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Smith v. State (1/29/2016) ap-2487

Smith v. State (1/29/2016) ap-2487


         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:  

                                  303 K Street, Anchorage, Alaska  99501

                                             Fax:  (907) 264-0878

                                     E-mail:  corrections @



                                                                    Court of Appeals No. A-12089  

                                    Appellant,                    Trial Court No. 3KN-12-613 CR  

                           v.                                                  O P I N I O N  


                                    Appellee.                       No. 2487 - January 29, 2016  

                  Appeal from the Superior Court, Third Judicial District, Kenai,  


                  Carl Bauman, Judge.  

                  Appearances:        Elizabeth      D.    Friedman,       Assistant      Public  

                  Advocate, Appeals and Statewide Defense Section, and Richard  

                  Allen, Public Advocate, Anchorage, for the Appellant. Amanda  


                  L. Browning, Assistant District Attorney, Kenai, and Craig W.  

                  Richards, Attorney General, Juneau, for the Appellee.  


                  Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,  


                  Superior Court Judge. *  



                  Judge  SUDDOCK,  writing  for  the  Court  and  concurring  


     *   Sitting  by   assignment  made  pursuant  to  Article  IV,  Section  16  of   the  Alaska  

Constitution and Administrative Rule 24(d).  

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

                      John L. Smith Jr. pled guilty to failure to render assistance to an injured                                    


person   after   an   automobile   accident.                                                                                          

                                                                    At  sentencing,  Smith  argued  that  the  traffic  


accident was unavoidable because the child he struck had darted across the roadway  


directly into the pathway of Smith's oncoming car.  He submitted a report by an expert  


who concluded that Smith was not at fault.  But the judge's sentencing remarks were  


ambiguous as to whether he in fact found Smith to be at fault, and whether he enhanced  


Smith's sentence because of this.   This is problematic because the record does not  


support a finding that Smith was at fault.  


                      Smith objected to several allegations contained in the presentence report.  


The judge ruled that the challenged allegations were speculative and that he would not  


rely on them.  But he declined to strike them from the presentence report as required by  


Criminal Rule 32.1(f)(5).  


                      Smith was sentenced to 7 years with 3 years suspended.  He appeals his  


sentence as excessive, arguing that the judge relied upon unproven assumptions about  


Smith's degree of fault.  Because we perceive a substantial possibility that the judge  


relied on such speculation in sentencing Smith, we remand for resentencing.  


           Facts and proceedings  


                      Around 6:00 p.m. on April 17, 2012, Smith was driving his SUV along  


Kalifornsky Beach (or K-Beach) Road in Kenai at approximately fifty-five miles per  


hour, the posted speed limit.   T.T.,  a  seven-year-old child, was playing with other  


children at a large puddle near the side of the road opposite to Smith's lane of travel.  


Christine Posey, a witness to the accident, testified to the grand jury that after she drove  


by the children playing to her right, she looked in her rear-view mirror and saw a "little  

      1    AS 28.35.060.  

                                                                    - 2 -                                                                2487

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

girl on a bike," followed by a "little one," approaching the road.  The girl on the bicycle  


stopped at the roadside, but the smaller child appeared to hesitate, and then "she darted  


out on the road."  Posey said she saw smoke from burnt rubber as Smith's oncoming  


SUV braked and veered to its right.  She did not see the actual impact.  


                     Smith was on felony probation at the time and had been released on bail  


following his arrest on a petition to revoke his probation.  Because he had absconded  


from his third-party custodian, a warrant for his arrest was outstanding at the time of the  


accident.   As nearby adults approached to render aid, Smith fled the scene; he was  


arrested several days later.  


                    T.T.'s  injuries  were  not  life-threatening,  but  she  suffered  a  partially  


collapsed lung, abrasions, a black eye, a fractured upper jaw or palate, and a loose tooth.  


She spent two days in a hospital.  


