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Howarth v. Public Defender Agency (11/8/96), 925 P 2d 1330
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Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the
attention of the Clerk of the Appellate Courts, 303 K Street,
Anchorage, Alaska 99501, phone (907) 264-0607, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
WILLIAM HOWARTH, SR., )
) Supreme Court No. S-4333
Appellant, )
) Superior Court No.
v. ) 2KB-88-60 CI
)
STATE OF ALASKA, PUBLIC ) O P I N I O N
DEFENDER AGENCY and )
EDWARD J. WELCH, )
)
Appellees. ) [No. 4421 - November 8, 1996]
______________________________)
Appeal from the Superior Court of the State of
Alaska, Second Judicial District, Kotzebue,
Charles R. Tunley, Judge.
Appearances: William J. Donohue, William J.
Donohue, P.C., Anchorage, and C. R. Kennelly,
Stepovich, Kennelly & Stepovich, P.C.,
Anchorage, for Appellant. Venable Vermont,
Jr., Assistant Attorney General, Anchorage,
and Charles E. Cole, Attorney General, Juneau,
for Appellees.
Before: Rabinowitz, Chief Justice, Matthews
and Compton, Justices.
MATTHEWS, Justice.
COMPTON, Justice, dissenting.
William Howarth appeals from the superior court's grant
of summary judgment against him in a malpractice suit which he
brought against his former attorney, Edward Welch, and the Public
Defender Agency.
I. FACTS AND PROCEEDINGS
Howarth was arrested and charged with the first degree
sexual assault of L.M. on May 30, 1981. Welch, an employee of the
Public Defender Agency, was assigned to represent him. Howarth
entered a plea of nolo contendere to the crime charged and was
sentenced to a prison term of ten years on September 9, 1981.
Howarth was still serving this sentence when, on March 3, 1988, the
superior court granted his motion permitting him to withdraw his
plea. The superior court based its order on a finding that Welch
had ineffectively counseled Howarth by failing to discuss with
Howarth certain laboratory and medical evidence.
When Howarth was permitted to withdraw his plea of nolo
contendere, he remained under indictment for first degree sexual
assault. Pending trial, Howarth pled nolo contendere to a reduced
charge of second degree sexual assault pursuant to a plea agreement
with the State. Under the plea agreement, the State would seek no
more than a six-year sentence. Howarth was released from custody,
since he had already served nearly seven years. On June 24, 1988,
Howarth was sentenced to a prison term of four years on his nolo
contendere plea to the charge of sexual assault in the second
degree. He was given credit for time served.
Subsequently Howarth sued Welch and the Public Defender
Agency for negligence in connection with his representation. The
defendants answered and moved for summary judgment. After Howarth
filed his opposition to the motion for summary judgment the trial
court granted the motion. Howarth appeals.
The superior court issued a written opinion with its
order granting summary judgment. The court concluded that the
proximate cause of Howarth's damage -- his time in jail -- was his
plea of nolo contendere to the charge of sexual assault in the
second degree of May 4, 1988. The superior court also found that
Howarth was precluded from contesting his guilt of sexual assault
in the second degree which had been established by that plea. The
court also found "as a matter of public policy the courts of this
state should not entertain [legal malpractice] actions brought by
one who had plead no contest to a serious crime and a conviction
entered thereon."
II. DISCUSSION
A. Contentions of the Parties
On appeal Howarth raises three arguments: (1) genuine
issues of material fact exist concerning Howarth's guilt and the
negligence of Welch; (2) the nolo contendere plea entered by
Howarth in 1988 to the charge of sexual assault in the second
degree was not the proximate cause of his damages; and (3) the nolo
contendere plea to the charge of sexual assault in the second
degree was not an admission of guilt binding on Howarth in this
case.
In response the State argues: (1) the trial court
correctly found Howarth to be estopped from contesting that he was
guilty of second degree sexual assault; (2) the conviction of
second degree sexual assault was the proximate cause of Howarth's
damages; and (3) public policy considerations preclude a convicted
criminal from shifting the loss occasioned by the criminal's
sentence to another person or entity who might otherwise be liable.
B. Summary
We generally agree with the State's contentions.
Summarized, our rationale is as follows:
1. Howarth stands convicted of second degree sexual
assault.
2. Howarth's acts which gave rise to this conviction
are, as a matter of law, a legal cause of the seven years he has
served in prison.
