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Eberhardt v. State (5/4/2012) ap-2355

Eberhardt v. State (5/4/2012) ap-2355


        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 Courts. 

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ROBERT EBERHARDT,                                ) 
                                                 )          Court of Appeals No. A-10546 
                            Appellant,           )           Trial Court No. 1JU-09-11 CR 
             v.                                  ) 
                                                 )                  O P I N I O N 
STATE OF ALASKA,                                 ) 
                            Appellee.            ) 
                                                 )              No. 2355 - May 4, 2012 

                Appeal from the Superior Court, First Judicial District, 

                Juneau, Philip M. Pallenberg, Judge. 

                Appearances: Tracey Wollenberg, Assistant Public Defender, 

                and    Quinlan    Steiner,   Public   Defender,    Anchorage,     for  the 

                Appellant.   Diane   L.   Wendlandt,   Assistant   Attorney   General, 

                Office   of   Special   Prosecutions   and   Appeals,   Anchorage,   and 

                John J. Burns, Attorney General, Juneau, for the Appellee. 

                Before:     Coats,   Chief   Judge,   and   Mannheimer      and   Bolger, 


                BOLGER, Judge.

                COATS, Judge, dissenting.

                In   2009,   Robert   Eberhardt   was   convicted   of   felony   driving   under   the 

influence of alcohol. This offense required the  State to prove that Eberhardt had two 

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

prior DUI convictions within the preceding ten years. In this appeal, Eberhardt argues 

that one of his prior convictions was too old to be counted. 

              In 1994, Eberhardt was charged with driving under the influence in Cowlitz 

County,    Washington.    This  charge  remained   unresolved   for  several  years  because 

Eberhardt was accepted into a deferred prosecution program. However, in 2004, after 

Eberhardt    was  charged   with  DUI   in  Oregon,  Eberhardt's   deferred  prosecution  in 

Washington was terminated, and he was convicted and sentenced for the 1994 offense. 

              The superior court ruled that Eberhardt's Washington deferred prosecution 

did not constitute a "conviction," and that his conviction occurred in 2004, within the ten 

years preceding his Alaska offense. Eberhardt contends that this ruling was wrong. He 

argues that, even though he was not found guilty and sentenced for the Washington 

offense until 2004, his conviction for this offense should be deemed to have occurred in 

1994, when he was accepted into the deferred prosecution program. 

              For the reasons explained in this opinion, we conclude that Eberhardt was 

not convicted of the Washington offense until 2004, and thus his Washington offense 

was properly counted as one of the predicate prior offenses for his 2009 felony DUI 



              Eberhardt was arrested in Juneau on January 2, 2009. He was charged with 

felony DUI under AS 28.35.030(n) because his criminal history showed that he had a 

2004 DUI conviction from Washington and a 2004 DUI conviction from Oregon. 

              Eberhardt moved to dismiss the indictment prior to trial. He did not submit 

any documentation from the Washington proceedings, but he claimed that he had been 

accepted into a deferred prosecution program in 1994. He argued that the 1994 order 

                                             2                                         2355

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

accepting him into the deferred prosecution program qualified as a conviction, outside 

of   the   ten-year   look-back   period   for   felony   DUI.   The   State   opposed,   arguing   that 

Eberhardt's Washington conviction and sentencing did not occur until August 11, 2004, 

after Eberhardt was removed from the deferred prosecution program. Superior Court 

Judge Philip M. Pallenberg denied the motion, concluding that Eberhardt's acceptance 

into the deferred prosecution program did not constitute a conviction. 

