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Terri Lorraine Chilcote v State of Alaska (7/31/2020) ap-2672

Terri Lorraine Chilcote v State of Alaska (7/31/2020) ap-2672

                                                    NOTICE
  

         The text of this opinion can be corrected before the opinion is published in the  

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         errors to the attention of the Clerk of the Appellate Courts:  



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                IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



TERRI LORRAINE CHILCOTE,  

                                                                    Court of Appeals No. A-13031  

                                    Appellant,                   Trial Court No. 3KN-16-01633 CR  



                           v.  

                                                                              O P I N I O N  

STATE OF ALASKA,  



                                    Appellee.                         No. 2672 - July 31, 2020  



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

                                    

                  Sharon A.S. Illsley, Judge, and Martin C. Fallon, Magistrate  

                                                             

                  Judge.  



                  Appearances:         Emily  L.  Jura,  Assistant  Public  Defender,  

                                                 

                  Quinlan Steiner, Public Defender, and Beth Goldstein, Acting  

                  Public Defender, Anchorage, for the Appellant.   Timothy W.  

                                                                                               

                  Terrell, Assistant AttorneyGeneral, Office of Criminal Appeals,  

                                                                            

                  Anchorage, and Kevin G. Clarkson, Attorney General, Juneau,  

                                                                              

                  for the Appellee.  



                  Before:  Allard, Chief Judge, and Wollenberg and Harbison,  

                  Judges.  



                  Judge HARBISON.  


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

                          Following a bench trial on stipulated facts, Terri Lorraine Chilcote was                                                              



                                                                                           1  

convicted of driving under the influence (DUI).                                                                                                                 

                                                                                              Chilcote had a prior misdemeanor DUI  



                                                                                                                                                                 

conviction from Virginia.  Over Chilcote's objections, the district court concluded that  



                                                                                                                                                                  

this conviction qualified as a "prior conviction" for sentencing purposes, increasing the  



                                                                                 2  

                                                                

applicable mandatory minimum sentence. 



                                                                                                                                                       

                          Chilcote appeals that decision, raising  two  arguments.                                                         First,  Chilcote  



                                                                                                                                                                  

argues that Virginia's two-tiered system for adjudicating low-level crimes violated her  



                                                                                                                                                                      

due process rights under the Alaska Constitution because it allows the possibility of a  



                                                                                                                                                                  

harsher sentence after the second-tier trial.  Second, she argues that the failure by the  



                                                                                                                                                

Virginia court to personally advise her of her right to a jury trial violated her fundamental  



                                                                           

rights under the Alaska Constitution.  



                                                                                                                                                    

                          For the reasons we explain in this opinion, we disagree with Chilcote's  



                                                                                                                           

arguments and we therefore affirm the judgment of the district court.  



                                     

             Procedural background  



                                                                                                                                        

                          Prior to sentencing, Chilcote argued that her prior DUI conviction from  



                                                                                                                                                     

Virginia did not qualify as a "prior conviction" for purposes of enhancing the applicable  



                                                                                                                                                    

mandatoryminimumsentence. Specifically,Chilcoteargued thather Virginiaconviction  



                                                                                                                                                              

was obtained in violation of her right to a jury trial because Virginia does not grant  



                                                                                                                                                      

defendants the right to a jury trial for a misdemeanor DUI unless they are first convicted  



       1     AS 28.35.030(a).  



      2      See  AS 28.35.030(b)(1)(B) (requiring the court to impose an increased mandatory   



minimum sentence if the person has been "previously convicted" once); AS 28.35.030(w)(4)           

(defining "previously convicted" as having been convicted in this or another jurisdiction of   

operating under the influence, refusal to submit to a chemical test, or operating a commercial  

vehicle  under  the   influence,  within  the  fifteen  years  preceding  the  date  of   the  present  

offense).  



