Valley v. State, 122619 AKCA, A-12624

Docket Nº:A-12624
Opinion Judge:ALLARD JUDGE
Party Name:REINA A. VALLEY, Appellant, v. STATE OF ALASKA, Appellee.
Attorney:Marilyn J. Kamm, Attorney at Law, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Patricia L. Haines, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
Judge Panel:Before: Allard, Chief Judge, Harbison, Judge, and Mannheimer, Senior Judge.
Case Date:December 26, 2019
Court:Court of Appeals of Alaska
 
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REINA A. VALLEY, Appellant,

v.

STATE OF ALASKA, Appellee.

No. A-12624

Court of Appeals of Alaska

December 26, 2019

UNPUBLISHED See Alaska Appellate Rule 214(d)

Appeal from the Superior Court, Third Judicial District, Palmer, Trial Court No. 3PA-14-01353 CR Vanessa H. White, Judge.

Marilyn J. Kamm, Attorney at Law, Anchorage, under contract with the Office of Public Advocacy, for the Appellant.

Patricia L. Haines, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.

Before: Allard, Chief Judge, Harbison, Judge, and Mannheimer, Senior Judge. [*]

MEMORANDUM OPINION

ALLARD JUDGE

Reina A. Valley smuggled twelve morphine pills into the Goose Creek Correctional Center and gave them to her son, who was incarcerated there. Based on this conduct, Valley was convicted of three crimes: second-degree controlled substance misconduct (possession of morphine with intent to distribute), fourth-degree controlled substance misconduct (simple possession of morphine), and first-degree promoting contraband (smuggling morphine into a correctional facility).1 Based on these three convictions, Valley received a composite sentence of 10 years and 2 days to serve.

Valley now appeals her convictions, arguing the trial judge should have declared a mistrial because of evidence that was elicited when the prosecutor cross-examined her. In the alternative, Valley argues she is entitled to a resentencing because the judge failed to merge her two convictions for controlled substance misconduct. She also argues that the judge committed plain error by not sua sponte finding two mitigating factors that Valley's attorney had not proposed - the mitigator for small quantities of a controlled substance and the mitigator for conduct among the least serious within the definition of the offense.2

For the reasons explained in this opinion, we affirm the superior court's denial of Valley's motion for a mistrial, but we agree with Valley that she should have received one merged conviction for second-degree controlled substance misconduct. For this reason, Valley must be resentenced. And because she must be resentenced, we need not reach Valley's other sentencing arguments.

Background facts and proceedings

At trial, Valley testified that she did not bring the morphine pills to her son, even though she had previously confessed her guilt to an Alaska State Trooper. On cross-examination, the prosecutor asked Valley why she told the trooper that she had brought the pills to her son. Valley responded that she confessed only after the trooper told her that her son had already admitted that Valley had brought him the pills. Valley testified that, upon hearing this, she told the trooper, "[O]kay, I did it." But Valley asserted that she said this to protect her son, and that she was not really confessing to any crime. Valley specifically suggested that the jury should...

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