                The   trial   jury   found   Eberhardt   guilty   of   driving   under   the   influence   of 

alcohol. Then, in the second part of the bifurcated trial, the State presented documentary 

evidence of Eberhardt's prior convictions. The record from Washington showed that 

Eberhardt had been convicted and sentenced on August 11, 2004, to a term of 365 days 

imprisonment        with   275   days    suspended.     Again,    Eberhardt     did  not   present    any 

documentation that he had been admitted to the deferred prosecution program. But he 

testified that he entered the program in 1994 and that the 2004 entry in his criminal 

history indicated only that he had violated the terms of the program. He explained that 

the violation had not been enforced until 2004 because he had absconded from probation 

and    moved     to  another    state.  The   jury  found    that  Eberhardt     had   two   prior   DUI 

convictions, and he was convicted of felony DUI. Eberhardt now appeals. 


                A person who commits the crime of driving under the influence of alcohol 

is   guilty   of   felony   DUI   if   they   have   been   "previously   convicted"   within   ten   years 

preceding the date of their present offense.1 A previous conviction includes a conviction 

    1   AS 28.35.030(n). 

                                                    3                                                2355 

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

"in this or another jurisdiction" for driving under the influence or a "violation of another 

law or ordinance with similar elements."2 

                 The term "conviction" is not separately defined in the DUI statutes. In 

common usage, this term refers to the judicial act or judgment determining that a person 

is guilty of a crime.3 When a criminal statute requires a "prior conviction" or a "previous 

conviction" to elevate a criminal sentence, the mere commission of a prior offense is 

insufficient. When a statute requires a prior conviction, the State must establish that a 

formal conviction was entered before the current offense.4 

                 Of course, the legislature can define the effective date of a prior conviction 

by statute or allow the effective date to be established by regulation.5 But in the absence 

of a statute defining the effective date of a prior conviction, there is a "longstanding 

principle of Alaska law that, when a statute imposes enhanced punishment for repeat 

offenders, a defendant's status as a repeat offender hinges on the date of the defendant's 

sentencing rather than the date on which the jury found the defendant guilty or the court 

accepted the defendant's guilty plea."6 

    2   AS 28.35.030(u)(4). 

    3   See Black's Law Dictionary  358 (8th ed. 2004); see also Kelly v. State , 663 P.2d 967, 

971 (Alaska App. 1983) (noting that the term "conviction" can be used to denote the finding 

of guilt prior to the entry of judgment). 

    4   See Gonzales v. State, 582 P.2d 630, 636 (Alaska 1978); State v. Carlson , 560 P.2d 

26, 30 (Alaska 1977). Gonzales and Carlson were superseded on other grounds by ch. 143, 

 32-34, SLA 1982. See Linn v. State, 658 P.2d 150, 152 (Alaska App. 1983). 

    5   See  AS   12.55.145(f);   State   v.   Otness ,   986   P.2d   890,   891-92   (Alaska   App.   1999) 

(applying a regulation that defined "conviction" for purposes of sex offender registration as 

the entry of a guilty or no contest plea or a guilty finding by a court or jury). 

    6    Wooley v. State ( Wooley I), 157 P.3d 1064, 1065 (Alaska App. 2007) (citing Smith v. 

State, 83 P.3d 12, 15-16 (Alaska App. 2004); Sawyer v. State , 663 P.2d 230, 232 (Alaska 

                                                     4                                                 2355

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


                 We applied this principle to the felony DUI statute in Bradley v. State.  In 

Bradley , the defendant pleaded no contest to a prior DUI offense more than ten years 

before he committed his current offense.8 But the date Bradley was sentenced was within 


the ten-year look-back period.  We explained the principle involved by quoting from 

prior similar cases: 

                 [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 defendant's sentencing.10 

Based on this principle, we concluded that Bradley's liability for felony DUI should be 

based on the date of his sentencing hearing rather than the date of his no contest plea. 

                 In   this   case,   both   the   wording   of   the   Washington   deferred   prosecution 

statute    and    the  court    decisions    interpreting     that   statute   establish    that  a   deferred 

prosecution is not considered to be a conviction. Under the 1994 version of the deferred 

prosecution statute, a judge could accept a defendant for deferred prosecution if the 

App. 1983); State v. Rastopsoff, 659 P.2d 630, 640-41 (Alaska App.1983), superseded on 

other grounds as recognized in Wooley v. State ( Wooley II), 221 P.3d 12, 16-17 (Alaska App. 

