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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Graham v. Durr (10/26/2018) sp-7311

Graham v. Durr (10/26/2018) sp-7311

           Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  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                                       



STACEY ALLEN GRAHAM,                                             )
  

                                                                 )
                                    

                                                                      Supreme Court No. S-16554  

                                Petitioner,                     )
  

                                                                 )
                                     

                                                                      Superior Court Nos. 3AN-14-07194,  

           v.                                                    )                                                         

                                                                      3AN-14-07195, 3AN-15-08741 CI  

                                                                 )    (Consolidated)  

                                                         

DAYNA DURR, individually and in                                 )  

                                                                                          

                                         

her capacity as Personal Representative )                             O P I N I O N  

                                           

of the Estate of Jordyn L. Durr;                                 )  

                                                                                                              

                                               

JAMEY DURR; MARKUS DURR;                                         )   No. 7311 - October 26, 2018  

                         

JACK DURR; SHANNA                                                )  

                                                         

McPHETERS, individually and in her                              )  

                                                           

capacity as Personal Representative of   )  

                                   

the Estate of Brooke Christina                                  )  

                                 

McPheters; GARY McPHETERS;                                      )  

                                           

PUGET SOUND PIPE & SUPPLY                                       )  

                              

COMPANY; and ARAMARK                                             )  

                      

SERVICES, INC.,                                                  )  

                                                                 )  

                                Respondents.                    )  

                                                                 )  



                                                                                                                   

                     Petition for Review from the Superior Court of the State of  

                                                                                                        

                     Alaska, Third Judicial District, Anchorage, Erin B. Marston,  

                     Judge.  



                                                                                                      

                     Appearances: Renee McFarland, Assistant Public Defender,  

                                                                                                           

                     Quinlan Steiner, Public Defender, and Kimberlee A. Colbo,  

                                                                                                                 

                     Hughes White Colbo Wilcox & Tervooren, Anchorage, for  

                                                                                                       

                     Petitioner.   Christine S. Schleuss, Law Office of Christine  

                                                                                                        

                      Schleuss,  and  Colleen  A.  Libbey,  Libbey  Law  Offices,  

                                                                                                                   

                     Anchorage, for Respondents Dayna Durr, individually and in  


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

                                                                                                           

                    her  capacity  as  Personal  Representative  of  the  Estate  of  

                                                                                                      

                    Jordyn  L.  Durr;  Jamey  Durr;  Markus  Durr;  Jack  Durr;  

                                                                                                           

                    Shanna  McPheters,  individually  and  in  her  capacity  as  

                                                                                                 

                    Personal Representative of the Estate of Brooke Christina  

                                                                                                         

                    McPheters;  and  Gary  McPheters.                          No  appearance  by  

                    Respondents Puget Sound Pipe & Supply Co. and Aramark  

                                                                                                      

                    Services,  Inc.           Susan  Orlansky,  Reeves  Amodio  LLC,  

                                                                                                          

                    Anchorage,  for  Amicus  Curiae  Alaska  Association  of  

                                                                                                

                    Criminal  Defense  Lawyers.                     Nancy  R.  Simel,  Assistant  

                                                                                           

                    Attorney   General,             Anchorage,   and   Jahna   Lindemuth,  

                                                                                                    

                    Attorney General, Juneau, for Amicus CuriaeStateofAlaska.  



                                                                                                    

                    Before:  Stowers, Chief Justice, Winfree, Maassen, Bolger,  

                                        

                    and Carney, Justices.  



                                      

                    BOLGER, Justice.  



    

I.        INTRODUCTION  



                                                                                                                             

                    Stacey Graham pleaded guilty to second-degree murder after striking and  



                                                                                                                       

killing two pedestrians while driving intoxicated.  He is now being sued by the victims'  



                                                                                                                              

families. Graham, who is currently appealing his sentence, argues that he may assert the  



                                                                                                                          

privilege against self-incrimination in response to the families' discovery requests based  



                                                                                                                              

on (1) his sentence appeal and (2) the possibility that he might file an application for  



                                                                                                                               

post-conviction relief if his sentence is upheld. We conclude that Graham may assert the  



                                                                                                                             

privilege against self-incrimination in the civil proceeding based on the possibility that  



                                                                                                                  

the decision on his pending sentence appeal may require a new sentencing proceeding  



                                                                                                                                    

where his compelled testimony in the civil proceeding could be used to his disadvantage.  



                                                                                                                              

We decline to decide whether Graham is entitled to assert the privilege based on the  



                                                                                                                       

possibility that he might eventually file an application for post-conviction relief because  



                                     

that issue is not ripe for review.  