3. Howarth is barred by the doctrine of collateral
estoppel from denying that he committed the acts which are the
constituent elements of his second degree sexual assault
conviction.
4. One whose incarceration results from his own
intentional acts may not receive a damage award for the
incarceration from another whose negligence also caused or
contributed to the incarceration.
5. Since Howarth's act of second degree sexual assault
was a cause of his incarceration and he is precluded from denying
that he committed the act, he may not recover.
We proceed to discuss these points.
C. The Conviction
Howarth stands convicted of the crime of sexual assault
in the second degree, a violation of AS 11.41.420(a). (EN1) The
elements of this crime are an intentional sexual contact with
another person coerced by threat of death or physical injury.
Sexual assault in the second degree is a class B felony. AS
11.41.420(b). A person convicted of a class B felony may be
sentenced to a term of imprisonment of not more than ten years.
The presumptive term for a defendant such as Howarth who has a
prior felony conviction is four years. AS 12.55.125(d)(1). The
presumptive term may be decreased to no prison time at all for
factors in mitigation or increased to the maximum term of ten years
for factors in aggravation. AS 12.55.155. Two factors in
aggravation (EN2) and one in mitigation (EN3) were potentially
applicable to Howarth's crime.
D. Howarth's Act of Intentional Sexual Assault was a Legal
Cause of His Incarceration
In reviewing decisions in which summary judgment has been
granted we take that view of the facts most favorable to the
appellant in order to determine whether under the facts as so
construed the appellee was entitled to judgment. Hawks v. State,
Dep't of Public Safety, 908 P.2d 1013, 1015 (Alaska 1995).
Accordingly, for purposes of analysis we assume (1) that Howarth
was negligently represented by Welch and (2) that this negligence
was a cause of Howarth receiving and serving a seven-year sentence
rather than a four-year sentence. (EN4) The question is whether
the State is liable for this additional period of three years.
We answer this question in the negative. There were two
causes for Howarth's service of the additional three-year period.
One was Welch's assumed negligence. The second was Howarth's act
of intentional non-consensual sexual contact with his victim -- his
crime of second degree sexual assault. That this intentional
criminal conduct was, as a matter of law, a legal cause of the
entire seven-year period of imprisonment becomes clear upon review
of the principles of legal causation.
As we recently explained in Vincent by Staton v.
Fairbanks Memorial Hospital, 862 P.2d 847, 851 (Alaska 1993), legal
cause encompasses two concepts. The first is actual causation, or
"but for"cause: "The defendant's conduct is a cause of the event
if the event would not have occurred but for that conduct;
conversely, the defendant's conduct is not a cause of the event if
the event would have occurred without it." Id. (quoting W. Page
Keeton et al., Prosser and Keeton on Torts  41, at 263 (5th ed.
1984)). The second element of legal cause is founded in legal
policy. It asks "whether the conduct has been so significant and
important a cause that the defendant should be legally
responsible." Id. (quoting Prosser and Keeton on Torts  42, at
273). We also used another form of expression for the legal policy
element in Vincent:
If the force [the defendant] set in motion,
has become, so to speak, merged in the
general forces that surround us, [or has]
"exhausted itself"like a spent cartridge, it
can be followed no further. Any later
combination of circumstances to which it may
contribute in some degree is too remote from
the defendant to be chargeable to him.
Id. at 851 n.8 (citing Jeremiah Smith, Legal Cause in Actions of
Tort, 25 Harv. L. Rev. 103, 112 (1911)).
Applying these tests to this case it is evident that
Howarth would not have been imprisoned for seven years had he not
sexually assaulted L.M. Thus the "but for"element of legal cause
is satisfied. His sexual assault of L.M. was also a significant
and important cause of his full imprisonment. The force he set in
motion with his sexual assault in no sense became exhausted or
remote after he served the first four years of his sentence. The
maximum lawful sentence he could have received for his crime was
ten years and the seven years he served was well within this limit.
E. Collateral Estoppel Prohibits Howarth From Denying that
He Committed the Acts Which Are the Essential Elements of
Second Degree Sexual Assault
Howarth is precluded by his plea of nolo contendere to
second degree sexual assault from denying the conduct which con-
stitutes this crime. We held in Burcina v. City of Ketchikan, 902
P.2d 817, 822 (Alaska 1995), "based on public policy grounds, that
a civil plaintiff is collaterally estopped from relitigating any
element of a criminal charge to which he has pled nolo contendere."
