Opinion
A-13395 7051
03-29-2023
JOSEPH T. MAHONEY, Appellant, v. STATE OF ALASKA, Appellee.
Megan R. Webb, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Kenneth M. Rosenstein, Assistant AttorneyGeneral, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Third Judicial District, Trial Court No. 3PA-17-01115 CR, Palmer, John W. Wolfe, Judge.
Megan R. Webb, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Kenneth M. Rosenstein, Assistant AttorneyGeneral, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges.
MEMORANDUM OPINION
WOLLENBERG JUDGE.
Joseph T. Mahoney was charged with several counts of felony assault after a domestic dispute with his long-term romantic partner. A jury found Mahoney guilty of one count of second-degree assault and two counts of fourth-degree assault. At sentencing, the superior court permitted Mahoney's privately retained lawyer to withdraw, and Mahoney represented himself. He received a composite sentence of 6 years with 3 years suspended (3 years to serve).
On appeal, Mahoney challenges both his convictions and his sentence. First, Mahoney argues that the superior court abused its discretion in denying his request for a mistrial. Second, Mahoney argues that he is entitled to resentencing because the court failed to ensure that he knowingly and intelligently waived his right to counsel, and erroneously believed at sentencing that he had been convicted of all of the offenses with which he was originally charged. Finally, Mahoney notes that his presentence report and judgment do not accurately reflect the jury's findings, and he seeks correction of these documents.
For the reasons explained in this opinion, we affirm Mahoney's convictions but vacate his sentence and remand for resentencing with instructions to the superior court to hold a representation hearing and correct the errors in the presentence report and judgment.
Background facts
In July 2017, Joseph Mahoney and Laura Beaudoin were in a long-term romantic relationship and lived together with their three children. Early one morning, police officers responded to a 911 call at their residence, and upon arrival, the police heard Beaudoin screaming and Mahoney yelling something to the effect of, "You want to be a liberated woman, see how you like this!" As the police approached the house, they saw Mahoney drag Beaudoin out of the house by her hair and one of her legs and ordered him to let her go. The police then apprehended Mahoney.
While on the scene, the officers recorded separate interviews with Beaudoin and Mahoney. Beaudoin stated that she and Mahoney had gotten into an argument, and when she brought up Mahoney's prior sexual relationship with someone else, Mahoney "fucking lost it," dragged her out of the house, pinned her to the ground, and whipped her on her back and buttocks with a belt. According to Beaudoin, during the struggle, Mahoney held her neck tightly - slowing her breathing and making it difficult for her to speak. Later, he dragged her out of the house a second time and was about to start beating her again when the police arrived.
Mahoney's version of events largely tracked Beaudoin's, although he denied grabbing her neck. He told officers that he had dragged Beaudoin out of the house multiple times, pinned her to the ground, and "spanked" her - first with his hand and then with a belt. According to Mahoney, spanking Beaudoin was "just something new [he] tried" because Beaudoin "act[ed] like a . . . bad teenager sometimes," although he admitted "it probably wasn't very smart." When asked if he put any pressure on her neck, he replied, "No, I'm smarter than that, man, I know it's strangling."
Based on this incident, Mahoney was indicted on two counts of second-degree assault and two counts of third-degree assault. In particular, as to the two counts of second-degree assault, the indictment alleged that, with intent to cause physical injury, Mahoney caused physical injury by means of a dangerous instrument - i.e., his hands (Count I) and a wall (Count III). As to the two counts of third-degree assault, the indictment alleged that Mahoney recklessly caused physical injury by means of a dangerous instrument - i.e., his hands (Count II) and a wall (Count IV). The State later added one misdemeanor count of fourth-degree assault - for striking Beaudoin with a belt (Count V).
AS 11.41.210(a)(1) and AS 11.41.220(a)(1)(B), respectively. Second-degree assault is a class B felony; third-degree assault is a class C felony.
AS 11.41.230(a)(1). Fourth-degree assault is a class A misdemeanor.
