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Lane v. State (9/16/2016) ap-2519

Lane v. State (9/16/2016) ap-2519


             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@  

                             IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                   



                                                                                                    Court of Appeals No. A-11019  


                                                     Appellant,                                 Trial Court No. 3AN-08-13841 CR  


                                                                                                                 O  P  I  N  I  O  N  



                                                     Appellee.                                    No. 2519 - September 16, 2016  


                          Appeal   from  the   Superior   Court,  Third  Judicial                                                District,  


                          Anchorage, Michael R. Spaan, Judge.  


                          Appearances:  Dan S. Bair, Assistant Public Advocate, Appeals  


                          and  Statewide  Defense  Section,  and  Richard  Allen,  Public  


                          Advocate, Anchorage, for the Appellant.   Timothy W. Terrell,  


                          Assistant   Attorney   General,   Office   of   Criminal   Appeals,  


                          Anchorage, and Craig W. Richards, Attorney General, Juneau,  


                          for the Appellee.  Renee McFarland, Assistant Public Defender,  


                          and Quinlan Steiner, Public Defender, Anchorage, for  amicus  


                          curiae Alaska Public Defender Agency.  


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


                          District Court Judge.*  




                          Judge MANNHEIMER.  

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

Constitution and Administrative Rule 24(d).                            

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

                                            At the conclusion of a jury trial, the defendant in this case, Lennie Lane III,                                                                                                                                                   

 was   found   guilty   of   first-degree   sexual assault,                                                                                                    second-degree   physical assault,                                                                           and  

 evidence tampering.                                                

                                            Following the trial, but prior to sentencing, Lane's attorney filed a motion                                                                                                                                      

 asking the superior court to make a post-verdict finding (under the procedures set forth                                                                                                                                                                               

 in AS 12.47.060) that Lane was "guilty but mentally ill".                                                                                                                              

                                            Prompted   by   the   defense   attorney's   motion,   the   superior   court   held   a  

 hearing at which the court heard testimony from the psychologist who had previously                                                                                                                                                                  

 examined   Lane.     But   more   importantly,   the   prosecutor   and   Lane's   attorney   both  

 stipulated  that Lane should be found guilty but mentally ill.                                                                                                                                      Based on the attorneys'                         

 stipulation,   the   superior court declared Lane to be guilty but mentally ill.                                                                                                                                                                    And later,   

 following Lane's sentencing, the superior court incorporated this finding into its written                                                                                                                                                                      

judgement - adding the words:                                                                              "The Court has                                          determined that the [d]efendant is                                                                             

 [g]uilty, but mentally ill."                                                      

                                            Because   of   the   court's   "guilty   but   mentally   ill"   finding,   Lane   became  

 statutorily entitled to mental health treatment while he is in prison (as long as he remains                                                                                                                                                                  

                                                                                                                                                               1  But at the same time, because of this  

 dangerous because of a mental disease or defect).                                                                                                                                                                                                                           

 finding, Lane suffered a significant legal detriment:  he became ineligible for parole or  


 furlough release as long as he is receiving  this mental health treatment,  and he will  


 potentially face a petition for involuntary mental commitment when he completes his  



 sentence of imprisonment.  


                                            Because  of  these  adverse  consequences  of  a  "guilty  but  mentally  ill"  


 verdict, this Court examined the record to make sure that Lane had knowingly concurred  


            1         AS 12.47.050(a)-(b);                                              State v. Clifton                                , 315 P.3d 694, 699 (Alaska App. 2013).                                                                                      



                      AS 12.47.050(d)-(e); Clifton, 315 P.3d at 699.  

                                                                                                                                      - 2 -                                                                                                                                2519

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in his attorney's request for the superior court to enter this verdict.  The record showed  


just the opposite.  


          A description of how this issue was litigated in the superior court  


                     As we described earlier,  the superior court held a hearing after Lane's  


attorney  filed  a  post-trial motion  asking the  superior  court  to  find  Lane  guilty  but  


mentally ill.   At this hearing, the prosecutor expressed surprise at the unusual circum- 


stance that a defendant would ask the court for a guilty but mentally ill verdict - since,  


in the words of the prosecutor,  such verdicts are "[generally] viewed as a negative,  


because a [defendant] who is guilty but mentally ill ... is not eligible for discretionary  


parole." The prosecutor suggested that "perhaps [we should get] a few words from [the]  




                     But  instead of addressing Lane personally,  the superior court spoke  to  


Lane's attorney, asking him if it was "[his] goal" to have the court find Lane guilty but  


mentally ill.  Lane's attorney confirmed that this was, indeed, his goal - and he asked  


the court to make that finding "right now", without waiting for any further psychiatric  


evaluations, to "foreclose any possibility that the doctors would not find [Lane] to be  


mentally ill."  


                     The superior court then heard testimony from the psychologist who had  


previously examined Lane.  The psychologist told the judge that she diagnosed Lane as  


having a delusional disorder - and that, with this diagnosis, Lane fit the legal definition  


of "guilty but mentally ill".  


