Opinion
Court of Appeals No. A-9980.
December 24, 2008.
Appeal from the Superior Court, Third Judicial District, Kenai, Charles T. Huguelet, Judge, Trial Court Nos. 3KN-05-1529 CR 3KN-06-523 CR.
Robert C. Erwin, Palmier ~ Erwin, LLC, Anchorage, for the Appellant.
W. H. Hawley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Brian L. Haws was convicted at trial of thirteen felonies that were charged in two indictments. In this appeal, Haws challenges the superior court's pretrial rulings rejecting Haws's motions to suppress and ordering the indictments consolidated for trial. Because Haws has not convinced us that the superior court erred, we uphold the court's rulings.
Haws also argues that the composite 21-year sentence he received for his convictions in these two cases and the revocation of his probation in two other felony cases resulted in an excessive sentence. Because we conclude that Haws's composite sentence is not clearly mistaken, we affirm the superior court. Background facts and proceedings
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (ruling that appellate courts should uphold a sentencing decision unless the sentence is clearly mistaken).
On September 9, 2005, state troopers responded to a burglary report at Charles Jackson Jr.'s home on Ten-Mar Avenue in the Sterling area. When the troopers arrived at the scene, Richard Miller provided them with a description of the suspects. The troopers concluded that one of the people Miller described was Chris Parker, whom the troopers had recently arrested. The troopers also noticed that Haws's car was stuck at the scene.
Sergeant Barry Wilson and Trooper Terrence Shanigan proceeded to Parker's residence. Once there, they contacted Parker, who told them that Haws and Zena Andrew were both upstairs in his house. Wilson asked Parker for permission to enter his home and look for items from the Ten-Mar burglary. Parker consented, and once the troopers were inside, he identified bags that were in the common area of his house as having been transported to Parker's house from Haws's car at the scene of the burglary. Wilson seized the bags and handed them to Shanigan, who later took the bags to trooper headquarters.
Haws and Andrew, having noticed the troopers' presence, barricaded themselves in a bedroom in Parker's house, but the troopers forced their way in. The troopers then retrieved more evidence from inside the bedroom.
The troopers obtained a search warrant to search the bags. Their search revealed property stolen in numerous burglaries, drug paraphernalia, 15.1 grams of methamphetamine, more than seventy oxycodone pills, an electric scale with methamphetamine residue, receipts for items purchased with stolen credit cards, and documents and a hubcap connected to Haws's vehicle.
The evidence the troopers seized led to the indictments against Haws, his conviction on all counts, and a composite 21-year term to serve. Haws appeals.
Haws's claim that the police illegally seized evidence from Parker's home
Haws moved to suppress the evidence seized from Parker's home. Haws argued that the troopers violated the Fourth Amendment when they removed the bags that Parker identified as Haws's. He contended that because he was an overnight guest at the Parker residence, he had standing to challenge the search under Minnesota v. Olson. And, citing Georgia v. Randolph, he argued that seizure of the evidence without his consent was illegal. Superior Court Judge Charles T. Huguelet denied Haws's motion after an evidentiary hearing.
547 U.S. 103, 126 S. Ct. 1515, 164 L. Ed. 2d 208 (2006).
The State argues that Haws waived any challenge to Judge Huguelet's ruling because the suppression hearing was never transcribed and because Haws's briefing does not discuss Judge Huguelet's factual findings or his ruling on this issue.
See Liimatta v. Vest, 45 P.3d 310, 319 (Alaska 2002); Adrian v. Adrian, 838 P.2d 808, 811 n. 5 (Alaska 1992); Parrish v. State, 132 P.3d 1172, 1174 (Alaska App. 2006).
See Alto v. State, 64 P.3d 141, 147 (Alaska App. 2003).
Although we could reject Haws's argument on these grounds, it appears from the record we do have before us (the clerk's log notes and the electronic record) that the court properly denied Haws's motion. Judge Huguelet found that Parker gave the troopers permission to enter his house. Judge Huguelet evidently also found that Haws was a trespasser because Parker asked the police to remove Haws from his home. Once inside, Parker pointed out several bags that were in a common area of the house. He told the troopers that the bags had been removed from Haws's car outside Jackson's house and transported to Parker's home. Parker then asked the troopers to remove the bags. The troopers apparently could see without disturbing the bags that they contained potential evidence of criminality. The troopers therefore seized the bags and removed them from Parker's home. While this took place, Haws was barricaded in a bedroom. The police searched the bags after obtaining a search warrant.