Trial proceedings
Mahoney's case proceeded to a jury trial. At trial, the State asserted that Mahoney beat and strangled Beaudoin during an argument about money and infidelity. In her opening statement, Mahoney's attorney acknowledged that it was "quite likely" that Mahoney was "going to get convicted of something" but argued that the evidence would not "come[] close to supporting . . . the most serious charges[.]"
Beaudoin testified that her relationship with Mahoney was "strained." She said that, on the evening in question, the two had argued about finances, time together, and their children. Beaudoin testified that Mahoney began calling her names, and they accused one another of infidelity. The argument escalated, and Beaudoin told Mahoney that they have "a horrible relationship and we need to end it." She then remarked that she and Mahoney "hadn't been sleeping together besides that time that he forced himself on me." Mahoney's attorney moved for a mistrial based on this remark, but the superior court denied the request.
Beaudoin then described the altercation with Mahoney. She testified that Mahoney "came at [her]" after she accused him of not wanting to sleep with her because he was sleeping with someone else. Beaudoin called 911, but Mahoney grabbed her by the hair, dragged her down a set of stairs, and pinned her to the ground outside. According to Beaudoin, Mahoney slammed her head against a wall twice when he was dragging her outside. With his forearm on her neck, Mahoney pulled Beaudoin's pants down and whipped her with her belt. Beaudoin said that, as they struggled on the ground, Mahoney put pressure around her neck four times and let go only after she promised not to call the police. Later, however, he dragged her outside and pinned her to the ground again.
The jury also heard the audio recordings of the police interviews from the night of the arrest, and testimony by a forensic nurse who examined Beaudoin after the altercation. According to the nurse, Beaudoin had significant injuries, including bruising to her back, buttocks, head, arms, legs, hips, stomach, and neck consistent with being strangled, slammed into a wall, and hit with a belt. The nurse stated that Beaudoin had also described symptoms - going into a daze, not being able to speak, and dizziness - consistent with strangulation.
After the State rested its case, Mahoney moved for a judgment of acquittal on Counts III and IV (second- and third-degree assault using a wall), arguing that the State could not sustain felony charges on those counts because it had presented insufficient evidence that the wall was a "dangerous instrument." The State agreed to reduce Count III to a misdemeanor (fourth-degree) assault and dismiss Count IV.
See AS 11.81.900(b)(15) (statutory definition of dangerous instrument).
Mahoney then took the stand in his own defense. Mahoney admitted that he had dragged Beaudoin down a set of stairs and pinned her to the ground outside. He further admitted that, as the night progressed, he dragged or picked up and carried Beaudoin from the house two more times (once hitting a wall on the way out) and spanked her with his hand and a belt. But he denied strangling her or applying any sort of pressure to her neck.
The jury found Mahoney guilty of Counts I, III, and V - one felony count of second-degreeassaultfor strangling Beaudoinandtwo misdemeanor countsof fourthdegree assault for injuring her using a wall and a belt. The jury further found two statutory aggravating factors: that Mahoney's felony offenses were committed "against . . . a member of the social unit made up of those living together in the same dwelling" and that the offenses were committed "against a person with whom the defendant has a dating relationship or with whom the defendant has engaged in a sexual relationship."
The jury never entered a verdict for Count II (i.e., third-degree assault). Count II was a lesser included offense of Count I (i.e., second-degree assault), and the court instructed the jury that it should not complete the verdict form for Count II if it found Mahoney guilty of Count I.
AS 12.55.155(c)(18)(A) and (D), respectively.
Mahoney's claim that the superior court abused its discretion in denying his motion for a mistrial
Mahoney first contends that the superior court abused its discretion in denying his motion for a mistrial based on Beaudoin's testimony that he "forced himself" on her.