Howarth argues that the rule of collateral estoppel does
not apply because second degree sexual assault is not a "serious
offense"within the meaning of our decision in the case of Scott v.
Robertson, 583 P.2d 188 (Alaska 1978), because Howarth lacked the
motive to defend against this charge. In Scott this court held
that prior criminal convictions can be admitted and given
collateral estoppel effect if certain conditions are met. The only
condition which concerns us here is that the prior conviction must
be "for a serious criminal offense . . . ." Id. at 191.
In Scott we held that the misdemeanor offense of
operating a motor vehicle while under the influence of intoxicating
liquor (OMVI) was a serious offense, even though the maximum term
of imprisonment which could be imposed was one year. Id. at 192.
We noted that our conclusion that such an offense was a serious one
for collateral estoppel purposes differed from the federal approach
which would require that the offense be punishable by imprisonment
in excess of one year. Id. at 192 n.20. It follows from Scott
that any offense which is punishable by imprisonment in excess of
one year and at least some offenses which are punishable by
imprisonment of one year or less are serious offenses. Since
felonies are by definition crimes for which a sentence of
imprisonment for a term of more than one year is authorized, AS
11.81.900(20), it is right (and not a little redundant) to conclude
that all felonies are serious offenses.
Our opinion in Scott, 583 P.2d at 192 n.16, cited
McCormick on Evidence  318, at 739-40 (Edward W. Cleary ed., 2d
ed. 1972). McCormick's discussion of this issue makes it clear
that felonies are always serious offenses; the debate is whether
certain misdemeanors are also serious offenses:
A number of courts have limited this rule
[giving collateral estoppel effect to prior
criminal convictions] to convictions for
serious offenses, reasoning that convictions
for misdemeanors do not represent sufficiently
reliable determinations to justify dispensing
with the hearsay objections. . . .
The trend in this area is towards broader
admissibility. The Model Code of Evidence
provides for the admissibility of a judgment
"adjudging a person guilty of a crime or a
misdemeanor"to prove the facts recited
therein "and every fact essential to sustain
the judgment." The Uniform Rules adopt this
view with the important limitation to convic-
tions for a felony.
Id.  318, at 740-41 (emphasis added) (footnotes omitted).
In Scott, this court laid down as a general rule that
"any offense punishable by imprisonment should be considered to be
a serious offense." 583 P.2d at 192. We footnoted this statement
with the following observation: "The court may consider arguments
that in a particular offense, although technically subject to
incarceration, the likelihood of such punishment is so remote as
not to justify its being considered as a serious offense for this
purpose." Id. at 192 n.17. Did this exception mean that felonies
should not be considered serious offenses where the defendant knew
because of a plea bargain favorable to the defendant that he would
serve no time in jail? In the context of the actual holding of
Scott -- that an OMVI misdemeanor was a serious offense -- and the
debate among the authorities referred to in Scott -- whether only
felonies or felonies and some misdemeanors could be considered
serious offenses -- the conclusion that this exception might apply
to felonies seems untenable. (EN5)
Plea bargaining between the prosecution and defense
counsel takes place. Sometimes plea bargains result in a sentence
of no additional incarceration for a felony conviction. (EN6) One
consequence of accepting Howarth's argument would be that
collateral estoppel would not be applied to felony convictions
where a plea bargain has assured the defendant that he will serve
no additional time in jail.
Such a result would be undesirable as a matter of public
policy. The consequences of any felony conviction are serious.
There is great harm to one's reputation. Further, a felony
conviction, especially, as in Howarth's case, a second felony
conviction, would be of great consequence should the defendant be
convicted of a subsequent felony. See AS 12.55.125 (providing for
presumptive sentences for all second felony offenders convicted of
class A, B or C felonies and enhanced presumptive sentences for
those who have been twice convicted). In our view a defendant
convicted of a felony -- including a defendant who goes free after
making a salubrious plea bargain -- should not be allowed to claim
in court in subsequent litigation that the elements essential to
his conviction did not exist. Allowing such a claim trivializes
both the conviction and the criminal process. (EN7)
F. One Whose Intentional Criminal Acts Result in
Incarceration Cannot Recover Damages Associated with that
Incarceration from Others Whose Conduct May Also Have
Caused or Contributed to the Incarceration
There are four Alaska cases which stand for this
principle. The earliest case is Adkinson v. Rossi Arms Co., 659
P.2d 1236 (Alaska 1983). Adkinson intentionally pointed a shotgun
at another person; the gun discharged, killing the other person.