2009); Gonzales, 582 P.2d at 636; Carlson, 560 P.2d at 30). 

    7    197 P.3d 209 (Alaska App. 2008). 

    8    Id . at 217. 

    9    Id . 

     10  Id . at 218   (alteration in original) (quoting Wooley I, 157 P.3d at 1066 and Smith, 83 

P.3d at 16). 

                                                       5                                                  2355

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

defendant agreed to comply with a plan for alcohol, drug, or mental health treatment.11 

The docket entry would be noted in the defendant's driving record.12 But the statute 

made it fairly clear that this entry would not be treated the same as a criminal judgment: 

"The   entry   is   not   a   conviction."13    And   if   the   defendant   successfully   completed   the 

treatment program, then the court was required to dismiss the pending charges.14 

                  The   Washington   courts   have   addressed   the   legal   effect   of   a   deferred 

prosecution on numerous occasions and have held that the "record of a DUI charge and 

deferred   prosecution   is   not   analogous   to   a   prior   conviction."15          Instead,   a   deferred 

prosecution   referral   gives   an   offender   "an   opportunity   to   avoid   conviction   if   they 

successfully complete treatment."16 In other words, "[t]o accept deferred prosecution is, 

by definition, to leave adjudication by plea or trial to a later time." 17 

                  Since     a  deferred    prosecution      is  not   a  conviction,   an     order   placing     a 

defendant on deferred prosecution does not require the same procedural protections as 

a guilty plea.18 Therefore, a deferred prosecution is not the equivalent of a guilty plea. 19 

    11   Former Wash. Rev. Code  10.05.060 (1994). 

    12   Id . 

    13   Id . 

    14   Id .  10.05.120.

    15   City of Kent v. Jenkins, 992 P.2d 1045, 1046 (Wash. App. 2000); see also  City of

Richland v. Michel , 950 P.2d 10, 13 (Wash. App. 1998). 

    16   Jenkins , 992 P.2d at 1046-47. 

    17   State v. Higley, 902 P.2d 659, 668 (Wash. App. 1995). 

    18   State v. Preuett, 67 P.3d 1105, 1107 (Wash. App. 2003) ("Unlike guilty pleas, ... due 

process does not require written notice of all the consequences of deferred prosecutions."); 

Higley , 902 P.2d at 664, 667-68 (holding that a deferred prosecution order does not trigger 

                                                        6                                                   2355

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

Likewise,   the   treatment   program   required   as   part   of   a   deferred   prosecution   is   not 

equivalent to criminal punishment.20  Through successful completion of the program, a 

defendant      "has   the   opportunity      to  avoid   criminal    prosecution      entirely   ...  [and  is 

confronted with the] consequences of his or her wrongful conduct" only upon failure to 

complete the treatment program.21            "In short, both the purposes and effects of deferred 

prosecutions differ from convictions."22 

                 Despite these authorities,        Eberhardt       argues    that   his prior conviction 

occurred in 1994, when he was accepted for deferred prosecution, rather than in 2004, 

when he was convicted and sentenced. He points out that, as a condition of the deferred 

prosecution program, he was required to stipulate to the admissibility of the facts stated 

in the written police report.23 He was also required to swear that his wrongful conduct 

was the result of alcoholism, drug addiction, or mental problems for which he needed 


treatment.      Eberhardt relies on language from Bradley and contends that, as a result of 

the due process protections that        apply to a guilty plea). 

    19   See Jenkins, 992 P.2d at 1047 ("Deferred prosecution is not equivalent to a guilty 

plea... ."); Abad v. Cozza , 911 P.2d 376, 378 (Wash. 1996) ("A deferred prosecution is not 

tantamount to a guilty plea."); Higley , 902 P.2d at 667-68 ("To accept deferred prosecution 

is not the same as to plead guilty."). 

