Opinion
Court of Appeals Nos. A-10471 / A-10472.
November 16, 2011.
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael R. Spaan, Judge, Trial Court Nos. 3AN-08-9685 Cr 3AN-08-8848 Cr.
David D. Reineke, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Nancy R. Simel, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION
Manuel Cuautle was convicted of second-degree escape for walking away from a halfway house while he was under detention there awaiting a felony probation revocation hearing. While Cuautle was a fugitive ( i.e., after he walked away from the halfway house), he stayed with friends. One day, he borrowed their car, and he was late in returning it. When his friends checked the car, they discovered that two rings were missing from the glove compartment. (The rings were in the car because Cuautle's friends were planning to take the rings to a jewelry shop for cleaning.) It turned out that Cuautle had pawned the rings. For this conduct, Cuautle was convicted of second-degree theft in a separate trial. Cuautle was sentenced for these two crimes at a combined sentencing hearing.
In this appeal, Cuautle asserts that his escape conviction should be reversed because the trial judge failed to instruct the jury on the separate offense of unlawful evasion. (Cuautle does not challenge the validity of his theft conviction.)
Cuautle also argues that he is entitled to a new sentencing hearing because the superior court denied his request to continue the sentencing hearing to allow him to present information in mitigation of punishment. The State concedes error on this issue.
With respect to Cuautle's trial on the escape charge, we conclude that the trial judge properly rejected the defense request to instruct the jury on the crime of unlawful evasion. We therefore uphold Cuautle's escape conviction. However, we conclude that the superior court abused its discretion when the court denied the defense request for a delay of the sentencing hearing. We therefore remand Cuautle's case to the superior court, with directions to hold a new sentencing hearing.
Cuautle's argument that his escape conviction should be reversed because the trial judge failed to instruct the jury on the separate offense of unlawful evasion
Cuautle was charged with second-degree escape under AS 11.56.-310(a)(1)(B). This statute makes it a crime to remove oneself from official detention when that official detention is for a felony. Here is a summary of the State's evidence relating to this charge:
In early August 2008, Cuautle was being held under official detention as an "unsentenced felon" at the Cordova Center (a halfway house in Anchorage) pending the resolution of an alleged felony parole violation. (According to the testimony presented at Cuautle's trial, the Department of Corrections uses the term "unsentenced felon" to include felony parolees who are awaiting parole revocation proceedings.)
Cuautle had no permission to leave the Cordova Center except for court appearances. Even for that purpose, Cuautle did not have permission to leave the Center on his own; rather, he would have to be accompanied by a judicial services officer.
Cuautle resided at the Cordova Center for less than day — from the evening of August 5th until sometime during the day on August 6th — and then he walked away without permission. He was not returned to custody until August 27th.
At his trial, Cuautle argued that he was not guilty of escape, but rather of the lesser crime of first-degree unlawful evasion as defined in AS 11.56.335(a)(1). This offense is committed when a person who is charged with, or convicted of, a felony "fails to return to official detention within the time authorized [after being granted] temporary leave . . . for a specific purpose or limited period".
However, Cuautle's attorney told the trial judge (Superior Court Judge Michael R. Spaan) that he did not want the jurors instructed on unlawful evasion as a lesser included offense. Instead, Cuautle wished to pursue an "all or nothing" trial strategy. Under the defense attorney's proposed instruction, if the jurors concluded that Cuautle was guilty of unlawful evasion, they were not to convict him of that crime. Rather, they were simply to find Cuautle not guilty of escape — and that would be the end of the trial.
Here, in the light most favorable to Cuautle, is the evidence pertaining to whether he committed the crime of unlawful evasion, rather than the crime of escape:
Cuautle presented evidence that all persons residing at the Cordova Center are given a "resident handbook", and that this handbook states that any person who is "confirmed as an escape [ sic: "escapee"] from the Center will be considered to have committed unlawful evasion from custody". When Cuautle took the stand at his trial, he testified that, based on the Cordova Center's informational handbook for residents, he believed that he could be charged with unlawful evasion if he left the Center without permission.