Adkinson was convicted of manslaughter and sentenced to serve a
ten-year term of incarceration. Adkinson and his wife sued the
manufacturer of the gun, claiming that a defect had caused it to
discharge; he sought damages resulting from his incarceration. His
claim was dismissed by the trial court on summary judgment. On
appeal we affirmed in a discussion which implicitly assumed for the
purpose of analysis that one cause of the victim's death was a
defect in the shotgun. We observed that Adkinson had committed
"intentional criminal conduct,"id. at 1239, noting that the nature
of such conduct was intentionally pointing the gun at the victim,
id. at 1239 n.8, though not necessarily with "specific intent to
cause injury." Id. at 1238 n.5. One basis for our affirmance was
that public policy prohibited shifting responsibility, even in
part, flowing from intentional criminal conduct:
The jury which heard James Adkinson's
criminal case concluded beyond a reasonable
doubt that Adkinson was guilty of manslaughter
on the basis of his own intentional conduct.
The responsibility for any resultant "personal
losses"rest[s] solely with the Adkinsons.
Id. at 1240. Adkinson is particularly instructive because, as
noted above, Adkinson's intentional criminal act was the wrongful
pointing of the shotgun at the victim. (EN8) Even if the gun had
not discharged, that was a crime. Conviction of such a crime could
have resulted in a short prison sentence. Because the gun
discharged Adkinson's crime became manslaughter and his prison
sentence was a term of ten years. Nevertheless, Adkinson's
intentional criminal conduct, the unlawful pointing, precluded his
recovery for the enhancement of his sentence caused by the assumed
defect in the gun.
The second case, Lord v. Fogcutter Bar, 813 P.2d 660
(Alaska 1991), arose out of the following facts. Lord had more
than fourteen drinks at the Fogcutter Bar. He left the bar with a
woman whom he subsequently kidnapped and raped. He received a
thirty-year sentence for these acts. Id. at 661. Lord sued the
Fogcutter Bar for the damages he suffered as a result of his
imprisonment, claiming that the Fogcutter was negligent in serving
drinks to him when he was obviously intoxicated. Id. at 662. As
in Adkinson, we assumed that the Fogcutter had indeed been
negligent, but held that it could not be liable:
Courts have consistently refused to aid those
whose claims are based upon their own illegal
acts. 1A C.J.S. Actions  29 (1985); Snug
Harbor Packing Co. v. Schmidt, 394 P.2d 397,
399 (Alaska 1964); see also Amato v. United
States, 549 F.Supp. 863, 867 (D.N.J.1982),
aff'd without opinion, 729 F.2d 1445 (3d
Cir.1984) (suspect shot during armed robbery
cannot sue police for negligence in failing to
apprehend him prior to robbery); Cole v.
Taylor, 301 N.W.2d 766, 768 (Iowa 1981)
(plaintiff prohibited from recovering in tort
from her psychiatrist on claim that he
negligently failed to prevent her from
committing murder).
This principle is grounded in public
policy and precludes recovery at the "very
threshold of the plaintiff's application for
judicial relief." Barker v. Kallash, 63
N.Y.2d 19, 479 N.Y.S.2d 201, 203, 206, 468
N.E.2d 39, 41-42, 44 (N.Y.1984)
(fifteen-year-old injured while constructing
pipe bomb had no claim for relief against
nine-year-old who allegedly sold the
firecrackers from which plaintiff's companions
extracted gun powder to construct the bomb);
see also Glazier v. Lee, 171 Mich.App. 216,
429 N.W.2d 857, 860 (1988) (public policy bars
claim by plaintiff, who shot and killed his
girlfriend and was convicted of voluntary
manslaughter, against his psychologist for
negligent failure to medicate or hospitalize
the plaintiff or to warn the victim of the
plaintiff's potential for violence).
Lord's claim is barred for the same
reasons we affirmed summary judgment against
the plaintiff in Adkinson v. Rossi Arms Co.,
659 P.2d 1236 (Alaska 1983). In that case we
held that an assailant convicted of
manslaughter for shooting and killing his
victim with a shotgun had no claim for relief
against either the manufacturer or the seller
of the shotgun for direct personal losses
alleged to have resulted from the shooting.
