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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Lamb v. Anderson (11/17/2006) sp-6078

Lamb v. Anderson (11/17/2006) sp-6078, 147 P3d 736

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA

MICHAEL LAMB, )
) Supreme Court No. S- 11936
Appellant, )
) Superior Court No.
v. ) 4FA-03-2534 CI
)
JEFFREY ANDERSON, ) O P I N I O N
)
Appellee. ) No. 6078 - November 17, 2006
)
          Petition  for Review from the Superior  Court
          of  the  State  of  Alaska,  Fourth  Judicial
          District, Fairbanks, Mark I. Wood, Judge.

          Appearances:  Joseph L.  Paskvan,  Paskvan  &
          Ringstad,  P.C.,  Fairbanks,  for  Appellant.
          John   J.  Burns,  Borgeson  &  Burns,  P.C.,
          Fairbanks, for Appellee.

          Before:   Bryner,  Chief  Justice,  Matthews,
          Eastaugh, Fabe, and Carpeneti, Justices.

          CARPENETI, Justice.

I.   INTRODUCTION
          Jeffrey Anderson was driving drunk on the Parks Highway
when  he  crashed his truck into Michael Lambs motorcycle.   Lamb
was  seriously  injured.   Anderson was criminally  charged,  was
convicted  on  his  plea of no contest to second-degree  assault,
failing  to  render assistance, and driving under the  influence,
and  he  was  sentenced to prison.  Lamb subsequently  brought  a
civil  negligence action against Anderson.  Lamb  sought  partial
summary  judgment  as to liability for punitive  damages  on  the
ground  that Anderson was collaterally estopped from relitigating
recklessness  due  to his earlier criminal  plea.   The  superior
court  denied the motion.  We granted Lambs petition for  review.
Because Andersons conviction for assault collaterally estops  him
from  relitigating  the essential elements of that  offense,  and
because  one  of  the  elements of assault  is  recklessness,  we
reverse.
II.  FACTS AND PROCEEDINGS
     A.   Facts
          On June 14, 2003 Michael Lamb was riding his motorcycle
northbound  on the Parks Highway near Ester.  Anderson  was  also
proceeding  northbound,  driving a three-quarter  ton  Dodge  Ram
pickup.  Anderson apparently passed a tractor-trailer rig at high
speed and, to avoid oncoming traffic, cut in front of the tractor-
trailer.   In  doing so Anderson collided with the  rear  end  of
Lambs  motorcycle.  Lamb was seriously injured,  requiring  wrist
and  knee  surgeries.  Anderson claims not to have any memory  of
the accident or of leaving the scene.
          Anderson  had  been  drinking  heavily  prior  to   the
accident:  He  consumed  a total of at  least  four  double  Jack
Daniels  at  two bars in Nenana.  He then drove to  his  home  in
Fairbanks,  where he apparently drank most of a large  bottle  of
tequila  shortly before returning to the road.  Finally, Anderson
also  had  with  him in the truck a fanny pack with  three  small
bottles of alcohol in it.
          Blood  tests  at Fairbanks Memorial Hospital  indicated
that  Anderson had a blood alcohol content of 286 milligrams  per
100  milliliters of blood, approximately three-and-one-half times
the legal limit for driving while intoxicated.1
          Anderson subsequently pled no contest to assault in the
second  degree, failing to render assistance to an injured person
after  an accident, and driving under the influence.  Charges  of
eluding a police officer and refusal to take a chemical test were
dismissed.   On  December  8, 2003 the superior  court  sentenced
Anderson to nearly seven years in prison (with slightly more than
three  years suspended), and six years probation, ordered him  to
pay  $3,175  in  fines  and surcharges, and revoked  his  drivers
license  for five years.  Anderson remains incarcerated  and  has
since been treated for alcoholism.
     B.   Proceedings
          Michael  Lamb  filed suit against Anderson  in  October
2003.   He  complained  of negligence and  also  sought  punitive
damages  for  outrageous or reckless conduct.  In September  2004
Lamb moved for partial summary judgment as to Andersons liability
for  punitive  damages.   The superior court  denied  the  motion
without comment in March 2005.  Lamb sought reconsideration,  but
his  motion  was denied and Lamb filed a petition for  review  in
this  court.   We  granted the petition in July  and  heard  oral
argument in December. After oral argument, we issued an order  on
December 22 granting relief to Lamb, so that the trial, scheduled
for January 2006, could proceed.2  We noted that an opinion fully
explaining our order would follow.3  This is that opinion.
III. STANDARD OF REVIEW
          The  extent  to which a civil defendant is collaterally
estopped  from  denying the essential elements of  an  underlying
crime  by  a  conviction  based  on  a  previous  plea  of   nolo
contendere  is  a  question  of law.  We  apply  our  independent
          judgment to questions of law, adopting the rule of law that is
most persuasive in light of precedent, reason, and policy.4  This
case  comes  before us as review of a denial of  partial  summary
judgment.  A party is entitled to summary judgment if there is no
genuine  issue of material fact and the moving party is  entitled
to  judgment as a matter of law.  In determining whether a  party
is  entitled  to  judgment as a matter  of  law,  all  reasonable
inferences of fact must be drawn against the moving party and  in
favor of the non-moving party.5
IV.  DISCUSSION
     A.   A  Civil Defendant Who Has Entered a No Contest Plea to
          a  Criminal  Charge  Is Collaterally  Estopped  by  the
          Resulting   Conviction  from  Denying   the   Essential
          Elements of the Crime in a Subsequent Civil Action.
          