Parker, as the homeowner, had the authority to consent to the troopers' entry into his house. Once inside, after Parker identified the bags as coming from Haws's car outside the scene of the burglary, the troopers had probable cause to believe the bags contained evidence of the burglary. Thus, the troopers were authorized to seize the bags and apply for a warrant to search them. Haws does not otherwise attack the validity of the search warrant for the bags. We therefore uphold the court's denial of Haws's motion to suppress on this ground.
See Hilbish v. State, 891 P.2d 841, 848 (Alaska App. 1995).
Haws's attack on the service of the search warrant for his car
The troopers towed and impounded Haws's car, which was stuck by Jackson's house. They also obtained a search warrant and seized evidence from inside the car. Haws directs our attention to one warrant in the excerpt of record and the State to another, but neither is the search warrant for the car.
Nevertheless, the parties appear to agree on the salient facts. Apparently the search warrant indicated that it was to be executed "immediately." According to the briefing, the search warrant was issued on September 28, 2005, and served on October 10, 2005. The police found several items in their search that were admitted as evidence at trial: clothing, vitamin supplements, a glass pipe, and stereo equipment.
At trial, when the State offered some of the evidence seized from the car Haws asked the court to exclude the evidence because of the delay in executing the warrant. Haws did not provide the court with any legal authority to support this claim. The State argued that the delay between issuance and execution of the warrant did not prejudice Haws because the car was in the custody of the police continuously from the time it was towed until the warrant was served.
Judge Huguelet concluded that there was no reason to exclude the evidence absent an indication that it had been tampered with between the time the warrant was issued and executed. He allowed Haws to voir dire the State's witnesses before the evidence was admitted. Trooper Shanigan, who served the warrant, testified that he knew the evidence had not been tampered with because evidence tape that was placed over the door seams of the car was intact when he began his search. Shanigan and another trooper had sealed the doors with tape and signed the tape to document the sealing. Based on this testimony, Judge Huguelet ruled that the evidence was admissible.
On appeal, Haws argues that Judge Huguelet should have suppressed the evidence because of the delay in executing the search warrant. But Haws has not claimed that the search warrant was not supported by probable cause. This court has noted that "there is no constitutional infirmity when the police delay execution of a search warrant so long as the probable cause recited in the affidavit continues until the time of execution." Haws has not demonstrated that there was any lessening in probable cause to support the warrant between the time of the warrant's issuance and execution. The car was impounded by the state troopers and remained impounded until the warrant was executed.
King v. State, Alaska App. Memorandum Opinion and Judgment No. 3113 at 5 (Mar. 29,1995), 1995 WL 17220804 at *2 (internal quotations omitted) (quoting 2 Wayne R. LaFave, Search and Seizure § 4.7 (a), at 260-63 (2d ed. 1987); see also Gallagher v. State, 651 P.2d 1185, 1186-87 (Alaska App. 1982) (holding that the improper execution of a warrant should result in suppression of the evidence only if the defendant was prejudiced or the non-compliance was intentional).
Furthermore, Haws did not raise this issue until the middle of trial. Alaska Criminal Rule 12(b)(3) requires that motions to suppress evidence normally be raised before trial. And when Haws objected to the admission of this evidence in the superior court, he cited no legal authority. Indeed, Haws did not cite any authority in his opening brief on appeal; nor did he discuss the superior court's ruling admitting the evidence.
Given this record, Haws has not convinced us that Judge Huguelet erred when he overruled Haws's mid-trial objection to the admission of the evidence seized from Haws's car.
Haws's challenge to the consolidation of the two indictments for trial
As noted earlier, Haws was charged with thirteen felonies in two separate indictments. Haws argues that Judge Huguelet improperly consolidated the two indictments for trial. One of the indictments named Zena Andrew as a co-defendant and included charges of controlled substance misconduct; the other indictment charged only Haws and did not include charges of controlled substance misconduct.
