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Bradley v. State (11/28/2008) ap-2195

Bradley v. State (11/28/2008) ap-2195

     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

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878


) Court of Appeals No. A-9877
Appellant, ) Trial Court No. 3AN-05-12341 CR
v. )
) O P I N I O N
Appellee. )
) No. 2195 November 28, 2008
Appeal    from    the
          Superior  Court,  Third  Judicial  District,
          Anchorage,  John E. Suddock and Larry  Card,

          Appearances:  Doug Miller, Assistant  Public
          Advocate,  and Joshua Fink, Public Advocate,
          and  Rachel Levitt, Acting Public  Advocate,
          Anchorage,  for  the  Appellant.   Diane  L.
          Wendlandt,   Assistant   Attorney   General,
          Office  of Special Prosecutions and Appeals,
          Anchorage,  and  Talis J. Colberg,  Attorney
          General, Juneau, for the Appellee.

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

          STEWART, Judge.

          Timothy  Wayne  Bradley  appeals  his  conviction   for
felony  driving  while  under  the  influence.1   Bradley  raises
several  claims of error.  On appeal, he contends  (1)  that  the
superior court should have dismissed the driving while under  the
influence  charge, or at least suppressed evidence of the  breath
test,  because  police  lost the audio  recording  of  the  field
sobriety  tests and the Datamaster processing; (2) that in  light
of  the loss or destruction of evidence instruction given in this
case,  there was insufficient evidence to support the conviction;
(3)  that  the  superior court erred by refusing to consider  the
possibility of granting Bradley co-counsel status; (4)  that  the
superior court erred when, at the start of jury selection for the
first phase of a bifurcated trial, it inadvertently informed  the
prospective  jury  panel that Bradley faced a  charge  of  felony
driving  while  under the influence; and (5)  that  the  superior
court  erred  when  it  ruled that Bradley  had  been  previously
convicted of driving while under the influence two or more  times
since January 1, 1996.  For the reasons explained here, we reject
Bradleys claims and affirm his conviction and his sentence.

