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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Hutton v. State (6/5/2015) sp-7014

Hutton v. State (6/5/2015) sp-7014

         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, email  

                                                                                        

         corrections@akcourts.us.  



                    THE SUPREME COURT OF THE STATE OF ALASKA  



TRACY G. HUTTON,                                        )  

                                                        )        Supreme Court No. S-15266  

                   Petitioner,                          )        Court of Appeals No. A-10836  

                                                        )  

         v.                                             )        Superior Court No. 3AN-08-11797 CR  

                                                        )  

STATE OF ALASKA,                                        )        O P I N I O N  

                                                        )  

                   Respondent.                          )        No. 7014 - June 5, 2015  

_______________________________ )  



                   Petition for Hearing from the Court of Appeals of the State of  

                                                                                             

                   Alaska, on appeal from the Superior Court of the State of  

                                              

                   Alaska, Third Judicial District, Anchorage, Patrick J. McKay  

                                                               

                   and Jack W. Smith, Judges.  



                   Appearances:  Renee McFarland, Assistant Public Defender,  

                   and   Quinlan   Steiner,   Public   Defender,   Anchorage,   for  

                   Petitioner.    Kenneth  M.  Rosenstein,  Assistant  Attorney  

                   General,   Office   of   Special   Prosecutions   and   Appeals,  

                                                                                  

                   Anchorage,  and  Michael  C.  Geraghty,  Attorney  General,  

                                            

                   Juneau, for Respondent.  



                   Before:  Fabe, Chief Justice, Stowers, and Maassen, Justices.  

                                                            

                   [Winfree and Bolger, Justices, not participating.]  



                   STOWERS, Justice.  



I.       INTRODUCTION  



                   A man was arrested and charged with three counts of weapons misconduct.  

                                                                                         



After the first two counts were tried to a jury, he waived his right to a jury trial and the  

                                                                                                   


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

third count was tried to the court.  He was convicted and appealed, arguing that he had  

                                                               



not  effectively  waived  his  constitutional  right  to  a  jury  trial.    The  court  of  appeals  

                                                                              



affirmed his conviction, holding that substantial evidence supported his waiver.  We  



                                                     

granted his petition for hearing to  decide the appropriate standard of review for the  



                                                                                 

waiver of the right to a jury trial.  We now conclude that an appellate court should review  



                                                                                                 

the superior court's factual findings for clear error and its ultimate conclusion regarding  



the  waiver's  constitutional  validity  de  novo  because  whether  a  defendant  made  a  



constitutionally valid waiver is a mixed question of law and fact.  



                   At oral argument to this court, the State conceded the defendant was not  



advised of an essential element of the third count and that he was misadvised of the  



elements of his offense.  Because the defendant was given incomplete and misleading  



information about the charge for which he was being asked to waive his right to a jury  



                                                                                

trial, we conclude that his waiver was constitutionally defective.  The court of appeals'  



decision is reversed, and the case is remanded to the superior court for a new trial.  



II.       FACTS AND PROCEEDINGS  



                   On March 30, 2008, Tracy G. Hutton and Amanda Topkok were parked  



                                    

near  Tikishla  Park.          A  truck  pulled  up  beside  them,  and  a  shot  was  fired  into  their  



              

vehicle, hitting Topkok in the shoulder.  Hutton decided to follow the truck instead of  



                                                                                                                        

taking her directly to the emergency room. He followed the truck until it stopped at a red  



                                                                                            

light and fired three to four times at the truck with a handgun.  Afterwards, Hutton took  



Topkok to Alaska Regional Hospital and drove away.  



                   The State charged Hutton with weapons misconduct in the first and second  



            1  

degrees.   Because he had a prior felony conviction, the State also charged him with  



          1        Under AS 11.61.190(a) a person commits first-degree weapons misconduct  



if "the person . . . discharges a firearm from a propelled vehicle while the vehicle is being  

                                          

                                                                                                           (continued...)  



