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Hollstein v. State (2/15/2008) ap-2148

Hollstein v. State (2/15/2008) ap-2148

     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate

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) Court of Appeals No. A-9780
Appellant, ) Trial Court No. 3PA-05-3021 Cr
v. )
) O P I N I O N
Appellee. ) No. 2148 February 15, 2008
          Appeal  from the District Court,  Third  Judi
          cial District, Palmer, John W. Wolfe, Judge.

          Appearances:   Carmen  E.  Clark,  Ingaldson,
          Maassen  &  Fitzgerald,  Anchorage,  for  the
          Appellant.   Jarom  B.  Bangerter,  Assistant
          District  Attorney,  and Roman  J.  Kalytiak,
          District  Attorney,  Palmer,  and  Talis   J.
          Colberg,  Attorney General, Juneau,  for  the

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          MANNHEIMER, Judge.

          Michael Scott Hollstein was charged with driving  under
the  influence.1   Hollsteins  attorney  decided  to  argue  that
Hollsteins  arrest  had been illegal.  She filed  an  eleven-page
motion  in  which  she  argued  that  the  officer  who  arrested
Hollstein had lacked probable cause to believe that he was  under
the influence.
          However,  instead of labeling her motion  a  motion  to
suppress,  the  defense attorney labeled it a motion  to  dismiss
          specifically, a Motion to Dismiss [for] Lack of Probable Cause to
Arrest.   And,  rather than seeking suppression of  the  evidence
against  Hollstein,  the  defense attorney  argued  for  outright
dismissal.  The concluding sentences of the motion read:
          Applying  the appropriate [legal] standard[,]
          there  [was] no driving misconduct to suggest
          impairment.   Nor  did  the  officer  observe
          sufficient signs of alcohol impairment[,]  as
          opposed to simple [alcohol] consumption[,] to
          justify    Hollsteins    arrest     ...     .
          Consequently, the charges must be dismissed.
                    In response, the prosecutor filed a
          pleading  in which he argued that  the  facts
          known  to the officer did, in fact, establish
          probable cause for Hollsteins arrest.
                    After   considering   the   parties
          pleadings, District Court Judge John W. Wolfe
          concluded that he did not need to resolve the
          issue of whether there was probable cause for
          Hollsteins  arrest.   Instead,  Judge   Wolfe
          focused  on the fact that Hollsteins attorney
          was  asking  for dismissal of the  charge  as
          opposed to suppression of the evidence.   The
          judge issued the following order:
     This matter comes [before the court] for
consideration [of] the defendants  Motion  to
Dismiss  because the defense  asserts  [that]
the  officer lacked probable cause to arrest.
Assuming arguendo [that] the officer did lack
probable  cause at the time he  arrested  the
defendant, the motion fails to cite any legal
authority  for the proposition that dismissal
is an appropriate remedy.