                                                                               - 2 -                                                                           2672
  


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

at a bench trial and then appeal their conviction.                                                                                                          Chilcote also argued that even if                                                                   



Virginia's two-tier system was generally permissible under the Alaska Constitution, the                                                                                                                                                                     



conviction was nevertheless obtained in violation of her fundamental rights under the                                                                                                                                                                       



Alaska Constitution because she was not personally advised that she could obtain a jury                                                                                                                                                                



trial by appealing her conviction.                                                                    The district court rejected those arguments.                                                        



                    Limits on the use of out-of-state convictions to enhance the mandatory                                                                                                                     

                    minimum sentence under Alaska law                                                                   



                                        In Pananen v. State, this Court held that a trial court could not rely upon   



a previous out-of-state conviction to enhance the mandatory minimum sentence for an                                                                   



Alaska conviction when the defendant was not entitled to court-appointed counsel in                                                                                                                                                                            



                                                                                           3  

their out-of-state proceedings.                                                                                                                                                                                                                  

                                                                                                We reasoned that "an uncounseled conviction is simply  



                                                                                                                                                                                                                            

too unreliable to be depended on for purposes of imposing a sentence of incarceration,  



                                                                                                                                                                              4  

                                                                                                                                       

whether that sentence is imposed directly or collaterally." 



                                                                                                                                                                                                                                                   

                                        In State v. Peel, we extended Pananen to out-of-state convictions in which  



                                                                                                                                                5  

                                                                                                                                                                                                                                                            

the defendant was denied the right to a jury trial.                                                                                                  The State attempted to distinguish the  



                                                                                                                                                                                                                                 

right to counsel from the right to a jury trial, but we rejected that argument, determining  



                                                                                                                                                                                                                                                6  

                                                                                                                                                                                                     

that previous cases had concluded that both rights were "equally fundamental." 



          3         Pananen v. State, 711 P.2d 528, 532 (Alaska App. 1985). 
 



          4         Id.
  



          5         State v. Peel, 843 P.2d 1249, 1251 (Alaska App. 1992). 
 



          6         Id. (citing Baker v. City of Fairbanks, 471 P.3d 386, 395 n.14 (Alaska 1970)). 
 



                                                                                                                            -  3 -                                                                                                                      2672
  


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

                       In  Dep't of Public Safety v. Fann                    , the Alaska Supreme Court endorsed our                         



                                                                                                                7  

decisions in         Pananen   and  Peel   in a civil license revocation case.                                      Citing both cases  



                                                                                                                                          

favorably,  the  court  declared  that  "[i]f  an  out-of-state  [DUI]  conviction  truly  were  



                                                                                                                                               

entered in violation of a driver's fundamental rights, it would be manifestly unjust to  



                                                                                                                  8  

                                                                                              

allow that conviction to be used to enhance the license revocation." 



                                                                                                                               

                       Finally, in State v. Simpson, this Court considered whether a defendant's  



                                                                                                                                    

prior DUI conviction from another state was a prior conviction for sentencing purposes  



                                                                                                                                             

when that other state did not recognize a motorist's right to an independent chemical test  



                                       9  

                                                                                                                                         

of their breath or blood.                 We concluded that "even though the Alaska due process clause  



                                                                                                                                           

normally guarantees the right to an independent chemical test, the failure of another state  



                                                                                                                                            

to provide an equivalent guarantee does not bar the use of prior convictions from that  



                            10  

                                                                                                                                            

state in Alaska."               We reasoned that a denial of the right to counsel or the right to trial  



                                                                                                                                             

by jury rendered the trial process itself "fundamentally flawed," but the denial of the  



                                                                                                                                           

right to an independent chemical test, although a "firmly established and important right  



                                                                     11  

                                                           

in Alaska," did not have the same result. 



                                                                                                                                       

                       Reading these cases together, the current state of the law is that an out-of- 



                                                                                                                                              

state conviction obtained in violation of a defendant's "fundamental" rights under the  



                                                                                                                                           

Alaska Constitution cannot be used to enhance a defendant's minimum sentence on a  



      7    State,  Dep't  of  Pub.  Safety,  Div.  Of  Motor  Vehicles  v.  Fann,  864  P.2d  533,   537  



(Alaska 1993).  



      8    Id.  



      9    State v. Simpson, 73 P.3d 596, 597 (Alaska App. 2003).  



      10   Id. at 600.  



      11   Id. at 599.  



                                                                     - 4 -                                                                 2672
  


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

subsequent conviction in Alaska.                                                  But the only rights that have been recognized as                                      



fundamental in this context are the right to counsel and the right to a jury trial.                                                                                         



                               With this background in mind, we turn to Chilcote's arguments on appeal.                                                                                  



                Chilcote's argument that Virginia's two-tier system violates the Alaska                                                                                   

                right to a jury trial because it allows for increased punishment after retrial                                                                              



                               Chilcote's prior DUI conviction was from Virginia.                                                                          Virginia, like some               



                                                                                                                                                                            12  

other states, uses a two-tier system to adjudicate certain low-level offenses.                                                                                                                   

                                                                                                                                                                                  In the first  



                                                                                                                                                                                                            

tier, the case is tried before a judge, who makes findings of fact and renders a verdict.  