                                                             -2-                                                       7014
  


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

weapons misconduct in the third degree:  "knowingly possess[ing] a firearm capable of  

                                                                                                       



being concealed on one's person after having been convicted of a felony . . . by a court  

                                                                     

of  this  state,  a  court  of  the  United  States,  or  a  court  of  another  state  or  territory."2  

                        

Recklessness is the applicable mental state for the circumstances of this offense.3  



                    The three charges were tried in a bifurcated proceeding, with the first two  

                                                                                                        



counts decided by a jury.  A special interrogatory asked the jury if Hutton knowingly  

                        



possessed a concealable firearm.  The jury returned a verdict of guilty on the charge of  

                                                                                                                   



weapons  misconduct  in  the  first  degree  but  not  guilty  on  the  charge  of  weapons  

                                                                                             



misconduct in the second degree, and found that Hutton had knowingly possessed a  

                                         



concealable firearm.  After the jury returned the verdict, the parties and court discussed  

                                                                                                    



whether Hutton would proceed to a jury trial on Count III - felon in possession - or  

                                                                    



whether he would admit that count.  



                    The superior court stated that "[w]ith regard to Count III, the [S]tate has  



                                                                                                                           

proved, beyond a reasonable doubt, according to the jury, the firearm portion of it.  The  



second portion of it of course is the fact that Mr. Hutton must have been found to be a  



                                                                         

convicted felon.  It's my understanding that Mr. Hutton is willing to admit that; is that  



correct?"  Hutton's attorney answered, "Yes," but Hutton's answer was indiscernible.  



The court again explained the situation to Hutton, and this time he answered, "Yeah,"  



          1(...continued)  



operated  and  under  circumstances  manifesting  substantial  and  unjustifiable  risk  of  

physical injury to a person or damage to property."  As relevant,  a  person commits  

                                                                                                         

second-degree           weapons   misconduct                under      AS     11.61.195(a)(3)           if   "the   person  

knowingly . . . discharges a firearm at or in the direction of (A) a building with reckless  

                                                                                        

disregard for a risk of physical injury to a person; or (B) a dwelling."  



          2         AS 11.61.200.  



          3         See Afcan v. State, 711 P.2d 1198, 1199 (Alaska App. 1986).  



                                                              -3-                                                        7014
  


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

when asked if he was willing to admit that he had previously committed a felony.  The  

                                                                   



court asked Hutton if anyone had threatened or coerced him in regards to the admission,  

                                                                    



to which Hutton responded, "No."  The court stated, "And there's been no promises  



                                                  

made for you to do this, correct?  I have to make a finding that you know what you're  



doing and that you're doing this voluntarily.  Do you know what you're doing? Have  



              

you had enough time to talk with your lawyer about it?"  Hutton responded, "Yeah."  



                                                                                                        

Then the court rephrased the issue, explaining that "basically what you're doing is you're  



                                                      

admitting one element of the charge against you."  At this point Hutton interrupted the  



judge and said, "Oh, no, no, no, no.  I don't want to admit that."  



                                                                                  

                   After an off-the-record discussion with his attorney, Hutton told the judge  



                               

to "[g]o ahead" and find that he was voluntarily giving up his right to a jury trial, but  



then moments later said, "You know, it's not making much sense to me."  The court  



                  

again tried to explain the situation to Hutton.  This time Hutton seemed to understand  

and  answered,  "Yes,"  to  the  court's  routine  questions  concerning  voluntariness.4  



          4	       Here is the court's and Hutton's colloquy:  



                   The Court:  And understanding that that basically means that,  

                   with what the jury found, the - there will be a conviction of
  

                                                          

                   record.  Do you understand that?
  



                   Mr. Hutton:  Uh-huh (affirmative).
  



                   The Court:   And your answer - you're nodding your head
  

                                              

                   yes? Okay.
  



                   Mr. Hutton:  Yeah.
  



                   The Court:  And you're doing this knowingly, and you're
  

                   giving up . . . .
  



                   Mr. Hutton:  Yeah.
  



                   The Court:  . . . your right to a jury trial . . . .
  

                                                                                                         (continued...)  



                                                            -4-	                                                     7014
  


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

                                                                                                  

Ultimately, the court asked:  "You're waiving your right to a jury trial on the fact - on  



                                 

the issue of whether or not you're a convicted felon.  Do you understand that?"  Hutton  



answered, "Yes." The court accepted this waiver and admission.  