     For  this reason[,] the motion is hereby

          One   might  suppose  that,  having
received such an order from Judge Wolfe,  the
defense  attorney  would simply  re-file  her
motion as a motion to suppress.  But instead,
the  defense  attorney  filed  a  motion  for
reconsideration  in which  she  argued  again
that  outright dismissal of criminal  charges
is  the  proper remedy whenever a  defendants
arrest is not supported by probable cause.
          As  a  backup argument,  Hollsteins
attorney  suggested that Judge  Wolfe  should
have  treated  her  earlier  pleading  as   a
mislabeled motion to suppress, and  that  the
judge should then have held a hearing on  the
issue of whether there was probable cause for
Hollsteins arrest.
          Judge Wolfe denied this motion  for
          After Judge Wolfe denied the motion
for reconsideration, the defense attorney and
the  prosecutor decided to resolve Hollsteins
case  through a Cooksey plea.  That  is,  the
parties  agreed that Hollstein would enter  a
plea  of  no contest to the DUI charge,  with
Hollstein  reserving his right  to  challenge
Judge Wolfes rulings on appeal.2
          In  particular, the parties  agreed
that  Hollstein reserved the right  to  argue
(1) that his arrest had not been supported by
probable  cause  or, in the alternative,  (2)
that Judge Wolfe at least should have held an
evidentiary  hearing so  that  the  issue  of
probable  cause  (or lack thereof)  could  be
          The  problem is that, under  Alaska
law,  a litigant who wishes to raise an issue
on  appeal  must  show  that  the  issue  was
adequately  preserved  in  the  lower   court
which   means  not  only  that  the  litigant
presented  the issue to the lower court,  but
also  that  the  lower court  ruled  on  that
          Moreover, in the context of Cooksey
pleas, an issue preserved for appeal must  be
dispositive of the defendants case.  We  held
in  Miles v. State, 825 P.2d 904, 906 (Alaska
App. 1992), that an issue is dispositive  for
Cooksey  purposes only if resolution  of  the
issue  in  the defendants favor would  either
legally preclude the government from pursuing
the prosecution or would leave the government
without  sufficient  evidence  to  survive  a
motion  for  judgement of  acquittal  at  the
conclusion of the governments case.
          At     Hollsteins    change-of-plea
hearing,    his    defense   attorney,    the
prosecutor,  and Judge Wolfe all agreed  that
Hollsteins  appellate  issues  were  properly
preserved, and that they were dispositive  of
Hollsteins  criminal  case.   But   this   is
clearly wrong.
          As  explained  above,  Judge  Wolfe
never  issued  a  ruling  on  the  merits  of
Hollsteins  claim  that  the  police   lacked
probable cause to arrest him.  Instead, Judge
Wolfe  first ruled that a motion  to  dismiss
was  the  wrong procedural vehicle  to  raise
such  a  claim  and then, on reconsideration,
the  judge  declined  to  treat  the  defense
attorneys  motion to dismiss as a  mislabeled
          motion to suppress.
          Because  Judge Wolfe never  decided
whether  Hollsteins arrest was  supported  by
probable cause, Hollsteins argument that  the
police had no probable cause to arrest him is
not adequately preserved for appeal.
          Hollstein  did adequately  preserve
the issues of whether Judge Wolfe should have
treated his motion to dismiss as a motion  to
suppress, and whether Judge Wolfe should then
have granted Hollstein an evidentiary hearing
on  the  suppression issue.  But these issues
are not dispositive of Hollsteins case.
          Even  if  Judge  Wolfe  abused  his
discretion   when   he  declined   to   treat
Hollsteins   motion   to   dismiss   as   the
equivalent of a motion to suppress, and  when
he  failed  to order an evidentiary  hearing,
these  errors would only mean that  Hollstein
is  entitled to engage in further  litigation
of his underlying claim  i.e., his claim that
there  was no probable cause for his  arrest,
and   that   he  is  therefore  entitled   to
suppression  of much of the evidence  against
him.  And even assuming that Hollstein should
have  been  accorded  the  right  to  further
litigate  his claim, this does not  mean   or
even suggest  that Hollstein would prevail on
that claim.
          In  other words, even if we  agreed
with  Hollstein that Judge Wolfe should  have
allowed  him  to litigate the merits  of  the
probable cause issue, our decision would  not
be dispositive of Hollsteins case.
          For   these   reasons,   Hollsteins
Cooksey plea is improper.  One of the  issues
presented  on appeal (Hollsteins  claim  that
there  was no probable cause for his  arrest)
would   be   dispositive,  but  it   is   not
adequately preserved because the lower  court
never reached the merits of this claim.   The
remaining   issues   (Hollsteins   procedural
claims)  are adequately preserved,  but  they
are  not  dispositive of his case.   We  must
therefore  dismiss this appeal  for  lack  of
jurisdiction.  Miles, 825 P.2d at 907.
          This  appeal is DISMISSED.  Because
Hollstein  entered  his no  contest  plea  in
reliance  on  his ability to challenge  Judge
Wolfes rulings on appeal, Hollstein must  now
be given an opportunity to withdraw his plea.
Accordingly,  this case is  REMANDED  to  the
district court to allow Hollstein to withdraw
his plea.

  1 AS 28.35.030(a).

2See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).

3See, e.g., Sengupta v. University of Alaska, 139 P.3d 572,
581  (Alaska 2006) (To preserve a claim based  on  [the
lower] courts failure to rule on a motion, a party must
make every effort to request and obtain a ruling before
proceeding to trial.) (quoting Taylor v. Johnston,  985
P.2d 460, 467 (Alaska 1999)); Bryant v. State, 115 P.3d
1249,  1258 (Alaska App. 2005) (Normally, an  appellant
may  only  appeal  issues on which he has  obtained  an
adverse ruling from the trial court.); Mahan v.  State,
51  P.3d  962, 966 (Alaska App. 2002) (To  preserve  an
issue  for appeal, an appellant must obtain an  adverse

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