Before trial, the State sought permission under Alaska Evidence Rule 404(b)(4) to introduce three prior acts by Mahoney as evidence of his propensity to commit domestic violence: (1) an argument during which he broke down a door and hit Beaudoin in the head; (2) an incident during which he pulled Beaudoin out of a truck and held her face down in the mud; and (3) an incident during which he chased Beaudoin down a driveway, held her down on a porch, and shoved her down a set of stairs. Mahoney's counsel raised a general objection to the State's request but conceded that evidence of the three incidents "seem[ed] to fall squarely within the type of information that the State is typically allowed to present," and the superior court ultimately allowed the State to introduce the evidence at trial. The State then elicited testimony from Beaudoin describing these three incidents at trial. On appeal, Mahoney does not challenge the admission of these prior acts.
See Bingaman v. State, 76 P.3d 398, 415-16 (Alaska App. 2003) (setting out factors for a court to consider when evaluating the admissibility of prior crimes of domestic violence offered as character evidence under Alaska Evidence Rule 404(b)(4)).
At trial, however, Beaudoin also alluded to an apparent fourth bad act. In answering a question on direct examination about how her argument with Mahoney on the night of the current incident had escalated, Beaudoin testified that she told Mahoney: "We have a horrible relationship and we need to end it. I don't even think that you're . . . being faithful to me." Without waiting for an intervening question by the prosecutor, Beaudoin continued: "And, you know, at the time, like if I - you know, if I told the real story - [Mahoney] and I hadn't been sleeping together besides that time that he forced himself on me."
Mahoney's attorney immediately asked for the jury to be excused and moved for a mistrial. The attorney noted that the State had not made prior application to introduce evidence of the incident, and she argued that the testimony was highly prejudicial. In response, the court sought further information from the prosecutor about the referenced incident.
The prosecutor stated that the remark concerned the couple's last sexual encounter, during which Mahoney "told [Beaudoin] that if she didn't have sex with him, then that would mean that she cheated on him." The prosecutor explained that Beaudoin had mentioned the encounter during her investigative interview. According to the prosecutor, Beaudoin had described the encounter as "extremely uncomfortable" but did not describe anything that warranted a sexual assault investigation.
Mahoney's attorney confirmed that she had previously received a copy of the police report in which Beaudoin mentioned the prior encounter.
The prosecutor informed the court that, prior to trial, she had advised Beaudoin that only the three prior events that the court had authorized for admission would be discussed during her testimony and that "this was not one of them." But the prosecutor also allowed Beaudoin to review a summary of her investigative interview (which included reference to the encounter), and the prosecutor acknowledged that, as a result, her "admonishment could have been confusing."
The prosecutor asserted that evidence of the couple's "strained sexual history" was part of the impetus for the charged assaults, as the two had accused each other of being unfaithful in the argument that precipitated the incident in this case, and she argued that the evidence was therefore relevant. The prosecutor suggested either that Beaudoin be allowed to clarify her remark through additional testimony or that the court strike it.
In considering Mahoney's request for a mistrial, the court concluded that, "left as it is, 'forced himself on me,' is extremely prejudicial because that raises all sorts of specters." The court believed, however, that the encounter was "probably within the range of interactions between couples when their relationship is dysfunctional," and the court did not "see the jury holding that specifically against Mr. Mahoney."
Outside the presence of the jury, the court allowed the parties to conduct voir dire about the encounter. After hearing Beaudoin testify that the encounter did not involve any force or threats of force, the court reasoned that a mistrial was unnecessary because her additional testimony would suffice to "explain[] the situation." The court told the parties that it would instruct the jury that there was "no crime being alleged" and that the "testimony does not establish a crime of sexual assault."
When trial resumed before the jury, the State asked Beaudoin for details about the encounter. Beaudoin testified that Mahoney had asked her to have sex as proof of her fidelity. She stated that she had told him that she "wasn't in the mood" but that "he didn't care" and the two "had sex anyway"; she agreed that she had "just capitulated." The prosecutor asked, "[W]hen you used the word 'forced' earlier, there was no kind of physical force, more of an emotional pressure?" Beaudoin agreed.