                                                               -2-                                                        7311
  


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

II.                 FACTS AND PROCEDURAL HISTORY                                                                      



                    A.                 Facts  



                                       In August 2013 Stacey Graham struck and killed pedestrians Jordyn Durr                                                                                                                                    



and Brooke McPheters after losing control of his vehicle. Graham was charged with two                                                                                                                                                               



counts of second-degree murder, two counts of manslaughter, and one count of driving                                                                                                                                                     



under the influence.                                         



                                       In May 2014 the families of Durr and McPheters (Durr) filed suit against                                                                                                                           



Graham and his alleged employer Puget Sound Pipe & Supply Company (Puget Sound).                                                                                                                                                                                  



Graham   refused   to   respond   to   a   portion   of   Durr's   complaint,  asserting   his   Fifth  

                                                                                                                                               1   In October Graham pleaded guilty to  

Amendment privilege against self-incrimination.                                                                                                                                                                                                          



two  counts  of  second-degree  murder  under  a  negotiated  plea  agreement.                                                                                                                                                           Shortly  

                                                                                                                                                                                                                                      

thereafter Graham provided initial disclosures to the Durrs.2                                                                                                                       But he refused to provide  

                                                                                                                                                                                                                                        



the factual basis for his defenses or the identity of persons potentially responsible for the  

                                                                                                                                                                                                                                                      



accident, again asserting his privilege against self-incrimination.  

                                                                                                                                                                                                



                                       Graham was  sentenced  in  February  2015.                                                                                               Durr  asserts  that,  prior  to  

                                                                                                                                                                                                                                                        



sentencing,  Graham  prepared  a  written  statement  for  the  sentencing  judge  and  

                                                                                                                                                                                                                                                  



participated in an interview with a probation officer in which he admitted that he had  

                                                                                                                                                                                                                                                    



caused the accident.  Durr further contends that the oral and written statements were  

                                                                                                                                                                                                                                                



included in a presentence report.  In a statement presented at the sentencing hearing,  

                                                                                                                                                                                                                                      



                    1                  U.S.  Const. amend. V ("No person . . .                                                                       shall be compelled in any criminal                                                



case to be a witness against himself . . . .").                                                                  



                    2                  See Alaska R. Civ. P. 26(a)(1) (requiring a party to make certain initial  

                                                                                                                                                                                                                                             

disclosures without awaiting a discovery request).  

                                                                                                                          



                                                                                                                           -3-                                                                                                                  7311
  


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

Graham described the accident and expressed his remorse. He was sentenced to 20 years                                                                               



                                                                                                                                                                            3  

with 4 years suspended on each count, for an active term of imprisonment of 32 years.                                                                                           



                           In  early  March  Graham filed  a  notice  of  appeal.                                                     He  argued  that  the  

                                                                                                                                                                        



sentencing judge had committed several evidentiary errors, that the court should have  

                                                                                                                                                                     



either deferred to recommendations in the presentence report or provided a rationale for  

                                                                                                                                                                         



failing to do so, and that the sentence imposed was excessive.  Graham asked the court  

                                                                                                                                                                    

of appeals to vacate his sentence and remand the case for resentencing.4  

                                                                                                                                                   



                           At about the same time Durr served a series of discovery requests on  

                                                                                                                                                                         



Graham.  Graham refused to answer some of the questions in these requests, explaining  

                                                                                                                                                         



that he had appealed his sentence and asserting his Fifth Amendment privilege against  

                                                                                                                                                                



self-incrimination.  In an April email to Durr, Graham's attorney stated that she "fully  

                                                                                                                                                           



anticipate[d] that Mr. Graham will be asserting his 5th Amendment privileges" at an  

                                                                                                                                                                          



upcoming  deposition.                            She asked  whether  Durr  would  prefer  to  "proceed with  the  

                                                                                                                                                                        



deposition" or "postpone it and perhaps stay the civil case until the criminal proceedings  

                                                                                                                                                       



have completely played out."  The deposition did not occur.  

                                                                                                                           



                           In February  2016 Puget Sound served discovery requests on Graham.  

                                                                                                                                                                                



Graham refused to respond to these requests, again asserting his Fifth Amendment  

                                                                                                                                                     



privilege against self-incrimination.  

                                                                          



              B.           Procedural History  

                                                     



                           In March 2016 Puget Sound moved to compel Graham to participate in  

                                                                                                                                                                           



discovery and to preclude Graham from asserting a privilege against self-incrimination.  

                                                                                                                                                                                



Durr joined in the motion.  