With respect to his activities on August 6, 2008 (the day of his unlawful departure from the Cordova Center), Cuautle testified that he woke up, had some coffee, took a shower, and then started cleaning up his apartment at the Center. When he was done cleaning, he collected the garbage from his apartment and took the garbage bag down to the first floor of the Center. Cuautle walked up to the security desk and showed them the garbage bag, whereupon the security officer at the desk "waved [him] out" — that is, signaled that it was all right for Cuautle to go out through the front entrance and take his garbage to the garbage collection bin that stands outside the front door.
As Cuautle explained it, when he got outside the building, he could not immediately locate the garbage collection bin. As he stood there, "[his] first thought was `free', . . . `freedom'." Then Cuautle started thinking about his pregnant girlfriend, and how much he wanted to be with her. Cuautle looked around and realized that no staff members were paying attention to him, so "[he] decided to walk away" and not return.
When Cuautle's attorney asked him, "Did you believe that you had permission to leave?", Cuautle answered, "Yes, to take the garbage out." However, on cross-examination by the prosecutor, Cuautle conceded that even though he had permission to take the garbage out, he knew that he did not have permission "to just leave and not come back".
During his testimony, Cuautle personally asserted that he was not guilty of escape, and that he had committed unlawful evasion instead. But under cross-examination, Cuautle admitted that he knew that unlawful evasion applies only to situations where a person has permission to leave temporarily and then does not return on time, whereas escape applies to situations where a person does not have permission to leave in the first place. And Cuautle further admitted that he was "never given permission to leave the premises of the Cordova Center", even though he had permission to walk out of the building to take the garbage to the collection bin.
(a) The litigation of this issue in the trial court
Toward the end of Cuautle's trial, the defense attorney asked Judge Spaan to give the jury the following instruction, which defined the elements of unlawful evasion, and which told the jurors that if Cuautle was guilty of unlawful evasion, then he was not guilty of escape:
The State has charged Manuel Cuautle with Escape in the Second Degree. The law in Alaska differentiates between Escape and Unlawful Evasion.
A person unlawfully evades if, while charged with or convicted of a felony or misdemeanor, the person fails to return to official detention within the time authorized following temporary leave granted for a specific purpose or limited period. . . .
If you find from your consideration of all the evidence that Manuel Cuautle unlawfully evaded, then you must find him not guilty of the charge of Escape in the Second Degree.
The defense attorney told Judge Spaan that this distinction between escape and unlawful evasion was "the entire theory of [the] defense", and that a jury instruction on unlawful evasion was needed because, according to the trial testimony, Cuautle had permission "to leave the facility to take out the garbage". The defense attorney asserted that, given this testimony, it was a "question for the jury" whether Cuautle had lawful authority to leave the Cordova Center.
Judge Spaan pointed out that, even viewing the trial testimony in the light most favorable to the defense, Cuautle only had permission to "leave the building", not permission to "leave the facility". In response, the defense attorney argued that an instruction on unlawful evasion was necessary because the jurors "[would] very likely . . . think [that Cuautle] did something wrong", and the jurors needed to understand that Cuautle might be guilty of an uncharged crime (unlawful evasion), but not guilty of the charged crime (escape).
Judge Spaan then asked the defense attorney why it was necessary to instruct the jurors on the elements of unlawful evasion if (1) the defense attorney did not want unlawful evasion presented to the jurors as a lesser included offense, and (2) the defense attorney's real theory of the case was that the State had failed to prove an essential element of escape — i.e., failed to prove, beyond a reasonable doubt, that Cuautle left the Cordova Center without permission:
The Court: I mean, . . . if the jury doesn't find [that the State has proved] all the elements [of escape] beyond a reasonable doubt, [then] they find him "not guilty". Why would I give [the jury] this [instruction about a] charge that [Cuautle] was never charged with, if it's not [being offered as] a lesser included offense?
The defense attorney responded, somewhat vaguely, that the jurors "[had] to understand what the law is", and that the jurors needed to know "that there are differences [between these two offenses]" so that they would have "a more complete understanding of the escape . . . for which [Cuautle] is charged."
Judge Spaan pointed out that the jurors had already been informed of the difference between the crime of escape and the crime of unlawful evasion because, during her cross-examination of Cuautle, the prosecutor explained the difference between these two crimes.