          1.   Current   law  applies  estoppel  to   the   civil
               plaintiff.
               
          Lamb  seeks  to establish Andersons recklessness  as  a
matter of law.  Before considering that question, we  must  first
determine the extent to which a conviction based on a no  contest
plea  has  preclusive effect on a civil defendant in a subsequent
civil  action.   Although we have not previously  determined  the
full extent of a no contest pleas preclusive effect, our case law
clearly   indicates  that,  in  general,  a   no   contest   plea
collaterally estops a civil plaintiff from denying the  essential
elements of his underlying crime in a resulting civil action.
          In  Scott  v.  Robertson, we adopted the  rule  that  a
criminal  conviction  resulting  from  a  jury  trial  could   be
introduced  as  conclusive proof (rather than  merely  persuasive
evidence)  of the facts necessarily determined.6  In  that  case,
Robertson  had  been  convicted by a jury of  operating  a  motor
vehicle under the influence and was subsequently sued for damages
by Scott.  We held that Alaska courts could
          admit  criminal  convictions as  evidence  in
          subsequent civil trials where: (1) the  prior
          conviction is for a serious criminal offense;
          (2) the defendant in fact had a full and fair
          hearing;  and (3) it is shown that the  issue
          on   which   the  judgment  is  offered   was
          necessarily decided in the previous trial.[7]
          