                   Hutton  was  sentenced  to  three  years'  imprisonment  for  Count  III  and  



                                                                                                        5  

                                                                                                           The court  

appealed, arguing that he had not knowingly waived his right to a jury trial. 



                                                                                                          

of appeals affirmed, holding that there was substantial evidence that Hutton had waived  

his right to a jury trial on Count III.6  



                   Hutton petitioned for hearing, and we granted review in order to decide the  



standard of review for waiver of the right to a jury trial.  



III.     STANDARD OF REVIEW  



                                                                                                          

                   Determining the appropriate standard of review is a question of law that we  



                       7  

                                          

review de novo.           When we review an issue de novo, we "adopt the rule that is most  

persuasive in light of precedent, reason, and policy."8  



         4(...continued)  



                   Mr. Hutton:  Yeah.  



         5        Hutton v. State , 305 P.3d 364, 370 (Alaska App. 2013).  



         6        Id. at 371.  



         7        In  re  Life  Ins.  Co.  of  Alaska ,  76  P.3d  366,  368  (Alaska  2003)  ("The  



question whether the superior court applied the proper standard of re                            view in denying  

[the] claim is a question of law to which  we a   pply  our in              dependent judgment."); see also  

VECO Alaska, Inc. v. State, Dep't of L                  abor, Div. of Workers' Comp., Second Injury  

Fund , 189 P.3d 983,  987 (Alaska 2008) (deciding the standard of review as a matter of  

law).  



         8         State v. Gonzales, 156 P.3d 407, 411 (Alaska 2007) (quoting Guin v. Ha,  



591 P.2d 1281, 1284 n.6 (Alaska 1979)) (internal quotation marks omitted).  



                                                          -5-                                                    7014
  


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

IV.	       DISCUSSION  



                                                                                                             9 

                      The State argues that an earlier case,                     Walunga v. State,  already decided the 



standard of review for a jury-trial waiver and that, even if it did not decide the issue,   



substantial evidence is the correct standard.  Hutton argues that the mixed question of  



law and fact standard is correct because the ultimate issue is a question of law.  



           A.	        Walunga  v.  State  Did  Not  Decide  The  Standard   Of  Review  For  

                      Jury-Trial Waivers.  



                      In 1973, Allen Walunga was charged with first-degree murder and assault                                



                              10  

with intent to kill.              Walunga filed a written waiver of his right to a jury trial, and his  

                                                                            



counsel later submitted an affidavit stating that Walunga was competent to make a valid  

                                        



            11  

waiver.          The superior court did not independently inquire of Walunga whether he was  



competent   to   make   a   valid   waiver   but   engaged   in   its   standard   colloquy   on  



                       12  

voluntariness.             Walunga was tried without a jury, convicted, and sentenced to life in  

                                             



            13  

prison.         He moved for post-conviction relief, arguing that his jury-trial waiver was  



                14  

deficient.          The superior court concluded that the waiver passed constitutional muster  



                                                                                                       15  

because  the  evidence  showed  that  Walunga  was  competent.                                                Walunga  appealed,  



           9          630 P.2d 527 (Alaska 1980) (per curiam).  



           10         See id. at 527.  



           11         Id. at 527-28.  



           12         Id. at 528 & n.6.   



           13         Id. at 527-28.  



           14         Id. at 527.  



           15         State  v.  Walunga,  No.  72-00206  CR,  at  4-5  (Alaska  Super.  4th  Dist,  



Fairbanks, Jan. 26, 1979).  



                                                                     -6-	                                                             7014
  


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

arguing that he was incapable of effectively waiving his right to a jury trial and that the               

superior court erred by not independently inquiring of him whether he was competent.                                                         16  



                      We affirmed, holding that Walunga was competent to make a valid waiver  



                                             

and that the superior court did not need to independently inquire of Walunga regarding  



                           17  

his competency.                In the section of our opinion discussing competency, we noted that  



"[n]either  party  explicitly  discusses  the  standard  of  review  for  trial  court  findings  



                                                                   

regarding waiver of this constitutional right," and held that the proper standard was  

                                      18  We concluded that there was substantial evidence in the record  

"substantial evidence."                                                   



demonstrating that Walunga was competent to waive his rights, and that "sufficient  



                                                                                                                                             19  

                                                      

evidence of Walunga's capacity . . . obviate[d] the need to inquire of Walunga himself." 