                                                       



             3             Under his plea agreement, Graham had agreed to a sentencing range of 13                                                                        



to 20 years of incarceration per count for a total range of 26 to 40 years.                                                                        



             4             The court of appeals heard oral argument on June 27, 2017.  

                                                                                                                                        



                                                                                    -4-                                                                             7311
  


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

                               In its memorandum in support of the motion, Puget Sound argued that                                                                                           



Graham no longer retained a Fifth Amendment privilege.                                                                             The company contended that                                 



"[a] risk one's testimony could increase criminal penalties is a necessary condition                                                                                            



precedent to the assertion of the privilege . . . ."                                                                     It noted that Graham was "only                                 



appealing his sentence," and that in Alaska a sentence imposed on resentencing cannot                                                                                                  

exceed the original sentence.5  Puget Sound argued in the alternative that Graham had  



waived  his  privilege  by  making  statements  at  the  sentencing  hearing  and  had  not  

                                                                                                                                                                                              



contested most of the facts in the presentence report. It lastly argued that even if Graham  

                                                                                                                                                                                   



retained a privilege, he "should be compelled to testify to the extent the Court concludes  

                                                                                                                                                                               



he can be ordered to do so without placing himself at risk of penalty in his criminal  

                                                                                                                                                                                   



case."  

                



                               Graham responded that he "retains the right to invoke the privilege until he  

                                                                                                                                                                                                 



has exhausted his appeals and his right to seek post-conviction relief."  He also argued  

                                                                                                                                                                                      



that his comments at the sentencing hearing could not support a conclusion that he had  

                                                                                                                                                                                              



waived his Fifth Amendment privilege in a subsequent judicial proceeding.  

                                                                                                                                                                              



                               The superior court granted Puget Sound's motion to compel.  The court  

                                                                                                                                                                                          



ruled that "Mr. Graham's Fifth Amendment privilege against self-incrimination does not  

                                                                                                                                                                                               

apply in the circumstances presented in this case."6                                                                   It explained that Graham was only  

                                                                                                                                                                                            



appealing his sentence, and that Graham could not be subjected to additional penalties  

                                                                                                                                                                                  



               5              Shagloak v. State                       , 597 P.2d 142, 145 (Alaska 1979).                                



               6               The order did not address the privilege against self-incrimination under the  

                                                                                                                                                                                                

Alaska Constitution.  See Alaska Const. art. I,  9 ("No person shall be compelled in any  

                                                                                                                                                                                              

criminal proceeding to be a witness against himself.").  But in its motion to compel,  

                                                                                                                                                                                    

Puget Sound had asked the court to rule that Graham could not assert the privilege  

                                                                                                                                                                                 

"under the Fifth Amendment . . . [or] Article I, Section 9 of the Alaska Constitution . . . ."  

                                                                                                                                                                                                 



                                                                                                -5-                                                                                       7311
  


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

                                                                                                                                                                                                                                                                                            7  

under Alaska law even if his appeal were successful.                                                                                                                                                                                                                                              Because Graham could not "face                                                                                                                          



 further criminal penalties" as a consequence of his appeal, the court concluded that the                                                                                                                                                                                                                                                                                                                                                                             



 case law he had cited in his opposition was "inapposite."                                                                                                                                                                                                                                                               



                                                                         The   court   also   ruled   that   the   possibility   Graham   might   pursue   post- 



 conviction relief was "too speculative for the privilege against self-incrimination to                                                                                                                                                                                                                                                                                                                                                                                    



 apply."    It explained that Graham had "not indicated the basis upon which he would                                                                                                                                                                                                                                                                                                                                                               



likely file for post-conviction relief."                                                                                                                                                                    And it again emphasized that he "simply cannot     



be punished more harshly than he already has been."                                                                                                                                                                                                                                                



                                                                         The court acknowledged that there was one way Graham's participation in                                                                                                                                                                                                                                                                                                                             



 discovery could present a risk of incrimination:                                                                                                                                                                                                                                if he had lied during the criminal                                                                                                                    



proceedings, he could face perjury charges.                                                                                                                                                                                                   Accordingly, the court stated that it would                                                                                                                                                            



 "hold an ex-parte hearing with Mr. Graham . . . to determine the basis for [his] claimed                                                                                                                                                                                                                                                                                                                                                   



privilege and whether Mr. Grahamcould incriminate himself if he is forced to participate                                                                                                                                                                                                                                                                                                                                       



in discovery."                                                                   If the court found "no basis for claiming the privilege," he would be                                                                                                                                                                                                                                                                           



 compelled to "answer interrogatories and discovery requests already served to which he                                                                                                                                                                                                                                                                                                                                                                                    



 objected on Fifth Amendment grounds, appear and testify at deposition[,] and respond                                                                                                                                                                                                                                                                                                                                                      



to further discovery requests."                                                                                                                                         