          Background facts and proceedings
          On  December  27, 2005, Anchorage Police  Officer  Troy
Clark  saw  a vehicle driven by Bradley fail to stop  at  a  stop
sign.   Clark  followed  the  vehicle and  watched  Bradley  turn
without  using his turn signal and then run two more stop  signs.
Clark stopped Bradley for these violations.  When Clark contacted
Bradley,  he noticed that Bradleys eyes were red and watery,  his
speech  was  slurred,  and there was a  strong  odor  of  alcohol
emanating from his breath.  Bradley was also swaying and unsteady
on  his  feet.   Bradley admitted that he had been drinking  beer
          Two  other police officers, Jeff Whitworth, who was  in
training  at  the  time,  and his field training  officer,  Kevin
Mitchell,  had  Bradley  perform field sobriety  tests.   Bradley
performed  poorly on the three standardized field sobriety  tests
and Whitworth arrested him for driving while under the influence.
          Whitworth  and  Mitchell  transported  Bradley  to  the
Fourth  Avenue  police  substation.  While completing  paperwork,
Whitworth  observed  Bradley  for  the  requisite  fifteen-minute
observation period.  Whitworth then had Bradley provide a  breath
sample, and the DataMaster result was .110.
          Whitworth  had  recorded the field sobriety  tests  and
the  DataMaster processing on a digital recorder  issued  by  the
Anchorage  Police Department.  At the end of his shift, Whitworth
attempted  to  upload  the  digital  recording  onto  the  police
departments computer server.  Later, however, the recording could
not be found on the server.
          Bradley  was  charged with one count of felony  driving
while  under  the  influence.   He  was  also  charged  with  two
misdemeanors   driving with a suspended license  and  failing  to
maintain motor vehicle liability insurance.
          Bradley  filed  a  motion to suppress the  breath  test
results,  asserting  that Whitworth was required  to  record  the
field  sobriety tests and the DataMaster processing under Stephan
v.  State.2   After an evidentiary hearing, Superior Court  Judge
          John E. Suddock denied the motion, finding that the failure to
record was inadvertent and that Bradley had failed to show how he
was  prejudiced  by  the lack of a recording.    However,  during
Bradleys  trial,  the  jury was instructed to  presume  that  the
missing recorded evidence would have been favorable to [Bradley].
          Bradley  also complained about the performance  of  the
assistant  public defenders appointed by the court  to  represent
him.   He  requested that he be allowed to represent himself,  or
else be granted co-counsel status.  At an ex parte representation
hearing, Bradleys appointed counsel objected to Bradleys request,
and  also  explained  that, as a matter  of  policy,  the  Public
Defender   Agency  would  not  agree  to  co-counsel  or   hybrid
          Based   on  counsels  position,  Judge  Suddock   asked
Bradley  if he wanted to represent himself or continue  with  his
appointed  attorney.  Judge Suddock pointed out that his  current
attorney had entered the case so recently that Bradley could  not
have determined that shes incompetent.  And, in fact, Bradley did
not  offer  any  evidence that the new attorney was  incompetent;
rather,  he  was unhappy with her because she would not  allow  a
friend of his to act as part of the defense team, and because she
was  not  yet familiar with Bradleys claim that he had a  medical
condition  that  prevented him from passing  the  field  sobriety
tests.   But  rather  than continue with his  appointed  counsel,
Bradley chose to represent himself.
          Judge  Suddock  then advised Bradley on the  advantages
and  disadvantages  of  proceeding  without  an  attorney.   When
Bradley was asked if it was his decision to waive his right to an
attorney, he said:  Yes, sir, it is.  Judge Suddock then inquired
about  Bradleys  ability  to represent himself.   Ultimately,  he
found that Bradley was capable of representing himself.
          Approximately  six  weeks  later,  the  State  filed  a
motion  to ensure that Judge Suddock had made an adequate  record
showing that Bradley had voluntarily and intelligently waived his
right  to  counsel.   Judge  Suddock conducted  another  hearing.
There,  Bradley reminded Judge Suddock that he had already  found
that  he  was  capable of representing himself.  And  when  Judge
Suddock  asked  Bradley  if  he wanted to  continue  representing
himself, Bradley said:  Absolutely, Sir.  When asked if he wanted
standby  counsel,  Bradley said he wanted pro  se  status.   When
asked  if  he wanted his former attorney in an advisory capacity,
Bradley  answered,  Absolutely not.  After  this,  Judge  Suddock
again  advised  Bradley on the advantages  and  disadvantages  of
proceeding without an attorney.
          Soon  after,  the  case  proceeded  to  a  jury  trial.
Before  the  State began its case, Bradley pleaded no contest  to
the  misdemeanor  charges.  Superior Court Judge  Larry  D.  Card
presided over a bifurcated trial for the driving while under  the
influence charge.  Ultimately, Bradley was found guilty of felony
driving while under the influence.
          This appeal followed.