At the conclusion of this discussion, Judge Spaan told the parties that he wanted some time to consider this issue before making his ruling, so he took the defense attorney's request under advisement until the following morning, and he invited the parties to submit further pleadings on the issue (if they could get them to the judge by the close of business that day).
The next morning, Judge Spaan tentatively ruled that he would not give the defense attorney's proposed jury instruction. The judge concluded that, even viewing the evidence in the light most favorable to the defendant, Cuautle could not have committed the lesser offense of unlawful evasion — because there was absolutely no evidence that Cuautle was given permission, temporary or otherwise, to leave the Cordova Center grounds.
When Judge Spaan invited Cuautle's attorney to respond to this tentative ruling, the defense attorney agreed that Judge Spaan's analysis of the trial testimony was correct "[regarding] the fact that [Cuautle] had [no] permission to leave". However, the defense attorney suggested two rationales for concluding that Cuautle might reasonably have thought that he had permission to leave, at least temporarily.
First, the defense attorney suggested that, given the trial testimony, there was an open question as to whether the Cordova Center's garbage bin might have been located outside the grounds of the Center — thus allowing for the possibility that, when Cuautle received permission to take out the garbage, he was effectively granted permission to leave the grounds of the Center.
Second, the defense attorney suggested that, because the Cordova Center security staff waved Cuautle through the front door so that he could dispose of the garbage, Cuautle might reasonably have thought that the security staff had decided to relax the rule that prohibited him (and all other unsentenced felons) from leaving the facility grounds without a police escort.
The defense attorney then proceeded to speak for several minutes about Alaska appellate decisions holding that a defendant is entitled to a jury instruction on the defense theory of the case, as long as there is some evidence to support that theory, even if that evidence is weak or implausible.
Toward the end of his remarks, the defense attorney started to say, "Your Honor has already noted that there's some evidence — and, I think, properly so — because, in this case . . ." At that point, Judge Spaan interjected that he disagreed with the defense attorney's characterization of his prior ruling:
The Court: I want [to say] direct[ly] and clear[ly] [that] I found there was no evidence that [Cuautle] had . . . authorization to leave the premises. That's what I found. I found that there was some evidence, looked at in the light most favorable to your client, . . . [that] he was [authorized] to leave the building — but to stay [within] the boundaries of the facility.
(Emphasis added)
A fter hearing the defense attorney's arguments, Judge Spaan confirmed his earlier tentative decision not to give the proposed jury instruction. The judge concluded that the proposed instruction would not help the jurors, but would instead confuse them.
But even though Judge Spaan declined to give the proposed jury instruction on the elements of unlawful evasion, the judge allowed Cuautle's attorney to explicitly argue to the jury that Cuautle was not guilty of escape, but rather was guilty of the different (and uncharged) offense of unlawful evasion, because Cuautle had permission to leave the Cordova Center building to take out the garbage, and thus his only offense was in failing to return after he completed this task.
In particular, the defense attorney argued to the jury that the State had charged Cuautle with the wrong crime ( i.e., escape), when Cuautle's real offense was unlawful evasion. The defense attorney told the jurors that, even if they did not like Cuautle or what he had done, their duty was to decide whether Cuautle was guilty of the specific offense that the State had charged him with.
In response, the prosecutor reminded the jurors that no one was asserting that Cuautle lacked permission to go outside to take his garbage to the collection bin: "The State's not saying that he didn't have the authority to take out the trash. What he didn't have the authority to do was to abscond from the Cordova Center. He didn't have the lawful authority to leave the Center."
The jury accepted the State's characterization of the case, and they convicted Cuautle of escape.
(b) Cuautle's arguments on appeal
In his brief to this Court, Cuautle relies on various Alaska appellate decisions holding that a defendant is legally entitled to have the jury instructed on the defense theory of the case, if there is some evidence to support that theory.
This is indeed the law. But this Court has also repeatedly upheld the converse rule: the rule that a defendant is not entitled to a jury instruction on a defense, and is not entitled to argue that defense to the jury, unless there is "some evidence" to support the defense. In this context, the phrase "some evidence" is a term of art: it means evidence which, if viewed in the light most favorable to the defendant, is sufficient to allow a reasonable juror to find in the defendant's favor on each element of the proposed defense.