                                                                         Graham'smotionforreconsiderationwasdeemedmoot. In                                                                                                                                                                                                                                                                        December 2016  



 Graham attempted to initiate an action for post-conviction relief.                                                                                                                                                                                                                                                                                                    The paperwork was                                                                          



 filed in the Alaska Court of Appeals, but did not result in a case being opened.                                                                                                                                                                                                                                                                                                                                                              



                                                                         Graham then petitioned for interlocutory review.                                                                                                                                                                                                                           We granted his petition                                                                  



 and directed the parties to address two questions in their briefing:                                                                                                                                                                                                                                                



                                                                         a.   Was Graham entitled to assert the privilege against self-                                                                                                                                                                                                                                               

                                                                         incrimination based on the possibility that he may file an                                                                                                                                                                                                                                                             



                                     7  

                                                                                                                                                                                                                                                                                                                                                                                                                    

                                                                         Shagloak,597 P.2d at 145 (holdingthatasentenceimposed on resentencing  

                                                                                                                                                                                                            

 ordinarily cannot exceed the original sentence).  



                                                                                                                                                                                                                                     -6-                                                                                                                                                                                                                      7311  


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

                                                application for post-conviction relief?                                                                           



                                                b.  Was Graham entitled to assert the privilege based on the                                                                                                               

                                                possibility   that   the   decision   on   his   pending   appeal   may  

                                                require a new sentencing proceeding?                                                         



Durr and Graham submitted briefs; Puget Sound declined to do so.                                                                                                                                                                                 We also invited the                                          



 State of Alaska and the Alaska Association of Criminal Defense Lawyers to participate                                                                                                                                                                                             



as amici curiae. Both the State and Association of Criminal Defense Lawyers submitted                                                                                                                                                                                                



briefs.  



III.	                   DISCUSSION  



                        A.	                      Graham Retains His Privilege Against Self-Incrimination Until His                                                                                                                                                                                         

                                                 Sentence Appeal Becomes Final.                                                                       



                                                The superior court's ruling on Puget Sound's motion to                                                                                                                                             compel would limit                                   



Graham's   ability   to   invoke   his   privilege   against   self-incrimination.     Graham   first  



challenges this order on the grounds that the privilege extends through the direct appeal                                                                                                                                                                                                        



                              8  

process.                              While a trial court's ruling on a discovery motion is reviewed for abuse of  

                                                                                                                                                                                                                                                                                                                

discretion,9                                 the  scope  of  the  privilege  against  self-incrimination  "is  a  question  of  

                                                                                                                                                                                                                                                                                                               

constitutional law which [we] decide de novo."10  

                                                                                                                                                                                   



                                                The privilege against self-incrimination is guaranteed by both the Fifth  

                                                                                                                                                                                                                                                                                                      



Amendment of the United States Constitution and by article I, section 9 of the Alaska  

                                                                                                                                                                                                                                                                                               



                        8                       During oral argument Durr's counsel "conced[ed] that Mr. Graham . . . can                                                                                                                                                                              



invoke his Fifth Amendment privilege through the completion of his sentence appeal."                                                                                                                                                                                                                                       

 She asserted however that the plaintiffs could "still take a deposition and inquire into                                                                                                                                                                                                                 

things that are not covered by the privilege" even if he retained the privilege.                                                                                                                                                                                                                        We  

acknowledge that the privilege may be invoked only when certain conditions are met.                                                                                                                                                                                                                                       

See infra                        note 12 and accompanying text.                                                                       



                        9                       See Armstrong v. Tanaka, 228 P.3d 79, 82 (Alaska 2010).  

                                                                                                                                                                                                                                          



                        10                      State v. Gonzalez, 853 P.2d 526, 529 (Alaska 1993).  

                                                                                                                                                                                                                      



                                                                                                                                                       -7-	                                                                                                                                            7311
  


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

Constitution.     The   privilege   "can   be   asserted   in   any   proceeding,"   including   civil  



                   11  

proceedings.                                                                                                             

                       But as Durr notes, the privilege does not confer a right to remain silent  



                                                                                                                       

at all times or under all circumstances. Rather a speaker may assert the privilege against  



                                                                                                                           

self-incrimination only when directed to provide answers that would pose a "real and  

                                                                          12   Accordingly we must determine  

                                                                                                                  

substantial hazard" of incriminating the speaker. 



whether Graham's testimony during the pendency of his sentence appeal could expose  

                                                                                                                       



him to a real and substantial hazard of incrimination.  