          Why  we find that Bradley has not shown that  the
          superior  court  committed plain  error  when  it
          refused  to dismiss the DUI charge or to suppress
          the DataMaster test results
          Bradley  moved to suppress evidence on the ground  that
the  police  had  violated  the rule established  in  Stephan  v.
State.3   That  is,  he argued that evidence must  be  suppressed
because  the police failed to record the DUI processing  done  at
the  substation.  He argued that a recording would show that  the
police  failed  to  allow the fifteen-minute  observation  period
before administering the test, that they ran more than one  test,
hit  the machine between tests,  and printed out the results that
showed  Bradleys  breath alcohol content  was  .110  percent  but
rejected  the  results showing that his alcohol content  was  .00
          Judge  Suddock held an evidentiary hearing  to  resolve
this  motion.   At  the hearing, Anchorage Police  Officers  Jeff
Whitworth  and  Kevin Mitchell testified that the  cassette  tape
recorder in the substation was not working, so they recorded  the
processing on Whitworths digital recording device.  This model of
digital  recorder  had  been  issued  by  the  Anchorage   Police
Department  to  its  police officers.  At the end  of  Whitworths
shift,  he attempted to upload the recorded information from  the
digital recorder to a server.  Although Whitworth thought he  had
completed the upload successfully, he later discovered  that  the
information  never made it to the server.  By the time  this  was
discovered,  the  information was  no  longer  available  on  his
digital recorder.  The parties entered into a stipulation that  a
search of the server showed that there was no indication that the
upload had occurred.
          Whitworth  and  Mitchell also testified that  only  one
DataMaster test for Bradley was conducted that night and that its
result was .110.  Evidence at trial supported this testimony.   A
document introduced into evidence and testimony at trial   showed
all  of  the tests conducted on that DataMaster that  day.   This
evidence showed that there was only one test of Bradleys  breath.
The  evidence  at  trial  also showed  that  the  DataMaster  was
calibrated and was functioning properly when Bradleys breath  was
tested.   In  addition, the States expert explained that  if  the
police  hit the DataMaster during the test with enough  force  to
interrupt  its  operational  capabilities,  then  it  would  stop
working.             Bradley  testified at the hearing.  Although
he  said that the police left him waiting and waiting for them to
get [the testing] process started, he claimed that the police did
not  conduct the fifteen-minute observation period.  He also said
that  the first DataMaster results showed that his breath alcohol
content  was  .00  percent, but that one  of  the  officers  then
smacked  [the instrument] twice and the DataMaster result changed
to .110 percent.
          Judge  Suddock  noted that neither this court  nor  the
Alaska  Supreme Court has expanded the Stephan rule to  encompass
DUI  processing.  Rather than decide whether he should expand the
rule,  Judge Suddock instead ruled that even if Stephan did apply
to  DUI  processing,  the  failure  to  save  the  recording  was
inadvertent.   He  also  found that  Bradley  had  not  presented
credible evidence that the [loss of the audio recording] ... made
any  difference  to  his  ability to defend  his  case  .   Under
Stephan,   an  unexcused  failure  to  electronically  record   a
          custodial interrogation conducted in a place of detention
violates  a  suspects  right  to due process,  under  the  Alaska
Constitution,  and ... any statement thus obtained  is  generally
inadmissible.4   But  here, Judge Suddock found  that  Whitworths
failure   to  preserve  the  recording  was  excused,  and   that
suppression  under  Stephan  was  not  warranted.5    On  appeal,
Bradley does not challenge this ruling.
          Instead,  Bradley makes a different claim  he  contends
that  Judge Suddock, rather than relying on Stephan, should  have
relied on case law addressing the proper sanctions when the State
loses  or  destroys  evidence.  Bradley  now  argues  that  Judge
Suddocks  decision  was  controlled by Thorne  v.  Department  of
Public Safety 6 and Putnam v. State.7  But Bradley argued at  the
evidentiary hearing that suppression was the appropriate sanction
for  a  Stephan  violation.   He never  asked  Judge  Suddock  to
consider  whether other sanctions were warranted under Thorne  or
Putnam.   Accordingly,  Bradley must  show  that  Judge  Suddocks
failure   to   impose  any  other  sanction  was  plain   error.8
As  part of his argument on appeal, Bradley takes issue with  the
sanction  that was imposed.  During trial, when the parties  were
discussing  jury  instructions, Bradley asked that  the  jury  be
instructed  to  presume that the missing recorded evidence  would
have  been  favorable to the defendant.  Judge  Card  agreed  and
instructed the jury that
          [t]here was a digital recording made  during
          the  field sobriety test, arrest and at  the
          time  of  the alcohol testing at the  police
          substation.    The  original   and   back-up
          recording  was lost or destroyed.   You  are
          instructed  to  presume  that  the   missing
          recorded  evidence would have been favorable
          to the defendant.
This  was the first and only time that this issue arose.  To  the
extent   that  Bradley  now  contends  that  this  sanction   was
inadequate, he again must show plain error.
          A  plain error is an error that is so obvious that  any
competent judge or attorney would have recognized it.9   The  law
is  well-settled that [w]hen the state destroys or loses evidence
in  its possession, the trial court is not automatically required
to  impose  sanctions.10  Instead, the trial court must carefully
examine the circumstances surrounding the states violation of its
duty  of  preservation.11  In particular, the  trial  court  must
consider the degree of culpability on the part of the State,  the
importance  of the lost evidence, the prejudice suffered  by  the
defendant,  and the evidence of guilt adduced at the  hearing  or
          In  Thorne, the supreme court considered these  factors
and  determined  that  the appropriate sanction  for  the  States
premature  destruction  of a videotape of  the  defendants  field
sobriety   tests   was   to  remand  with   directions   to   the
administrative hearing

officer  to presume that the videotape would have been  favorable
to  the defendant.13  This type of sanction has been approved  by
the supreme court and this court.14
          In  light  of Alaska case law and the circumstances  in
Bradleys  case,  Bradley has not shown that all competent  judges
would  have  concluded  that the sanction Bradley  requested  was
inadequate.  We therefore conclude that neither Judge Suddock nor
Judge Card committed plain error.
          Bradley  also  claims  that  Judge  Suddock,   at   the
evidentiary hearing, disregarded the parties stipulation that the
information had never been on the server, nor did the server show
that  there had been any attempt to upload the information.   But
Judge  Suddocks ruling did not reject or ignore the  stipulation;
Judge Suddock found that Whitworth may have incorrectly performed
the  uploading process.  The stipulation did not prevent  such  a