                      In Walunga we did not frame the issue as waiver of the right to a jury trial;  



                                                                                          

we framed the issue as one of competency:  Walunga "claim[ed] that he was incapable  



                                                                                         

of effectively waiving his constitutional right to trial by jury because of mental illness,  



                                                                                                                      20  

                                                                                                                          And we held  

and that the superior court erred in failing to inquire into [his] capacity." 



that the "superior court's holding [regarding competency] is supported by substantial  

evidence."21  We explained that "Walunga contend[ed] that [the] inquiry was insufficient,  



           16         Walunga, 630 P.2d at 527.
  



           17         Id. at 528-29. 
 



           18
        Id. at 528 n.4.  



           19         Id. at 529.  



           20         Id. at 527 (footnote omitted).  



           21         Id. at 528.  



                                                                     -7-                                                               7014
  


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

                                                                               22  

                                                         

because   it   did   not   delve   into   his   mental   state,"                    but   "[g]iven   the   psychiatric  



testimony before the superior court . . . and Walunga's attorney's belief in his client's  



                                                                              

competency . . . [,] there was sufficient evidence of Walunga's capacity to obviate the  



                                                       23  

need to inquire of Walunga himself."                       Moreover, the cases we cited for the substantial  



                                                          24	                                         25 

evidence standard - Hampton v. State                         and Naples v. United States    - only discuss  



                                                     26  

competency,  not  waiver  generally.                       And  two  years  after  we  decided  Walunga,  we  



explained, "As we noted in  Walunga v. State, . . . 'the proper standard of review is  



                                                                                                           

whether the superior court's finding of [competence to make the] waiver is supported by  



                                   27  

substantial evidence.' "               Thus,  Walunga did not decide the standard of review for a  



waiver of jury trial.  



                                        

          B.	       Whether A  Defendant Made A Constitutionally Valid Waiver Is A  

                    Mixed Question Of Law And Fact.  



                                

                                                                    

                    Hutton argues that a majority of jurisdictions use the mixed question of law  



                                                                             

and fact standard of review and that this standard best reflects the legal nature of the  



                                                                    

ultimate decision:  whether a defendant made a constitutionally valid waiver of his right  



                                                                                                   28  

to a jury trial.  The State argues that unlike waivers of Miranda rights                               and voluntariness  



          22        Id.  



          23        Id. at 528-29.  



          24        569 P.2d 138 (Alaska 1977).  



          25        307 F.2d 618 (D.C. Cir. 1962).  



          26        See  Naples , 307 F.2d at 626; Hampton , 569 P.2d at 143.  



          27        Dolchok v. State , 639 P.2d 277, 294 (Alaska 1982) (second alteration in  



original) (quoting  Walunga, 630 P.2d at 528 n.4).  



          28        Miranda v. Arizona ,  384 U.S.  436,  444 (1966)  ("Prior to any questioning,  



                                                                                                            (continued...)  



                                                              -8-	                                                       7014
  


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

                       29  

                                                        

of confessions,          because a jury-trial waiver is made in the presence of the trial court, the  



trial court is in the best position to determine the validity of the waiver, and the trial  



court's decision should be reviewed under the substantial evidence standard.  



          While courts do not all agree, a majority of jurisdictions treat the ultimate issue  



                                                                                    

as one of law.  Eight of the ten federal circuits that have made a clear pronouncement on  



                                                                                                      30  

the topic have applied the mixed question of law and fact standard.                                       And a definitive  



majority of states that have clearly addressed the topic have also applied the mixed  



          28(...continued)  



the person must be warned that he has a right to remain silent, that any statement he does  

                                                                                                    

make may be used as evidence against him, and that he has a right to the presence of an  

attorney, either retained or appointed. The defendant may waive effectuation of these  

                                                                   

rights, provided the waiver is made voluntarily, knowingly[,] and intelligently.").  



          29        Beavers v. State , 998 P.2d 1040, 1044 (Alaska 2000) ("A confession is not  



admissible into evidence unless it is voluntary." (quoting  Sovalik v. State, 612 P.2d  

1003, 1006 (Alaska 1980)) (internal quotation mark omitted)).  