                                                          



                    In State v. Gonzalez we indicated that a defendant who had appealed a  

                                                                                                                               



conviction retained the privilege against self-incrimination until the conviction became  

                                                                                                                      

final.13      Most  state  and  federal  courts  have  likewise  concluded  that  a  convicted  

                                                                                                                 



defendant's testimony may  present a "real and substantial hazard" of incrimination  

                                                                                                            

                                                                              14  The rationale for this approach  

during the pendency of an appeal from a conviction.                                                                

                                    



          11        Kastigar  v.   United  States,  406  U.S.  441,  444  (1972).  



          12        E.L.L.  v.  State,  572  P.2d  786,  788  (Alaska   1977).  



          13        853   P.2d   526,   529  n.1   (Alaska   1993).    Persons   convicted   of   a   crime   in  



Alaska  may  generally  appeal  to  the  Alaska  Court  of  Appeals.   See  AS  22.07.020(a)(1),  

(c),  (d).   If  the  Alaska  Court  of  Appeals  affirms  a  trial  court's  judgment,  "that  judgement  

becomes  final  (1)  when  the  time  for  petitioning  the  supreme  court  expires  (if  no  petition  

for  discretionary  review  is  filed)  or  (2)  when  the  supreme  court  resolves  the  petition  for  

                                                                                                                             

discretionary review (by either granting the petition and ruling on the merits, or by  

                                                                                                                       

denying the petition outright)." Alex v. State , 210 P.3d 1225, 1227 (Alaska App. 2009);  

                                                                                                               

see Gonzalez, 853 P.2d at 529 n.1 (conviction not yet final where court of appeals had  

                                                     

affirmed conviction and remanded sentence).  



          14        See, e.g.,  United States v. Kennedy, 372 F.3d 686, 691 (4th Cir. 2004);  

                                                                                                                       

United States v. Duchi, 944 F.2d 391, 394 (8th Cir. 1991); Holsen v. United States,  

                                                                                                                       

392 F.2d 292, 293 (5th Cir. 1968); State v. Gretzler, 612 P.2d 1023, 1051 (Ariz. 1980);  

                                                                                                                       

State v. Johnson, 287 P.2d 425, 429-30 (Idaho 1955); State v. Linscott, 521 A.2d 701,  

                                                                                  

703-04 (Me. 1987); Ellison v. State, 528 A.2d 1271, 1278 (Md. 1987); Johnson v.  

                                                                                                                              

                                                                                                            (continued...)  



                                                              -8-                                                        7311
  


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

 is straightforward: while                          direct appeal fromaconviction                                   is pending or remains available,  



there is a significant possibility that the conviction might be reversed - and that "any       



 disclosures [a defendant] makes would be used to incriminate him upon any retrial that                                                                                      



                    15  

 follows."               



                            Unlike the defendant in Gonzalez, Graham appeals only his sentence, not  

                                                                                                                                                                              

his conviction.16                      But in Mitchell v. United States  the United States Supreme Court  

                                                                                                                                                                        



 clarified  that  a  defendant  may  invoke  the  Fifth  Amendment  privilege  against  self- 

                                                                                                                                                          



 incrimination when the defendant's testimony might adversely affect the defendant's  

                                                                                                                                                            

 sentence - even when the defendant's conviction is no longer at issue.17                                                                                 Furthermore  

                                                                                                                                                          



              14            (...continued)  



                                                                                                                                                                     

Fabian, 735 N.W.2d 295, 310 (Minn. 2007); Myers v. State, 154 P.3d 714, 714-15  

                                                                                                                           

 (Okla. 2007); State v. Ducharme, 601 A.2d 937, 945 (R.I. 1991).  



              15             1 KENNETH   S. B                 ROUN, M            CCORMICK  ON  EVIDENCE    121 (7th ed. 2013);                                        



see also Ellison                   , 528 A.2d at 1277 ("While a majority of appeals by defendants in                                                   

 criminal cases may not result in reversals and further proceedings, a criminal defendant's                                                                  

 chance of overturning a verdict or sentence on appeal certainly does not fall into the                                                                                       

 category of a mere remote possibility.").               



              16            Alaska appellate procedure distinguishes between "sentence appeals" and  

                                                                                                                                                                             

 "merit appeals."  A sentence appeal challenges only the excessiveness of the sentence.  

                                                                                                                                                                                      

See Coffman v. State, 172 P.3d 804, 808 (Alaska App. 2007).  A merit appeal considers  

                                                                                                                                                                 

 "the legality of a sentence, or the lawfulness of the procedures under which the sentence  

                                                                                                                                                                   

was imposed, or the sufficiency of the evidence to support the findings that affected the  

                                                                                                                                                                              

judge's sentencing authority . . . ."  Id.  Thus in some instances - as in the present case  

                                                                                                                                                                            

- a defendant might file a merit appeal even if he is appealing only his sentence.  