                     Immediately after the psychologist offered the opinion that Lane might  


properly  be  found  guilty  but  mentally  ill,  the  following colloquy  occurred  between  


Lane's attorney, the court, and Lane himself:  

                                                               - 3 -                                                          2519

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          Defense Attorney : I'll accept that.  [To Lane:]  Do you  


want to accept that?  


          Lane :  What's that?  


          Defense Attorney :  Would you like the court now to  


determine that you're mentally ill, so you can be sentenced  


under that statute?  


          Lane :   Well,  I'd like to give  this  -  I've got some  


letters here.  I don't understand what's being said.  But I've  


got some letters I want the judge to look at, since I have filed  


an  attorney  grievance  [against  you]  pertaining  to  [your]  


conduct during trial.  


           The Court:  Okay.   Mr. Lane, ... we [have] vacated  


your  sentencing.   We'll get it [rescheduled] as soon as  we  


can.      I will make the finding,  based on the testimony and  


materials I have, that Mr. Lane is guilty but mentally ill.  


            Now, as far as the grievance with your lawyer, you  


could  file an appeal [raising] ineffective representation, [or  


you could] contact the Bar Association.  But giving me some  


letters - there's nothing I could do with them right now,  


because Mr. Buchholdt is ably representing you at this point,  



          Lane :  Well, ... my case is still in review, and I'm just  


- and I had another attorney that wanted to be here ... for a  


merit appeal or post-conviction relief.  


           The Court:   Okay.              But  ...  [w]e've got to [enter] a  


judgment before you could appeal, okay?  


          Lane :  So ... when are you saying that you would like  


to sentence me?  ...  I'd rather not do it today.  I'd rather be  

                                           - 4 -                                                          2519

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


                    committed back to the hospital.   If you can hear me out on  




                               The Court: Well, look, here's what's going to happen.  


                     ...    Once  I  enter  the  judgment  and  find  you  guilty  but  


                    mentally ill, the statutes provide that you need to be provided,  


                    and must be provided, mental health help.   Now, it doesn't  


                    provide  that  you  necessarily  are  going to  be  in  API  [the  


                    Alaska        Psychiatric         Institute].          The       Department            [of  


                    Corrections] could have you in custody and provide those  


                     services.  [Addressing the psychologist, who was still on the  


                    phone:]  Am I correct, Doctor?  


                              Psychologist : He would not be [at API].  He would be  


                    in [Department of Corrections] custody.  


                               The Court: Okay.  But the services would be provided  


                    to him.   ...  [And being sentenced is] going to make it easier  


                    for you to get to the startingline as far as any appeal or ... any  


                    other post-conviction relief matters, once there's a judgment.  


                     ...  So you tell me what you want to do.  


                              Lane :  I'm not prepared to go to sentencing today.  


                               The Court:  Very good.  


                    This was the last that anyone said about the "guilty but mentally ill" verdict  


at the hearing.  


                    This  record  does  not  show  that  Lane  made  a  knowing  and  voluntary  


decision to have his attorney ask the court to enter a verdict of "guilty but mentally ill".  


The only time that Lane personally said anything about this issue was in the portion of  


the proceedings that we have just quoted - when Lane's attorney asked him if he was  


willing to accept the psychologist's opinion that he should be found guilty but mentally  

                                                               - 5 -                                                          2519

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

ill.   Lane responded to his attorney's question by saying that he did not understand what                                                                                                                                            

his attorney was talking about - and that he wished to complain about the quality of his                                                                                                                                                   

attorney's representation.                                               

                                      Almost immediately after Lane made these comments, and despite the fact                                                                                                                             

that Lane                      had just declared that he did not understand what his attorney was talking                                                                                                                        

about, the judge announced that he was finding Lane guilty but mentally ill.                                                                                                                                         

                    Why we reverse the superior court's ruling that Lane should be adjudged                                                                                                            

                   guilty but mentally ill                                

                                                                                                                                                       3                                                                                    4  

                                                                                                                                                           and in several earlier cases,                                                         a  

                                      As this Court noted in                                             State v.                Clifton                                                                                                        

finding that a defendant is guilty but mentally ill is "a new type of verdict in criminal  


cases" - a novel verdict created by the legislature in 1982 when it enacted AS 12.47,  


the  chapter  relating  to  mental  illness  and  criminal  responsibility. 5                                                                                                                                 In  particular,  


AS 12.47.040, AS 12.47.050(a), and AS 12.55.145(f) allspeak of the "verdict" of "guilty  


but mentally ill".  


                                      As we explained in  Clifton, a "guilty but mentally ill"  verdict rests on a  


finding of fact  over  and  above the specific elements of the defendant's crime - an  


additional finding that, because of mental disease or defect, the defendant "lacked the  


substantial capacity either to appreciate the wrongfulness of their conduct or to conform  


their conduct to the requirements of law."  Clifton, 315 P.3d at 700-01.  


          3        Clifton, 315 P.3d at 697, 699-700.                                                              

         4         See, e.g., Lord v. State , 262 P.3d 855, 856 (Alaska App. 2011); Lewis v. State , 195  


P.3d 622, 637 (Alaska App. 2008).  


