Pedersen v. State
| Decision Date | 10 September 2014 |
| Docket Number | No. 6091,Court of Appeals No. A-10958,6091 |
| Parties | SIEGFRIED PEDERSEN, Appellant, v. STATE OF ALASKA, Appellee. |
| Court | Alaska Court of Appeals |
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.
MEMORANDUM OPINIONAppeal from the Superior Court, Third Judicial District, Palmer, William L. Estelle, Judge.
Appearances: Siegfried Pedersen, in propria persona, Palmer, for the Appellant. Mary A. Gilson, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge.*
Siegfried Pedersen was convicted of criminal charges arising from two separate incidents involving his neighbors. The first of these incidents occurred onMay 13, 2009, and the second incident occurred four months later, on September 13, 2009.
The charges arising from these two incidents were joined for trial. However, following his conviction, Pedersen asked this Court to sever the two cases for purposes of appeal, and we granted that request. In Pedersen v. State, unpublished, 2012 WL 1232607 (Alaska App. 2012), we resolved Pedersen's challenge to the charges arising from the May 2009 incident. The present appeal concerns only Pedersen's convictions arising from the September 2009 incident.
Pedersen raises more than a dozen claims of error. As we explain in this opinion, all but one of those claims lack merit or were not preserved for appeal. We do, however, conclude that Pedersen received an illegal sentence: for the offense of second-degree weapons misconduct, the superior court sentenced Pedersen to a term of imprisonment that exceeds the upper end of the applicable presumptive sentencing range. Such a sentence is permissible only if the sentencing court finds one or more aggravating factors. In Pedersen's case, the superior court relied on an aggravating factor that only applied to the May 2009 incident, not the September 2009 incident for which Pedersen was being sentenced. We therefore reverse Pedersen's sentence for second-degree weapons misconduct, and we direct the superior court to re-sentence him.
Underlying facts
In order to explain our resolution of the issues in this appeal, we must describe the facts of both the May 2009 incident (i.e., the incident underlying Pedersen's earlier appeal) and the September 2009 incident (i.e., the incident underlying the present appeal).
The May incident involved a confrontation between Pedersen and a man named Wayne Rutherford, who was renting a cabin from Pedersen. The cabin was located about 300 feet away from Pedersen's house.
This confrontation started because Rutherford saw Pedersen using a backhoe to dig a ditch across Rutherford's driveway — a ditch that would effectively prevent Rutherford from using the driveway to leave his home. When Rutherford went outside to ask Pedersen about this ditch, Pedersen swung the backhoe bucket at him. Rutherford stepped around the backhoe and confronted Pedersen — at which point Pedersen put his hand on a pistol that he was carrying on his hip. Rutherford retreated and called the state troopers.
Two troopers came out to investigate. They tried to telephone Pedersen several times, but they were unsuccessful. The troopers then walked onto Pedersen's property, toward his house. As they approached, they could hear Pedersen talking. The troopers knocked on the side of Pedersen's house, and then they saw Pedersen standing on his balcony, armed with a handgun.
Pedersen yelled at the troopers about trespassing. The troopers ducked behind the house, and then they heard the gun go off. The troopers told Pedersen that they were only there to talk to him, but Pedersen continued to yell at them about trespassing.
Rather than engage in a firefight with Pedersen, the troopers made their way back to Rutherford's cabin. Several minutes later, after they reached the cabin, the troopers heard a second gunshot fired in their direction. The troopers did not arrest Pedersen at that time.
The September incident involved a confrontation between Pedersen and two of his other neighbors, Daniel Blythe and Bobbie Luxford.
Blythe was getting ready to go to work when he saw Pedersen outside his house. Pedersen was in the process of removing a "Slow, Kids at Play" sign that Blythe and Luxford had erected, and he was throwing the sign into the woods. Blythe went outside to confront Pedersen, but then he heard Pedersen fire a pistol, so he went back to get his own gun. By the time Blythe came back outside, Pedersen was driving off. Blythe then went to work.
