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Nicklie v. State (8/18/2017) ap-2563

Nicklie v. State (8/18/2017) ap-2563

                                                                                       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  



ROBERT DEE NICKLIE,  

                                                                                                                Court of Appeals No. A-12179  

                                                           Appellant,                                         Trial Court No. 3AN-13-461 CR  



                                            v.  

                                                                                                                              O  P  I  N  I  O  N  

STATE OF ALASKA,  



                                                           Appellee.                                             No. 2563 - August 18, 2017  



                                                                                                             

                              Appeal   from  the  Superior  Court,   Third  Judicial  District,  

                              Anchorage, Michael Spaan, Judge.  



                              Appearances:   Jane   B.   Martinez,   Law   Office   of   Jane   B.  

                                                                                                                                               

                              Martinez,                LLC,            and         Richard               Allen,           Public             Advocate,  

                              Anchorage, for the Appellant.   Elizabeth T. Burke, Assistant  

                                                                                                  

                              Attorney General, Office of Criminal Appeals, Anchorage, and  

                                                                                          

                              Jahna Lindemuth, Attorney General, Juneau, for the Appellee.  

                                                                                                             



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

                                                                                          

                              Judges.  



                              Judge ALLARD.  



                              A jury found Robert Dee Nicklie guilty of third-degree and fourth-degree                                                            



assault based on evidence that he beat up and strangled his girlfriend.                                                                                       At sentencing,   



both the prosecutor and the defense attorney agreed that the jury's verdicts on these two                                                                                               



counts should merge into a single conviction for third-degree assault (the more serious                                                                                         


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 crime). The judge agreed with the parties, and he imposed only one sentence on Nicklie                                                                                                                 



- a sentence for third-degree assault.                                        



                                  However, the judgment form that was prepared following the sentencing   



hearing declares that Nicklie was "convicted" of both counts of assault and that the two                                                                                                                         



 counts were merged only "for sentencing purposes."                                                       



                                  On appeal, Nicklie argues that his separate conviction for fourth-degree                                                                              



 assault must be vacated, and the State concedes that this should occur.                                                                                          



                                                                                                                                                                           1  

                                  We conclude that the State's concession is well-taken.                                                                                       As we explained  



                                   

in Garhart v. State:  



                                    

                                                                                                                                                                       

                                  [W]hen  the  counts  of  the  defendant's  indictment  charge  

                                                                                                                                                                                  

                                  separate theories of the same crime, or when the counts of the  

                                                                                                                                                                                  

                                  indictment  charge  separate  crimes  that  will  ultimately  be  

                                                                                                                                                     

                                  treated  as  the  "same  crime"  under  the  rule  announced  in  

                                                                                                                                         

                                   Whitton v. State, [479 P.2d 302 (Alaska 1970),] Alaska law  

                                                                                                                                                                                           

                                  allows the government to seek a jury verdict on each count.  

                                                                                                                                                                            

                                  The double jeopardy clause comes into operation later, when  

                                                                                                                                                                           

                                  the sentencing court is asked to enter judgement on those  

                                  verdicts.  At that time, the court must merge one or more of  

                                                                                                                                                                                    

                                  the verdicts so that the defendant receives only the number of  

                                                                                                                                                                  

                                  convictions and sentences allowed by the double jeopardy  

                                  clause.2  



         1       See Marks v. State                          , 496 P.2d 66, 67-68 (Alaska 1972) (requiring an appellate court to  



independently assess any concession of error by the State in a criminal case);                                                                                                         see also Allain  

v. State, 810 P.2d 1019, 1021 (Alaska App. 1991) (finding State's concession that merger of  

two counts should result in a single conviction to be well-taken).  



         2       Garhart v. State, 147 P.3d 746, 753-54 (Alaska App. 2006) (citing Gilbert v. State,  



 598  P.2d  87,  91  (Alaska  1979);  Robinson  v.  State,  487  P.2d  681,  682  (Alaska  1971);  

Atkinson v. State , 869 P.2d 486, 495 (Alaska App. 1994)).  