We stated, "[A]llowing a criminal defendant,
who has been convicted of an intentional
killing, to impose liability on others for the
consequences of his own anti-social conduct
runs counter to basic values underlying our
criminal justice system." Id. at 1240.
Lord, 813 P.2d at 663.
The third case which recognizes that plaintiffs have no
civil remedy for incarceration damages concurrently caused by their
criminal conduct and by the negligence of others is Shaw v. State,
Department of Administration, 861 P.2d 566 (Alaska 1993). Shaw was
convicted of four felonies in 1973. Before he was sentenced he
fled the state; in 1980 he was apprehended and sentenced for the
1973 convictions. In 1986 these convictions were set aside as
"constitutionally defective." Shaw then filed a malpractice claim
against the public defender's office. Id. at 568. On petitions
for review from both parties we addressed, among other issues, the
question whether Shaw's underlying guilt would be an affirmative
defense given the fact that all of Shaw's convictions had been set
aside. We concluded that actual guilt was an affirmative defense.
Id. at 573. We discussed Adkinson and Lord, and compared them to
the Shaw case as follows:
Adkinson and Lord differ from the present
case in that both plaintiffs claimed that the
defendants were in some way responsible for
the criminal acts committed by the plaintiffs,
whereas in a malpractice suit the plaintiff is
not claiming that the attorney contributed to
the plaintiff's criminal act. The cases are
the same, however, in that the claimed injury
or consequence is the same: The plaintiff
claims that were it not for the negligent
action of another, he would not have been
subjected to imprisonment. As we did in
Adkinson and Lord, we hold that if plaintiffs
engaged in the criminal conduct they are
accused of, then they alone should bear full
responsibility for the consequences of their
acts, including imprisonment. Any subsequent
negligent conduct by a plaintiff's attorney is
superseded by the greater culpability of the
plaintiff's criminal conduct.
Shaw, 861 P.2d at 572.
The final case is Burcina v. City of Ketchikan, 902 P.2d
817 (Alaska 1995). Burcina set fire to a building, pled nolo
contendere to arson, and was sentenced to two and one-half years in
jail. Id. at 819. He sued his psychiatrist and a health care
center, claiming that he had received negligent treatment for a
mental illness and that the negligent treatment caused him to
commit the arson. Id. We affirmed the trial court's dismissal of
Burcina's case on the authority of Adkinson, Lord, and Shaw: "[W]e
conclude that the public policy principle which precludes a person
who has been convicted of a crime from imposing liability on others
for the consequences of his or her own antisocial conduct applies
here." Id. at 821.
III. CONCLUSION
Howarth sexually assaulted L.M. He is precluded from
denying this because he has been convicted of sexually assaulting
L.M. and the conviction stands. Because of this assault he was
sentenced. We assume that if his attorney had not been negligent
his sentence would have been four years and that because of the
attorney's negligence the sentence was seven years. Howarth's
intentional criminal conduct is a legal cause of the entire period
of his imprisonment. Howarth has no redress against his attorney
because Howarth's conduct was intentional and in violation of the
criminal law, whereas his attorney's was merely negligent. To use
the words of Shaw, "subsequent negligent conduct by a plaintiff's
attorney is superseded by the greater culpability of the
plaintiff's criminal conduct." Shaw, 861 P.2d at 572.
For these reasons the judgment is AFFIRMED.
COMPTON, Justice, dissenting.
I disagree with the court's causation analysis, with its
collateral estoppel analysis, and with its holding that a person
convicted of a crime cannot recover damages from an attorney whose
malpractice contributed to the person's incarceration.
I. CAUSATION
In September 1981 (EN1) Howarth entered a plea of nolo
contendere to the charge of sexual assault in the first degree, a
violation of AS 11.41.410, (EN2) and received a ten-year
presumptive sentence. (EN3) The superior court later found that
Howarth had established ineffective assistance of counsel and
granted Howarth's motion to withdraw the plea he entered in 1981.
In May 1988 Howarth entered a plea of nolo contendere to the charge
of sexual assault in the second degree, a violation of
AS 11.41.420, (EN4) for which he received a presumptive sentence of
four years. (EN5)
Howarth remained in prison from May 1981 until May 1988.
This seven-year period of incarceration forms the basis for
Howarth's claim of damages. The sentence that resulted from
Howarth's May 1988 nolo contendere plea was limited to four years.