                                                                                                                                                                                               

If the judge finds the defendant guilty, the defendant has the right to a de novo jury trial,  



                                                                                    

as long as they file a timely appeal.  



                                                                                                                                                                             

                               Chilcote argued in the trial court that this system violated her fundamental  



                                                                                                                                                                                

right to a jury trial under the Alaska Constitution, and that her Virginia conviction  



                                                                                                                                                                                 

therefore could not be used to enhance her sentence in this case.  Although Chilcote's  



                                                                                                                                                                                       

argument on this point was brief, she appeared to be arguing that all two-tier systems  



                                                                                                                                                                      

violate the Alaska right to a jury trial because they require a defendant to be subjected  



                                                                                                                            

to a bench trial before exercising their right to a jury trial.  



                                                                                                                                                                                       

                               On appeal, however, Chilcote no longer argues that Virginia's two-tier  



                                                                                                                                                                                     

system violates the Alaska right to a jury trial.  Instead, Chilcote identifies a separate  



                                                                                                                                                                                                            

aspect of the Virginia system that she contends is unconstitutional under Alaska law.  



                                                                                                                                                                                                      

Chilcote notes that a Virginia defendant who has been convicted and sentenced at a  



                                                                                                                                                                                                

bench trial, and who then appeals that verdict and exercises their right to a jury trial, may  



        12      See Va. Code Ann.  16.1-123.1; 16.1-132; 16.1-136; see also Colten v. Kentucky                                                                                                         ,  



407 U.S. 104, 112-14 (1972) (explaining that such systems are designed to provide speedier  

and less costly adjudications).  



                                                                                               -  5 -                                                                                          2672
  


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

receive   a   harsher   sentence   if   they   are   convicted   by   the   jury.     She   argues   that   this  



possibility of a harsher sentence after a jury trial violates the Alaska Constitution's                                                           

guarantee of due process.                           13  



                                                                                                                                                                     

                           The State responds that we should review Chilcote's argument for plain  



                                                                                                                                                                           

error because her trial court pleadings only discussed Virginia's two-tier system in "a  



                                                                                                                                                                     

conclusory paragraph devoid of a single citation to authority." In other words, the State  



                                                                                                                                                                             

argues that Chilcote failed to preserve any challenge to Virginia's two-tiered system.  



                                                                                                                                                                         

                           We agree with the State that we should review Chilcote's argument for  



                                                                                                                                                          

plain error, but we disagree as to why.   Contrary to the State's assertion, Chilcote's  



                                                                                                                                                                           

argument in the trial court was not so deficient that it failed to preserve any challenge to  



                                                                                                                                                       

Virginia's two-tiered systemfor appeal. Although Chilcote's argumentwas abbreviated,  



                                                                                                                                                                         

she clearly articulated her objection - that Virginia's two-tiered system violated the  



                                                                                                                                                                  

right to a jury trial under the Alaska Constitution - and received a ruling on the merits.  



                                                                                                                                                                  

This was sufficient to preserve the argument that two-tiered systems, as a general matter,  



                                                                    14  

                                                                        

violate the Alaska jury trial right. 



                                                                                                                                                               

                           Chilcote, however, does notargueonappeal thatVirginia's systemviolated  



                                                                                                                                                                         

her right to a jury trial. Instead, she argues that Virginia's two-tiered system violated her  



                                                                                                                                                                          

right to due process under the Alaska Constitution because of the possibility of an  



                                                                                                                                                                         

enhanced punishment after retrial.  This last argument turns on different facts about the  



                                                                                                                                                    

nature of the Virginia judicial system and rests on a separate and distinct constitutional  



       13     Cf. Shagloak v. State                   , 597 P.2d 142, 145 (Alaska 1979) (prohibiting the imposition     



of a more severe sentence after a defendant appeals their conviction and receives a new trial).   