We  added  a  cautionary note: such convictions  would  serve  as
conclusive,  rather  than  prima facie,  evidence  of  the  facts
necessarily determined so long as the jury in the civil case  was
properly  instructed to avoid the possibility that it would  take
the  prior conviction as presumptive of complete liability in the
civil  action.8   The [i]nstructions to the jury  should  include
exactly  which  facts were necessarily determined  in  the  prior
conviction and what facts remain for the jury to decide.9
          Shortly  after Scott, we decided in Lowell  v.  State10
that  convictions resulting from nolo pleas may be used . . .  to
impeach  a  witness, including a defendant/witness, who testifies
in a later proceeding.11  But Lowell also suggested that allowing
convictions  based  on  nolo pleas to  be  used  for  impeachment
          purposes might not necessarily mean that such convictions could
also  be  used  for  the  broader  purpose  of  establishing  the
operative  facts of the crime for which the nolo  plea  had  been
entered.   Specifically, our discussion in Lowell  referred  with
approval  to  a  line  of cases holding that the  only  forbidden
consequence of a nolo plea is its use as an admission in a  civil
action, and that all other uses of the conviction are permissible
as  if the plea were of guilty, not nolo.12  Todays case requires
us  to decide whether this language should be broadly read to bar
convictions  based  on nolo pleas from being used  to  prove  the
underlying facts of the prior criminal case or whether it  should
be  more narrowly read to mean only that the nolo plea itself may
not be used as a testimonial admission.13
          Alaska Statute 09.65.210 establishes that a person  who
has  committed  a  felony will be collaterally  estopped  by  the
felony  conviction  from seeking damages  for  injuries  incurred
during  the commission of the felony.  We interpreted the  former
version of that statute, AS 09.17.030, in Sun v. State, where the
defendant went on a drinking and shooting rampage in Shungnak and
was shot while confronting two state troopers.14  Sun subsequently
brought  a  personal  injury action against the  two  troopers.15
Although  we  noted  that  [w]e  have  expressly  refrained  from
deciding  whether  a  plea  of  nolo  contendere  has  collateral
estoppel  effect,16 we felt that the statute clearly barred  Suns
personal  injury  action.17  We carefully cabined  our  decision,
however, noting that because this holding is based on the express
language of AS 09.17.030, we need not decide whether a conviction
based on a nolo contendere plea has collateral estoppel effect in
other  contexts.18   This  echoed our caution  in  Pletnikoff  v.
Johnson, where the majority stated that [w]e express no  view  as
to  whether  the  conviction based on Pletnikoffs  plea  of  nolo
contendere  might  have collateral estoppel consequences  because
that subject was not adequately briefed by the parties.19
          In  dissent in Pletnikoff, then-Chief Justice  Matthews
reached  the issue that the majority declined to reach.   Justice
Matthews  acknowledge[d] that under federal law an  exception  is
made to the rule of collateral estoppel for convictions based  on
pleas of nolo contendere but noted that Alaskas treatment of  the
nolo  contendere plea was sufficiently different from the federal
treatment  that the imposition of collateral estoppel effect  was
justified.20   The  Alaska Evidence Rules lack  several  specific
provisions  found  in the Federal Rules.21  Moreover,  because  a
defendant  may plead nolo as a matter of right, guilty pleas  are
virtually  non-existent in felony cases in Alaska.22  In  Alaska,
then, the nolo plea is for nearly all purposes the equivalent  of
a guilty plea.23
          The  full  court  adopted Justice Matthewss  Pletnikoff
position  in Burcina v. City of Ketchikan.24  Burcina  pled  nolo
contendere  to arson and was sentenced to two and one-half  years
in prison.25  He subsequently filed suit against his mental health
providers,  alleging  that  their  negligence  had  led  to   the
psychotic  episode in which he set fire to their building.26   We
held that Burcina was collaterally estopped from relitigating the
issue of his mental capacity because his criminal conviction  for
          arson already established that he had the requisite level of
intent.27  We noted that Burcina could have asserted the defenses
of  insanity or mental disease, or he could have pled guilty  but
mentally ill; instead, he opted to plead no contest.28
          In  Burcina  we took the step that we had  declined  to
take  in  Sun v. State,29  holding that a plea of nolo contendere
has collateral estoppel effect:
          Although  our holding [in Sun] was  based  on
          the   express   language   of   [former]   AS
          09.17.030, we have noted that [that  statute]
          embodies    the   public   policy   principle
          enunciated in Alaska case law. . . .  We  now
          combine  and clarify these rules.   We  hold,
          based  on public policy grounds, that a civil
          plaintiff   is  collaterally  estopped   from
          relitigating any element of a criminal charge
          to which he has pled nolo contendere.[30]
          