                    The grand jury indicted Smith not only for leaving the scene of an injury  


accident but also for causing the accident:  for first-degree assault (recklessly causing  


serious physical injury by means of a dangerous instrument); second-degree assault  


(recklessly causing serious physical injury); third-degree assault (recklessly causing  


physical injury by means of a dangerous instrument); and third-degree assault (with  


criminal negligence causing physical injury by means of a dangerous instrument).  


                    Pursuant toaRule 11 agreement, the State dismissed the assaultcounts, and  


Smith pled guilty to leaving the scene. In advance of sentencing, Smith filed a report by  


an accident reconstruction expert who concluded that Smith was at most traveling fifty- 


seven miles per hour.  The expert noted that the children may not have been visible to  


drivers, such as Smith, in the far lane.  He concluded that Smith was unable to stop  


despite his best efforts, and that he was not at fault for the accident.  


                    The  presentence  report  author  concluded  that  "[h]itting  this  girl  with  


[Smith's] vehicle was an accident."  And the State in its sentencing remarks did not  


                                                               -  3 -                                                         2487

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

accuse Smith of bad driving.                                                                                                        But the judge nonetheless appeared to blame Smith for                                                                                                                                                                                           

causing the accident:                               

                                                            [O]ther drivers appeared to note children playing ... in a mud                                                                                                                                                                                   

                                                           puddle near the highway.                                                                                            So other people were cautious. ...                                                                                                             

                                                            So one could speculate that if the defendant were impaired by                                                                                                                                                                                                   

                                                            any consumption of drugs, maybe his reaction was just a                                                                                                                                                                                                             

                                                           titch, a small amount, slower[.]                                                                  

                                                                                          . . . .    

                                                                                         This is a little different than a child darting out from                                                                                                                                                               

                                                           behind   a   tree   or   an   obstruction   along   a   highway.    These  

                                                            children were visible from a distance and observed by other                                                                                                                                                                                        

                                                            drivers to be visible from a [distance].                                                                             

                                                                                          . . . .  

                                                                                         Missing probation officer appointments, having had at                                                                                                                                                                                 

                                                            least one or two hot UAs, these things happened prior to the                                                                                                                                                                                                 

                                                            accident.   The degree to which they may have contributed is                                                                                                                                                                                                       

                                                            speculation.   Possible that he was impaired[.]                                                                                                        

                                                                                          . . . .  

                                                                                         The conduct in question here was offensive.                                                                                                                                                               It's not   

                                                           what the community expects a driver to do, even if the driver                                                                                                                                                                                    

                                                            is not high or is not speeding.                                                                                                    The conduct here suggests the                                                                                             

                                                            driver knew that what he did was wrong and was trying to get                                                                                                                                                                                                 

                                                            away with it.                                              ...   I think it is offensive for drivers not to slow                                                                                                                                     

                                                            down when children are playing near a roadway.                                                                                                                             

                                                           Leaving the scene of an injury accident is a non-classified felony with a                                                                                                                                                                                                                                                        


sentencing range of 0 to 10 years.                                                                                                                                                                                                                                                                                                                                            

                                                                                                                                                              As noted, the court sentenced Smith to 7 years with  


3 years suspended.  This sentence appeal followed.  

               2             AS 28.35.060(a) & (c).  

                                                                                                                                                                                       - 4 -                                                                                                                                                                                   2487

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

           Why we remand for resentencing  


                     The judge's sentencing remarks strongly suggest that he found that Smith  


had not driven prudently, that Smith may have been impaired by drugs at the time, and  


that Smith fled the scene because he knew he was at fault for causing the accident.  The  


judge expressed his displeasure with drivers who fail to slow for children, implying that  


 Smith was among this group.  


