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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Wilson v. MacDonald (10/19/2007) sp-6175

Wilson v. MacDonald (10/19/2007) sp-6175, 168 P3d 887

     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,


) Supreme Court No. S- 11956
) Superior Court No.
v. ) 1JU-03-228 CI
Appellees. ) No. 6175 October 19, 2007
          Appeal  from the Superior Court of the  State
          of  Alaska, First Judicial District,  Juneau,
          Michael A. Thompson, Judge.

          Appearances:   Merle  G.  Wilson,   pro   se,
          Anchorage.   Z. Kent Sullivan,  Baxter  Bruce
          Sullivan  P.C.,  Juneau, for Appellee  Judith
          MacDonald.  Jack Riggs, pro se, Anchor Point.

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

          MATTHEWS, Justice.

          Merle Wilson pled no contest to the criminal charge  of
assaulting  Judy  MacDonald.  MacDonald sued Wilson  for  damages
related to the assault.  The superior court held that a defendant
who  pleads  no  contest  in a criminal case  is  precluded  from
relitigating  the  elements of the offense in a subsequent  civil
case and therefore granted summary judgment against Wilson on the
elements  of  assault.  After a trial on the  issue  of  damages,
Wilson  appealed the grant of summary judgment.   We  affirm  the
superior courts grant of summary judgment.
          This  lawsuit  resulted from a dispute over  whether  a
local ordinance prohibited the use of a motorized wheelbarrow  on
a  road  near  the City of Tenakee Springs.  MacDonald  regularly
used  the wheelbarrow to haul groceries and supplies up the road,
which provided the only access to her property from a nearby boat
landing.  On April 2, 2001, Wilson, who was MacDonalds neighbor,1
tried  to  impound  the  wheelbarrow.2   In  the  course  of  the
impoundment he assaulted MacDonald, repeatedly striking her  with
either  a  logging chain or a dog leash.  MacDonald was diagnosed
with  a skull fracture and transferred to Harborview Hospital  in
Seattle,  where she was released after two days.   Wilson  claims
that his actions were in self-defense.
          Wilson  was  charged with assault.  He pled no  contest
and  was  sentenced to four years in jail all but six  months  of
which  were suspended.  MacDonald sued Wilson, alleging  assault,
battery,  false  imprisonment,  and  intentional  infliction   of
emotional  distress.3  Wilson represented himself.  Since  Wilson
had  pled  no  contest in his criminal case, the  superior  court
granted  summary  judgment against him on  MacDonalds  claims  of
assault and battery.  After a trial on the issue of damages,  the
jury  awarded  MacDonald  $75,000  in  damages  and  $135,000  in
punitive damages (half of which went to the state as required  by
AS  09.17.020(j)).   The  final judgment,  including  prejudgment
interest,  costs,  and  attorneys fees,  awarded  $210,720.74  to
MacDonald  and  $67,500 to the state.  Wilson  is  appealing  the
superior courts grant of summary judgment to MacDonald.
          A  grant of summary judgment is reviewed de novo.4   We
will affirm
          if  the  record contains no genuine issue  of
          material   fact  and  the  moving  party   is
          entitled  to  judgment as a  matter  of  law.
          When   considering  a  motion   for   summary
          judgment, all reasonable inferences  of  fact
          from  the  proffered evidence must  be  drawn
          against the moving party and in favor of  the
          non-moving party.[5]
          Wilson argues that collateral estoppel should not apply
to  defendants in civil suits who pled no contest in  a  criminal
case on the same charge.  The superior court relied on Burcina v.
City  of  Ketchikan, in which this court collaterally estopped  a
plaintiff from relitigating the elements of a crime when  he  had
pled  no  contest  to  that charge in a criminal  case.6   Wilson
argues  that the superior court erroneously extended  Burcina  to
civil  defendants.  We recently resolved this issue  in  Lamb  v.
Anderson, which held 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.[7]
Thus,  under  Lamb,  Wilson is precluded  from  relitigating  any
elements of assault in the civil case because he pled no  contest
to  assault in the criminal case. The superior court did not  err
in   granting  summary  judgment  against  Wilson,  but   instead
correctly predicted the holding in Lamb.
          Wilson also states that when he pled no contest he  was
not  aware of the civil liability consequences of the plea.  Lamb
urged  trial courts to ensure that criminal defendants understand
the  civil  ramifications of a no contest  plea.8   According  to
Lamb,  if  a  trial court accepts a no contest  plea  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.9  But the question of whether a defendant is
aware of all of the relevant consequences of his or her plea is a
question as to whether the plea itself was knowing and voluntary.10
Since  this is a question as to the validity of the plea  itself,
it should be resolved through a motion for post-conviction relief
or appeal in the criminal case.11  With respect to his civil case,
as  long  as  his  plea stands he is collaterally  estopped  from
relitigating any elements of the crime for which he was charged.12
          We hold that Wilsons no contest plea precludes him from
relitigating the elements of assault in a civil case.   Therefore
we AFFIRM the superior courts grant of summary judgment.
     1    MacDonald v. Riggs, 166 P.3d 12, 14 (Alaska 2007).