          Why we find that Judge Suddock did not abuse
          his   discretion  when  he  denied  Bradleys
          request to act as co-counsel
          As  already explained, prior to trial Bradley  filed  a
motion  asking  that  he  be  allowed to  represent  himself  or,
preferably[,]  obtain  an  Order ...  allow[ing]  ...  Co-Counsel
Status.   Judge Suddock held an ex parte representation  hearing.
There,  Bradleys attorney told the judge that the Public Defender
Agency  was  not  willing to accept co-counsel  status  with  Mr.
Bradley.   She  also  claimed that it was  the  Public  Defenders
policy to not accept such legal relationships and that the agency
refuse[d] to get in[to] contractual relationships with someone in
co-counsel status.  For his part, Bradley again asked that he  be
allowed to either represent himself or act as co-counsel.
          Judge  Suddock said that he would not give Bradley  co-
counsel status because his attorney, based on agency policy,  was
not  willing to accept such an arrangement.  He also  found  that
Bradley  did  not provide sufficient reasons for terminating  his
current  attorney and having another appointed.  He told  Bradley
he  had  to either proceed with his appointed attorney or proceed
pro se.  Bradley chose to proceed pro se.
          On  appeal, Bradley contends that Judge Suddock  abused
his  discretion by denying Bradleys request solely on  the  claim
that the Public Defender Agency had a policy against accepting co-
counsel status.  Bradley argues that Judge Suddock made the  same
error  that occurred in Cano v.  Anchorage.15  That is, he claims
that Judge Suddock rejected the request for co-counsel status out
of hand.
          But  Judge Suddock, unlike the judge in Cano,  did  not
reject  Bradleys  request  out of hand.   Rather,  Judge  Suddock
refused  to  give  Bradley co-counsel status over  his  attorneys
objection.   And  more importantly, as explained  later  in  this
opinion, Bradley rejected a second opportunity to have some  sort
of hybrid representation.
          In  Cano, the defendant and his appointed attorney were
willing to proceed
as  co-counsel.16  The trial court refused to even  consider  the
request.17   This  court ruled that the trial  court  abused  its
discretion   by   its  outright  refusal  to   consider   various
alternatives available to it.18  This amount[ed] to nothing  more
than a denial by the court of its own authority.19  The defendant
then decided to proceed pro se and eventually convinced the judge
to  allow  appointed  counsel to stand by in the  courtroom;  the
appointed counsel was unable to participate in the trial, but was
available   for  consultation  during  recesses.20   This   court
reversed  the conviction.  In a concurring opinion,  Judge  Coats
pointed  out that this courts ruling was very limited  and  among
other things did not address situations where counsel objected to
co-counsel status.21  Here, Judge Suddock clearly knew he had the
authority to grant Bradleys request but refused to do so over the
attorneys objection.
          Bradley also contends that Judge Suddock erred when  he
accepted  the Public Defender Agencys position that it would  not
act  as  co-counsel,  but we do not need to address  this  issue.
Even if we assume that the Public Defender lacks the authority to
refuse  to  act as co-counsel absent a case-specific reason,  the
record  shows  that approximately six weeks after  Judge  Suddock
made  his initial ruling, he offered Bradley a second opportunity
to have hybrid representation, to have counsel reappointed, or to
again  ask  for  co-counsel  status.  When  Judge  Suddock  asked
Bradley  if  he  needed  or wanted standby or  advisory  counsel,
Bradley answered, Absolutely not.
          This  second  opportunity  occurred  approximately  six
weeks after the first representation hearing, when the State  out
of  an  abundance of caution  asked Judge Suddock to ensure  that
Bradley was making a voluntary and knowing waiver of his right to
counsel.   The original representation hearing had been ex  parte
and  the prosecutor was not present when Judge Suddock found that
Bradley  had  made  such  a waiver.  In response  to  the  States
motion, Judge Suddock again discussed the issue with Bradley.
          As  the  hearing began, Bradley reminded Judge  Suddock
that he had already granted him pro se status.  He pointed out to
the court that he was found competent enough to do the [trial] on
[his]  own  and  ... appreciate[d] that.  The following  dialogue
then occurred:
     Court:    Okay,  and youre happy and want to  continue
               in that vein?
     Bradley:  Yes,  and  if theres any objection from  the
               State,   ...   [it   has   had   plenty   of
               opportunity] to argue the point.
     Court:    So,  youre not making any motion that  youre
               having    any    difficulty    or    problem
               representing yourself ...?
     Bradley:  Absolutely ....
     Court:    [A]nd you want to continue as you are?
     Bradley:  Absolutely, Sir.