Muller v. State, 196 P.3d 815, 816-17 (Alaska App. 2008), citing Lacey v. State, 54 P.3d 304, 308 (Alaska App. 2002), which in turn cites H a v. State, 892 P.2d 184, 190 (Alaska App. 1995); see also AS 11.81.900(b)(2)(A) (governing affirmative defenses) and AS 11.-81.900(b)(19)(A) (governing normal defenses).
The Alaska Supreme Court has also endorsed this rule. See State v. Garrison, 171 P.3d 91, 94 nn. 3 4 (Alaska 2007).
Muller, 196 P.3d at 816-17; Lacey, 54 P.3d at 308.
As we have already explained, Cuautle did not wish to have the jurors instructed on unlawful evasion as a potential lesser included offense. Rather, he wanted to argue (and actually did argue) that the State had charged him with the wrong crime, and that he should therefore be entirely acquitted.
As Judge Spaan noted, this defense argument did not really turn on whether Cuautle could properly be found guilty of unlawful evasion. Instead, the gist of the defense argument was that the State had failed to prove one of the essential elements of escape — to wit, that Cuautle had no permission to leave the Cordova Center.
But even if we assume that, under these circumstances, Cuautle could properly seek a jury instruction on unlawful evasion, Cuautle's right to have the jury instructed on this alternative crime hinged on whether there was "some evidence" to support a finding that he committed only the crime of unlawful evasion, and not the crime of escape. Thus, the key ruling in Cuautle's case is Judge Spaan's ruling that there was no evidence to support a finding that Cuautle had permission to leave the grounds of the Cordova Center.
As we explained in the preceding section of this opinion, when Judge Spaan asked Cuautle's attorney to explain why a jury instruction on unlawful evasion might be justified under the trial evidence, the defense attorney conceded that there was no evidence that Cuautle was given permission to leave the Cordova Center. However, the defense attorney suggested two potential rationales for concluding that Cuautle might reasonably have thought that he had permission to leave.
First, the defense attorney suggested that the garbage bin might have been located outside the grounds of the Cordova Center — thus allowing for the possibility that, when Cuautle received permission to take out the garbage, he believed that he had implicitly been granted permission to leave the grounds of the Center.
But the uncontradicted evidence was that the garbage collection bin was located within the Cordova Center grounds. According to the testimony, the bin was located about three feet to the left of the foot of the steps leading up to the front door of the building, while the boundary of the property — i.e., its border with the street — was about 10 feet away from the foot of those same steps.
The defense attorney alternatively suggested that, because the Cordova Center security staff waved Cuautle through the front door so that he could dispose of the garbage, Cuautle might have thought (albeit mistakenly) that the security staff were also relaxing the rule that prohibited unsentenced felons from leaving the facility grounds without a police escort.
This assertion is meritless as well. Cuautle himself testified that, even though he was given permission to walk out of the building to take the garbage to the collection bin, he knew that he was "never given permission to leave the premises of the Cordova Center".
To summarize this discussion: The record shows that Judge Spaan was aware of the case law holding that a defendant is entitled to a jury instruction on a theory of defense if there is some evidence to support it. Judge Spaan refused to give Cuautle's proposed jury instruction on unlawful evasion because he concluded that Cuautle had failed to satisfy the "some evidence" requirement — because there was no evidence to support a finding in Cuautle's favor on the issue of whether he had permission to leave the Center.
Cuautle's brief is conspicuously silent regarding Judge Spaan's ruling: he does not mention this ruling, much less address the merits of the ruling. Cuautle's failure to address this key ruling means that Cuautle has failed to adequately brief his claim. When a party challenges a lower court's ruling on appeal, but fails to address the basis for the lower court's ruling, the party's briefing is legally inadequate, and the appellate court can reject the party's claim simply on this basis (unless the appellate court independently concludes that the lower court's ruling is plainly wrong).
Maines v. Kenworth Alaska, Inc., 155 P.3d 318, 330 (Alaska 2007) (Carpeneti, J., dissenting).