                                                                                                                                                       



              17            526 U.S. 314, 327 (1999); see also id. at 326 ("Where the sentence has not  

                                                                                                                                                                              

yet been imposed a defendant may have a legitimate fear of adverse consequences from  

                                                                                                                                                                           

 further testimony."); Estelle v. Smith, 451 U.S. 454, 462 (1981) ("The essence of [the  

                                                                                                                                                                            

privilege against self-incrimination] is 'the requirement that the State which proposes to  

                                                                                                                                                                                 

 convict and punish an individual produce the evidence against him by the independent  

                                                                                                                                                           

 labor of its officers, not by the simple, cruel expedient of forcing it from his own lips.' "  

                                                                                                                                                                                  

                                                                                                                                                        (continued...)  



                                                                                       -9-                                                                                7311
  


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

the few courts that have expressly considered whether defendants                                                                                                appealing  only their   



sentences retain the privilege have concluded that they do.                                                                                              In   Ellison v. State                            the  



Maryland Court of Appeals concluded that "during the pendency of [a sentence appeal],                                                                                                           



the criminal judgment is not so finalized that the possibility of future proceedings on the                                                                                                                 

                                              18  And in People v. Villa a Colorado appellate court reached a similar  

charges is remote."                                                                                                                                                                              



conclusion:  because the privilege against self-incrimination "protects one from being  

                                                                                                                                                                                                     



subject to the risk of greater punishment by evidence furnished from his own lips," the  

                                                                                                                                                                                                           



privilege "cannot rationally be limited to situations in which . . . only the conviction is  

                                                                                                                                                                                                               

being appealed."19  

                                                 



                                We find the  Villa and Ellison courts' reasoning persuasive.  Mitchell and  

                                                                                                                                                                                    



related cases establishthatadefendant may assert theprivilegeagainst self-incrimination  

                                                                                                                                                                        



when faced with a real and substantial hazard that the defendant's testimony could  

                                                                                                                                                                                                     

adversely affect the defendant's sentence.20                                                                   If Graham's appeal from his sentence is  

                                                                                                                                                                                                              



successful, thereis asignificant possibility thatcompelled testimonymight beconsidered  

                                                                                                                                                                                         

                                                             21       Accordingly  the  rationale  for  the  approach  followed  in  

by  a  resentencing  court.                                                                                                                                                                                  

                                               



                17               (...continued)  



                                                                                                                                                                                                                     

(emphasis in original) (quoting Culombe v. Connecticut, 367 U.S. 568, 581-82 (1961))).  



                18  

                                                               

                                 528 A.2d at 1278.  



                19               671 P.2d 971, 973 (Colo. App. 1983);                                                        see also Gretzler                         , 612 P.2d at 1051              



("The Fifth Amendment privilege is available to a convicted person when his conviction                                                                                                   

or sentence is being appealed." (emphasis added)).  

                                                                                                        



                20              See, e.g., Mitchell, 526 U.S. at 327.  

                                                                                                            



                21              See Tookak v. State, 680 P.2d 509, 511 (Alaska App. 1984); WAYNE  R.  

                                                                                                                                                                                        

    AFAVE,ET AL.,6CRIMINAL PROCEDURE   26.5(a) (4th ed. 2015) ("Post-offense conduct                                                                                                           

L                                                                     

. . . is generally taken into account when setting a sentence.                                                                                          Should resentencing be                               

required, post-sentence conduct will be considered as well.").                                                                      



                                                                                                    -10-                                                                                              7311
  


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

Gonzalez  and similar cases also applies to Graham's appeal of his sentence; during the                                                                    



pendency of that appeal, compelled testimony could present a real and substantial hazard                                                             

of "adverse consequences" in a future proceeding.                                            22  



                                                                                                                                                     

                         As  the  superior  court  noted,  our  holding  in  Shagloak  v.  State  would  



                                                                                                                                                     

preclude a resentencing court from imposing a higher sentence should Graham's appeal  

                          23   This characteristic of Alaska law differentiates this case from Villa and  

                                                                                                                                                          

be successful. 