    20  Abad , 911 P.2d at 378-79; see also Jenkins , 992 P.2d at 1046 ("Deferred prosecution 

is designed to encourage treatment of culpable people whose conduct is caused by a treatable 

condition, like alcoholism."). 

    21  Abad , 911 P.2d at 381 n.2. 

    22  Jenkins , 992 P.2d at 1047. 

    23  See former Wash. Rev. Code  10.05.020(2) (1994). 

    24  See id.  10.05.020(1). 

                                                      7                                                 2355

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

these requirements, he was "judicially confronted" with his misconduct and "given an 

opportunity for reformation." 

                But Eberhardt's argument takes this quotation from Bradley out of context. 

In Bradley (and the cases we relied on), we used this language to explain why a prior 

conviction was effective on one of two alternative dates - the date of the sentencing 

hearing or the date when the defendant's guilt was first established by a jury verdict or 

no contest plea. Under either alternative, however, the court had performed the basic 

requirement of a criminal conviction - a formal finding of the defendant's guilt. We 

used this quotation to explain why we chose to make the conviction effective on the date 

of sentencing, even though the initial finding of guilt occurred on an earlier date. 

                Eberhardt also points out that the Washington DUI statute includes both 

prior   convictions   and   deferred   prosecutions   as   "prior   offenses"   that   may   elevate   a 

defendant's sentence for DUI.25 But the fact that Washington law gives similar treatment 

to prior convictions and prior deferred prosecutions does not control the effect of a 

deferred prosecution in this case. The effect of a prior court order on the sentencing of 

an Alaska offender is an issue governed by Alaska law.26 And Alaska law requires a 

conviction and sentence before a DUI offense will qualify as a prior conviction.27 

                Eberhardt also argues that the Washington deferred prosecution program 

is the same as the Alaska statute allowing a suspended imposition of sentence. He notes 

that a suspended imposition of sentence will count as a prior conviction, unless the prior 

    25  See Wash. Rev. Code  46.61.5055(14)(a). 

    26  See Mancini v. State, 904 P.2d 430, 432-33 (Alaska App. 1995). 

    27  See Bradley, 197 P.3d at 218. 

                                                   8                                                2355 

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

conviction has been set aside.28 But the Alaska statutes authorizing a judge to suspend 

the imposition of sentence require that guilt must be established by a verdict or plea. The 

statutes permit a judge to suspend the imposition of sentence only "upon entering a 

judgment of conviction of a crime." 29 And if the defendant successfully completes his 

term of probation "the court may set aside the conviction."30 

                Washington does have another statutory procedure that is similar to the 

Alaska suspended imposition of sentence. Under Washington Revised Code section 

3.66.067, a trial court may defer   the imposition of sentence and place the defendant on 

probation for up to two years. But the Washington courts have recognized that this 

procedure      is  fundamentally      different   than   a  deferred    prosecution:    "A   deferred 

prosecution treatment program, unlike a deferred sentence or probation, occurs prior to 

an adjudication of guilt."31  It is this requirement of a conviction - a formal finding of 

guilt   -   that   distinguishes   the   suspended   imposition   of   sentence   procedure   from   a 

deferred prosecution. 

                Unlike the requirements of a suspended imposition of sentence, Eberhardt 

was not required to be convicted before he could be accepted for deferred prosecution 

in 1994. And no judgment of conviction would have been entered if he had followed the 

terms of the program. His conviction was not entered until 2004, after the court made a 

    28  See Shaw v. State, 673 P.2d 781, 786 (Alaska App. 1983).

    29  AS 12.55.080.

    30  AS 12.55.085(e).

    31  State v. Vinge, 795 P.2d 1199, 1201 (Wash. App. 1990).

                                                   9                                             2355

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

formal finding of his guilt and imposed a sentence. We conclude that this latter date is 

the effective date of his Washington conviction. 