                                                                                                       - 2 -                                                                                                 2563
  


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

                      Thus,   Alaska   law   does   not   recognize   the   existence   of   a   merger  "for  



sentencing   purposes   only."     Because   of   the   prohibition   against   double   jeopardy  



announced in            Whitton, when a defendant is found guilty of counts that must merge, the                                       

merger results in a            single  conviction of record (and thus a single sentence).                               3  



                                                                                                                                   

                      (This is distinctfromsituationswhereseparateconvictionsarelawful under  



                                                                                                                                      

 Whitton, but the sentencing judge believes that concurrent sentences will satisfy the  



                                                                                                                              

Chaney sentencing criteria.  In those instances, a judge must enter a separate sentence  



                                                                                                                                       

for each conviction, but those sentences can be concurrent to the extent permitted by  



                           

AS 12.55.127.)  



                                                                                                                                       

                     We recognize, however, that the current Alaska Court System form for the  



                                                                                                                             

entry of criminal judgments makes it difficult for sentencing judges to issue a judgment  



                                                                                                                                      

that complies with  Whitton.  Instead of beginning with the words "The defendant has  



                                                                                                                            

been found guilty of" various counts of the indictment, the Court System's judgment  



                                                                                                                                

form begins with the words "The defendant has been convicted of " the various counts.  



                                                                                                                                  

(Emphasis added.)  In other words, the form does not distinguish between the jury's  



                                                                                                                                     

guilty verdicts and the ultimate convictions of record that are later entered by the trial  



                                                                                                                                       

court based on those verdicts.  This becomes a problem for cases where the verdicts are  



                                                                                                                                          

subsequently merged under Whitton and multiple guilty verdicts should be entered as a  



                                                                                                                                      

single conviction of record.  Often, as occurred here, the judge will try to address this  



                                                                                                 

problem by indicating that the counts have merged but will then erroneously state that  



                                                                                                                                 

the counts are merged "for sentencing purposes only," leaving the convictions of record  



                                                

for the merged counts intact.  



      3    See Newsome v. State, 782 P.2d 689, 692 (Alaska App.   1989);   see also State v.  



McDonald , 872 P.2d 627, 660 n.14 (Alaska App. 1994); Allain , 810 P.2d at 1021.  



                                                                  - 3 -                                                            2563
  


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

                     Because the current form makes it difficult for judges to comply with the  

                                                                                                                                 



double jeopardy requirements of  Whitton, we encourage the Alaska Court System to  

                                                                                                                                   



modify this form.  And, until that occurs, we urge sentencing judges not to use this form  

                                                                                                                               



in cases where two or more counts must merge under Whitton.  

                                                                                                  



                    Nicklie raises one other contention on appeal. He argues that the trial judge  

                                                                                                                              



committed plain error by failing to sua sponte instruct the jury on the need for factual  

                                                                                                                           



unanimity. To understand Nicklie's claim, and our rejection of it, we must supply some  

                                                                                                                              



background on how this case was litigated.  

                                                                    



                     The State charged Nicklie with second-degree assault and fourth-degree  

                                                                                                                 



assault based on allegations that he strangled and beat up his girlfriend, Bernita Ballot.  

                                                                                                                                       



At trial, the State introduced evidence that Nicklie hit Ballot and tore out a chunk of her  

                                                                                                                                 



hair. The State also introduced evidence that Nicklie choked Ballot, resulting in bruises  

                                                                                                                           



to Ballot's neck and petechia behind her eyelids and ears.  

                                                                                           



                     Duringclosingargument,theprosecutor explained that Nickliewascharged  

                                                                                                                          



with second-degree assault based on the strangulation and that Nicklie was charged with  

                                                                                                                               



fourth-degree  assault  based  on  the  hair-pulling  incident.                                 The  prosecutor  further  

                                                                                                                          



explained that, to find Nicklie guilty of second-degree assault, the jury needed to find  

                                                                                                                               



beyond a reasonable doubt that Nicklie "intentionally caused physical injury [to Ballot]  

                                                                                                                           



by  means  of  a  dangerous  instrument"  -  i.e.,  using  his  hands  to  impede  Ballot's  

                                                                                                                         



breathing and circulation. The prosecutor also explained that this second-degree assault  

                                                                                                                            



charge included the lesser offense of third-degree assault - an offense that would apply  

                                                                                                                             



if the State proved only that Nicklie "recklessly caused physical injury [to Ballot] by  

                                                                                                                                  



means of a dangerous instrument" - again, by using his hands to impede Ballot's  

                                                                                                                         



breathing and circulation.  