Krushensky v. Farinas, 189 P.3d 1056, 1064 (Alaska 2008); Garhart v. State, 147 P.3d 746, 752 (Alaska App. 2006); Stevens v. Matanuska-Susitna Borough, 146 P.3d 3, 14-15 (Alaska App. 2006) (Mannheimer, J., concurring).
Nor is Judge Spaan's ruling plainly wrong. In the trial court proceedings, Judge Spaan and both attorneys recognized that there was a distinction between permission to leave the Cordova Center building to take out the garbage (permission which everyone agreed had been given to Cuautle), and permission to leave the grounds of the facility. Cuautle personally conceded, during his testimony at trial, that he knew that he had no permission to leave the facility.
As Judge Spaan mentioned when he made his ruling on this issue, this Court dealt with a similar situation in Barrett v. State, 772 P.2d 559 (Alaska App. 1989). The defendant in Barrett was charged with second-degree escape for walking away from the minimum security portion of the Palmer Correctional Center. Id. at 561, 564. At trial, Barrett asked to have the jury instructed on the lesser offense of unlawful evasion, but the trial judge rejected Barrett's request.
On appeal, this Court held, as a matter of law, that the word "leave" (as used in the unlawful evasion statute) means "authorization to leave the boundaries of the institution", and not just the "free[dom] to roam within the boundaries of the institution". Id. at 574. And, because there was no evidence that Barrett "was authorized to depart the boundaries of the institution" (as opposed to moving about within those boundaries), this Court held that the trial judge correctly refused the defense request to instruct the jury on the lesser offense of unlawful evasion.
As Judge Spaan recognized, Cuautle's case is analogous to Barrett. Cuautle presented evidence that he had permission to leave the building and, as Judge Spaan put it, "to move within the confines of the Cordova Center" for the purpose of taking his garbage to the collection bin. But there was no evidence that Cuautle had permission to leave the grounds. Indeed, when Cuautle testified at trial, he conceded that he had "[no] permission to leave the premises of the Cordova Center".
We therefore affirm Judge Spaan's refusal to instruct the jury on the alternative offense of unlawful evasion.
The standard of review governing this jury instruction issue
Before turning to Cuautle's sentencing argument, we wish to address one additional aspect of this jury instruction issue. In their briefs to this Court, both parties assert that we must review Judge Spaan's decision under the "abuse of discretion" standard. We acknowledge that, in the past, this Court has declared that a trial judge's rulings on jury instructions are reviewed for abuse of discretion. But this is wrong as a general matter, and it is wrong in this case.
See (and I say this with regret, because I was the author) Wilson v. State, 967 P.2d 98, 102-03 (Alaska App. 1998).
Here, the underlying question is whether Cuautle presented "some evidence" to support his proposed instruction on unlawful evasion. The question of whether a defendant has presented "some evidence" to support a defense — and is therefore entitled to a jury instruction on that defense — is a question of law that an appellate court evaluates de novo. State v. Garrison, 171 P.3d 91, 94 (Alaska 2007).
This is not a matter entrusted to the trial judge's discretion — because, as this Court explained in Hamilton v. State, 59 P.3d 760, 771 (Alaska App. 2002), "[i]f there is `some evidence' of a proposed defense, a judge has no discretion to refuse a timely defense request for a jury instruction on that defense." Similarly, if there is no evidence to support a proposed defense, then the jury should not be instructed on that defense. See Barrett v. State, 772 P.2d at 574.
There are times when a trial judge's ruling on a proposed jury instruction is reviewed for abuse of discretion — but only in those instances where it is clear that the jury was properly instructed on the law applicable to the case, and the issue being litigated on appeal concerns some other aspect of the jury instructions. The true rule governing appellate review of jury instructions was explained by the Alaska Supreme Court in Power Constructors, Inc. v. Taylor Hintze, 960 P.2d 20 (Alaska 1998):
As long as the jury is properly instructed on the law, . . . the trial [judge] has broad discretion to determine whether to give [additional] instructions specially tailored to the case at hand. See Buchanan v. State, 561 P.2d 1197, 1207 (A laska 1977). Rulings on such [additional] instructions are reviewed for abuse of discretion.