          A  short  time  later, Bradley reminded  Judge  Suddock
that he requested pro se status:
     Bradley:  [I]f  the  court  remembers in my motion  for  the
               representation  hearing, I  did  ask  for  pro  se
               status or ....
     Court:    Right.   Would  you like to have  ...  [your
               former attorney] along just as an ...
     Bradley:  No, I do not.
     Court:    ... advisory capacity?
     Bradley:  Absolutely not.
By  the  time Bradley rejected the opportunity to have his former
attorney  reinstated in some capacity, he had been  handling  the
litigation  on his own for approximately six weeks.   But  rather
than  request hybrid representation or renew his request for  co-
counsel, he instead asked that the court allow him to have a non-
attorney  sit  with him during trial to take notes and  otherwise
provide  assistance.   Judge Suddock granted  this  request,  and
Judge Card honored it at trial.
          Even  if Judge Suddock had originally erred by refusing
to  grant  Bradley  co-counsel  status  over  Bradleys  attorneys
objection,  the  error was harmless  the record shows  that  when
Judge Suddock revisited the issue, Bradley had the opportunity to
ask  for,  and  Judge  Suddock was willing to  consider,   hybrid
representation.   But  Bradley  had  no  interest  in  having  an
attorney  assist  him  and he unequivocally  chose  to  represent
himself.   (Bradley does not separately claim that his waiver  of
the right to assistance of counsel was invalid.)