          30  

                                          

                     United States v. Reynolds, 646 F.3d 63, 75 (1st Cir. 2011) ("For preserved  

                                                                         

claims,  '[w]e  review  factual  findings  by  the  district  court  for  clear  error  and  the  

                                                                                                       

determination  of  whether  a  waiver  of  rights  was  voluntary  de  novo.'  "  (quoting  

                       

United States v. Frechette, 456 F.3d 1, 11 (1st Cir. 2004)));  United States v. Griffin,  

                                                                                                                  

394 F. App'x 349, 351 (8th Cir. 2010) (per curiam) (reviewing the jury waiver new  

                                                                         

novo);  United States v. Carmenate, 544  F.3d  105, 107 (2d Cir. 2008) (holding that  

"whether  a  defendant  has  effectively  waived  his  federal  constitutional  rights  in  a  

proceeding is ultimately [a] legal question" (quoting Oyague v. Artuz, 393 F.3d 99, 104  

                                                                                                           

(2d Cir. 2004)) (alteration and internal quotation marks omitted)); United States v. Diaz,  

       

540 F.3d 1316, 1321 (11th Cir. 2008) (applying de novo review); United States v. Khan,  

                                                                                                   

461 F.3d 477, 491 (4th Cir. 2006) (reviewing whether jury-trial waiver was effective  

de  novo);  United  States  v.  Watts,  45  F.  App'x  323,  2  (5th  Cir.  2002)  (per  curiam)  

                             

(applying de novo review); Lott v. Coyle , 261 F.3d 594, 610 (6th Cir. 2001) (applying  

                                                                                       

de novo review); United States v. Duarte-Higareda, 113 F.3d 1000, 1002 (9th Cir. 1997)  

                                                                               

(applying de novo review).  



                                                               -9-                                                         7014
  


----------------------- Page 10-----------------------

              31  

standard,        but for differing reasons.  A handful of these states have applied de novo  



                                                                      32  

review  because  the  issue  was  constitutional,                         but  the  majority  have  reviewed  the  



          31        See,   e.g.,   State   v.   Vann,   2010   WL   2602000,   at   *2   (Ariz.   App.  



June 29, 2010) ("Consequently, we review de novo whether the superior court obtained  

                                                                  

a valid waiver of Vann's right to a jury trial, but we defer to the court's factual findings."  

                                                                                                         

(citing State v. Winegar, 711 P.2d 579, 584 (Ariz. 1985))); Brown v. State, 721 A.2d  

                                                      

1263, 1266 (Del. 1998) (applying de novo review); State v. Gomez-Lobato, 312 P.3d  

           

897, 900-01 (Haw. 2013) (applying de novo review); State v. Stallings, 658 N.W.2d  

                                                                                    

106, 108 (Iowa 2003) ("The adequacy of a jury-trial waiver is a mixed question of fact  

                                                                                

and law, which an appellate court decides de novo.") overruled on other grounds by  

                                                                                    

State  v.  Feregrino,  756  N.W.2d  700,  708  (Iowa  2008);  State  v.  Duncan,  243  P.3d  

338,  340-41  (Kan.  2010)  ("When  the  facts  are  undisputed,  whether  a  defendant  

                                                                                                 

knowingly and voluntarily waived his right to a jury trial is a question of law subject to  

                                                                                             

unlimited review."); State v. Poole, 46 A.3d 1129, 1131 (Me. 2012) ("When reviewing  

whether a defendant has effectively waived the jury trial right, we review the court's  

factual findings for clear error and its legal conclusions de novo."); State v. Kuhlmann,  

                                                     

806 N.W.2d 844, 848-49 (Minn. 2011) (applying de novo review); State v. Thompson,  

                                        

83 A.3d 388, 393 (N.H. 2013) ("Whether the facts support a valid waiver is a question  

of  law  which  we  review  de  novo."  (quoting  State  v.  Foote,  821  A.2d  1072,  1074  

                                              

(N.H. 2003)) (internal quotation marks omitted)); Gallimort v. State, 997 P.2d 796, 798  

(Nev.  2000)  (applying  de  novo  review);  State  v.  Redden,  487  S.E.2d  318,  323-24  

(W.Va. 1997) (applying de novo review); State v. Anderson, 638 N.W.2d  301, 306  

                                                                                                                     

(Wis. 2002) (applying de novo review).  