Ellison; in both of those cases, the courts explicitly noted that if the defendants' appeals  

                                                                                                                                                   

were successful, they could face a higher sentence on resentencing.24   But this limitation  

                                                                                                                                               



on  resentencing  courts'  discretion  does  not  justify  departing  from  the  approach  

                                                                                                                                               



articulated in those cases.  The privilege against self-incrimination protects convicted  

                                                                                                                                               



defendantsfrom"adverseconsequences [thatcould]bevisited upon theconvicted person  

                                                                                                                                                     

                                                                        25    Although Graham admittedly cannot face a  

by reason of further testimony . . . ."                                                                                                                        

                                                                   

"greater punishment" than that imposed during his previous sentencing,26 his compelled  

                                                                                                                                              



testimony during the pendency of his appeal could result in a "greater punishment" than  

                                                                                                                                                         



            22           Mitchell, 526 U.S. at 326.              



            23           See 597 P.2d 142, 145 (Alaska 1979).  As Graham notes on appeal, the  

                                                                                                                                                           

superior court also referenced the fact that Graham had entered a guilty plea. But on our  

                                                                                                                                                           

reading, the court does not appear to have concluded that Graham's guilty plea had any  

                                                                                                                                                          

bearing on whether he retained a privilege against self-incrimination; rather the court  

                                                                                                                                                       

noted this fact while explaining why Graham had declined to appeal his conviction.  In  

                                                                                                                                                             

any event persuasive authority suggests that a convicted defendant who has entered a  

                                                                                                                                                               

guilty plea may assert the privilege during the pendency of an appeal.  See Villa, 671  

                                                                                                                                                          

P.2d at 973; Ellison, 528 A.2d at 1278.  

                                                               



            24           Villa, 671 P.2d at 972-73; Ellison, 528 A.2d at 1278.  

                                                                                                                 



            25           Mitchell, 526 U.S. at 326.  

                                                                 



            26           See  Villa, 671 P.2d at 973.  

                                                                   



                                                                             -11-                                                                      7311
  


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

                                                                                                                                                                                                           27 

 he would receive                                         if he were permitted to invoke the privilege                                                                                                    .    The rule identified by   



 the superior court places an upper boundary on the "adverse consequences" Graham                                                                                                                                                                                



 could face during resentencing; it does not eliminate them altogether.                                                                                                                          



                                             In light of our precedent, persuasive authority from other jurisdictions, and                                                                                                                                                       



 the purpose of the privilege against self-incrimination, we conclude that defendants                                                                                                                                                                   



 appealing only their sentences - like defendants appealing their convictions - may                                                                                                                                                                                          

                                                                                                                                                                                                                                                                          28  We  

 invoketheprivilegeagainst                                                                self-incriminationuntil their convictions                                                                                           becomefinal.                                       



 therefore  hold  that  Graham  may  continue  to  exercise  his  privilege  against  self- 

                                                                                                                                                                                                                                                                           

 incrimination during the pendency of his direct appeal.29  

                                                                                                                                                              



                       27                    Courts considering analogous issues have applied similar reasoning.                                                                                                                                                              See  



 Landeverde v. State                                              , 769 So. 2d 457, 464 (Fla. App. 2000) ("Because [a defendant] had                                                                                                                                            

 a pending motion to reduce his sentence, his exposure to incrimination was readily                                                                                                                                                                                 

 apparent under                                     Mitchell .");  State v. Marks                                                              , 533 N.W.2d 730, 734 (Wis. 1995) ("[A]                                                                                    

 witness who intends to or who has moved to modify his or her sentence may legitimately                                                                                                                                                               

 fear that . . . but for [] additional incriminating testimony there is a strong likelihood the                                                                                                                                                                                   

 sentencing   court   would   reduce   the   sentence.     The   fear   of   the   defendant  in  giving  

 incriminating testimony is just as real in this situation                                                                                                                                   as [when] . . . [t]here [is] a                                                            

potential  danger  to   [the   witness]   of   an  increased   sentence   resulting   from   his   own  

 testimony." (emphasis and last alteration in original)).                                                                                        



                       28                    See supra note 13.  To the extent that this interpretation of the privilege is  

                                                                                                                                                                                                                                                                                       

 more protective than federal constitutional law, we base our ruling on article I, section  

                                                                                                                                                                                                                                                                     

 9 of the Alaska Constitution.  See Munson v. State, 123 P.3d 1042, 1049 n.48 (Alaska  

                                                                                                   

 2005).  



                       29                    Graham argues on appeal that he did not waive the privilege by providing  

                                                                                                                                                                                                                                                            

 a statement for sentencing.  Although the parties raised this issue in the trial court, the  

                                                    

 court's  order  did  not address  it.                                                                                We  "may  affirm the  superior  court  on  any  basis  

                                                                                                                                                                                                                                                                          

 supported by the record, even if that basis was not considered by the court below . . . ."  