The court then issued a curative instruction similar to the one it had previously discussed with the parties:
[W]hen Ms. Beaudoin used the words "forced himself on me" . . . most people think of that as a sexual assault. And what - after we got into it and talked to Ms. Beaudoin, it's pretty clear that it is not a sexual assault. There's no crime that occurred at that time.
The court told the jury that it could consider Beaudoin's testimony only for the limited purpose of "establish[ing] the dynamic and the relationship of the parties and what precipitated what the State alleges occurred after that." The court further instructed the jury that it could not consider the evidence for any other purpose and that "it would be improper and unfair" to do so.
When Mahoney later took the stand, he denied demanding sex as proof of Beaudoin's fidelity. He testified that he had no reason to believe the encounter was unwanted and "was surprised to hear . . . [Beaudoin's] interpretation of that event." The prosecutor did not cross-examine Mahoney about the incident or mention it in the State's closing argument.
On appeal, Mahoney argues that the superior court abused its discretion by declining to declare a mistrial, and that this error was heightened when the court ordered additional testimony to "clear up" Beaudoin's remark that Mahoney "forced himself" on her. He argues that the details elicited about the couple's last sexual encounter were irrelevant, cumulative in light of the other evidence of the dysfunctional nature of his relationship with Beaudoin, and served only to compound the prejudice from the initial remark.
We agree that, left unaddressed, Beaudoin's testimony was highly prejudicial. As a general matter, we also agree that a decision authorizing the presentation of additional details about inadmissible testimony in order to mitigate its potential prejudice presents a significant risk of compounding the problem and creating reversible error -and courts should tread very carefully in the rare instances where such an approach might be appropriate. Generally speaking, if a trial court is concerned that the admission of improper evidence is so prejudicial that striking the testimony or issuing a curative instruction is insufficient to dispel the risk of unfair prejudice, the court should grant a mistrial.
See Williams v. State, 629 P.2d 54, 60 (Alaska 1981) (recognizing that a mistrial may be warranted when an improper remark is "so highly prejudicial as to be incurable by the trial court's admonitions" (quoting United States v. Klein, 546 F.2d 1259, 1263 (5th Cir. 1977))).
Ultimately, however, in this particular instance, given the additional details elicited and the court's clear limiting instruction to the jury, as well as the limited scope of the contested issues at trial, we conclude that the court did not abuse its discretion in proceeding as it did. Beaudoin's additional testimony diluted the prejudice caused by her initial description of the incident as involving "force" and was largely consistent with the ample evidence already in the record that Mahoney and Beaudoin had a strained and dysfunctional relationship.
See Tritt v. State, 173 P.3d 1017, 1019 (Alaska App. 2008) (denial of mistrial reviewed for an abuse of discretion - which occurs "when, after reviewing the whole record, we are left with a definite and firm conviction that the trial court erred in its ruling"); see also Whiteaker v. State, 808 P.2d 270, 277 (Alaska App. 1991) (recognizing that "[j]urors are presumed to understand and follow the jury instructions" they are given).
Moreover, the court's decision must be placed in the context of the larger trial. The only allegation that Mahoney seriously disputed at trial was that he had strangled Beaudoin. On this point, the State presented photographs showing bruising to Beaudoin's neck and testimony by a forensic nurse that Beaudoin had described symptoms consistent with strangulation.
See Huntington v. State, 151 P.3d 523, 527 (Alaska App. 2007) (stating that in deciding whether to grant a mistrial, the trial court could properly consider the strength of the State's evidence and the likely effect of the challenged testimony on the jury).
Beaudoin's description of the prior sexual encounter - which she clarified did not involve any physical force - had little bearing on the question of whether Mahoney had engaged in strangulation. Thus, the prior sexual encounter was removed from the central, disputed issue in the case. And ultimately, evidence of the other prior bad-act incidents - which did involve physical force - was more probative on the question of whether Mahoney had committed the charged assaults.
We therefore decline to find reversible error in the superior court's decision to deny Mahoney's request for a mistrial.