                     Smith had earlier moved to dismiss the assault counts in the indictment,  


arguing that they were not supported by the grand jury testimony.  But the judge denied  


the motion, mistakenly interpreting the testimony as tending to prove that other drivers  


had been more careful than Smith.  He stated, "Witness Karl Ferlen testified that he had  


heard other drivers, shortly before this incident, slow down and honk at the kids playing  


near the road with a couple of dogs." (emphasis added) However, Ferlen did not testify  


that he heard vehicles slowing for the children.  He testified that he saw cars slow down  


to avoid several roaming dogs that were apparently with the children - but he never  


testified that cars otherwise slowed due to the proximity of children to the road.  


                     It is unclear whether the judge persisted in this mistaken reading of the  


evidence at the time of sentencing.  But the judge's sentencing remarks suggest that he  


considered Smith to be at fault for causing the accident and that he believed that Smith  


may  have  been  high  on  drugs.                    The  judge  did  not  explain  how  he  derived  these  


conclusions from the evidence, or how he squared this with the contrary conclusion of  


 Smith's expert characterizing the accident as unavoidable.  And the judge's remark that  


 Smith's flight "suggests" a consciousness of guilt for causing the accident adds to our  


unease that the judge may have increased Smith's sentence without a firm evidentiary  


basis; the judge did not discuss plausible alternative explanations for Smith's flight, such  


as the outstanding arrest warrant, or even simple panic.  


                                                               -  5 -                                                         2487

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

                            Given the ambiguity of the judge's remarks, which approach but stop just                                                                       

 short of an actual finding of fault, we are unable to discern whether he was merely                                                                               

 speculating that Smith might be at fault, or whether he reached a firm conclusion to that                                                                                 

 effect.   If the judge was merely speculating, he erred by injecting speculation into the                                               



 sentencing.   If, in contrast, he arrived at a firm conclusion that Smith was at fault, we  


 find that conclusion to be clearly erroneous.   We find no support in the record for a  


 conclusion that Smith's speed, driving, attentiveness, or state of sobriety rendered him  


 at fault for the accident.   Since we perceive a substantial possibility that the judge  


penalized Smith based on an unsupported finding of fault, we must vacate the sentence  


 and remand for resentencing.  


               Why we remand for the sentencing judge to strike speculative allegations  


             from the presentence report  


                            Smith filed written objections to several allegations lodged against him in  


the presentence report.  At the sentencing hearing, the judge acknowledged that these  


 allegations  were  unproven  and  speculative,  or  not  germane  to  sentencing,  but  he  


repeatedly refused to strike them from the report.  Smith appeals the court's refusal to  


redact the speculative allegations.  We agree that the court erred.  


                            For example, Smith objected to allegations in the presentence report that  


he flushed drugs down the toilet at a motel before he and two others were arrested.  The  


judge ruled that he did not intend to rely on the allegation.  The report also alleged that  


 Smith "consistently" failed urinalysis tests (he argued that he had failed only two tests).  


 The judge concluded he did not need to resolve the conflict.  

       3      See Donlun v. State, 550 P.2d 369, 371 (Alaska 1976);  Galaktionoff v. State, 486 P.2d   

 919, 924 (Alaska 1971).  

                                                                                    -  6 -                                                                               2487

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

                     Smith further objected to an allegation that he had a reputation as a drug  


dealer.  But the court overruled the objection because the implicit assertion that Smith  


was in fact a drug dealer could possibly be true:  


                     I  mean,  the  statement  may  well  be  true,  that  may  be  his  


                     reputation within local law enforcement. I take it that you are  


                     denying that he's a drug dealer.  Your denial is noted, but no  


                     change to the PSR.  


 Similarly, the report included an allegation that a drug user claimed that he could only  


stay clean if his dealer, Smith, was incarcerated; the judge discounted the allegation as  


self-serving and not worthy of belief.  


                     The report's author opined that Smith fled the scene because he was high  


on drugs, or because he was transporting them.  The court ruled:  


                     I'm not going to strike it.  I don't give particular credence to  


                     it.  The reason I'm not going to strike it is, if I understand  


                     correctly, [theauthor]wasthedefendant'sassigned probation  


                     officer, so he's got some basis more than Joe Blow on the  


                     street to have an opinion.   But his opinion is speculation,  


                     bottom line.  I'm not going to strike it from the evaluation  


                     portion of the PSR.  