Therefore, this plea could not be the cause of more than four years
of Howarth's incarceration. For at least three years of his
incarceration, another cause must exist.
The court's decision is premised on the assumption that
Howarth's "sentence would have been four years and that because of
the attorney's negligence the sentence was seven years." Slip Op.
at 16. This would seem to settle the causation question, but the
court does not see it this way. Instead, the court applies the
causation test enunciated in Vincent by Staton v. Fairbanks
Memorial Hospital, 862 P.2d 847 (Alaska 1993), to Howarth's
conduct, and holds that "but for"Howarth's sexual assault of L.M.
he would not have been incarcerated for seven years. Slip Op. at
7. The court misapplies the test. The Vincent test should be
applied to Welch's actions, for Welch is the defendant in this
malpractice claim. See id. at 851. If Howarth's three years of
additional incarceration would not have occurred without Welch's
malpractice, then Welch is liable for damages under the first prong
of the Vincent test. The second prong of the test, and the
question on which liability should turn, is whether Welch's actions
were a "substantial factor"in bringing about the harm, i.e., an
additional three years of incarceration for a crime Howarth may not
have committed.
II. COLLATERAL ESTOPPEL
In Shaw v. State, Department of Administration, 861 P.2d
566 (Alaska 1993) (Shaw II), the court held that a defendant in a
legal malpractice claim "may raise the issue of the plaintiff's
actual guilt as an affirmative defense." Id. at 572. Thus, the
State could argue that even if Howarth's conviction of sexual
assault in the second degree was not the proximate cause of his
seven years of incarceration, it was Howarth's "actual guilt"of
the offense of sexual assault in the first degree which caused the
seven years of incarceration. However, the question remains
whether the State may use Howarth's plea to, and conviction of,
sexual assault in the second degree as evidence of Howarth's
"actual guilt"of sexual assault in the first degree.
In Scott v. Robertson, 583 P.2d 188 (Alaska 1978), the
court articulated the standard for determining whether a criminal
conviction is admissible in a civil proceeding as evidence of a
material fact on which the conviction rests. Under Scott, a
criminal conviction can be admitted as evidence in a later civil
trial if "(1) the prior conviction is for a serious criminal
offense; (2) the defendant in fact had a full and fair hearing; and
(3) it is shown that the issue on which the judgment is offered was
necessarily decided in the previous trial." Id. at 191-92
(footnotes omitted). In Scott, the court additionally noted that
a particular offense, although technically subject to
incarceration, may not justify its being considered a "serious
offense"for the purposes of fulfilling the first Scott
prerequisite if the likelihood of incarceration is too remote. Id.
at 192 n.17. We also observed that
McCormick explains that a defendant might not
make the effort to defend himself fully if the
penalty were relatively insignificant.
Weinstein also agrees that the possible lack
of motivation to defend against minor charges
casts doubt on the fairness and reliability of
the judgment.
Id. at 192 n.16 (citations omitted).
These cautionary comments are relevant in determining
whether Howarth's plea of nolo contendere to the amended charge
meets the first Scott prerequisite. The court's truism that "all
felonies are serious offenses,"Slip Op. at 9, does not resolve the
question of whether Howarth lacked motivation to defend against the
charge of sexual assault in the second degree. Howarth was offered
his freedom from incarceration upon agreeing to plead nolo
contendere to the reduced charge of sexual assault in the second
degree. On accepting the plea bargain he faced no probation or
parole. Under these circumstances, it would be fair to conclude
that Howarth lacked the motivation to defend against the charge of
sexual assault in the second degree. Scott, 583 P.2d at 192; see
also Coney v. Municipality of Anchorage, 725 P.2d 709, 712 (Alaska
1986) (stating that in applying the Scott test, the court must
consider the "realities of the litigation").
The court cites policy reasons for not allowing Howarth
to claim "elements essential to his conviction did not exist."
Slip Op. at 11. I agree that Howarth should be estopped from
arguing he did not commit sexual assault in the second degree. But
the policies underlying the finality of plea bargains do not
support the State's position that Howarth should also be estopped
from litigating his "actual guilt"of sexual assault in the first
degree. I would hold that the trial court erred in finding
Howarth's nolo contendere plea to sexual assault in the second
degree estops him in the present case from litigating his "actual
guilt"of sexual assault in the first degree.