       14  

                      

             See Mahan v. State, 51 P.3d 962, 966 (Alaska App. 2002) (holding that to preserve  

                                                                                              

an argument for appeal the party must specify their grounds for objecting and obtain an  

adverse ruling).  



                                                                                   -  6 -                                                                             2672
  


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

right - the right to due process rather than the right to a jury trial.                                                                                             This argument was                     

not preserved for appeal and we therefore review it for plain error.                                                                                               15  



                                                                                                                

                                 We conclude that no plain error occurred in this case.  To establish plain  



                                                                                                                                                                                                          

error, "the error must be obvious, meaning that it should have been apparent to any  



                                                                     16  

                                                                                                                                                                                        

competent judge or lawyer."                                                The supposed error at issue here turns on the application  



                                                                                                                                                                                          

oftheAlaskaConstitution to Virginia's sentencinglaw. Given that Virginia's sentencing  



                                                                                                                                                                                                          

law was never discussed in the trial court proceedings, we can hardly say that any  



                                                                                                                                                                                                                      

competent  judge  or  lawyer  in  Alaska  would  have  recognized  the  supposed  error.  



                                                                                                                  

Chilcote has therefore failed to establish plain error.  



                                                                                                                                                                                     

                 Chilcote's argument that she was not advised of her right to a jury trial  



                                                                                                                                                                                                               

                                 In addition to arguing that Virginia's two-tier system violated her right to  



                                                                                                                                                                                                           

a jury trial, Chilcote also claimed that, during the Virginia proceedings, she was not  



                                                                                      17  

                                                                                                                                                                                                           

advised of her right to a jury trial.                                                        Chilcote argued that this was a violation of her  



         15     See Adams v. State, 261 P.3d 758, 763-64 (Alaska 2011).  



         16     Id. at 764 ("Plain error is an error that (1) was not the result of intelligent waiver or  



a tactical decision not to object; (2) was obvious; (3) affected substantial rights; and (4) was  

prejudicial.").  



         17     During an evidentiary hearing, Chilcote testified that she did not remember being   



advised of her right to a jury trial, and an attorney from Virginia testified that most judges                                      

in Virginia who take guilty or no contest pleas in DUI cases do not advise the defendant of   

their right to a jury trial.  

                On appeal, the State concedes that, assuming this testimony was credible (an issue not   

expressly ruled on below), Chilcote presented sufficient testimony to rebut the presumption                                                                

of regularity that attaches to an out-of-state conviction -                                                                              i.e., sufficient testimony for the   

district court to conclude that Chilcote had not been advised of her right to a jury trial.   

                The State's concession is supported bythe Montana Supreme Court's opinion in                                                                                                            State  

                                                                                                                                                                                    (continued...)  



                                                                                                    -  7 -                                                                                              2672
  


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

"fundamental" rights under the Alaska Constitution and that, accordingly, the Virginia                                                                                                                                                                                        



conviction could not be used to enhance her minimum sentence.                                                                                                                                                                  She repeats that same                                      



argument on appeal.                           



                                              The State argued in the trial court that it did not matter if Chilcote was                                                                                                                                                                     



advised of her right to a jury trial, as long as she did, in fact, have that right.                                                                                                                                                                                          In other   



words, the State argued that although a conviction that is obtained without affording a                                                   



defendant   the   right   to   a   jury   trial   prevents   the   use   of   the   conviction   to  enhance   a  



minimum   sentence,   the   same   is   not   true   of   a   conviction   that   is   obtained   without  



providing the defendant with an advisement of the right to a jury trial. The State claimed                                                                                                                                                                                       



that the former would be a violation of a "fundamental" constitutional right while the                                                                                                                                                                                                          



latter would not.                           