          Finally,  in Howarth v. State, Public Defender Agency31
we  followed  Burcina  in  prohibiting  a  civil  plaintiff  from
relitigating the essential elements of a criminal charge to which
he  had  pled  no contest.32  Howarth, who had been convicted  of
first-degree  sexual assault on his plea of nolo contendere,  was
allowed  to withdraw his plea because his appointed attorney  had
ineffectively  represented him.33  He later pled  no  contest  to
second-degree  sexual assault, and then sued his former  attorney
for  malpractice.34  We held that Howarth, by pleading no contest
to  the  reduced charge, was precluded from denying that  he  had
committed  the  essential  elements  of  that  crime.35   Howarth
clarified that for purposes of the first prong of the Scott test36
(whether  the  prior  conviction is for a serious  offense),  all
felonies qualified as serious offenses even if no jail time  were
imposed.37
          The  above  analysis demonstrates our progression  over
time  in addressing no contest pleas, and our ultimate conclusion
that civil plaintiffs are collaterally estopped from relitigating
the  essential  elements of the crimes  to  which  they  pled  no
contest  in prior criminal proceedings.  However, Anderson  is  a
defendant  in  this civil case.  We turn now to the  question  of
whether  collateral estoppel applies equally to civil  defendants
who previously pled no contest to criminal charges.
          2.   Collateral estoppel should also apply to the civil
               defendant.
          Several  cases  since  Howarth suggest  that  extending
collateral estoppel to civil defendants would be a reasonable and
wholly  expected  progression  in  the  law.   In  Lashbrook   v.
Lashbrook, a father was arrested for assault in an incident  that
also   led  the  mother  of  his  children  to  petition  for   a
modification  of custody.38  The father pled no  contest  to  the
assault  charge  during the pendency of the custody  modification
proceedings.39  The superior court granted the mother full custody
of the children without a hearing.40  We reversed, holding that a
separate  hearing  was  required  on  permanent  modification  of
custody.41  We noted, however, that [o]n remand, [the father] will
          be precluded from challenging the facts which constitute the
elements of the offenses to which he pled no contest.42  Lashbrook
indicated  our  inclination  to extend  the  collateral  estoppel
effect  of  convictions resulting from nolo pleas  to  subsequent
civil defendants.        We took a similar position in Richard B.
v. State, where a father challenged the procedural particulars of
a  termination  of parental rights hearing.43  The father  argued
that  due  process  required that he, an incarcerated  felon,  be
allowed  to  testify in person rather than telephonically.44   We
disagreed, noting that live testimony would add little,  in  part
because  Richard would ordinarily be precluded by his  conviction
from denying the conduct on which it was based.45  We declined to
decide  the issue on that basis, however, because Richard was  in
the  process  of  challenging  his  conviction.   As  we  did  in
Lashbrook, in Richard B. we assumed that a conviction based on  a
nolo  plea  would have collateral estoppel effect on a subsequent
respondent in a parental rights termination hearing.
          We  have  thus  shown  a  clear  inclination  to  apply
collateral  estoppel  effect  to  the  nolo  pleas  of   criminal
defendants  in  subsequent  civil  litigation,  subject  to   the
safeguards of the Scott test.  We now extend this line  of  cases
to apply to civil defendants.  We hold that a conviction based on
a  no contest plea will collaterally estop the criminal defendant
from denying any element in a subsequent civil action against him
that  was necessarily established by the conviction, as  long  as
the  prior conviction was for a serious criminal offense and  the
defendant  in  fact  had the opportunity  for  a  full  and  fair
hearing.46
          In  adopting this rule, we take the occasion to  remind
our trial courts that, before a no contest plea is accepted in  a
case  involving  serious  criminal  charges,  the  record  should
establish  the  defendants understanding that a no  contest  plea
will  result  in a conviction, just as a guilty plea  would,  and
that  this  conviction could be used in future cases to establish
that the defendant engaged in the conduct involved in the charged
offense.47
          We are mindful that the use of a conviction based on  a
no  contest  plea for preclusion purposes may smack of unfairness
to  some.   The  pleading defendant has not  tested  the  charges
against  him or her in a court of law, but has instead  given  up
that opportunity in exchange for a quick resolution, saving face,
or  myriad  other  reasons.For these reasons we  note  the  trial
courts  responsibility before accepting a no contest  plea  in  a
case involving serious criminal charges.
     B.   As  a  Result of Andersons Conviction Based on  His  No
          Contest  Plea  to  Second Degree Assault,  Anderson  Is
          Collaterally  Estopped from Denying that  He  Evidenced
          Reckless  Indifference  to  the  Interest  of   Another
          Person.
          