On September 16, 2005, the grand jury returned the indictment in the first case, 3KN-S05-1529 CR, charging Haws and Andrew with five felonies that took place in or near Sterling on September 9, 2005: (1) first-degree burglary of the residence of Charles Jackson; (2) second-degree theft of property having a value of $500 or more; (3) second-degree theft by receiving of jewelry, checkbooks, cell phones, credit cards, and additional items; (4) third-degree misconduct involving a controlled substance by possession of methamphetamine with intent to deliver; and (5) fourth-degree misconduct involving a controlled substance by possession of oxycodone.
AS 11.46.300(a)(1), AS 11.46.130(a)(1), AS 11.46.130(a)(1), AS 11.71.030(a)(1), and AS 11.71.040(a)(3)(A), respectively.
On March 31, 2006, the grand jury charged Haws with eight felonies in case 3KN-S06-523 CR: (1) second-degree theft of Heather Sather's credit card on September 8, 2005, in Soldotna; (2) fraudulent use of Heather Sather's credit card in Soldotna on September 8, 2005, with intent to defraud while knowing the card was stolen; (3) second-degree theft of Phyllis Shirron's or David Shuck's credit card in Soldotna on September 9, 2005; (4) fraudulent use of Phyllis Shirron's or David Shuck's credit card in Sterling on September 9, 2005, with intent to defraud while knowing the card was stolen; (5) second-degree forgery for falsely drafting a check on the account of Gary Mohar in the amount of $403.12 payable to Riverside Auto on August 11, 2005, in Soldotna; (6) second-degree forgery for falsely drafting a check on the account of Gary Mohar in the amount of $307.11 payable to Safeway on August 12, 2005, in Soldotna; (7) second-degree forgery for falsely drafting a check on the account of Gary Mohar in the amount of $209.90 payable to Fred Meyer's on September 11, 2005, in Soldotna; and (8) second-degree theft for the theft of property or services in the value of $500 or more on August 11 and 12, 2005, in Soldotna.
AS 11.46.130(a)(7), AS 11.46.285(a)(1), AS 11.46.130(a)(7), AS 11.46.285(a)(1), AS 11.46.505(a)(1), AS 11.46.505(a)(1), AS 11.46.505(a)(1), and AS 11.46.130(a)(1), respectively.
The State moved to join the indictments for trial, contending that the offenses were "intertwined and inseparable." Haws opposed the joinder.
In his brief, Haws does not discuss the superior court's ruling on the joinder motion, and he did not transcribe the May 22, 2006, hearing on the motion. From what we can determine from the record before us, Haws objected to the joinder at the hearing, arguing that the indictments were separated by too much time, that he could not be ready for trial if joinder was granted, and that joining the indictments might cause undue confusion. Haws also argued that the State did not establish that the charges in the two indictments reflected a common plan or pattern.
Judge Huguelet ruled that the cases were all part of the same investigation, and he found that denying joinder would require calling the same witnesses twice. He further ruled that the cases were related and would be tried together. Haws now contends that the indictments should not have been joined because the first indictment included charges of controlled substance misconduct. But from our review of the record, Haws did not raise this argument in the superior court. Because he did not raise this particular argument below, the argument is waived unless he can show plain error.
See Wettanen v. Cowper, 749 P.2d 362, 364 (Alaska 1988) (noting that arguments not raised below are considered waived on appeal absent plain error).
When a defendant faces trial on two or more indictments, the superior court may join all the charges in one trial "if the offenses . . . could have been joined in a single indictment" under the provisions of Criminal Rule 8(a).
Criminal Rule 8(a) provides that different offenses can be joined in a single indictment if:
(1) [the offenses] are of the same or similar character and it can be determined before trial that it is likely that evidence of one charged offense would be admissible to prove another charged offense,
(2) [the offenses] are based on the same act or transaction, or
(3) [the offenses] are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan.
Because the superior court could properly conclude that the crimes charged in these two indictments were based on "acts or transactions" that were "connected together," we conclude that the two indictments were properly joined under subsection (3). The conduct underlying the individual counts in the two indictments showed that Haws was involved in a string of burglaries and that he used items taken in the burglaries to commit further crimes. Moreover, Haws has not convinced us that the joinder of the indictments subjected him to unfair prejudice. Haws's excessive sentence claim
See Nell v. State, 642 P.2d 1361, 1363-65 (Alaska App. 1982).