          Why we find that Judge Cards inadvertant act
          of  informing  the prospective  jurors  that
          Bradley had been charged with felony DUI was
          harmless error
          Before  a  jury  was  selected,  Judge  Card  read  the
charges  to  the prospective jurors.  Judge Card told this  panel
that  the  State  of  Alaska has charged  Mr.  Bradley  with  the
following  offenses  ...  Count  I,  felony  driving  under   the
influence  excuse me, driving under the influence.  There was  no
objection,  but Bradley now contends that telling the  jury  that
this  was  a felony offense was reversible error.  Because  there
was no objection, Bradley has to show plain error.
          Here,  after telling the jury that Bradley was  charged
with  felony  driving  while  under  the  influence,  Judge  Card
immediately  said, excuse me, driving under the influence.   Then
after  reading the other two counts against Bradley,  Judge  Card
instructed the jury that:
          [T]hese charges are only a formal method  of
          accusing  a defendant of a crime.   Its  not
          evidence  of  any kind against the  accused.
          It does not create any presumption or permit
          any  inference  of  guilt.   Its  merely  an
          allegation   of  the  charges  against   the
          defendant and informs him as to the specific
          crimes  that he is charged with.   The  fact
          that  it was filed may not be considered  by
          you  for any purpose and is not evidence  in
          the  case  and  should not be considered  as
          such by you.
He  went on to explain to the jury that the State had the  burden
of  proving  beyond  a  reasonable  doubt  all  of  the  material
allegations and essential elements of the crime charged, and that
Bradley was presumed innocent.
          In  addition, the instructions later given to the  jury
explained  that  the  indictment was a mere accusation,  was  not
evidence  of  the defendants guilt, and the jury  should  not  be
influenced  to any extent, however slight, against the  defendant
based  on  its  having been filed.  The jury was also  instructed
that  the State had the burden of proving each and every  element
of  the  charges  beyond a reasonable doubt, and that  they  were
obligated to decide the case based upon the law and the evidence.
This  court  ordinarily presumes that a jury  follows  the  trial
courts instructions.22
          Bradley  has  not  shown that these  instructions  were
insufficient to cure any possible prejudice that arose  from  the
fact  that  the  jury heard he was charged with felony  DUI.   We
conclude that no plain error occurred.
          Why   we  find  that  there  was  sufficient
          evidence to support Bradleys conviction  for
          Bradley  claims  that based on the loss or  destruction
of  evidence  jury  instruction, there was insufficient  evidence
supporting  the DUI verdict.  That is, he contends that  had  the
members  of the jury followed this instruction and presumed  that
the  lost  or  destroyed evidence was favorable to Bradley,  they
could  not  have  found  him guilty of driving  while  under  the
influence.   But  in  this  case, the jury  could  disregard  the
evidence  surrounding the field sobriety tests and the DataMaster
processing and still convict Bradley of driving while  under  the
          Bradley  was  charged under both the impairment  theory
and  the  .08  theory.   The jury was instructed  that  it  could
convict  Bradley  under either theory.  Even  without  the  field
sobriety  tests  and the DataMaster result, there was  sufficient
evidence  to  support  Bradleys conviction under  the  impairment
          At  trial, the jury heard Anchorage Police Officer Troy
Clark  testify that he watched Bradley slide past  a  stop  sign,
then  turn  without using his turn signal.  When Clark  tried  to
stop  him,  Bradley  continued to drive, even  though  Clark  had
activated  his  vehicles lights and siren.  With Clark  following
him,  Bradley drove through two more stop signs without stopping.
He  finally  stopped  when he pulled into a trailer  park.   When
Bradley got out of the vehicle he was driving, Clark saw that  he
was swaying and unsteady on his feet.  Clark could smell a strong
odor of alcohol coming from Bradley while still two to three feet
away.  And when Bradley spoke, his speech was slurred.  Clark put
Bradley  in the back of his police vehicle and waited for Officer
Whitworth to arrive to conduct a DUI investigation.
          The  jury heard Officer Whitworth testify that when  he
first contacted Bradley, he noticed a very strong odor of alcohol
coming  from his breath and person. Bradleys speech was  slurred,
and  he had bloodshot and watery eyes.  Bradley admitted that  he
had been drinking.
          The  evidence  was  sufficient  to  support  the  jurys
verdict  that Bradley was guilty of DUI under AS 28.35.030(a)(1),
the impairment theory.