Mahoney's claims that he is entitled to resentencing
Mahoney next contends that he is entitled to resentencing for two reasons. First, Mahoney's privately retained attorney withdrew prior to sentencing, and he was unrepresented at sentencing. Mahoney argues that the superior court failed to ensure that he knowingly and intelligently waived his right to counsel, including failing to inform him of the right to obtain substitute counsel. Second, Mahoney notes that the court wrongly believed - as to one of the counts - that it was sentencing Mahoney for a felony rather than for a misdemeanor, and he therefore argues that he is entitled to resentencing on this count.
Mahoney's trial was held in mid-November 2018. Mahoney was represented at trial by a privately retained attorney. Following Mahoney's conviction, the court set sentencing for February 25, 2019.
On February 5, 2019, Mahoney's attorney filed a motion to withdraw, citing an irreconcilable breakdown in communication with Mahoney. The attorney also moved to continue the sentencing date to allow Mahoney time to obtain new counsel or prepare to represent himself at sentencing. Mahoney sought expedited consideration of both motions.
The court denied the attorney's motion to continue the sentencing date. The court also denied expedited consideration of the motion to withdraw and did not rule on the motion to withdraw prior to sentencing.
At the sentencing hearing on February 25, Mahoney's attorney informed the court that her working relationship with Mahoney was no longer "conducive to the zealous representation that is required of any attorney in [her] position," and that she had filed the motion to withdraw "by mutual agreement." In response, the court presented Mahoney with only two options - either he could represent himself or his attorney would represent him. But when the court asked Mahoney whether he wanted to represent himself, his responses were erratic and his preference unclear. The court initially denied the motion to withdraw but ultimately set a continued sentencing and representation hearing for the following day.
The next day, the court revisited the withdrawal motion and asked Mahoney whether he wanted his attorney to represent him. Mahoney's responses were again erratic and unclear. Initially, Mahoney stated that it was "not necessary" for his attorney to represent him. The following exchange then occurred, in which Mahoney was again presented only with the binary option of representing himself or retaining his current attorney:
Court: So are you going to plan to represent yourself today?
Mahoney: Well, what do you mean by represent myself?
Court: Well, if you want someone to speak on your behalf, it either needs to be you or your attorney. So are you going to speak for yourself at this sentencing hearing and make your own arguments, or do you want your attorney?
Mahoney: I believe I can speak for the name that I allegedly use, yeah.
Court: Okay. And you do not [want] [your attorney] to deal with this sentencing hearing then?
Mahoney: No.
Although Mahoney stated that he did not want his current attorney representing him, he was not asked, and did not state, that he preferred to represent himself over obtaining substitute counsel or appointed counsel if he was indigent.
Nonetheless, the superior court then engaged Mahoney in a brief colloquy about his capacity to waive his right to counsel and represent himself. The court confirmed that Mahoney was not sick or under the influence and that he had not been coerced into releasing his attorney from further representation. The court noted the danger of self-representation and briefly asked Mahoney about his education and legal training, at which point Mahoney said that he "allegedly" had a high school diploma or a "so-called diploma." Mahoney also stated that he did not have "much" legal training. After noting again that Mahoney was "likely to be under a severe disadvantage in making appropriate legal arguments about [his] sentence," the court confirmed with Mahoney that he did not want his current attorney to represent him.
The court then released the attorney from further representing Mahoney in this case and proceeded straight to sentencing. The court did not explain the benefits of counsel to Mahoney, or ask him whether he wanted another lawyer or could afford to retain one. The court did not make any specific findings as to whether Mahoney had knowingly and intelligently waived his right to counsel. And the court did not revisit the attorney's previous request for a continuance or offer Mahoney additional time to prepare to represent himself at sentencing or secure alternate counsel.
We conclude that further proceedings are required. As an initial matter, Mahoney's request to represent himself was not clear and unequivocal. Although Mahoney confirmed that he did not want his current attorney to represent him, he did not affirmatively state that he desired self-representation. The closest Mahoney came to expressing a desire for self-representation was stating that he believed he could "speak for the name [he] allegedly use[s]." As a waiver of counsel cannot be inferred, Mahoney's statement was insufficient to communicate a knowing and intelligent waiver.