              We AFFIRM the judgment of the superior court. 

                                            10                                      2355

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

COATS, Chief Judge, dissenting. 

                Driving under the influence is a misdemeanor offense. But if the defendant 

has been previously convicted two or more times within the ten years preceding the date 

of the present offense, the offense is a class C felony.1 

                The defendant in this case, Robert Eberhardt, was convicted of driving 

under the influence in Juneau on January 2, 2009. Because the trial jury determined that 

Eberhardt had two prior DUI convictions within the preceding ten years (one in Oregon 

and one in Washington state), Eberhardt was   convicted of a felony. The question is 

whether the jury properly considered Eberhardt's Washington conviction - because that 

conviction was for an offense that occurred in 1994,               fifteen years before Eberhardt's 

most recent offense. 

                When Eberhardt committed his Washington offense, he was placed in a 

deferred prosecution program, a treatment program for misdemeanor offenders that is 

somewhat analogous to a suspended imposition of sentence in Alaska. That deferred 

prosecution   was   revoked   in   2004,   and   Eberhardt   was   then   sentenced   to   a   term   of 

imprisonment.   Because   of   this   circumstance,   the   State   argues   that   we   should   treat 

Eberhardt's   1994   offense   as   a   2004   conviction,   thereby   elevating   his   2009   Juneau 

offense to a felony. The opinion of the court accepts the State's argument.                 I disagree. 

                When the legislature enacted the statute making a third driving under the 

influence offense within ten years a felony, it intended to enhance punishment for DUI 

offenders who commit three or more offenses within a specified time period. Enhancing 

Eberhardt's offense to a felony for conduct that subjected him to punishment in 1994 is 

contrary to this legislative intent. It also violates the principle of statutory construction 

    1   AS 28.35.030(n). 

                                                   11                                                2355 

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


that ambiguities in penal statutes be strictly construed against the government.  For these 

reasons, I am unwilling to extend the ten-year period specified by the   legislature to 

include an offense Eberhardt committed, and was punished for, in 1994. 

                 The opinion of the court appears to rest on a fairly technical definition of 

when a defendant has been "previously convicted." In general, under Alaska law, to 

qualify for enhanced punishment based on a prior conviction, a defendant must have 

been convicted of a crime and must have faced the consequences of that crime, usually 


by being sentenced.  So, for instance, if a defendant committed three burglaries before 

he was sentenced on the first burglary, he would be treated as a first felony offender 

under Alaska law, because at the time he committed the additional offenses he had not 

been   sentenced   for   the   first   burglary   and   therefore   had   received   no   court-imposed 

opportunity to reform his behavior.4 

                 In 1994, Eberhardt was confronted with his Washington crime and given 

an opportunity to reform. To be eligible for deferred prosecution in Washington, the 

defendant must file a petition alleging under oath "that the wrongful conduct charged is 

the result of or caused by alcoholism, drug addiction, or mental problems for which the 

person is in need of treatment and unless treated the probability of future recurrence is 

great."5 The petitioner is required to submit a case history and a written assessment 

    2   See Wooley v. State, 221 P.3d 12, 19 (Alaska App. 2009).

    3   Bradley v. State , 197 P.3d 209, 218 (Alaska App. 2008).

    4   See State v. Rastopsoff, 659 P.2d 630, 635 (Alaska App. 1983).

    5   Former Wash. Rev. Code 10.05.020(1) (1994); Wash. Rev. Code 10.05.020(1).

                                                     12                                               2355

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


prepared by an approved treatment facility.  The petitioner must agree to comply with 

the terms and conditions of a treatment plan,7 which must be for a two-year period.8 

                 Furthermore,   as   the   Washington   Supreme   Court   explained   in  Abad   v. 

Cozza,9  a defendant who receives a deferred prosecution must waive substantial rights. 