          Why  we  find  that  the State  proved  that
          Bradley   had  two  prior   qualifying   DUI
          Bradleys  DUI  trial  was  bifurcated.   In  the  first
phase,  the  jury  found him guilty of driving  while  under  the
influence.  In the second phase, Judge Card found that the  State
had  proven  that Bradley had the requisite prior DUI convictions
and was guilty of felony DUI.
          Bradleys  current DUI offense occurred on December  27,
2005.   Under  AS 28.35.030(n), for his current offense to  be  a
felony,  he  had to have been previously convicted  two  or  more
times  since  January 1, 1996, and within the 10 years  preceding
the  date of the present offense.  Bradley asserts that it is not
clear what the legislature meant by previously convicted.
          Bradley  points out that one of the prior offenses  the
State  relied upon was committed in September 1995.  Although  he
entered a plea of no contest and was found guilty of that offense
a  felony DUI  in December 1995, he was not sentenced until March
7,   1996.   He  asserts  that  the  legislature  intended   that
previously  convicted  meant  the day  the  defendant  was  found
guilty, not the day the defendant was sentenced.
          He  supports this assertion by pointing out that in the
same statute the legislature recently created an alternate way to
qualify for a felony DUI conviction; under this alternate theory,
a  person  is  guilty  of  felony DUI if  that  person  has  been
previously  punished  for  a  prior felony.   Under  the  current
version  of  AS 28.35.030(n), a person is guilty  of  a  class  C
felony  if the person is convicted under (a) of this section  and
either  has  been  previously convicted two or more  times  since
January  1, 1996, and within the 10 years preceding the  date  of
the  present offense, or punishment under this subsection ... was
previously imposed within the last 10 years.23  Bradley  contends
that  in  light  of this new wording, the legislature  must  have
intended  previously  convicted  to  mean  something  other  than
          The   State  disagrees  and  argues  that  the   Alaska
appellate  courts  have consistently decided that  when  habitual
offender  statutes are based on prior convictions, the  pertinent
date  is  the  day the defendant was sentenced, not  the  day  he
actually  committed the offense or was found guilty.   The  State
also  contends that the second theory making a DUI a  felony  was
added  in  2004 solely to ensure that persons who had  previously
been  convicted of felony DUI would remain subject to the  felony
enhancement even if the prior convictions forming the  basis  for
the  earlier  DUI conviction no longer fell within  the  ten-year
period.24   This contention is supported by the testimony  before
the legislature, and there is no indication that either the House
or  the Senate Judiciary Committee intended to overturn or modify
the  Alaska appellate courts interpretation of habitual  offender
          Although  Bradleys  position is  not  unreasonable,  we
conclude  that  the  States position more  closely  reflects  the
legislatures  intent in cases like Bradleys.  As we concluded  in
Wooley v. State,26 when a statute imposes enhanced punishment for
repeat offenders, there is a longstanding principle of Alaska law
that  ... a defendants status as a repeat offender hinges on  the
date  of the defendants sentencing rather than the date on  which
          the [defendant was found guilty].27
          In  Wooley,  we  were  construing  AS  11.46.130(a)(6),
which  elevates a theft from a misdemeanor to a felony if, within
the  preceding  five  years, the person has  been  convicted  and
sentenced  on  two or more separate occasions of  certain  theft-
related  offenses.   It  is true that this statutes  language  is
slightly  different than the language in AS 28.35.030(n)   rather
than  just saying convicted it says convicted and sentenced,  but
the difference is not significant enough to require us to reach a
different conclusion.  We explained in Wooley:
          [T]he   underlying  rationale  for  imposing
          enhanced  punishment on repeat offenders  is
          the  idea  that a person is more blameworthy
          if   they   return  to  crime  after   being
          judicially  confronted  with  [their]  prior
          misconduct and ... given an opportunity  for
          reformation.  The judicial confrontation and
          the  opportunity  for reformation  occur  at
          (and following) the defendants sentencing.28
          Other  Alaska  appellate court decisions  support  our
decision  in  Wooley.  For example, in State v.  Carlson,29  the
Alaska  Supreme Court interpreted the habitual criminal statutes
that  were  in  force  before the enactment of  Alaskas  current
criminal  code to require proof that the defendant was sentenced
for the prior offense before the defendant committed the present
offense.30   This same rule was applied in Gonzales v.  State,31
which addressed the provisions imposing enhanced punishment  for
repeat  drug  offenders.32  In both State  v.  Rastopsoff33  and
Sawyer  v.  State,34 this court held that for  the  purposes  of
determining   a  defendants  status  under  Alaskas  presumptive
sentencing  laws, a defendant is not previously convicted  of  a
felony unless the defendant has actually been sentenced for that
felony.35   And,  recently  in State  v.  Hodari,36  the  Alaska
Supreme  Court  reasoned  that  because  Hodari  had  not   been
sentenced  on the second felony when he attacked the family,  he
was   considered  a  second  felony  offender  for   presumptive
sentencing purposes.37
          Although  these  cases construed  different  statutes,
they  all addressed the same principle  that a defendants status
as  a  repeat  offender  hinges on the date  of  the  defendants
sentencing rather than the date on which the defendant was found
guilty.  Bradley does not point to any legislative history  that
suggests that the legislature has changed this principle.
          We  acknowledge that the legislature recently  amended
AS  28.35.030(n) to add a provision making DUI a felony  offense
based  on a the date that punishment ... was ... imposed  for  a
single  prior felony DUI.   And we understand Bradleys  argument
that  when the legislature used this language it must have meant
something  different than when it used conviction  in  the  same
statute.   But  Bradley  has  not  shown  that  the  legislature
intended   to   overturn   the  long   history   of   case   law
construingprevious  conviction to mean the  date  of  sentencing
when enhancing punishment for repeat offenders.  Accordingly, we
conclude that Judge Card properly found that Bradley was  guilty
of felony DUI based on his two prior qualifying DUI convictions.
          Bradley  also  argues that our interpretation  of  the
statute  should be guided by the rule of lenity  the  rule  that
ambiguities  in criminal statutes should construed  against  the
government.38  But the rule of lenity cannot easily  be  applied
in this case.
          If  we construe the statute as Bradley wishes  that is,
if we construe it so that the crucial date is the date on which a
defendant  pleads guilty or is found guilty, as  opposed  to  the
date on which the defendant is sentenced and a formal judgment of
conviction is entered against the defendant  this construction of
the statute will benefit defendants in Bradleys situation, but it
will disadvantage defendants in other situations.
          Take, for instance, a defendant who is found guilty  of
a  second  DUI and then, before sentencing, commits a third  DUI.
Under  the rule of law propounded in Wooley, Carlson, and similar
cases,  this third DUI would still be a misdemeanor   because  it
was  committed before the defendant was sentenced for the  second
DUI.   But under Bradleys construction of the statute, this third
DUI would be a felony.
          In  other  words,  this is not a  situation  where  one
interpretation of the statute will favor defendants and the other
interpretation   will  favor  the  government.   Rather,   either
interpretation  of the statute will benefit some  defendants  and
will  disadvantage others.  For this reason, the rule  of  lenity
does not yield an answer to the question before us.