See Massey v. State, 435 P.3d 1007, 1009-10 (Alaska App. 2018) (recognizing that a defendant in a criminal case is entitled to the assistance of counsel unless the defendant "clearly and unequivocally declare[s] his desire to proceed without an attorney" (internal citation and quotations omitted)); see also U.S. Const. amends. VI, XIV; Alaska Const. art. I, § 11.
Moreover, Mahoney made this statement in response to the court's binary question of whether he wanted to "speak for yourself at this sentencing hearing and make your own arguments, or [whether] you want your attorney?" The court never asked Mahoney if he wanted to obtain a replacement attorney (other than his current attorney), nor did the court advise him that he had a right to appointed counsel if he was indigent. It is therefore unclear whether Mahoney understood that he could obtain substitute counsel to represent him at sentencing, or even that the court could appoint counsel if he qualified. (Mahoney is now represented by court-appointed counsel on appeal.)
Indeed, the court never advised Mahoney about the benefits of having counsel. Although the court did note the dangers of self-representation, it did so in broad terms, briefly warning Mahoney that his lack of legal education would be a general disadvantage. We have previously discussed the "high level of scrutiny" a trial court must exercise when a defendant waives their right to counsel. This duty entails advising the defendant of the right to counsel, emphasizing the benefits of having counsel, warning the defendant about the dangers and disadvantages of selfrepresentation, and inquiring into the defendant's educational background and previous experience with criminal trials. The court in this case did not exercise this requisite level of scrutiny in ensuring Mahoney knowingly and intelligently waived his right to counsel.
McIntire v. State, 42 P.3d 558, 560 (Alaska App. 2002) (citing James v. State, 730 P.2d 811 (Alaska App. 1987), modified on reh'g, 739 P.2d 1314 (Alaska App. 1987)).
Id. at 560-61 (citations omitted).
As the United States Supreme Court has held, when a defendant is unrepresented and has not competently waived his constitutional right to counsel, "the Sixth Amendment stands as a jurisdictional bar" and the proceedings are "void." Given that Mahoney did not validly waive his right to counsel, we must remand this case for a representation hearing and resentencing.
Johnson v. Zerbst, 304 U.S. 458, 468 (1938).
There is also a separate, independent reason for requiring a resentencing in Mahoney's case. The superior court's sentencing remarks demonstrate that it sentenced Mahoney for the wrong class of offense on Count III.
As we previously noted, Mahoney was originally charged with five counts of assault - i.e., four felony counts (two counts each of second- and third-degree assault for injuring Beaudoin with his hands and a wall) and one misdemeanor count (one count of fourth-degree assault for hitting Beaudoin with a belt). But in response to Mahoney's motion for a judgment of acquittal during trial, the State reduced one of the counts of second-degree assault (Count III) - charging assault for use of the wall as a "dangerous instrument" - to fourth-degree assault. (The State also dismissed the lesser included third-degree assault count (Count IV), which similarly charged assault for the use of the wall as a "dangerous instrument.") The jury was ultimately instructed that, if it found Mahoney guilty of the remaining second-degree assault charge (Count I), it was not to return a verdict on the lesser included third-degree assault charge (Count II).
The jury returned guilty verdicts on only three counts: one felony count of second-degree assault (Count I for strangulation) andtwomisdemeanor counts offourth-degree assault (Counts III and V for injury caused by the wall and belt, respectively).
However, the presentence report erroneously stated that Mahoney was convicted of all five counts with which he was originally charged. This error escaped the notice of the prosecutor and the superior court, as well as Mahoney.