                       



                                                               - 4 -                                                         2563
  


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

                                                                                  Following   deliberations,   the   jury   acquitted   Nicklie   of   second-degree  



 assault, but convicted himofthelesser-includedoffenseofthird-degreeassault. The                                                                                                                                                                                                                                                                                                                                                                                                                                          jury  



 also convicted Nicklie of fourth-degree assault.                                                                                                                                                                                                    



                                                                                   On appeal, Nicklie argues that his conviction for third-degree assault is                                                                                                                                                                                                                                                                                                                                                                           



 flawed because the trial judge failed to instruct the jury on the need for factual unanimity.                                                                                                                                                                                                                                                                                                                                                                                                                                                           



Nicklie contends that some members of the jury may have convicted Nicklie of third-                                                                                                                                                                                                                                                                                                                                                                                                                            



 degree assault based on the strangulation, while other members of the jury may have                                                                                                                                                                                                                                                                                                                                                                                                                                



 convicted Nicklie of third-degree assault based on the hair-pulling.                                                                                                                                                                                                                                                                         



                                                                                  We find no merit to this contention, given that the prosecutor expressly told                                                                                                                                                                                                                                                                                                                                                                                          



the jury that the strangulation and the hair-pulling were charged in separate counts, and                                                                                                                                                                                                                                                                                                                                                                                                                                   



 also given the fact that the jury was specifically instructed that the phrase "dangerous                                                                                                                                                                                                                                                                                                                                                                                  



 instrument" meant hands or other objects used to impede a person's breathing.                                                                                                                                                                                                                                                                                                                                                                                                                         



                                                                                  Nicklie also argues that a factual unanimity instruction wasneeded because                                                                                                                                                                                                                                                                                                                                       



Ballot testified that Nicklie applied pressure to "different parts" of her throat.                                                                                                                                                                                                                                                                                                                                                                                                               Nicklie  



 contends that his conviction for third-degree assault is flawed because some members                                                                                                                                                                                                                                                                                                                                                                                                    



 of the jury may have believed that the strangulation occurred when Nicklie placed his                                                                                                                                                                                                                                                                                                                                                                                                                                          



hands   "around"   Ballot's   throat,   while   other   jurors   may   have   concluded   that   the  



 strangulation occurred when Nicklie used his hands to apply pressure to the "sides" of                                                                                                                                                                                                                                                                                                                                                                                                                                              



Ballot's throat.                                                                                



                                                                                  Evenassumingthat this might betrue, thejury's verdict                                                                                                                                                                                                                                                                                       wouldnevertheless   



be proper.                                                      Regardless of the precise details of the strangulation, Nicklie's strangulation                                                                                                                                                                                                                                                                                                                   



 of Ballot was a single criminal act for purposes of the requirement of jury unanimity.                                                                                                                                                                                                                                                                                                                                                                                        



 (Conversely, it would have been improper for Nicklie to be convicted of two separate                                                                                                                                                                                                                                                                                                                                                                                                          

 acts of strangulation under these facts.                                                                                                                                                                                                   4           

                                                                                                                                                                                                                                                 )  



                     4                   See S.R.D. v. State, 820 P.2d 1088, 1092-93 (Alaska App. 1991).  



                                                                                                                                                                                                                                                            -  5 -                                                                                                                                                                                                                                                  2563
  


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

                    We therefore find no error in the trial judge's failure to sua sponte instruct  

                                                                                                                    



the jury that they needed to reach factual unanimity regarding Nicklie's precise mode of  

                                                                                                                            



strangling Ballot.  

                 



          Conclusion  



                    We REMAND this case for correction of the judgment to clarify that the  

                                                                                                                          



jury verdicts on third-degree assault and fourth-degree assault merged into a single  

                                                                                                                      



conviction for third-degree assault.   The judgment of the superior court is otherwise  

                                                                                                                 



AFFIRMED.  



                                                            -  6 -                                                     2563
  

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