Likewise, the report's author opined that "[i]f no one else was around to help and to  


notify  the  proper  authorities  then  there  would  have  been  a  good  chance  that  the  


Defendant's actions [in leaving the scene] could have cost this little girl her life."  The  


judge stated, "I see this just as speculation by the author," but "I'm not going to require  


that the PSR be changed."  


                     Smith also objectedto anallegation implicating himinahigh-speed vehicle  


chase by the Anchorage police.  The State had agreed to withdraw the allegation from  


a pending petition to revoke Smith's probation. But the judge both refused to rule on the  


                                                               -  7 -                                                         2487

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

defense objection to inclusion of the allegation in the presentence report and to redact the                                                                                                                                                                               


                                           In each oftheaboveinstances,                                                                   the judge either acknowledged the unproven                                                                  

and speculative nature of the allegation, or he declined to make a factual finding because                                                                                                                                                                 

he considered the matter to be irrelevant to sentencing.                                                                                                                                  Nonetheless, he repeatedly                              

refused   to   redact   the   challenged   assertions   from   the   presentence   report.     Because  

Criminal Rule 32.1(f)(5) requires a court to redact material that a judge finds to be                                                                                                                                                          

unproven or irrelevant, this was error:                                                                 

                                           The    court    shall    enter    findings    regarding    any    disputed  

                                           assertion in the presentence report. Any assertion that has not                                                                                                                      

                                          been    proved    shall    be    deleted    from    the    report    ...    .  

                                           Alternatively,   if   the   court   determines   that   the   disputed  

                                           assertion is not relevant to its sentencing decision so that                                                                                                                     

                                           resolution of the dispute is not warranted, the court shall                                                                                                                   

                                           delete   the   assertion   from   the   report  without   making   any  


                                           While a presentence report is an important document to a sentencing judge,                                                                                                                                            

it has an enduring impact on a defendant. The report may affect a defendant's life for the                                                                                                                                                                                 


duration of his incarceration and during his later probation or parole.                                                                                                                                                                                                 

                                                                                                                                                                                                                                  It is critical that  


the report be free of speculative allegations that unfairly characterize a defendant or that  


are groundlessly inflammatory.  Here, the sentencing judge failed to redact just this sort  


of material from Smith's presentence report.  Accordingly, we direct the judge to redact  


those allegations.  


                                           And although it is not a contested issue in this appeal, we note that by  


structuring the sentencing hearing as he did, the judge failed to follow Rule 32.1 in a  


different way. Even though the prosecutor pointed out that the defense objections would  

           4         See Davison v. State, 307 P.3d 1, 3 (Alaska App. 2013).  

                                                                                                                                   -  8 -                                                                                                                             2487

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

take considerable time to resolve and would require active participation by the State, the  


judge directed Smith's attorney to litigate his objections during the time allotted for  


defense counsel's sentencing argument, just prior to the court's imposition of sentence.  


But Rule 32.1 implicitly requires that objections to the presentence report be resolved  


before the parties present their sentencing arguments.  The parties are entitled to know  


the facts that the judge will consider prior to their arguments. Here the State had already  


completedits sentencing argument beforethesematters werelitigated. They should have  


been resolved at the outset of the sentencing hearing.  



                     We VACATE Smith's sentence and REMAND this case to the superior  


court for redactions fromthe presentence report and for resentencing. The superior court  


shall resolve these matters within sixty days from the date of this opinion. If at that point  


 Smith has objections to the presentence report or to the sentence imposed, he may file  


a supplemental brief within thirty days thereafter.  The State shall then have thirty days  


to file responsive briefing.  We retain jurisdiction.  


