Wickham v. State
| Decision Date | 10 February 1989 |
| Docket Number | Nos. A-2104,A-2365,s. A-2104 |
| Citation | 770 P.2d 757 |
| Parties | Phillip J. WICKHAM, Appellant, v. STATE of Alaska, Appellee. |
| Court | Alaska Court of Appeals |
Marcia E. Holland, Asst. Public Defender, Fairbanks, Dana Fabe, Public Defender, Anchorage, for appellant.
Cynthia M. Hora, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Grace Berg Schaible, Atty. Gen., Juneau, for appellee.
Before BRYNER, C.J., and COATS and SINGLETON, JJ.
Following a jury trial, Phillip J. Wickham was convicted of one count of manslaughter, in violation of AS 11.41.120(a)(1), and one count of third-degree assault, in violation of AS 11.41.220(a)(2). Acting Superior Court Judge Christopher E. Zimmerman found Wickham to be a second felony offender and sentenced him to consecutive terms of twenty years with five years suspended for manslaughter and five years with two years suspended for assault. Wickham appeals, contending that the trial court erred in failing to grant a hearing on the issue of whether two prior perjury convictions should have been set aside and in ruling that the prior convictions could be admitted for impeachment purposes at trial. Wickham also appeals his sentence as excessive. We remand for a hearing to determine whether Wickham's prior convictions should be set aside.
On September 7, 1982, Wickham entered pleas of no contest to two counts of perjury for testimony he gave when being tried on charges of driving while intoxicated and driving while his license was suspended. He reserved his right to appeal the convictions. On February 9, 1983, Superior Court Judge Warren W. Taylor suspended the imposition of Wickham's sentence on the perjury charges and placed him on probation for three years. Wickham appealed on February 24, 1983, and this court affirmed his convictions on June 20, 1984. Wickham v. State, Memorandum Opinion and Judgment No. 618 (Alaska App., June 20, 1984).
It is undisputed that Wickham was on supervised probation from the time of his sentencing hearing on January 18, 1983, until February 11, 1985. On January 31, 1985, Wickham's probation officer filed a report in the superior court recommending early termination of probationary supervision. The probation report indicated that Wickham's period of probation was to expire on January 17, 1986. Judge Taylor issued an order on February 11, 1985, releasing Wickham from supervised probation and placing him on open-court probation for the remainder of his probationary period.
On August 2, 1986, more than seven months after the date indicated by the probation report for expiration of Wickham's probation, Wickham was involved in a motor vehicle accident that resulted in the death of the other driver and serious injury to a passenger in the other car. The state filed a three-count petition to revoke Wickham's probation alleging that he had been driving while intoxicated and had recklessly caused the death of one individual and the serious injury of another. The petition claimed that Wickham was still on open-court probation at the time of the incident. Wickham was later indicted on manslaughter and third-degree assault charges.
While awaiting trial, Wickham filed a motion to set aside his 1983 perjury convictions, claiming that he had successfully completed his probation on January 17, 1986--three years after his sentencing hearing. The state opposed the motion, relying on Alaska Appellate Rule 206(a)(3), which provides that, "[a]n order placing the defendant on probation shall be stayed if an appeal is taken." The state argued that, under this rule, Wickham's probationary period was automatically tolled between February 24, 1983, and June 20, 1984, when Wickham's appeal of the perjury convictions was pending. Thus, according to the state, Wickham's probation would not expire until June 20, 1987.
After a hearing, Superior Court Judge Gerald J. Van Hoomissen ruled that, upon the filing of Wickham's appeal, his probationary term had been automatically tolled by operation of Appellate Rule 206(a)(3), even though Wickham actually continued to be under probationary supervision while the appeal was pending. The judge concluded that, because of the sixteen-month period when probation was tolled, Wickham was still on probation and was therefore not entitled to have his perjury convictions set aside.
Prior to Wickham's trial, the state filed a notice of intent to use the perjury convictions to impeach Wickham if he decided to testify at trial. Wickham opposed the notice. At a hearing on the issue, Wickham indicated his intent to testify in his own behalf at trial, but only if the prior convictions could not be used for impeachment.
Through counsel, Wickham made an offer of proof concerning his proposed trial testimony. Wickham indicated that he intended to tell the jury that he was an epileptic, that he was unable to consume substantial quantities of alcoholic beverages, that on the day of the accident he had had a small amount to drink but was not under the influence, and that the erratic driving that led to the accident was the result of an epileptic seizure.
Superior Court Judge Christopher E. Zimmerman ruled that, if Wickham testified, his perjury convictions could be admitted for purposes of impeachment. In light of the court's ruling, Wickham elected not to take the stand at trial. After being found guilty by the jury, Wickham filed two separate appeals, the first challenging the superior court's order denying his motion to set aside the perjury convictions, and the second challenging his convictions for manslaughter and third-degree assault. The appeals have been consolidated for decision.