          1.   Andersons  conviction is sufficient for preclusive
               effect.
          Lamb  argues that, because recklessness is an essential
element  of  Andersons  assault conviction,  Anderson  should  be
          precluded from arguing in the civil suit that he was not
reckless.   Furthermore,  Lamb  argues  that,  because  Andersons
recklessness has been conclusively established, Lamb is  entitled
to  summary judgment on the issue of punitive damages.   Anderson
replies  that  recklessness  for  the  purposes  of  assault   is
different from recklessness for the purposes of punitive damages,
and that the civil forum allows Anderson to introduce evidence as
to recklessness that was barred from the criminal proceeding.  We
hold  that Andersons conviction has  preclusive effect as to  his
recklessness  (but not as to his liability for punitive  damages,
as the next section of this opinion makes clear).
          Anderson was convicted of assault in the second degree.
Alaska  Statute  11.41.210(a)(2) provides: A person  commits  the
crime  of  assault in the second degree if that person recklessly
causes  serious physical injury to another person.48  Assault  in
the  second  degree  is a class B felony  for  which  a  fine  of
$100,000 and imprisonment for ten years may be imposed.49  On the
assault charge Anderson was sentenced to four and one-half  years
with one and one-half years suspended.
          Applying  the Scott test,50 we conclude that  Andersons
assault conviction should collaterally estop him from denying the
essential elements of the offense.51  As to the first requirement
that the conviction be for a serious criminal offense52  the test
is  clearly satisfied.  Assault in the second degree is a felony,
and  all  felonies are serious offenses for the purposes  of  the
rule.   The  second prong of the test requires that the defendant
in  fact had a full and fair hearing.53  While this language  may
initially  suggest that convictions via plea are disfavored,  our
opinion in Scott clearly contemplated the use of such convictions
for collateral estoppel purposes:
          We first require that the prior conviction be
          for  a  serious  offense in  order  that  the
          accused have the motivation to defend himself
          fully.  A driver who pleads guilty to a minor
          traffic  violation  may have  decided  merely
          that  the  costs  of defending  outweigh  the
          burden  of  having such a conviction  on  his
          record.  Such  a conviction is  not  credible
          evidence of guilty conduct.[54]
          
Scott  described  the  fair hearing requirement  as  designed  to
prevent  the introduction of the prior conviction where there  is
substantial  question  as to its validity. Normally,  a  criminal
conviction  . . . should be admissible absent strong  showing  of
irregularity.55  The present case has no indicia of irregularity;
the  fair  hearing requirement is met even if a defendant  pleads
nolo contendere, as Scott indicates.
          The  third  prong of the Scott test requires  that  the
proposition  for  which  the  conviction  is  offered  must  have
necessarily been determined at the previous proceeding,  and  the
civil  jury  must be carefully instructed as to which facts  were
and   were   not   necessarily  determined.56   Here,   Andersons
recklessness  and  the  fact that he inflicted  serious  physical
injury  were  necessary elements of his assault  conviction;  the
          sentencing judge specifically referred to the statutory provision
regarding  recklessness.   At trial  the  superior  court  should
ensure  that  the jury is instructed that the assault  conviction
establishes only elements that were necessary for the conviction.
          2.   Anderson  is  estopped from denying  recklessness,
               but the inquiry on punitive damages remains open.
               
          Anderson  argues  that,  even  if  he  is  collaterally
estopped   from  relitigating  recklessness  by  his  conviction,
recklessness  in the context of punitive damages is fundamentally
different  from  recklessness  for  the  purpose  of  an  assault
conviction.  This argument is without merit.  Alaska law  defines
recklessness  for  criminal purposes to occur when  a  person  is
aware   of   and   consciously  disregards  a   substantial   and
unjustifiable risk that the result will occur or the circumstance
will exist.57  The punitive damages statute, AS 09.17.020, states
in  relevant  part  that [t]he fact finder may make an  award  of
punitive  damages  only  if the plaintiff  proves  by  clear  and
convincing  evidence that the defendants conduct . . .  evidenced
reckless  indifference to the interest of another  person.58   We
have adopted the Restatement view that a partys conduct
          is  in  reckless disregard of the  safety  of
          another  if  he does an act . . . knowing  or
          having  reason to know of facts  which  would
          lead  a  reasonable man to realize, not  only
          that his conduct creates an unreasonable risk
          of  physical harm to another, but  also  that
          such  risk is substantially greater than that
          which   is  necessary  to  make  his  conduct
          negligent.[59]
          