960 P.2d at 29 (emphases added).
Cuautle's argument that Judge Spaan abused his discretion when he failed to grant the defense request for a continuance of the sentencing hearing
The jury returned its verdict convicting Cuautle of escape on February 19, 2009. The previous December (that is, two months earlier), the Department of Corrections had been assigned to write a pre-sentence report on Cuautle in a different case, and that pre-sentence report had just been circulated when Cuautle was convicted of escape.
When the parties assembled in court to hear the jury's verdict on February 19th, Cuautle's attorney told Judge Spaan that he had just received that pre-sentence report the previous afternoon — although he had not yet had time to read it. Judge Spaan asked the parties if, in view of this recently prepared pre-sentence report, they were willing to simply have the Department of Corrections prepare a brief update, in the form of a letter, for Cuautle's escape sentencing. The parties agreed to this procedure. Judge Spaan also told the parties that he would set Cuautle's sentencing for "a month hence" — i.e., mid-March.
Cuautle's sentencing hearing was ultimately calendared for March 20th. This hearing was a consolidated sentencing in two different cases: Cuautle's escape conviction and his separate theft conviction (for stealing the rings from his friends while he was a fugitive).
On March 18th, and then again on March 19th, Cuautle's attorney filed motions asking for a continuance of the sentencing hearing until early May. Apparently, the defense attorney attempted to file this motion on the afternoon of March 17th, but the superior court clerk's office rejected the motion because the attorney filed it as a single pleading that listed two trial court case numbers, instead of filing separate motions in the two separate cases.
In these motions, the defense attorney told the court that Cuautle's mother and sister wished to present "information in mitigation of punishment" at the sentencing hearing, but they were out of the country until late April.
Judge Spaan denied the motions, and the sentencing hearing took place as scheduled on March 20th. At the beginning of that hearing, the defense attorney again sought a continuance on the basis that Cuautle's mother and sister wished to present information in mitigation of punishment. The following colloquy ensued between the defense attorney and Judge Spaan:
Defense Attorney: [W]e object to [proceeding] further [in] this [sentencing]. I cannot make a proffer at this point, about what his mother and his sister would say, as I have not been able to talk to them to make that proffer — because they've been out of the country. [But] under Alaska Rule of Criminal Procedure 32.2, he has a right to present information in mitigation of punishment. That includes not just his own statements, but also statements of family.
The Court: He [has that right]. And if you had filed a motion to mitigate based on [a specific] statement of his mother, it would be a different story. [But] you haven't. Your record's made. Let us begin.
Defense Attorney: Well, I informed the Court that the . . . request for continuance was based on . . .
The Court: His mother's testimony.
Defense Attorney: . . . the mother and the sister.
The Court: You [are required] to give notice to me and to the State of any mitigating factors that you want to present. You gave none.
Defense Attorney: And that's because I've not been able to gather the [information] from his mother and his sister in order to make that proffer to the Court, Your Honor.
The Court: When you're going through the [court] rules, [take a] look at the one [allowing] me to reconsider a sentence. We're going forward today. . . .
Defense Attorney: Okay, [but] I just want to make sure my objection is logged for the record, and for review.
On appeal, Cuautle argues that Judge Spaan abused his discretion by not granting the requested continuance. The State concedes error under this Court's recent decision in Maalona v. State, unpublished, 2010 WL 2473789 (Alaska App., June 16, 2010).
Briefly summarized, the State's position is this: (1) Cuautle's sentencing was scheduled relatively quickly after his trial; (2) the defense attorney ran into difficulties in assembling his case for sentencing; and (3) even assuming that Cuautle's attorney displayed a lack of diligence (something that the defense attorney did not concede), there was no indication that the delay or lack of diligence was attributable to Cuautle personally. Thus, according to the State, even though Judge Spaan might have imposed sanctions on the defense attorney (if the defense attorney had indeed failed to act diligently to prepare for sentencing), it was error to make Cuautle proceed with the sentencing hearing at that time.