Wickham's initial claim is that his perjury convictions should have been set aside. As a condition of his suspended imposition of sentence on the perjury charges, Wickham was ordered to complete three years of probation. Absent a showing of good cause, he was entitled to have his convictions set aside if he successfully completed his probationary term. See AS 12.55.085(e); State v. Mekiana, 726 P.2d 189 (Alaska 1986).
Upon receiving a suspended imposition of sentence on the perjury charges, Wickham spent two years on supervised probation and was thereafter placed on unsupervised probation for the balance of the three-year probationary term. Although the court order that placed Wickham on unsupervised probation did not expressly state the expiration date for the three-year term, it is evident from the probation report on which the order was based that the order contemplated that the probationary term would expire on January 17, 1986--three years after Wickham's sentencing hearing and more than seven months prior to Wickham's involvement in the fatal collision.
In denying Wickham's motion to set aside the perjury convictions, Judge Van Hoomissen relied exclusively on the automatic stay of probation provided for under Appellate Rule 206(a)(3). Judge Van Hoomissen reasoned that, regardless of whether Wickham had been treated as if he was on probation while his appeal was pending, the probationary term had been stayed as a matter of law and had not resumed until the appeal was decided.
On appeal, Wickham argues that it was fundamentally unfair for the superior court to invoke Appellate Rule 206 as a basis for denial of a set-aside. Wickham emphasizes that he, his probation officer, and the sentencing court all relied on the assumption that Wickham was on probation throughout the pendency of his prior appeal. In response to Wickham, the state argues that because Appellate Rule 206(a)(3) is mandatory, Wickham could not have been on probation while he appealed the perjury convictions. 1
Although the state is correct in interpreting Appellate Rule 206(a)(3) as providing for an automatic stay of probation, we agree with Wickham that it would be unfair to rely on the rule as a basis for denying him credit for time that he actually spent on probation. Neither Wickham nor the probation department (nor, for that matter, the sentencing court) appears to have been aware of the automatic stay provided for under Rule 206. In all respects, Wickham was treated as if actually on probation. In our view, he is entitled to be credited with the successful completion of his probationary term unless it can be demonstrated that he did not comply with the conditions of his probation.
There appears to be a widespread lack of awareness of the automatic stay of probation provided for under Appellate Rule 206. When, as in this case, the defendant, the Department of Probation, and the sentencing court are all unaware of the automatic stay provision, and when, as a result, the defendant actually continues on supervised probation throughout the pendency of an appeal, strict adherence to Appellate Rule 206(a)(3) would arbitrarily penalize the defendant for making a diligent effort to comply with the trial court's sentencing order despite the pendency of an appeal.
Generally, a stay of execution pending appeal is intended to protect the appellant from having to serve a sentence that may later be vacated. Without a stay of execution, the relief afforded by an appeal would be impaired. See, e.g., State v. Cirkovich, 41 Wash.App. 275, 703 P.2d 1075, 1078 (1985) (). This basic purpose finds expression in the automatic stay of probation provided for in Appellate Rule 206. Because the purpose of the stay is to protect the appellant's right in the event of a successful appeal, applying the rule to require Wickham to serve an additional period of probation would be anomalous.
Alaska Appellate Rule 521 allows the court to relax or dispense with an appellate rule when strict adherence would work injustice. We believe it would be unjust to require Wickham to serve an additional term of probation if he successfully complied with...
To continue reading
Request your trial
-
State v. Brown
...but later held the Luce rule inapplicable where the record was otherwise adequate to address the trial court's ruling. Wickham v. State, 770 P.2d 757 (Alaska Ct.App.1989). Finally, as the Minnesota Court of Appeals observed in State v. Ford, 381 N.W.2d 30, 32 n. (Minn.Ct.App.), review denie......
-
Warren v. State
...standing to raise the entrapment defense on appeal. We decline to follow Luce and instead adopt the offer of proof procedure outlined in Wickham v. State.3 Further, we conclude that the district court properly determined that the minute order would be admissible to rebut an entrapment defen......
-
State v. Galmore
...states that have declined to adopt the Luce rule appear to be equally split between requiring an offer of proof, see Wickham v. State, 770 P.2d 757 (Alaska Ct.App.1989); Saucier v. State, 562 So.2d 1238 (Miss.1990); State v. McClure, 298 Or. 336, 692 P.2d 579 (1984); but see Hickson v. Stat......
-
State v. Kirkwood
...statement, regardless of the punishment. (Emphasis added.) 4. Defendant urges this court to adopt the reasoning in Wickham v. Alaska, 770 P.2d 757 (Alaska Ct.App.1989). In Wickham, the court allowed an appeal under rule 609, even though the defendant did not testify, because he provided a d......