Opinion
Court of Appeals No. A-10429.
June 16, 2010.
Appeal from the Superior Court, Third Judicial District, Anchorage, Philip R. Volland, Judge, Trial Court No. 3AN-06-7669 Cr.
Doug Miller, Assistant Public Advocate, Appeals Statewide Defense Section, and Rachel Levitt, Public Advocate, Anchorage, and Andrew Steiner, Bend, Oregon, for the Appellant. Nancy R. Simel, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION
Kalani L. Maalona pleaded guilty, pursuant to a plea bargain, to one count of first-degree assault and six counts of third-degree assault arising from a shooting incident. Under the plea agreement, Maalona would receive a composite sentence of 20 years' imprisonment, of which 5 to 10 years would be suspended. In other words, Maalona would serve between 10 and 15 years in prison.
Maalona entered his guilty pleas in early November 2008, and his sentencing hearing was scheduled for February 6, 2009.
While awaiting sentencing, Maalona apparently concluded that he had received ineffective assistance of counsel in connection with the plea negotiations, and he decided that he wanted to withdraw his guilty pleas. In early January, the superior court appointed a new attorney — Assistant Public Advocate Marcelle K. McDannel — to represent Maalona for this purpose. But as of the date of the scheduled sentencing hearing (February 6th), no plea-withdrawal motion had been filed.
At the sentencing hearing, McDannel's supervisor, Assistant Public Advocate Dan Bair, appeared for Maalona. However, Bair announced that he was unprepared for a sentencing hearing. Bair told Superior Court Judge Philip R. Volland that he was under the impression that the Office of Public Advocacy had been appointed for the sole purpose of investigating and pursuing a potential plea-withdrawal motion. Bair told the court that he had not expected to represent Maalona at sentencing, and he stated that he was not sufficiently familiar with the facts of Maalona's case to properly represent Maalona at sentencing. He therefore asked the court to continue the sentencing hearing "[until] the next court date that's convenient for the court and the parties".
Judge Volland expressed surprise that Maalona still wished to withdraw his pleas. The judge pointed out that the Office of Public Advocacy had been appointed more than a month before, and yet no motion relating to plea withdrawal had been filed, nor any motion to continue the sentencing hearing, even though the parties knew that the sentencing hearing was scheduled for February 6th.
Judge Volland then ruled that it was too late for Maalona to request a delay of the sentencing hearing. The judge based this ruling on two considerations. First, the judge concluded that the Office of Public Advocacy had shown a lack of diligence (by failing to notify the court that there was any problem in holding the sentencing hearing as scheduled). Second, the judge concluded that Maalona would not be prejudiced if the sentencing hearing went forward as scheduled, because (according to the judge) Maalona's plea agreement "[left] little discretion with the court".
Judge Volland gave Bair thirty minutes to review Maalona's file, and then the sentencing hearing went forward. At the end of the hearing, Judge Volland sentenced Maalona to the most severe sentence allowed by the plea agreement: 15 years to serve, with an additional 5 years suspended.
The question presented in this appeal is whether the superior court should have granted a delay of Maalona's sentencing hearing after Bair announced that he was not familiar with the facts of Maalona's case and, thus, unprepared for sentencing. We conclude that the superior court abused its discretion when it rejected Bair's request for a delay of the hearing.
Judge Volland could reasonably conclude that the Office of Public Advocacy was at fault for failing to either prepare for the sentencing hearing or apprise the court that a delay of sentencing would be requested. And the judge might reasonably have imposed monetary sanctions on the attorney(s) involved. But the record contains no indication that Maalona was personally at fault, or that either he or his attorneys were attempting to improperly manipulate the judicial process.