     2     At  the  time Wilson was chair of the City of  Tenakee
Springs Legal Research Committee, which was formed to investigate
the  legality  of  MacDonalds  use  of  the  wheelbarrow  and  an
excavator on the road.

     3    MacDonald brought the same claims against Wilson in his
official  capacity  as  Chairman of  the  Tenakee  Springs  Legal
Research Committee; the City of Tenakee Springs; and Jack  Riggs.
MacDonald  also  sued the parties listed above  and  Mayor  Vicki
Wisenbaugh,  individually  and in her official  capacity,  for  a
violation of 42 U.S.C.  1983.  The City of Tenakee Springs, Vicki
Wisenbaugh,  and Wilson, in his official capacity  only,  settled
with MacDonald.  MacDonald, 166 P.3d at 15.

          Riggs  countersued for defamation.  At trial  the  jury
found  for Riggs and awarded him $35,000 on the defamation claim.
MacDonalds appeal was unsuccessful.  See MacDonald, 166 P.3d 12.

     4    DeNardo v. Bax, 147 P.3d 672, 676 (Alaska 2006).

     5    Id. at 676-77.

     6    902 P.2d 817, 821 (Alaska 1995).

     7    147 P.3d 736, 742 (Alaska 2006).  This rule is based on
the fact that, unlike most jurisdictions, criminal defendants  in
Alaska are allowed to plead no contest as a matter of right.  Id.
at  740.   In  Alaska,  then, the nolo plea  is  for  nearly  all
purposes the equivalent of a guilty plea.  Id. at 740-41.

     8    Id. at 742-43.

     9     Id.  We have not yet addressed the question of whether
this  language  is mandatory, in that if a trial court  fails  to
inform   the  defendant  of  civil  liability  consequences   the
defendant may withdraw the plea, or merely hortatory.

     10      Since   pleas  of  guilty  constitute   waivers   of
constitutional rights . . . they not only must be  voluntary  but
must  be knowing, intelligent acts done with sufficient awareness
of  the relevant circumstances and likely consequences.   Dolchok
v.  State,  639  P.2d 277, 288 (Alaska 1982)  (quoting  Brady  v.
United States, 397 U.S. 742, 748 (1970)).

     11    Cf. Heck v. Humphrey, 512 U.S. 477, 486 (1994) (relying
on   the  hoary  principle  that  civil  tort  actions  are   not
appropriate  vehicles for challenging the validity of outstanding
criminal  judgments);  Brockway v. State,  37  P.3d  427,  429-30
(Alaska App. 2001) (holding that a defendant may not collaterally
attack  a  no contest plea on the basis that it was not voluntary
and  knowing  during the sentencing proceedings of  a  subsequent
criminal case unless he or she was completely denied the right to
counsel,  but  instead  can  only  bring  a  petition  for  post-
conviction relief in the original case).

     12    We have repeatedly held that the pendency of an appeal
is  irrelevant  for the purposes of res judicata  and  collateral
estoppel.  Wyatt  v. Wyatt, 65 P.3d 825, 831 (Alaska  2003).   If
Wilson  is eventually successful in withdrawing his plea  in  his
criminal  case,  he  may file a motion for relief  from  judgment
under Civil Rule 60(b)(5), which states in relevant part that the
court  may relieve a party . . . from a final judgment if a prior
judgment  upon which it is based has been reversed  or  otherwise

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