At sentencing, the court proceeded as if the jury had found Mahoney guilty of the five original charges. The court stated that it was merging the third-degree assaults (Counts II and IV) into the greater second-degree assaults (Counts I and III). (Recall that, contrary to the court's statements, the jury had not returned a verdict on Count II, Count III had been reduced to a misdemeanor, and Count IV had been dismissed in its entirety.) The court then proceeded to sentence Mahoney for two second-degree assaults, which are class B felonies, and one fourth-degree assault, a class A misdemeanor - rather than the one second-degree assault and two fourth-degree assaults for which he was found guilty.
AS 11.41.210(b).
AS 11.41.230(b).
Ultimately, the court imposed a composite sentence of 6 years with 3 years suspended - 5 years with 3 years suspended for the second-degree assault charged in Count I; 6 months for the second-degree assault originally charged in Count III, to be served consecutively; and 6 months for the fourth-degree assault charged in Count V, also to be served consecutively.
This is a significant error. Mahoney was a first felony offender. Under the law that existed at the time of Mahoney's offense, a first felony offender convicted of a class B felony, like second-degree assault, was subject to a presumptive sentencing range of 0 to 2 years and a maximum term of 10 years. By contrast, the crime of fourth-degree assault was punishable by a term of imprisonment of up to 1 year and carried a statutory minimum term of 30 days if the assault involved domestic violence and the defendant had a previous conviction for a domestic violence crime (as in Mahoney's case).
Mahoney was previously convicted of four misdemeanors, including fourth-degree assault in 2009. His three other previous misdemeanors - which do not appear to be related to domestic violence - stem from a single incident in 2002.
Former AS 12.55.125(d) (2017).
Former AS 12.55.135(a)(1)(D) and (g) (2017), respectively.
Here, the jury found aggravating factors applicable to the proper second-degree assault conviction (Count I), so the maximum applicable term on that count was 10 years. During the sentencing hearing, the court confirmed with the prosecutor that the maximum sentence on Count I - and mistakenly, on Count III - was 10 years. The superior court's error means that it wrongly believed that the maximum sentence Mahoney could receive on Count III (in fact, a conviction for fourth-degree assault) was 9 years higher than it actually was.
The State asserts that a resentencing is unnecessary because the sentence that the court actually imposed on Count III - 6 months - falls within the range of permissible sentences for his misdemeanor offense. The State suggests that Mahoney may have even benefitted from the court's mistake because the low end of the presumptive range for a class B felony committed in 2017 (0 days) is lower than the statutory minimum for fourth-degree assault for a defendant previously convicted of a domestic violence offense (30 days).
But a defendant has the right to be sentenced on the basis of accurate information. The deprivation of this right is especially troubling where, as here, misinformation results in a sentence for the wrong class of offense. Moreover, the court provided no reasoning for its sentence on the misdemeanor fourth-degree assault in Count III beyond observing (incorrectly) that it could impose up to 10 years' imprisonment. And the court's remarks suggest that it was crafting a total composite sentence among the three counts; thus, the court may have fashioned a higher total composite sentence under the mistaken belief that Mahoney was convicted of two class B felonies (instead of just one).
See Cockerham v. State, 933 P.2d 537, 542 (Alaska 1997).
For these reasons, we vacate Mahoney's sentence. Mahoney must receive a full resentencing on remand after the superior court determines whether he desires the assistance of an attorney or wishes to represent himself. In addition, the court must correct the recitation of Mahoney's convictions in both the presentence report and the judgment.
Conclusion
We AFFIRM Mahoney's convictions, but we VACATE his sentence and REMAND this case to the superior court for further proceedings. On remand, the court shall hold a representation hearing to determine whether Mahoney seeks the assistance of counsel. If so, the court shall determine whether Mahoney continues to qualify for court-appointed counsel, or whether he desires additional time to hire private counsel. If Mahoney clearly and unequivocally declares that he wishes to represent himself, the court shall conduct a full colloquy with Mahoney, explaining the benefits of counsel and the dangers and drawbacks of self-representation and ensuring that Mahoney's waiver of counsel is knowing and intelligent. The court shall then hold a new sentencing hearing and correct the errors in the presentence report and the judgment.
We do not retain jurisdiction.