                                              On appeal, however, the State now agrees with Chilcote that under our                                                                                                                                                                            



existing case law (i.e.,  Peel and  Pananen) a failure to advise a defendant of their right                                                                                                                                                                             



to a jury trial is a violation of a fundamental right.                                                                                                                               But the State does not agree that                                                                        



reversal is warranted. Instead, it urges us to affirm Chilcote's sentence on the alternative                                                                                                                                                                           



ground that (according to the State)                                                                                        Peel  was wrongly decided to the extent that it held                                                                                                             



            17         (...continued)  



v. Ailport , in which that court held that similar evidence (the defendant not recalling whether  

                                                                                                                                                                                                                 

they were advised of a right to counsel, and an attorney from the jurisdiction stating that  

                                                                                                                                                                     

courts  did  not  uniformly  advise  defendants  of  this  right)  was  sufficient  to  rebut  the  

                                                                                                                                                                                                                                                                             

presumption of regularity.  State v. Ailport, 970 P.2d 1044, 1046-47 (Mont. 1998). Although  

                                                                                                                     

the State's concession is ultimately not relevant to our decision, we mention it here because,  

                                                                                                                                                                                                                                           

in Goins v. State, our parenthetical description of the holding in Ailport was inaccurate, and  

                                                                                                                                                                                                                                            

we wish to note our error.   Goins v. State, 2004 WL 1737602, at *4 n.29 (Alaska App.  

Aug. 4, 2004) (unpublished).  



                                                                                                                                              -  8 -                                                                                                                                         2672
  


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

that anything other than a violation of the right to counsel precludes reliance on a                                                                                                                

conviction for sentencing enhancement purposes.                                                                    18  



                                                                                                                                                                               

                               Before accepting a concession, we must first conclude that the concession  



                                      19  

                                                                                                                                                                                       

is well-founded.                             We cannot do that here.   Instead, in light of the supreme court's  



                                                                                                                                    

opinion in McGhee v. State, we conclude that the failure to advise a defendant of their  



                                                                                                                                                                                                    20  

                                                                                                                                                                                        

right to a jury trial prior to taking a guilty plea is not a violation of a fundamental right. 



                                                                                                                                                                                             

                               It is well-established in Alaska that a defendant must be advised of their  



                                                21  

                                     

right  to  a  jury  trial.                                                                                                                                                                      

                                                         But  neither  Peel  nor  Pananen  hold  that  a  violation  of  the  



                                                                                                                                                                               

advisement requirement precludes reliance on an out-of-state conviction for sentencing  



                                                                                                                                                                                         

purposes.  As we explained at the beginning of this opinion, Pananen held that a denial  



                                                                                                                                                                               

of the right to counsel precluded reliance on an out-of-state conviction for sentencing  



                                                                                                                                                                                                     

enhancement purposes; Peel reached the same conclusion for a denial of the right to a  



        18      The State also argues that both Peel  and Pananen were wrongly decided for a separate   



reason. According to the State, we should reconsider our holdings that the validity of an out-                                                                                           

of-state conviction should be assessed under the Alaska Constitution. The State asks that we   

instead announce a rule that would allow out-of-state convictions to be used to enhance the  

minimum sentence for an Alaska offense if the conviction was obtained in compliance with        

the federal constitution and the law of the issuing jurisdiction.                                                                        Our resolution of this appeal   

does  not  require  us  to  address  this  argument.    Moreover,   before  overturning  Peel   and  

Pananen, we would first have to overturn our decision in State v. Walker. In                                                                                         Walker, we held  

that an appellee cannot ask this Court to affirm a lower court's ruling on an alternative                                                                                       

ground when that ground would require this Court to overturn existing precedent.  State v.  

 Walker, 283 P.3d 668, 674-75 (Alaska App. 2012). But because our resolution of this appeal                                                                                      

does not require us to address whether                                                  Peel  and Pananen  were wrongly decided, we also   

need not address the State's request that, as a threshold matter, we should overturn our   

decision in  Walker.  



        19     See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972).  



        20     See McGhee v. State, 951 P.2d 1215, 1219 n.5 (Alaska 1998).  



        21     See Alaska R. Crim. P. 11(c)(2).  



                                                                                              -  9 -                                                                                         2672
  


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

jury trial           .   Neither case addressed whether a failure to                                                   advise  a defendant of their right                          



 to a jury trial is a violation of a fundamental constitutional right.                                                            



                              The supreme court, however, has addressed this issue and concluded that                                                                                 



 a failure to advise a defendant of their right to a jury trial before taking a guilty plea is                                                                                            



                                                                                                                      22  

 not   a violation of a fundamental constitutional right.                                                                                                                  

                                                                                                                             In McGhee v. State, McGhee  



                                                                                                                                                                                       

 argued,  inter  alia,  that  his  prior  DUI  conviction  was  obtained  in  violation  of  his  



                                                                                                                                                                      

 fundamental constitutional rights because the trial court failed to expressly advise him  



