                     In Moreau, the supreme court held that claims of unlawful search or seizure  



                                                                                                                             

normally can not be raised for the first time on appeal (i.e., can not be raised if the claim  



                                                                                                                                      

was not presented to the trial court).  588 P.2d at 280.  As the supreme court explained,  



                      

                                                                                                    

                               The  exclusionary  rule  is  not  the  type  of  doctrine  

                                                                                                                  

                     designed  to  protect  against  conviction  of  the  innocent.  

                                                                                                       

                     Rather,  it is  a prophylactic device to curb improper police  

                                                                                                                 

                     conduct and to protect the integrity of the judicial process.  

                                                                                              

                     Thus, justice does not generally require that [the exclusionary  

                                                                                                   

                    rule]  be  applied  on  appeal where  [the  claim  of  unlawful  

                                                                                                          

                     search or seizure  was]  not urged at trial[,] or where new  

                                                                                       

                     grounds for its invocation are presented on appeal.  



          

Ibid.  



                                                                                                                              

                    As this Court explained in Selig v. State, the rationale of Moreau  is that,  



                                                                                                                               

even if evidence is obtained in violation of the constitutional limitations on searches and  



                                                                                                                            

seizures, the evidence remains reliable.  Thus, Fourth Amendment errors do not affect  



                                                                                                                         

the fundamental fairness of the fact-finding process.  Selig, 286 P.3d 767, 770 (Alaska  



                     

App. 2012).  



                                                                                                                                

                     Because Moreau  holds that violations of the Fourth Amendment do not  



                                                                                                                         

diminish  the  fundamental  fairness  of  the  trial,  and  that  violations  of  the  Fourth  



                                                                                                                                

Amendment normally can not be raised for the first time on appeal, we would violate the  



                                                                                                                  

underlying rationale of Moreau if we were to hold that these same Fourth Amendment  



                                                               - 7 -                                                          2521
  


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

                                                                                                                                

violations  rendered  a  criminal  judgement  "void"  (with  the  result  that  it  could  be  



                                                              

collaterally attacked without limitation).  



                                                                                                                                

                     As we explained earlier in this opinion, this Court has already held that the  



                                                                                                                                

officers'  warrantless  entry  into  the  residence  was  lawful under  the  emergency  aid  



                                                                                                                               

doctrine.   But even if that were not the case - i.e., even if the officers entered the  



                                                                                                                                  

residence unlawfully,  and even if Olson's ensuing  arrest was unlawful,  and even if  



                                                                                                                                

evidence stemming from that unlawful arrest was introduced at Olson's trial - the  



                                                                                                                                      

judgement entered against Olson would not be "void" for purposes of habeas corpus law.  



                                                                                                                              

Olson is therefore not entitled to litigate his unlawful arrest claim in a petition for writ  



                             

of habeas corpus.  



                                                                                                                          

                     The superior court's order dismissing Olson's petition for writ of habeas  



                

corpus is AFFIRMED.  



                                                               - 8 -                                                          2521
  

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