          Thus,  both  the  Restatement and our criminal  statute
view  recklessness as unreasonably disregarding a known  risk  of
substantial  physical  harm to another.  The  two  standards  are
substantially similar; the assault standard is at least as  broad
as  the  punitive damages standard.  The reference  to  conscious
action  may indicate a level of culpability even higher  than  is
present  in the somewhat passive state of indifference.  Anderson
is   therefore  estopped  from  denying  recklessness  under   AS
09.17.020(b).
          That  Anderson  is  estopped from denying  recklessness
under  AS  09.17.020(b) means that Lamb is eligible for  punitive
damages  rather than that punitive damages must be imposed.   The
multifactor  inquiry under AS 09.17.020(c) as to  the  amount  of
punitive  damages  that may be awarded60  remains  open  and  the
superior  court must instruct the jury on the factors  identified
in  that statute.  Because AS 09.17.020(b) provides that the jury
may  award  punitive damages under AS 09.17.020(c) once  reckless
indifference  has been proved, the inquiry under AS  09.17.020(c)
permits, but does not require, an award of punitive damages.61
V.   CONCLUSION
          Under  Alaska law, a defendant in a civil case who  has
been convicted after pleading no contest is collaterally estopped
from   relitigating  the  essential  elements  of  the   offense.
          Andersons criminal conviction for assault is thus conclusive
evidence of his recklessness under AS 09.17.020(b).  It  was  for
these reasons that we REVERSED the judgment of the superior court
and REMANDED with instructions in our order of December 22, 2005.
_______________________________
     1     Under Alaska law if a person has 80 milligrams or more
of  alcohol  per  100 milliliters of the persons blood,  then  it
shall  be presumed that the person was under the influence of  an
alcoholic beverage.  AS 28.35.033(a)(3).

     2    Lamb v. Anderson, 126 P.3d 132 (Alaska 2005).

     3    Id. at 133.

     4     Burcina  v. City of Ketchikan, 902 P.2d 817,  820  n.4
(Alaska 1995) (quoting Shanks v. Upjohn Co., 835 P.2d 1189,  1193
(Alaska  1992));  Guin  v. Ha, 591 P.2d 1281,  1284  n.6  (Alaska
1979).

     5    Burcina, 902 P.2d at 820 n.4 (citations omitted).

     6     Scott  v. Robertson, 583 P.2d 188, 193 & n.27  (Alaska
1978) (citations omitted).

     7    Id. at 191-92.

     8    Id. at 193 (citation omitted).

     9    Id. at 193-94 (citation omitted).

     10    574 P.2d 1281 (Alaska 1978).

     11    Id. at 1285.

     12    Id.

     13     Cf.  Pletnikoff v. Johnson, 765 P.2d 973, 981 (Alaska
1988)  (Matthews,  J., dissenting) (I take  this  language  [from
Lowell]  literally.  A nolo plea may not be used as an  admission
in a civil action.  However, insofar as a nolo plea results in  a
conviction, the conviction may be used for any purpose for  which
any  conviction  based on a plea of guilty might be  used.);  see
also  Burcina  v.  City of Ketchikan, 902 P.2d 817,  822  (Alaska
1995)  (citing Justice Matthewss Pletnikoff dissent in discussing
Alaska rules and decisional law on the subject of nolo contendere
pleas).

     14    830 P.2d 772, 773-74 (Alaska 1992).

     15    Id.

     16    Id. at 777 (citing Pletnikoff, 765 P.2d at 976 n.2).

     17    Id.

     18    Id. at 777 n.9.

     19    Pletnikoff, 765 P.2d at 976 n.2.

     20    Id. at 979 (Matthews, C.J., dissenting).

     21    Id. at 979-80.

     22     Id.  at  981 n.2.  See Alaska R. Crim. P.  11.   This
paucity  of actual guilty pleas seems to continue, even  in  plea
bargains.   See,  e.g., Snelling v. State, 123  P.3d  1096,  1097
(Alaska  App. 2005); Dayton v. State, 120 P.3d 1073, 1075 (Alaska
App.  2005);  Simon  v. State, 121 P.3d 815 (Alaska  App.  2005);
Greist  v. State, 121 P.3d 811, 812 (Alaska App. 2005); Grohs  v.
State,  118  P.3d  1080, 1080-81 (Alaska App. 2005);  Edmonds  v.
State,  118  P.3d 17, 18 (Alaska App. 2005); State v. Gibbs,  105
P.3d 145,  146 (Alaska App. 2005) (no contest plea bargains); but
see  Northcut v. State, 2005 WL 3508652 at *1, Mem. Op. & J.  No.
5028  (Alaska App., December 21, 2005) (unpublished); Grasser  v.
State,  119 P.3d 1016, 1017 (Alaska App. 2005); Maher  v.  State,
2005  WL 1131164 at *1, Mem. Op. & J. No. 4985 (Alaska App.,  May
11, 2005) (unpublished) (guilty pleas).

     23    Functional differences appear to be exceedingly minor.
In  Pletnikoff, Chief Justice Matthews argued that the  avoidance
of  public  humiliation should be the only benefit of the  Alaska
nolo   plea.   Pletnikoff,  765  P.2d  at  982  (Matthews,  C.J.,
dissenting).  We agree.