Haws was convicted of thirteen felonies. Two of these, first-degree burglary and third-degree misconduct involving a controlled substance, were class B felonies and the remainder were class C felonies. Because Haws had five prior felony convictions he faced a presumptive sentencing range of 6 to 10 years' imprisonment for each class B felony, and 3 to 5 years' imprisonment for each class C felony.
AS 12.55.125(d)(4).
AS 12.55.125(e)(3).
Judge Huguelet found that four statutory aggravating factors from AS 12.55.155(c) applied: (c)(15) (Haws had three or more prior felony convictions); (c)(20) (Haws was on felony probation when he committed the present offense); (c)(21) (Haws's criminal history included repeated instances of unlawful conduct, either punishable as felonies or misdemeanors, which were similar in nature to the present offense); and (c)(31) (Haws's criminal history included convictions for five or more class A misdemeanors).
Additionally, Haws was on probation in two other cases, with 2 years suspended in one case and 1 year suspended in the other. Under AS 12.55.127 (a), any suspended time imposed when Haws's probation was revoked had to be imposed consecutively.
At sentencing, Haws asked for a sentence of 12 to 15 years' imprisonment and asked the court "to consider suspended time."
Judge Huguelet found that, based on Haws's age (thirty-five years old at the time of sentencing), his poor employment history, his extensive criminal and drug-abuse history as revealed in his presentence report, his demonstrated unwillingness to comply with probation conditions, his general lack of remorse, and his demonstrated antisocial tendencies, Haws was a worst offender. He also found that Haws's prospects for rehabilitation were "minimal at best" given his extensive criminal history, and that probation would not "do Mr. Haws any good." Judge Huguelet explained that the sentence he imposed served the Chaney criteria of isolation, deterrence, community condemnation, and reaffirmation of societal norms.
State v. Chaney, 477 P.2d 441, 444 (Alaska 1970).
On the convictions from the first indictment, Judge Huguelet imposed 6 years for first-degree burglary and 3 years for each theft conviction, concurrent with the burglary. The judge imposed 6 years for third-degree misconduct involving a controlled substance, with all 6 years consecutive to the burglary sentence. And the judge imposed a 3-year term for fourth-degree misconduct involving a controlled substance, concurrent with the sentence for third-degree misconduct involving a controlled substance.
On the convictions from the second indictment, Judge Huguelet imposed 3 years' imprisonment for each count. He imposed all the counts concurrently except for two counts, which he imposed concurrent to each other but consecutive to the other counts. Thus, he imposed a composite 6-year term for these crimes, and imposed the 6 years consecutive to the 12 years imposed for convictions from the first indictment.
Finally, Judge Huguelet revoked Haws's 3 years of suspended imprisonment consecutive to the other sentences.
Haws argues that the composite 21-year term is excessive, and that a 10-year term with probation would have sufficed. Haws relies on Bumpus v. State, a case in which we ruled that a composite 23-year term was excessive and directed the superior court to impose no more than 15 years to serve. I n Bumpus, we relied on the sentencing guideline that a term of 10 years or less almost invariably satisfies the sentencing criteria for all but the most serious crimes — that is, unclassified felonies.
776 P.2d 329 (Alaska App. 1989).
Id. at 338.
Id. at 335.
But Haws overlooks the fact that the Alaska Supreme Court reversed this court in State v. Bumpus. The supreme court vacated this court's mandate that the superior court impose no more than 15 years to serve, declaring that "it is [not] appropriate for [appellate] courts to rigidly define the length of sentence that can be justified by any particular criterion."
820 P.2d 298 (Alaska 1991).
Id. at 302, 305.
In this case, Judge Huguelet found that several statutory aggravating factors applied to Haws's sentencing. He found that Haws was a worst offender and that his prospects for rehabilitation were "minimal at best." He reviewed the sentencing criteria and emphasized isolation and community condemnation in Haws's case.
Based on our review of the sentencing record, we conclude that Haws's composite term to serve is not clearly mistaken. Conclusion
See McClain, 519 P.2d at 813-14.
The judgment of the superior court is AFFIRMED.