                                                             23  

                                                                                                                                                                          

 of his right to a jury trial.                                      The court, responding to this argument in a footnote,  



                                                                                                                                                                                           

 concluded that a failure to advise a defendant of their right to a jury trial was not a  



                                                                                                                                                                                  

 violation of a fundamental constitutional right but instead was only a "procedural flaw"  



                                                                                                                                                                             

 under Criminal Rule 11(c)(2) - the rule of criminal procedure requiring an express  



                                                                                 24  

                                                                                                                                                                                 

 advisement of the right to a jury trial.                                             The court further concluded that "[t]o the extent  



                                                                                                                                                                                       

 that the violation of Rule 11 might be characterized as constitution-related because the  



                                                                                                                                                                                          

 rule's advisement requirement effectuates the constitutional right to a jury trial, this is  



                                                                                                                                                                    25  

                                                                                                                                                                                                

 not the type of fundamental constitutional violation contemplated in Fann ."                                                                                             Thus, the  



                                                                                                                                                                                    

 supreme court has squarely held that a failure to advise a criminal defendant of their right  



                                                                                                                                          

 to a jury trial is not a violation of a fundamental constitutional right.  



                                                                                                                                                                          

                              In light of McGhee, we must reject the State's concession that a violation  



                                                                                                                                                                                  

 of the advisement requirement is a violation of a fundamental constitutional right under  



                                                                                                                                                  

 Peel and Pananen .  In concluding that we are bound by McGhee, however, we do not  



                                                                                                                                                                           

 mean to suggest that we would necessarily reach the opposite holding if the question  



        22      See McGhee, 951 P.2d at 1219 n.5.  



        23     Id. at 1219.  



        24     Id. at 1219 n.5.  



        25     Id.  



                                                                                         -  10 -                                                                                    2672
  


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

were presented to us as an issue of first impression.                                              There are good reasons to conclude                 



that a failure to advise a defendant of their right to a jury trial does not make a guilty plea                                                                 



"fundamentally flawed," and therefore should not be treated as a fundamental right for                                                                            



                                                                                                                                                                    26  

purposes of determining whether a prior conviction may be used to enhance a sentence.                                                                                    



                                                                                                                                                                   

                          As we discussed in Simpson v. State, one useful point of comparison in  



                                                                                                                                                                 

determining whether there has been a violation of a fundamental right is whether the  



                                                                                                                                27  

                                                                                                                                                                     

right in question has been applied retroactively since its adoption.                                                                 As we noted, if a  



                                                                                                                                                           

violation of the right in question rendered any resulting conviction fundamentally unfair,  



                                                                  

the rule would have been applied retroactively.  



                                                                                                                                                 

                          Alaska has never expressly considered whether its advisement requirement  



                                         28  

                

applies retroactively.                                                                                                                              

                                              But federal courts have considered whether closely analogous  



                                                                                                                

rules apply retroactively and have concluded that they do not.  



                                

                          In McCarthy v. United States, the United States Supreme Court held that  



                                                                                                                                                                   

when a district court accepts a guilty plea and fails to fully comply with Federal Rule of  



                                                                                                                                                      

Criminal Procedure 11 (the federal analogue to Alaska Criminal Rule 11, similarly  



                                                                                                                                                               

designed to ensure that a defendant's plea is voluntary and intelligent), the guilty plea  



                                                                                                                    29  

                                                                                                                                                    

                                                                                                                          Shortly after McCarthy  

must be set aside and the case remanded for another hearing. 



                                                                                                                                                               

was decided, the Supreme Court issued  Halliday v.  United  States,  which  held that  



      26     See Simpson v. State, 73 P.3d 596, 599 (Alaska App. 2003) (holding that the failure  



to advise of the right to an independent chemical test does not implicate a fundamental right).  

                       



      27     Id. at 600.  



      28     See Swenson v. Anchorage, 616 P.2d 874, 879 (Alaska 1980) (holding that a Rule 11  



violation was subject to a case-specific inquiry, similar to other non-constitutional errors).  