The   defendant   must   acknowledge   that   his   offense   arose   out   of   a   condition   such   as 

alcoholism that is subject to treatment, he must stipulate to the facts of his offense, and 

he must give up most of his rights, including the right to a jury trial: 

                 Deferred prosecution is a special preconviction sentencing 

                 alternative that is available to petitioners who acknowledge 

                 their culpability and need for treatment.  As a condition for 

                 the granting   of a deferred prosecution, the petitioner must 

                 state under oath the wrongful conduct charged took place and 

                 resulted     from    a  condition     amenable      to  treatment.      The 

                 petitioner acknowledges advisement of rights as an accused. 

                 The   petitioner   knowingly   and   voluntarily   stipulates   to   the 

                 admissibility       of   the    facts   in   the   police     report,    and 

                 acknowledges         the   report    and   sworn     statement     will   be 

                 admitted in any postrevocation trial or hearing and used to 

                 support   a   finding   of   guilty.    Plainly,   this   means   that   the 

                 petitioner agrees to waive the right to raise other defenses, to 

                 introduce other evidence, to question or call witnesses, and to 

                 a jury.10 

    6    Former Wash. Rev. Code 10.05.020(1) (1994).

    7   Id. 10.05.060.

    8   Id. 10.05.150.

    9    911 P.2d 376 (Wash. 1996).

    10  Id. at 382.

                                                      13                                                 2355

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

                 The Washington court observed that the legislature intended to set up a 

streamlined   procedure   for   revoking   a   deferred   prosecution   to   avoid   the   problem   of 

litigating a defendant's guilt after witnesses memories had faded or evidence had become 

less   probative because of the passage of time.11             The dissenting   opinion   in   this   case 

pointed out that, under the majority's decision, in a deferred prosecution "the defendant's 

guilt is presumed, and conviction necessarily follows."12 

                 Moreover,       under   Washington       law,   when    a  court   imposes     mandatory 

penalties for subsequent offenses, a deferred prosecution is considered a prior offense 

if the deferred prosecution occurred within the appropriate look-back period.13 In other 

words,     had    Eberhardt     committed      his   DUI    offense    in  Washington,       his   deferred 

prosecution would have been treated as a 1994 conviction. 

                 In Alaska, the analogous provision to Washington's deferred prosecution 

is a suspended imposition of sentence. In Shaw v. State,14 we held that, even though 

under   the   suspended   imposition   of   sentence   procedure          the   defendant   never   had   a 

sentence   imposed,   his   suspended   imposition   of   sentence   qualified   as   a   prior   felony 

conviction for purposes of sentence enhancement.15 Therefore, had Eberhardt committed 

his driving under the influence offense in Alaska and received a suspended imposition 

of sentence, the date of his conviction would have been 1994. 

    11  Id. 

    12  Id. at 385 (Alexander, J., dissenting).

    13  See Wash. Rev. Code 46.61.5055(14)(a)(vii); former Wash. Rev. Code 10.05.120


    14  673 P.2d 781 (Alaska App. 1983). 

    15  Id . at 785-86. 

                                                     14                                                2355

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

               Accordingly,   I  conclude    that,   for  purposes   of   sentence  enhancement, 

Eberhardt was convicted of his Washington offense in 1994, when he was, in effect, 

required to enter a guilty plea, and ordered to undergo at least a two-year period of 

treatment. This result is consistent with the Alaska Legislature's intent when it enacted 

the current felony driving under the influence statute. The legislature determined that a 

person who commits three offenses within a ten-year period is a particularly dangerous 

offender who deserves enhanced punishment. Eberhardt does not fit this pattern: he 

committed the Washington offense well outside the ten-year period. His offense would 

have been considered a 1994 offense for sentencing purposes if he had re-offended in 

Washington. It would also have been considered a 1994 offense if he had received a 

suspended imposition of sentence in Alaska. I therefore conclude that the majority's 

result is in conflict with both legislative intent and principles of statutory construction. 

                                              15                                          2355

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