          5        See  SLA 1982, ch. 143,  22.                                                   

                                                                                                                    - 6 -                                                                                                               2519

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                                       In the present case, Lane did not enter a "guilty but mentally ill" plea before                                                                                                                   

trial, nor was he found "guilty but mentally ill" by the jury at his trial.                                                                                                                          Instead, Lane was                         

simply found "guilty" at his trial - and then Lane's attorney filed a post-trial motion                                                                                                                                               

under AS 12.47.060, asking the superior court to enter "guilty but mentally ill" verdicts                                                                                                                                           

instead of the "guilty" verdicts that the jury had reached.                                                                                                            

                                       This is the first time that this Court has encountered a post-trial defense                                                                                                                  

request for a verdict of "guilty but mentally ill", and it is not clear how to categorize such                                                                                                                                               

a   request   for   purposes   of   criminal   procedure.     When   we   asked   the   parties   for  

supplemental briefing on this issue, we suggested that Lane's attorney was offering to                                                                                                                                                              

                                                                                                                                                                                     6      However,  the Public  

have Lane enter a post-trial plea of "guilty but mentally ill".                                                                                                                                                                        

Defender Agency (appearing as amicus curiae) suggests that Lane's attorney was not  


offering a plea, but was rather offering to have Lane waive his right to jury trial on the  


additional finding that distinguishes a verdict of "guilty but mentally ill" from a verdict  


of "guilty".  


                                       To decide Lane's case, we need not definitively resolve whether Lane's  


attorney's action should be viewed as an offer of a plea or, instead, as a waiver of Lane's  


right to jury trial on the element that distinguishes a verdict of "guilty but mentally ill"  


from a verdict of "guilty". Under both views, the proceedings in the superior court suffer  


from the same flaw:  the court failed to obtain Lane's personal and knowing approval of  


the defense attorney's proposed waiver of Lane's procedural rights.  


                                       If the defense attorney's action is viewed as an offer of a plea, the superior  


court failed to abide by the provisions of Alaska Criminal Rule 11(c).  This rule requires  


a  court  to  address  the  defendant  personally   to  make  sure  that  the  defendant  


(1)  understands  what  allegations  they  are  conceding,  (2)  understands  the  general  


          6        Lane v. State                        , unpublished, 2015 WL 428340, *6 (Alaska App. 2015).                                                                                                        

                                                                                                                       - 7 -                                                                                                                   2519

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consequences of making that concession, and  (3) understands that they are giving up  


their  right  to  jury  trial  and  their  right  to  demand  that  the  government  prove  the  


allegations beyond a reasonable doubt.  


                    The superior court did none of that here.   Even though Lane's attorney  


proposed an action that would deprive his client of the possibility of discretionary parole  


or furlough so long as Lane continued to suffer from mental illness, the superior court  


never asked Lane if he understood this, and if he concurred in his attorney's request.  


Indeed,  the  superior  court  granted  the  attorney's  request  even  though,  during  the  


discussion of the plea, Lane openly declared, "I don't understand what's being said."  


                    It  is  true  that  Criminal Rule  11(c)  speaks  only  of  pleas  of  guilty  and  


no contest.  But Criminal Rule 11 was formulated at a time when there was no verdict  


of "guilty but mentally ill".  If the defense attorney's action in this case is viewed as a  


post-trial offer of a plea of "guilty but mentally ill",  the provisions of Criminal Rule  


11(c) would apply to that offer.  


                     (See also Alaska Professional Conduct Rule 1.2(a), which declares that a  


defense attorney in a criminal case "shall abide by [their] client's decision ... as to [the]  


plea  to  be entered".              Here,  the record indicates that Lane did not even understand  


what his attorney was doing when the attorney asked the court to find Lane guilty but  


mentally ill.)  


                    Alternatively,  if the defense attorney's action in this case is viewed as a  


proposed waiver of Lane's right to jury trial on the element that distinguishes a verdict  


of "guilty but mentally ill" from a verdict of "guilty", the superior court failed to abide  


by the procedural requirements that apply to such partial waivers of the right to jury trial.  


                    As  we  spelled out in  Tallent v. State, 951 P.2d 857, 865 (Alaska App.  


1997), and McGlauflin v. State, 857 P.2d 366, 368-69 (Alaska App. 1993), when a  


defendant proposes to waive their right to jury trialon one or more elements of a charged  

                                                               - 8 -                                                          2519

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


offense, this waiver can not be made through counsel.  It must be made by the defendant  


personally - and the court can not accept the defendant's waiver until the  court has  


ascertained that the defendant understands the right that is being waived.  



                    Because the superior court failed to address Lane personally and verify that  


Lane understood and assented to his attorney's action, we REVERSE the portion of the  


superior court's judgement which declares Lane to  be "guilty but mentally ill".                                             We  


direct the superior court to amend the judgement so that it reflects only the jury's verdicts  


of "guilty".  


                    We further direct the superior court to immediately notify the Department  


of Corrections of this change in Lane's status.  

                                                              - 9 -                                                         2519

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