                                                                                                                                                                                                                                                                                                

 Hodari v. State, Dep't of Corr., 407 P.3d 468, 472 n.15 (Alaska 2017) (quoting Gilbert  

                                                                                                                                                                                                                                                                     

 M. v. State, 139 P.3d 581, 586 (Alaska 2006)).  However "[i]t is hornbook law that the  

                                                                                                                                                                                                                                                                                  

 waiver [of the privilege] is limited to the particular proceeding in which the witness  

                                                                                                                                                                                                                                                                   

                                                                                                                                                                                                                                                 (continued...)  



                                                                                                                                        -12-                                                                                                                                7311
  


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

                  B.	              The Question Whether Graham Would Retain His Privilege Against   

                                   Self-Incrimination During Post-Conviction Proceedings Is Not Ripe                                                                                                                  

                                   For Review.   



                                   After granting Graham's petition for interlocutory review, we directed the                                                                                                               



parties to address whether Graham has a privilege against self-incrimination pending                                                                                                                          



completion of post-conviction proceedings following his appeal. Graham contends that                                                                                                                                      



he would retain                          aprivilegeagainst self-incrimination during his first application for post-                                                                                                   



conviction relief and a conditional privilege during subsequent applications.                                                                                                                             However  



he also notes that this issue may not be ripe for review. "Because we are 'the ultimate                                                                                                                       



arbiter' of issues such as . . . ripeness, we review de novo the question of whether a case                                                                                                                            

should be dismissed on prudential grounds."                                                                          30  



                                                                                                                                                                                                                  

                                   "The ripeness doctrine requires a plaintiff to claimthat either [an] . . . injury  



                                                                                                                                                          31  

                                                                                                                                                                                                            

has been suffered or that one will be suffered in the future."                                                                                                   There is "no set formula"  

                                                                                                                                     32     However we have noted that "the  

                                                                                                                                                                                                                         

for determining whether a case is ripe for decision. 



central concern of ripeness 'is whether the case involves uncertain or contingent future  

                                                                                                                                                                                                                    



                  29               (...continued)  



                                                                                                                                                                                                            

appears."  State v. Roberts, 622 A.2d 1225, 1235 (N.H. 1993) (alterations in original)  

                                                                                                                                                                                                                               

(quoting United States v. Cain, 544 F.2d 1113, 1117 (1st Cir. 1976)); see also Martin v.  

                                                                                                                          ROUN, supra note 15,  133 n.18 (listing  

                                                                                                                                                                                                                 

Flanagan, 789 A.2d 979, 985 (Conn. 2002); B 

cases).  Accordingly, we decline to affirm the court's order on this basis.  

                                                                                                                                                                                 



                  30               Kanuk  ex  rel.  Kanuk  v.  State,  Dep't  of  Nat.  Res.,  335  P.3d  1088,  

                                                                                                                                                                                                                  

 1092 (Alaska 2014) (quoting State v. Am. Civil Liberties Union of Alaska, 204 P.3d 364,  

                                                                                                                                                                                                                        

368 (Alaska 2009)).  

                                  



                  31               Brause v. State, Dep't of Health & Soc. Servs., 21 P.3d 357, 359 (Alaska  

                                                                                                                                                                                      

2001).  



                  32               Id .  



                                                                                                            -13-	                                                                                                     7311
  


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

                                                                                                                                      33  

events that may not occur as anticipated, or indeed may not occur at all.' "                                                               Graham has   



notyet       attempted to assert theprivilegeagainstself-incriminationduringpost-conviction                                          



                        34  

                                                                                                                                                        

proceedings.                Furthermore because we do not know whether Graham will pursue post- 



                                                                                                                                                         

conviction relief once his appeal is resolved, it is impossible to determine at this time  



                                                                                                                                                 

whether Graham will ever attempt to do so.  Accordingly we conclude that the question  



                                                                                                                                                       

whether  Graham  may  invoke  his  privilege  against  self-incrimination  during  post- 



                                                                                                                                   

conviction proceedings is not ripe, and we decline to address it at this time.  



        

IV.          CONCLUSION  



                                                                                                                                                  

                         We  REVERSE  the  trial  court's  order  and  REMAND  for   further  



proceedings.  



            33           Id.  (quoting 13A C               HARLES  ALAN  WRIGHT, ET AL                           ., F  EDERAL  PRACTICE AND   



PROCEDURE   3532, at 112 (2d ed.1984)).                    



            34           Although Graham apparently attempted to initiate an application for post- 

                                                                                                                                                        

conviction relief, he did so after the court had granted Puget Sound's motion to compel  

                                                                                                                                                   

and denied his motion for reconsideration.  

                                                                                 



                                                                            -14-                                                                       7311
  

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