          32  

                           

                    See  State  v.  Gomez-Lobato,  312  P.3d  897,  900-01  (Haw.  2013)  ("The  

validity  of  a  criminal  defendant's  waiver  of  his  or  her  right  to  a  jury  trial  presents  

a  question  of  state  and  federal  constitutional  law.  .  .  .    We  answer  questions  of  

                                                                                  

constitutional law by exercising our own independent constitutional judgment based on  

the facts of the case." (alteration in original));  State v. Kuhlmann, 806 N.W.2d 844,  

848-49 (Minn. 2011) ("Whether a criminal defendant has been denied the right to a jury  

                                    

trial is a constitutional question that we review de novo."); State v. Vasquez, 34 P.3d  

1255,  1260  (Wash.  App.  2001)  ("Because  it  implicates  the  waiver  of  an  important  

                                                                                                  

constitutional right, our review is de novo."); State v. Anderson, 638 N.W.2d 301, 306  

(Wis. 2002) ("Whether an individual is denied a constitutional right is a question of  

                                   

constitutional fact that this court reviews independently as a question of law." (quoting  

                                             

State v. Klessig, 564 N.W.2d 716, 721 (Wis. 1997)) (internal quotation marks omitted)).  



                                                              -10-                                                         7014
  


----------------------- Page 11-----------------------

                                             

ultimate conclusion de novo because the issue is a mixed question of law and fact.  There  



                                                           

are only a few states that after fully considering the issue have applied a deferential  

standard of review.33  



                                                                            

                     The mixed question of law and fact standard of review correctly reflects the  



                                                                                                                           

reality that whether a defendant made a constitutionally valid waiver of his right to a jury  



                                                                                 

trial is a legal question.  As both parties agree, the superior court's underlying factual  



                                                                                                                    

findings should be reviewed for clear error.  But the ultimate conclusion drawn from  



those facts - whether a defendant's waiver is constitutionally sufficient - is a question  



of law the appellate court reviews de novo.  



                     The State argues that because the jury-trial waiver happens in the presence  



                                                                                  

of the trial court, we should review it deferentially.  The State contends that we review  



Miranda  waivers  and  confessions  de  novo  because  these  happen  outside  of  the  



                                                                                                                

courtroom.  But in Miranda  and confession cases our application of de novo review is  



                                                              

not premised on the fact that the crucial exchanges happened outside the presence of the  



         34  

court.         In  State v. Ridgely, we held that "[w]hen an appellate court reviews a trial  



          33         See State v. Hall, 582 A.2d 507, 509 (Md. 1990) ("Considering the totality       



of the circumstances in the present case, we think that the trial judge could fairly find that  

Hall intentionally relinquished his known right to a jury trial by his voluntary act in  

                                                                                                        

waiving that right." (citation omitted)); Commonwealth v. Schofield, 463 N.E.2d 1181,  

                                                                                                            

 1184  (Mass.  1984)  ("In  the  instant  case  there  is  adequate  support  for  the  judge's  

decision."); Defrancisco v. State , 656 S.E.2d 238, 241 (Ga. App. 2008) ("A trial court's  

                                                     

ruling as to whether a defendant knowingly, intelligently, and voluntarily waived his  

right to a jury trial is also reviewed under a clearly erroneous standard.").  



          34         State  v.  Ridgely,  732  P.2d  550,  554  (Alaska  1987)  (explaining  that  



voluntariness is a mixed question without making any reference to the inquiry happening  

                                                                                                  

out of the presence of the court); Giacomazzi v. State, 633 P.2d 218, 222 (Alaska 1981)  

                                                                                                          

(explaining that waiver is a mixed question without making any reference to the inquiry  

                                                                    

happening  out  of  the  presence  of  the  court);  Troyer  v.  State,  614  P.2d  313,  318  

                                                                                                                 (continued...)  