When Blythe came home from work that night, he noticed that the blind on one of his windows was broken. The next day, Blythe and Luxford inspected the broken window blind and discovered that there was a bullet hole in the window. At that point, Luxford called the troopers.
When the troopers arrived to investigate, they found a spent bullet lodged in the stairwell of Blythe and Luxford's home. Following an investigation, the troopers arrested Pedersen four days later.
The same day that the troopers arrested Pedersen, they searched his house and seized several guns, as well as various types of ammunition.
Procedural facts
Based on the September incident, Pedersen was charged with third-degree assault (for placing Blythe in fear of serious physical injury by means of a dangerous instrument), second-degree weapons misconduct (for discharging a firearm at Blythe and Luxford's home), and two counts of fourth-degree weapons misconduct (discharging a firearm on or from or across a highway).
Pedersen's trial on these charges was scheduled to begin on January 21, 2010. But on that day, the State notified the superior court that a grand jury had indictedPedersen on felony charges arising from the May incident, and Pedersen's trial was delayed.
The superior court later granted the State's motion to join all of the charges for trial. At the joint trial, the jury convicted Pedersen of all the charges arising from the two incidents.
As we explained earlier, we granted Pedersen's request to bifurcate his appeal, and we have already affirmed Pedersen's convictions arising from the May incident. In the present appeal, Pedersen challenges his convictions arising from the September incident.
Pedersen's attack on the arrest and search warrants related to the September charges
Pedersen asserts that the arrest and search warrants were not supported by probable cause. But as he acknowledges, he did not attack these warrants in the trial court.
Alaska Criminal Rule 12(b) and 12(c), in combination, declare that motions to suppress evidence and attacks on the procedures used to institute the criminal proceedings must be raised within 45 days of the defendant's arraignment, or by any later motions deadline set by the trial court — and, in any event, they must be made before trial. Under Criminal Rule 12(e), a defendant who fails to meet the deadline forfeits any such claims.
As Pedersen acknowledges, he failed to attack the arrest and search warrants related to the September incident in the trial court. He is therefore precluded from attacking these warrants in this appeal.
Pedersen's attack on the criminal complaints relating to the September incident
Pedersen argues that the criminal complaint filed against him (the complaint relating to the September incident) failed to comply with the requirements of Alaska Criminal Rule 3 in two respects.
First, Pedersen points out that the complaint was signed by a state trooper, rather than by the victims of the offenses (Blythe and Luxford). But there is no requirement that criminal complaints be signed by the victim of the crime. Indeed, the complaining party in a criminal case is the government, not the victim.1
Moreover, as we explained in the preceding section, Criminal Rule 12 requires that all attacks on the institution of criminal charges be raised before trial. Accordingly, to the extent that Pedersen is arguing that the complaint was legally inadequate to support the criminal charges against him, he is precluded from raising this attack on appeal because he did not raise this claim in the trial court.
Second, Pedersen argues that the complaint did not comply with Criminal Rule 3(e) and the corresponding provision of Criminal Rule 37(e)(2) because the complaint did not list the search warrant issued in connection with this case (the warrant authorizing the search of Pedersen's residence).
But the record does not contain a copy of this search warrant, nor does the record indicate when this search warrant was granted. The record does indicate that the warrant was executed after the troopers arrested Pedersen on September 18, 2009. And the complaint was signed two days earlier, on September 16th.
In other words, based on this record, we are unable to tell whether the search warrant was issued before the complaint was filed, and it affirmatively appearsthat the warrant was not served until after the complaint was filed. Thus, Pedersen has failed to establish a violation of Criminal Rules 3(e) and 37(e)(2).
Moreover, even assuming that the search warrant should have been listed on the complaint, Pedersen has not shown that he was prejudiced by the absence of this information on the complaint. The record shows that Pedersen knew about the search warrant: in a motion to dismiss the indictment (i.e., the indictment based on the September incident), Pedersen stated, "A search warrant was obtained to seize all weapons owned by Mr. Pedersen."
Thus, even if the failure to list the search warrant on the complaint constituted a violation of Cri...
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