                                                               -  9 -                                                         2487

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

 Judge SUDDOCK, concurring.                                                                   

                                                                In the course of researching this opinion, I learned that I as a superior court                                                                                                                                                                                                                                                  

judge   have   labored   under   a   significant   misconception  about   how   challenges   to  

 allegations in a presentence report are to be resolved.                                                                                                                                                                                                   And my misconception extended                                                                                       

 beyond allegations in a presentence report to oral allegations made by probation officers,                                                                                                                                                                                                                                                                                        

 guardians ad litem, police officers, or victims.                                                                                                                                                                          I understood that such allegations could                                                                                                                            

 be taken as proved unless a defendant successfully controverted them via a testimonial                                                                                                                                                                                                                                                                         

 denial   under  oath.     I   now   realize   that   this   view   significantly   over-  simplifies   the  

 applicable law. Accordingly, I write to share my recently acquired understandings, that                                                                                                                                                                                                                                                                                                                

 they may perhaps aid judges or lawyers in dealing with these issues.                                                                                                                                                                                                                               

                                A defendant's objection to allegations at sentencing                                                                                                                                               

                                                                Alaska Criminal Rule 32.1(d)(5) requires that a defendant's objections to                                                                                                                                                                                                                                                                       

 allegations in a presentence report, or to other factual allegations that will foreseeably be                                                                                                                                                                                                                                                                                                                 

 raised at sentencing, be filed in advance of the sentencing hearing.                                                                                                                                                                                                                                                              A defendant who                                                  

 objects to the accuracy of a                                                                                           factual allegation must disclose "any information upon which                                                                                                                                                                                                         

 the defendant intends to rely to refute the objected-to information."                                                                                                                                                                                                                                                              Rule 32.1(f) then                                               

 provides for a hearing (which can take place prior to the sentencing hearing or at its                                                                                                                                                                                                                                                                                            

 outset).   Under Rule 32.1(f)(5), the court may make findings regarding each disputed                                                                                                                                                                                                                                                                                          

 assertion.     The   applicable   standard   is  proof   by   a   preponderance   of   the   evidence.1  


 Alternatively, a judge may decide that it is not necessary to resolve a factual conflict  



 because the outcome would not affect the sentence, and so it is irrelevant.                                                                                                                                                                                                                                                                                              The judge  


 must then redact or reject any allegation that is unproven or irrelevant.  The court must  

                  1             Brakes v. State, 796 P.2d 1368, 1373 n.5 (Alaska App. 1990).

                 2               Alaska R. Crim. P. 32.1(f)(5).

                                                                                                                                                                                                -  10 -                                                                                                                                                                                               2487

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

designate a redacted presentence report as the "approved version," and serve it on the                                                             

Department of Corrections within seven days of the sentencing hearing.                                                        3  


            The use of hearsay at sentencing  


                       Alaska case law also imposes an additional procedural safeguard regarding  


the use of hearsay at sentencing hearings, that of initial "verification."  As we explained  



in our recent unpublished decision in Nickoli v. State,                                              this term connotes at least a  


minimal confirmation of the reliability of the hearsay statement.  



                       Nickoli was charged with sexual abuse of a minor.                                               At sentencing, the  


child's guardian ad litem alleged previously undisclosed abuse by "men in [the child's]  



home on an ongoing basis."                          The judge overruled defense counsel's hearsay objection  


to this allegation and subsequently enhanced Nickoli's sentence because "it appears  



[sexual abuse by Nickoli] has happened before." 


                       We  reversed  Nickoli's  sentence,  noting  that  hearsay  allegations  at  


sentencing must rise to a minimal threshold level of corroboration or substantiation:  


                       In  Nukapigak  v.  State,  our  Supreme  Court  held  that  a  


                        sentencing judge is entitled to consider hearsay allegations of  


                       past bad behavior provided that the information is verified  


                        and  the  defendant  is  given  the  opportunity  to  deny  it  or  


                       present contrary evidence of his own.                                    The court defined  


                        "verified"   to   mean   "corroborated   or   substantiated   by  

      3     Id.  

      4     2014 WL 7005579 (Alaska App. Dec. 10, 2014) (unpublished).  