                                                                -11-                                                          7014
  


----------------------- Page 12-----------------------

judge's determination of voluntariness, its standard of review reflects the mixed factual  

                                                                    35  It is the voluntariness inquiry itself -  

and legal nature of the voluntariness inquiry."     



not when or where that inquiry happened - that mandates the mixed standard.  The  

                                                 



issue is whether a certain set of facts legally amounts to a valid constitutional waiver, and  

                                                                                                                



the trial court is in no better position to answer that legal question than is an appellate  



                            

court.  A question of law does not require credibility determinations that merit deferential  



                                                                                          

review of the trial court's decision.  We conclude that when an appellate court reviews  



                                            

whether a defendant made a constitutionally valid waiver of his right to a jury trial, the  



court should apply the standard for mixed questions of law and fact.  



          C.        Hutton's Waiver Was Invalid.  



                    In its briefing, the State argues that even were we to review the superior  



                                               

court's  waiver  conclusion  de  novo,  we  should  affirm  because  (1)  Hutton  had  just  



                                                                                 

participated in a jury trial on Counts I and II and knew what a jury trial would entail; (2)  



                                                                 

the judge had explained the process to him; (3) he had enough time to discuss the matter  



with  his  attorney;  and  (4)  he  twice  said  that  he  was  voluntarily  waiving  his  right.  



                                                                                                      

                    But there is a fundamental flaw in the State's argument. In order to convict  



Hutton  of  weapons  misconduct  in  the  third  degree,  the  State  was  required  to  prove  



             

beyond a reasonable doubt all of the elements of the applicable felon in possession of a  



          34(...continued)  



(Alaska 1980) (explaining  the standard  at length, including  giving  deference to  the  

                                                                                                                       

superior court for the historical facts recited in its presence, but not making any reference  

to the importance of the confession happening out of the view of the court).  



          35        732 P.2d at 554; see id. ("The voluntariness inquiry involves three steps.  



First, the trial judge must find the external, phenomenological facts surrounding the  

                                                                                                        

confession.    Second,  from  these  external  facts,  the  judge  must  infer  an  internal,  

psychological fact:  the mental state of the accused. Finally, the judge must assess the  

                                                                              

legal significance of this inferred mental state.").  



                                                             -12-                                                       7014
  


----------------------- Page 13-----------------------

weapon  charge.    Alaska  Statute  11.61.200(a)(1)  sets  out  four  of  these  elements:  



                                                                                    

"[1] knowingly [2] possess[ing] a firearm [3] capable of being concealed on one's person  



                                                   

[4]  after  having  been  convicted  of  a  felony."    But  there  is  an  additional,  necessary  



                                                                                                           

element that the State was required to prove: Hutton's culpable mental state with respect  



                                                             

to the circumstances of his offense.  As the court of appeals explained in Afcan v. State ,  



"AS 11.81.610(b)(2) makes recklessness the applicable, culpable mental state," and "[a]s  



                                                                                                          

an aspect of the mens rea requirement in this case, it was necessary for the [S]tate to  



                                                                                     

establish that [the defendant] was aware of or recklessly disregarded the fact that he had  



                                           36  

been convicted of a felony."                    In the trial judge's colloquy with Hutton, Hutton was  



advised        that    the    State      only     needed        to   prove       the    four     elements         set    out    in  



                                   

AS 11.61.200(a)(1) to prove its case.  Hutton was not advised that the State would also  



                      

have to prove beyond a reasonable doubt that at the time Hutton possessed the handgun  



he was aware of or recklessly disregarded the fact that he was a felon.  



                                                                              

                    At  oral  argument  to  this  court,  the  State  candidly  conceded  that  "the  



                                                                                                               

omission  of  an  element  of  the  offense  and  the  proof  that  would  be  required  is  a  



                                                                                

significant problem."  When asked if the case would need to "go back on that element,"  



the State's attorney acknowledged that "in all honesty, [he] would have to say yes. . . .  



                                                                                                             37  

It's an essential element of the offense [and] he wasn't advised of it."                                         The State's  



          36        711 P.2d 1198, 1199 (Alaska App. 1986) (emphasis added).  