      29     McCarthy v. United States , 394 U.S. 459, 468-472 (1969).  



                                                                              -  11 -                                                                         2672
  


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

                                                                                                                                                                       30  

McCarthy  did not apply to pleas accepted prior to the date                                                              McCarthy  was issued.                              The  



Court reasoned that although "strict compliance with Rule 11 enhances the reliability of                                                                                         



the voluntariness determination, . . . a defendant whose plea has been accepted without                                                                              



full compliance with Rule 11 may still resort to appropriate post-conviction remedies to                                                                                         



                                                                 31  

                                                                                                                                                              

attack his plea's voluntariness."                                     Thus, the Court concluded that retroactive application  



                                                                                                                                                                              

of the prophylactic requirements of Rule 11 was not necessary because the defendant had  



                                                                                                                                                             

another mechanism to correct a violation of the underlying constitutional right being  



protected.  



                                                                                                                                                                           

                            In Boykin v. Alabama, the Supreme Court held that it was error for a state  



                                                                                                                                                                   

court to accept a guilty plea to a robbery charge without an affirmative record showing  



                                                                                                                32  

                                                                                                                                                                           

that the plea was made intelligently and voluntarily.                                                                  This affirmative record must  



                                                                                                                                                                          

demonstrate, inter alia, that the defendant was aware of and voluntarily waived three  



                                                                                                                                                                               

important constitutional rights: the privilege against compulsory self-incrimination; the  



                                                                                                                            33  

                                                                                                                                                                   

right to trial by jury; and the right to confront one's accusers.                                                                Drawing on the Supreme  



                                                                                                                                                                       

Court's  refusal  to  apply  McCarthy  retroactively  in  Halliday,  federal  circuit  courts  



                                                                                                                                                                                

subsequently  reached  the  same  conclusion  about  the  "closely  parallel  question"  of  



                                                                                         34  

                                                                                                                                                                       

                                                                                              The refusal to apply McCarthy and Boykin  

whether Boykin should apply retroactively. 



       30     Halliday v. United States, 394 U.S. 831, 833 (1969).  



       31     Id. at 832-33.  



       32     Boykin v. Alabama, 395 U.S. 238, 242-44 (1969).  



       33     Id. at 243.  



       34     Perry v. Crouse, 429 F.2d 1083, 1085 (10th Cir. 1970); see also United States v.  



               

 White, 997 F.2d 1213, 1216 (7th Cir. 1993); Dominguez v. Henderson, 447 F.2d 207, 209  

(5th Cir. 1971);  United States ex rel. Rogers v. Adams, 435 F.2d 1372, 1373-75 (2d Cir.  

                                                                                                                             

 1970); United States ex rel. Hughes v. Rundle, 419 F.2d 116, 118 (3d Cir. 1970); Smith v.  

                                                                                                                                                          (continued...)  



                                                                                    -  12 -                                                                                2672
  


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

retroactively suggests that a failure to advise a defendant of their right to a jury trial does                                                                                                                                                                                                                  



not render any resulting guilty plea fundamentally flawed.                                                                                                                                   



                                                  The analysis in                                          McGhee  is brief and relegated to a footnote, but we are no                                                                                                                                                   



less bound by its holding, and the federal line of cases discussed in the previous two                                                                                                                                                                                                                             



paragraphs suggest that this holding was correct.                                                                                                                                      For these reasons, we must reject the                                                                                           



 State's concession that a failure to advise a defendant of their right to a jury trial is a                                                                                                                                                                                                                                  



violation of a "fundamental right" under the Alaska Constitution such that the conviction                                                                                                                                                                                                  



cannot be used for sentencing enhancement purposes in Alaska.                                                                                                                                                                                  Because we reject the                                                   



 State's concession on this point and conclude that                                                                                                                                       McGhee  controls, we need not reach                                                                                 



the State's alternative argument for affirmance that                                                                                                                                                Pananen   and  Peel  were wrongly   



decided.   



                         Conclusion  



                                                  The judgment of the district court is AFFIRMED.  

                                                                                                                                                                                          



             34          (...continued)  



 Cox, 435 F.2d 453, 457 (4th Cir. 1970), vacated on other grounds by Slayton v. Smith, 404  

                                                                                                                                                                                                                                                                                                                     

U.S. 53 (1971); Meller v. Missouri , 431 F.2d 120, 124 (8th Cir. 1970); Moss v. Craven , 427  

F.2d 139, 140 (9th Cir. 1970).  



                                                                                                                                                       -  13 -                                                                                                                                                    2672
  

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