III. POLICY
The practical effect of today's opinion is that a
plaintiff may not sue his or her defense attorney for malpractice
arising out of criminal representation. The question which has yet
to be resolved in the present case is whether Howarth served three
years for a crime he did not commit, i.e., sexual assault in the
first degree. It is surely not the public policy of this state to
penalize persons for crimes they did not commit. If Welch's
negligent representation of Howarth was responsible for three years
of incarceration for a crime Howarth did not commit, no public
policy can justify the result the court reaches.
IV. CONCLUSION
Genuine issues of material fact exist concerning whether
Welch committed malpractice in his representation of Howarth. If
Welch did commit malpractice, genuine issues of material fact also
exist regarding the proximate cause of Howarth's damages. I would
reverse the superior court's grant of summary judgment, and remand
the case for further proceedings.
ENDNOTES:
1. AS 11.41.420(a) provided in 1981:
(a) A person commits the crime of sexual
assault in the second degree if he coerces
another person to engage in sexual contact by
the express or implied threat of imminent
death, imminent physical injury, or imminent
kidnapping to be inflicted on anyone or by
causing physical injury to any person,
regardless of whether the victim resists.
2. These were physical injury to the victim and prior history of
repeated instances of assaultive behavior. AS 12.55.155(c)(1) and
(8).
3. This was that the prior felony was less serious than the
present offense. AS 12.55.155(d)(8) (repealed 1982).
4. Both assumptions gloss over a number of unresolved issues.
For example, to speak only of the second assumption, if Howarth's
attorney had not been negligent would Howarth have been convicted
of first degree sexual assault? If the answer to this is
affirmative then the attorney's negligence caused no damage. If
Howarth's attorney had not been negligent would Howarth have been
convicted of second degree sexual assault in 1981 and received a
four-year sentence? Although the four-year retrospective sentence
Howarth received in 1988 may be some evidence on this point, it
would not be conclusive given the different context in which that
sentence was issued.
5. None of the authorities mentioned in Scott as employing the
serious offense requirement as a prerequisite to admission of a
criminal conviction for collateral estoppel purposes hold, or
remotely suggest, that a felony is not a serious offense for the
purposes of this doctrine.
6. The record shows that Howarth was the recipient of such an
agreement with respect to an earlier and unrelated felony
conviction for assault with a dangerous weapon. He was convicted
on a plea of nolo contendere and received a deferred imposition of
sentence with probation but no time to be served on March 30, 1978.
7. See State ex rel. O'Blennis v. Adolf, 691 S.W.2d 498, 504 (Mo.
App. 1985) (permitting one who pled guilty based on a plea bargain
and received a sentence which was shorter than prior time served to
subsequently deny his guilt in civil litigation would be "against
public policy"and "would indeed shock the public conscience,
engender disrespect for courts and generally discredit the admini-
stration of justice") (citation omitted).
8. See also Adkinson v. State, 611 P.2d 528, 530, 534 (Alaska),
cert. denied, 449 U.S. 876 (1980).
ENDNOTES (Dissent):
1. All statutory citations are to the statutes as they existed at
the time Howarth allegedly committed a crime.
2. AS 11.41.410 provided in part:
(a) A person commits the crime of sexual
assault in the first degree if,
(1) being any age, he engages in sexual
penetration with another person without
consent of that person;
. . . .
(b) Sexual assault in the first degree
is a class A felony.
3. AS 12.55.125 provided in part:
. . . .
(c) A defendant convicted of a class A
felony may be sentenced to a definite term of
imprisonment of not more than 20 years, and
shall be sentenced to the following
presumptive terms, subject to adjustment as
provided in AS 12.55.155 - 12.55.175:
. . . .
(2) if the offense is a second felony
conviction, 10 years . . . .
4. AS 11.41.420 provided:
(a) A person commits the crime of sexual
assault in the second degree if he coerces
another person to engage in sexual contact by
the express or implied threat of imminent
death, imminent physical injury, or imminent
kidnapping to be inflicted on anyone or by
causing physical injury to any person,
regardless of whether the victim resists.
(b) Sexual assault in the second degree
is a class B felony.
5. AS 12.55.125 provided in part:
. . . .
(d) A defendant convicted of a class B
felony may be sentenced to a definite term of
imprisonment of not more than 10 years, and
shall be sentenced to the following
presumptive terms, subject to adjustment as
provided in AS 12.55.155 - 12.55.175:
(1) if the offense is a second felony
conviction, four years . . . .
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