      5     Id. at *1.  

      6     Id. at *2.  

      7     Id. at **2-3.  

                                                                       - 11 -                                                                   2487

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

                         supporting data of information." The court further noted that                                             

                         "a   bare   accusation  or   the   mere   fact   of   an   arrest   is   not  

                         sufficient   to   support   a   conclusion   that   a   defendant   has  

                         previously   engaged   in   criminal   conduct."     However,   the  

                         threshold for verification remains low, and the "supporting                               

                         data or information" may be contained in the hearsay account                                      

                         itself,         provided               the       account              "appears              minimally  



Since the guardian ad litem in Nickoli had offered no credible source of her allegation,  


and since she had but vaguely referred to "the men" in the child's home,  her bare  


allegation stood unverified.  Because the State also offered no corroborating evidence,  


the judge could not rely on the allegation, even though the defense presented no rebuttal  


evidence, and certainly no testimonial denial under oath.  


            Integration  of  hearsay  challenge  procedures  and  the  requirements  of  


             Criminal Rule 32.1  


                         Thus Criminal Rule 32.1 should, as a practical matter, be read in light of the  


case law regarding "verification."                                   The first  procedural step  is a defense notice of  


objection to allegedly unverified hearsay.  Such an objection puts the State to its burden  


of corroboration or substantiation. As explained in Nukapigak v. State, "verification" is  


a term of art connoting a modest burden  on  the State to  minimally  corroborate or  



substantiate the allegation.                            Verification demonstrates that the allegation is neither  


unsupported speculation nor mere fiction.  Hearsay can be verified by its own internal  


content, as in the case of a detailed police investigative report.  

      8     Id.   at *3 (citing Nukapigak v. State, 562 P.2d 697, 701 (Alaska 1977)) (citations   


      9     Nukapigak, 562 P.2d at 701 n.2.  

                                                                           -  12 -                                                                        2487

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

                                   If a hearsay allegation is sufficiently corroborated or substantiated but the                                                                                                             

defendant wishes to challenge the allegation, the defense bears the burden of producing                                                                                                                   

evidence, which the State may controvert. The defense may challenge the allegation via                                                                                                                                       

a testimonial denial under oath by the defendant, but that is not the only avenue of                                                                                                                                           

challenge. Thedefensemayalso                                                         produceotherequivalentevidence,                                                            including testimony  

of other witnesses, testimony at the trial, or expert reports offered at sentencing.                                                                                                                                10  


                                   Thus, under Rule 32.1(f)(5), read together with the holding of Nukapigak,  


the court must redact or reject any challenged allegation if 1) the court finds that it rests  


on unverified hearsay, 2) the court finds the allegation, hearsay or non-hearsay, to be  


unproven after the defense has met its burden of providing testimonial evidence or its  


equivalent, or 3) the judge determines that the allegation is not relevant to sentencing or  



otherwise elects not to rely upon it. 


                                   During my pro tempore  assignment to the Court of Appeals, I have seen  


these issues arise with surprising frequency.   Trial courts are busy institutions, and  


resolution of challenged allegations can take substantial time. And the rules themselves  


are  not  particularly  intuitive,  especially  in  light  of  the  treatment  afforded  hearsay  


allegations under the holding of Nukapigak .   But these rules go to the heart of due  


process fairness at sentencing, and so the effort required to learn them and to apply them  


routinely, both on the part of judges and of attorneys, seems to me well worth the trouble.  

         10       Cleveland v. State, 258 P.3d 878, 886 (Alaska App. 2011);                                                                                        see also Davison                          , 307 P.3d  

 1, 4 (Alaska App. 2013).  

         11       Alaska R. Crim. P. 32.1(f)(5).  

                                                                                                           -  13 -                                                                                                       2487

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