Moreover, Maalona was potentially prejudiced when the superior court chose to proceed with the sentencing hearing despite the fact that Maalona's attorney (Bair) was unfamiliar with the facts of the case. Even though the superior court's sentencing discretion was limited by the terms of Maalona's plea agreement, that plea agreement still gave a significant amount of sentencing discretion to the court. Specifically, the superior court had the discretion to impose as little as 10 years to serve, or as much as 15 years to serve. And, as we have explained, the court ultimately sentenced Maalona to the 15-year maximum term to serve.
For these reasons, we conclude that the superior court abused its discretion when it denied the defense request for a delay of the sentencing hearing.
The superior court's sentencing decision is VACATED. Maalona is entitled to a new sentencing hearing.
In the past, the Alaska courts have reversed the denial of a continuance only when a defendant establishes an arbitrary refusal that constitutes an abuse of discretion. In my opinion, Judge Volland did not act arbitrarily because his decision was based on factors previously approved by the appellate courts. Judge Volland properly took into account counsel's lack of diligence, the interests of the victims and the public, and the lack of prejudice to the defendant.
See 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).
A trial court is required to consider the requesting party's diligence when ruling on a continuance request. An attorney's dilatory conduct may require a continuance to be denied, even when the defendant does not personally participate in that conduct. On a similar issue, the Alaska Supreme Court has held that a negligent breakdown in office procedures does not qualify as excusable neglect sufficient to require an extended deadline for an appeal.
Salazar, 559 P.2d at 72; Hughes v. State, 56 P.3d 1088, 1092 (Alaska App. 2002).
See Hughes, 56 P.3d at 1093 (holding that a mid-trial continuance was properly denied based on attorney's lack of diligence).
State v. 1.163 Acres, More or Less, Chuckwm, Inc., 449 P.2d 776, 779 (Alaska 1969).
In this case, Maalona did not request a continuance until the time when the sentencing hearing was scheduled to begin. The matter had been pending for several months and Maalona's counsel had entered an appearance several weeks before the hearing. In my opinion, Judge Volland could properly consider that Maalona's counsel had failed to properly schedule and prepare for the hearing, despite ample opportunity to do so.
A trial court is also required to consider "the interests of the opposing party, the public and the judicial system in the prompt disposition of litigation." In particular, for a sentencing hearing, the court must consider the victims' right to "timely disposition of the case . . ." and the requirement that "[s]entence shall be imposed without unreasonable delay." In this case, Judge Volland properly considered that he had a courtroom crowded with victims of Maalona's offense who had the "need for some closure" from this serious assault and that the defendant personally wanted to complete the proceedings as soon as possible.
Burleson, 543 P.2d at 1199.
Alaska Const., art. 1, § 24; see Cooper v. District Court, 133 P.3d 692, 700-01 (Alaska App. 2006) (this section of the constitution is satisfied if sentencing proceedings take place in a timely manner).
Alaska R. Crim. P. 32(a); Gonzales v. State, 582 P.2d 630, 633 n. 4 (Alaska 1978) ("This rule [is] intended to benefit the accused as well as to encourage the efficient administration of justice.").
A trial court is also required to consider the prejudice to a defendant if the continuance is denied. Judge Volland took appropriate action to mitigate the types of prejudice that Maalona's counsel identified at the sentencing hearing. He granted a postponement of the hearing to allow the attorney to prepare his argument, and he ruled that the defendant could file any objections to the presentence report after the hearing. The judge also properly considered the limited discretion that he had under the sentencing agreement, which detailed the relevant facts and nearly all of the terms of the sentence.
Burleson, 543 P.2d at 1198-99.
Finally, the appellate courts have repeatedly stated that a defendant is required to show that the denial of a continuance caused him actual prejudice in order to secure a reversal. In my opinion, Maalona has not established that the lack of a continuance adversely affected the sentencing proceeding.
Nielsen v. State, 623 P.2d 304, 307 (Alaska 1981) (affirming conviction 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 (explaining that 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) (affirming sentence in the absence of actual prejudice even though defense counsel had inadequate time to study the presentence report).
I would affirm Judge Volland's decision because it was based on proper considerations identified in prior cases.