     24    902 P.2d 817 (Alaska 1995).

     25    Id. at 819.

     26    Id.

     27     Id.  at 821.  See AS 11.46.400 (defining first-degree
arson  as  intentionally damag[ing] the property  of  another  by
fire).

     28    Id. at 822.

     29    830 P.2d 772, 777 & n.9 (Alaska 1992).

     30    Burcina, 902 P.2d at 822.

     31    925 P.2d 1330 (Alaska 1996).

     32    Id. at 1332.

     33    Id. at 1331.

     34    Id.

     35    Id. at 1333.

     36    Scott v. Robertson, 583 P.2d 188, 191-92 (Alaska 1978).

     37    Howarth, 925 P.2d  1334-35.  Howarth had been convicted
on  his  plea  of  no  contest, but after serving  six  years  he
successfully  withdrew  his  plea.   Pending  trial,   he   again
negotiated a plea.  He was subsequently sentenced to  a  term  of
four years, with credit for time served.  He then argued that his
offense  should  not  be considered serious because  he  had  not
served  any additional time in jail as a result of his second  no
contest plea.  We rejected that argument.

     38    957 P.2d 326, 327 (Alaska 1998).

     39    Id. at 328.

     40    Id.

     41    Id. at 328-30.

     42     Id.  at 330 n.2 (citing Burcina v. City of Ketchikan,
902 P.2d 817, 822 (Alaska 1995)).

     43    Richard B. v. State, Dept of Health & Soc. Servs., Div.
of Family & Youth Servs., 71 P.3d 811 (Alaska 2003).

     44    Id. at 830.

     45     Id. at 832 (citing Lashbrook, 957 P.2d at 330 n.2 and
Burcina, 902 P.2d at 822).

     46      In Lowell v. State, 574 P.2d 1281, 1285(Alaska 1978),
we  stated in part: the only forbidden consequence of a nolo plea
is its use as an admission in a civil action.  To the extent this
dictum  could be read as limiting the collateral use in  a  civil
action  of a conviction based on a nolo plea, that reading  would
be contrary to the result we reach here today.

     47     In  Miller v. State, 617 P.2d 516 (Alaska  1980),  we
considered  the level of inquiry the trial court must make  under
Criminal  Rule  11(f) in deciding whether to accept  a  proffered
nolo plea, stating, The only inquiry permitted the trial court by
Criminal  Rule  11  is that of determining whether  the  plea  is
knowing  and  voluntary.  Id. at 518.  Alaska R. Crim.  P.  11(f)
provides:  The court shall not enter a judgment upon  a  plea  of
guilty  without first being satisfied that there is a  reasonable
basis  for  the  plea.   We  gave  Rule11(f)  a  narrow  reading,
rejecting  the argument that the rule allows the trial  court  to
require a factual basis for a nolo plea from the defendant:  [T]o
require a defendant to show that there is a reasonable basis  for
a  plea  of  nolo  contendere puts the defendant in  the  awkward
position  of  having  to demonstrate his guilt  in  order  to  be
allowed  to plead nolo contendere.  Miller, 617 P.2d at 518.   As
the  court  of appeals correctly noted in Bratcher v. State,  681
P.2d  358  (Alaska App. 1984), however, the court is not relieved
of  its duty under Rules 11(c) and (d) to ensure that nolo  pleas
are made knowingly and voluntarily:

          [A]   defendants  right  to  enter   a   nolo
          contendere plea despite a claim of  innocence
          does  not  diminish  the courts  duty,  under
          Criminal  Rule  11(c) and (d),  to  determine
          that  the  plea is knowingly and  voluntarily
          entered.   Thus, where a defendant  seeks  to
          plead   nolo   contendere,   but   volunteers
          statements consistent with innocence,  it  is
          crucial  that  the  trial  court  conduct  an
          appropriate inquiry, in conformity  with  the
          requirements of Criminal Rule 11,  to  assure
          that  the [profferred] plea is not the result
          of  a misunderstanding of the elements of the
          offense.   While,  under  Miller,  the  court
          cannot  require  the  defendant  to  make   a
          statement  acknowledging  guilt,  nothing  in
          Miller precludes the court from conducting  a
          full   and   careful  inquiry,  pursuant   to
          Criminal   Rule  11,  to  assure   that   the
          defendant  has  an adequate understanding  of
          the charge to which he seeks to plead.
          