          The judgment of the superior court is AFFIRMED.
     1 AS 28.35.030(n).

     2 711 P.2d 1156 (Alaska 1985).

3 711 P.2d 1156 (Alaska 1985).

     4 711 P.2d. at 1158 (footnotes omitted).

     5 See id. at 1162; see also Suiter v. State, 785 P.2d 28, 31
(Alaska  App.  1989)  (declining to apply  Stephan  rule  to  the
booking process where evidence showed that failure to record  the
proceedings was inadvertent rather than intentional).

     6 774 P.2d 1326 (Alaska 1989).

     7  629  P.2d  35 (Alaska 1980) rejected on other grounds  in
Stephan, 711 P.2d at 1163.

     8 Alaska R. Crim. P. 47(b).

     9 Samples v. Anchorage, 163 P.3d 967, 972 (Alaska App. 2007)
(quoting Simon v. State, 121 P.3d 815, 820 (Alaska App. 2005)).

     10    State v. Ward, 17 P.3d 87, 89 (Alaska App. 2001);  see
Putnam, 629 P.2d at 43; Abdulbaqui v. State, 728 P.2d 1211, 1217-
18 (Alaska App. 1986).

     11   Putnam, 629 P.2d at 43.

     12    Ward, 17 P.3d at 90; Thorne, 774 P.2d at 1331; Putnam,
629 P.2d at 44.

     13   Thorne, 774 P.2d at 1331-32.

     14   Id.; Ward, 17 P.3d at 90; see also Snyder v. State, 930
P.2d  1274, 1279-80 (Alaska 1996); State v. Norman, 875 P.2d 775,
777-78 (Alaska App. 1994).

15   627 P.2d 660 (Alaska App. 1981).

     16   Id. at 661-62.

     17   Id. at 662.

     18   Id. at 664.

     19   Id.

     20   Id. at 662.

     21   Id. at 665 (Coats, J., concurring).

22     See  Knix  v.  State,  922  P.2d  913,  923  (Alaska  App.

23   Emphasis added.

     24   See ch. 124, 26, SLA 2004.

     25    See Minutes of House Judiciary Committee on House Bill
244,  March 19, 2004, testimony of Deputy Attorney General  Susan
Parkes,  log no. 0729-0467; see also Minutes of Senate  Judiciary
Committee on Senate Bill 170, March 10, 2004, testimony of Deputy
Attorney   General  Susan  Parkes,  8:16-8:45  a.m.   (discussing
sections 26 & 28).

     26   157 P.3d 1064 (Alaska App. 2007).

     27   Id. at 1065.

     28    Id. at 1066 (alteration in original) (quoting Smith v.
State, 83 P.3d 12, 16 (Alaska App. 2004)).

    29   560  P.2d  26 (Alaska 1977), superseded by  statute  on
other grounds as recognized in Linn v. State, 658 P.2d 150,  152
(Alaska App. 1983).

    30  Id. at 30.

    31   582  P.2d 630 (Alaska 1978), superseded by  statute  on
other grounds as recognized in Linn, 658 P. 2d at 152.

    32  Id. at 636.

    33  659 P.2d 630 (Alaska App. 1983).

    34  663 P.2d 230 (Alaska App. 1983).

    35   Sawyer, 663 P2d at 231-32; Rastopsoff, 659 P2d at  640-

    36  996 P.2d 1230 (Alaska 2007).

    37  Id. at 1231.

    38   See  McDole  v. State, 121 P.3d 166, 169  (Alaska  App.

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