          37        Here is the full exchange between the court and the State's attorney at oral  



argument:  



                    Justice Stowers:  This is essentially the very beginning of the  

                                                       

                    process and this is where the trial judge at this point is trying  

                                                                                                    

                    to get the defendant to admit the prior felonies.  And so the  

                    court says, basically there are two elements to that crime:  

                              

                    one is you're carrying a concealed firearm knowingly, which  

                                                       

                                                                                                               (continued...)  



                                                              -13-                                                         7014
  


----------------------- Page 14-----------------------

37(...continued)  



          the jury has already found, and the second one is that you  

                                                            

          have been convicted of a felony either as an adult or  as a  

                                                                                              

          juvenile; are you willing to admit that?  And then a little bit  

                                                                                         

          later . . . the trial judge talks a little about we can bring the  

                                     

          jury back in and let the jury decide whether you're a prior  

                                                                               

          felon.   



          But as has been pointed out here . . . to actually . . . have been  

                                                    

          convicted of the third-degree weapons misconduct the jury  

          must  find  the  defendant  knowingly  possesses  a  firearm  

          capable of being concealed on the person after having been  

          convicted of a felony, and that the defendant was reckless  

          with  respect  to  the  fact  that  he  had  been  previously  been  

                   

          convicted  of  the  felony.             And  the  trial  judge  at  no  point  

                                                           

          discussed the recklessness element, and there is an argument  

                                                                                  

          that's     being      made        that    this    recklessness          element        is  

          quintessentially  a  factual  question  that  Mr.  Hutton  was  

          entitled  to  have  a  jury  decide  -  not  just  did  he  possess  

                       

          knowingly a firearm that could be concealed, and not just did  

                                                                                    

          he have a prior felony conviction, but also that he recklessly  

                       

          disregarded the knowledge of this prior felony conviction.  



          My question is, in all of this colloquy, looking at this from a  

                                               

          totality of the circumstances standard, how can I conclude  

          reasonably that Mr. Hutton waived his right to a jury trial on  

                                                                             

          this recklessly disregard element when it was never discussed  

          with him; how could that be an intelligent waiver, how could  

                                          

          it  be  a  knowing  waiver,  and  ultimately  how  could  it  be  a  

                                                                                

          constitutionally effective waiver? Or, to put it another way,  

          and I'm not trying to prolong this, where is the substantial  

          evidence, even if we were to accept your view, that his was  

                                      

          knowing, and  intelligent, and voluntary.  



          Mr. Rosenstein: That's a problem. I mean, the omission of an
  

                                                                                             

          element of the offense and the proof that would be required
  

          is a significant problem.
  

                                                                                                   (continued...)  



                                                    -14-                                                        7014
  


----------------------- Page 15-----------------------

forthright concession is commendable and well-taken.  Hutton could not have made a  



knowing, intelligent, and voluntary waiver of his right to a jury trial when he was not  



                 

advised of a necessary element of the charged offense and the State's burden to prove  



that element beyond a reasonable doubt.  Hutton's conviction on Count III must be  



reversed and the case remanded for a new trial on that count.  



V.        CONCLUSION  



                   We hold that when an appellate court reviews whether a defendant's waiver  



                                                                                

of the right to a jury trial was constitutionally effective, the applicable standard of review  



                                 

is the mixed question of law and fact standard.  Because Hutton was not advised of an  



                                                                                     

essential element of the charged offense in the trial court's colloquy regarding Hutton's  



                                                                  

purported waiver of his right to jury trial, we conclude Hutton's waiver was invalid and  



constitutionally ineffective.  We therefore REVERSE the court of appeals' decision as  



                                                              

to  Count  III  and  REMAND  the  case  to  the  superior  court  for  further  proceedings  



consistent with this opinion.  



          37(...continued)  



                   Justice Stowers:  Does it have to go back on that element -  

                                                                

                   that issue alone? Isn't that enough under either standard -  

                                                            

                   the substantial evidence or the mixed question?  



                   Mr. Rosenstein:  I . . . you know, in all honesty, I would have  

                                                                    

                   to  say  yes.  I  can't  make  a  silk  purse  out  of  that.  It's  an  

                                                 

                   essential element of the offense . . . he wasn't advised of it.  



                                                            -15-                                                      7014
  

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