Id. at 361-62 n.3.  Thus, while the trial court cannot refuse  to
accept  a  nolo  plea on the ground that the defendant  will  not
admit  commission of the crime, the court can refuse to accept  a
plea if the state has not developed a factual basis sufficient to
inform  the  defendant of the nature of the charge to  which  the
defendant  is  pleading,  that is, to  establish  the  defendants
guilt.   See  Henson  v. State, Mem. Op. & J.  No.  4895  at  4-5
(Alaska App., July 14, 2004) (unpublished) (remanding for factual
findings where neither party informed sentencing court of factual
basis for defendants plea and defendant disputed basis relied  on
by court at sentencing).

     48    AS 11.41.210(a)(2).

     49    AS 11.41.210(b); AS 12.55.035(b)(3); AS 12.55.125(d).

     50    Scott v. Robertson, 583 P.2d 188, 191-92 (Alaska 1978).

     51     This  analysis focuses on the assault  charge;  there
would  also  be preclusive effect from the DUI charge because  it
also  is  a  serious criminal offense.  Anderson has admitted  in
this  action the facts that constitute the essential elements  of
the DUI charge.

     52    Scott, 583 P.2d at 191.

     53    Id.

     54    Id. at 192 (citation omitted).

     55    Id.

     56    Id. at 192.

     57    AS 11.81.900(3).

     58    AS 09.17.020(b)(2).

     59     Hayes v. Xerox Corp., 718 P.2d 929, 935 (Alaska 1986)
(quoting Restatement (Second) of Torts  500 (1964)).

     60    Alaska Statute 09.17.020(c) provides:

          At  the separate proceeding to determine  the
          amount of punitive damages to be awarded, the
          fact finder may consider
               (1)  the likelihood at the time  of  the
          conduct  that serious harm would  arise  from
          the defendants conduct;
               (2)   the   degree  of  the   defendants
          awareness of the likelihood described in  (1)
          of this subsection;
               (3)  the  amount of financial  gain  the
          defendant  gained or expected to  gain  as  a
          result of the defendants conduct;
               (4)  the duration of the conduct and any
          intentional concealment of the conduct;
               (5)  the  attitude and  conduct  of  the
          defendant upon discovery of the conduct;
               (6)   the  financial  condition  of  the
          defendant; and
               (7)   the  total  deterrence  of   other
          damages   and  punishment  imposed   on   the
          defendant   as  a  result  of  the   conduct,
          including  compensatory and punitive  damages
          awards  to  persons in situations similar  to
          those  of  the plaintiff and the severity  of
          the criminal penalties to which the defendant
          has been or may be subjected.
          
     61    As our original order following oral argument stated:

          4.   Anderson is collaterally estopped by his
          assault     conviction    from     contesting
          recklessness     as     defined     in     AS
          11.41.210(a)(2).    The  assault   conviction
          establishes that Anderson recklessly cause[d]
          serious  physical injury to  another  person.
          AS  11.41.210(a)(2).   Recklessness  for  the
          purposes  of  assault is defined  to  include
          being aware of and consciously disregard[ing]
          a substantial and unjustifiable risk that the
          result  will  occur or the circumstance  will
          exist.  AS 11.81.900(3).  This standard is at
          least  as  broad as the standard for punitive
          damages,  which requires a showing  that  the
          tortfeasor evidenced reckless indifference to
          the   interest   of   another   person.    AS
          09.17.020(b).
          
          5.    Anderson  is  therefore  estopped  from
          denying  recklessness under AS  09.17.020(b).
          That   Anderson  is  estopped  from   denying
          recklessness under AS 09.17.020(b) means that
          Lamb  is eligible for punitive damages rather
          than  that punitive damages must be  imposed.
          The  inquiry  under  AS 09.17.020(c)  remains
          open and the superior court must instruct the
          jury   on  the  factors  identified  in  that
          statute.   Because  AS 09.17.020(b)  provides
          that  the  jury  may award  punitive  damages
          under    AS    09.17.020(c)   once   reckless
          indifference  has  been  proved,  the   court
          should  also  instruct  the  jury  that   the
          inquiry  under AS 09.17.020(c)  permits,  but
          does   not  require,  an  award  of  punitive
          damages.
          
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