We accept the State's concession of error. Cuautle's defense attorney articulated a good reason to delay the sentencing, and he offered an explanation of why he could not provide the court with specific details of what Cuautle's mother and sister would say. Judge Spaan did not dispute or question the attorney's assertions, nor did the judge give any reasons why the sentencing hearing had to take place that day. Instead, the judge simply announced that the sentencing would proceed, and he told the defense attorney to present his mitigating information in a motion for reconsideration, after the sentencing was over. This was an abuse of discretion.
See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (requiring an appellate court to independently assess any concession of error by the State in a criminal case).
Accordingly, we must vacate the superior court's sentencing decision and remand Cuautle's case to the superior court for a new sentencing hearing.
Conclusion
Cuautle's conviction for second-degree escape is AFFIRMED. However, Cuautle's sentences for escape and theft are VACATED, and this case is remanded to the superior court with directions to hold a new sentencing hearing.
We do not retain jurisdiction over this case.
We should not reverse the denial of a continuance unless a party establishes an arbitrary refusal that constitutes an abuse of discretion. In my opinion, Judge Spaan had ample discretion to deny Cuautle's motion for a continuance of his sentencing hearing because it was both untimely and inadequate.
Salazar v. State, 559 P.2d 66, 71-72 (Alaska 1976); Burleson v. State, 543 P.2d 1195, 1198 (Alaska 1975); Klockenbrink v. State, 472 P.2d 958, 964 (Alaska 1970).
First, Cuautle's motion was untimely. Cuautle presents this issue as if he had only a short time to prepare for the sentencing hearing. But the sentencing hearing was first scheduled when Cuautle entered a plea of no contest in the theft case on December 29, 2008. At that time, the sentencing hearing was scheduled for March 16, 2009. The State had already filed a notice of aggravating factors on December 23. And the presentence report was filed on February 17, 2009.
The State thus complied with the requirement that it file its notice of aggravating factors within seven days after service of the presentence report. In response, Cuautle was required file a notice of "any evidence on which the defendant intends to rely at sentencing that is not contained in the presentence report." But Cuautle did not comply with this requirement. Cuautle did not give notice that he had evidence to present at the sentencing hearing until he filed a motion to continue just a day before the hearing. Judge Spaan stated that he would have considered the matter differently if Cuautle had given proper notice of this testimony.
Second, Cuautle failed to make any showing that the evidence from these witnesses was material. When a party requests a continuance to present testimony from an absent witness, the court must consider whether the testimony is material or cumulative or whether the testimony can be elicited from another source. Cuautle's motion stated only that "Mr. Cuautle's mother and his sister wish to present information in mitigation of punishment at his sentencing hearing." Judge Spaan noted that Cuautle had not made any offer of proof — the judge had no way to evaluate whether Cuautle had any important information to present.
See Salazar, 559 P.2d at 72.
Third, Cuautle failed to make any showing that he acted diligently to secure these witnesses for the sentencing hearing. A trial court is required to consider the requesting party's diligence when ruling on a continuance request. Cuautle's motion stated only that "Mr. Cuautle's mother and sister are unavailable for the sentencing hearings on March 20, 2009 — they are out of the country in Mexico until April 26, 2008." Cuautle did not offer any explanation about when these witnesses had left the country or what efforts he had made to contact them or to secure their testimony.
Id.; H ughes v. State, 56 P.3d 1088, 1092 (Alaska App. 2002).
Finally, our appellate courts have repeatedly stated that the defendant is required to show that the denial of a continuance caused him actual prejudice in order to secure a reversal. In the present case, Judge Spaan specifically invited Cuautle to file a motion for reconsideration, which would have given him an opportunity to clearly state whether his mother and his sister had important testimony to offer. He did not do so. The lead opinion now vacates the sentencing decision and requires another hearing without any evidence that Cuautle has any additional information to provide.
Nielsen v. State, 623 P.2d 304, 307 (Alaska 1981) (conviction affirmed in the absence of actual prejudice even though defense counsel received psychiatric reports the day before trial); Burleson, 543 P.2d at 1198; Klockenbrink, 472 P.2d at 964 (defendant must establish that denial of continuance prejudiced his rights); Rockwell v. State, 176 P.3d 14, 26 (Alaska App. 2008) (same); Page v. State, 657 P.2d 850, 853 (Alaska App. 1983) (sentence affirmed in the absence of actual prejudice).