Court of Appeals of AlaskaNov 16, 2011
Court of Appeals No. A-10724. (Alaska Ct. App. Nov. 16, 2011)

Court of Appeals No. A-10724.

November 16, 2011.

Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Jane F. Kauvar, Judge, Trial Court No. 4FA-06-992 CI.

Dan Bair, Assistant Public Advocate, and Rachel Levitt, Public Advocate, Anchorage, for the Appellant. Daniel L. Cheyette, 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.


BOLGER, Judge.

Daniel C. Lewis intentionally shot a hole through the Trans-Alaska Pipeline and was convicted of various state and federal charges. Lewis filed this action for post-conviction relief, arguing that his trial attorney was ineffective for not moving to dismiss the state charge of criminal mischief in the first degree, which was based on his conduct of "intentionally damag[ing] an oil or gas pipeline." Lewis contended that the State was barred by statute from prosecuting him for that offense because the federal court had relied on the same conduct in imposing his federal sentence for felon in possession of a firearm. The superior court dismissed the application, ruling that Lewis's trial attorney was not incompetent for failing to pursue this legal claim because the claim had no merit. We conclude that Lewis's federal conviction for felon in possession of a firearm did not involve the same criminal act as his criminal mischief conviction in state court. And the fact that the federal judge considered Lewis's state conviction when imposing the federal sentence did not convert the federal conviction into the same criminal act for the purpose of this statute. We therefore affirm the superior court's decision to dismiss Lewis's application for post-conviction relief.

Former AS 11.46.480(a)(3) (2000). Lewis also argued that his trial attorney was ineffective for not moving to dismiss the charges of oil pollution and fourth-degree weapons misconduct, but he has not renewed those claims on appeal.

See former AS 12.20.010 (2006) (repealed ch. 75, SLA 2008, § 40).


Lewis shot the Trans-Alaska Pipeline in October 2001. In federal court, he was charged with felon in possession of a firearm, and convicted after a jury trial. On November 4, 2002, United States District Court Judge John W. Sedwick held a hearing related to Lewis's federal sentence. The judge found by clear and convincing evidence that Lewis had violated AS 11.46.480(a)(3), Alaska's first-degree criminal mischief statute, by intentionally shooting the pipeline. That finding triggered an enhancement under the Federal Sentencing Guidelines because Lewis had "used or possessed [a] firearm . . . in connection with the commission . . . of another offense." Judge Sedwick continued the proceeding to review whether the court should impose Lewis's federal sentence concurrently with any state sentence.

Lewis v. State, Mem. Op. J. No. 5169, 2007 WL 293079 (Alaska App. Jan. 31, 2007).

See Federal Sentencing Guidelines Manual § 2K2.1(c)(1)(A).

Meanwhile, in state court, Lewis was convicted of criminal mischief in the first degree, oil pollution, misconduct involving weapons in the fourth degree (for possession of a firearm while intoxicated), and other charges unrelated to this appeal. On June 9, 2003, Superior Court Judge Pro Tem Jane F. Kauvar imposed sentences for the state charges, including a sentence of ten years' imprisonment with two years suspended for Lewis's criminal mischief conviction.

Former AS 11.46.480(a)(3) (2000).

AS 46.03.740.

AS 11.61.210(a)(1).

Judge Sedwick reconvened the federal sentencing proceeding later that month, on June 20, 2003. He noted that the sentencing range indicated by the guidelines was 140 to 175 months, but he ultimately imposed a sentence of 120 months, which was the maximum penalty allowed by statute for Lewis's federal conviction. Judge Sedwick concluded that Lewis's federal sentence should run concurrently with the sentence for his state convictions.

Lewis appealed his convictions in both state and federal court. While his federal appeal was pending, the United States Supreme Court excised the portion of the Federal Sentencing Act that made the sentencing guidelines mandatory. This was done to bring the guidelines into compliance with the Supreme Court's decision in Blakely v. Washington. In view of these developments, the Supreme Court vacated Lewis's federal judgment and required the lower court to reconsider his sentence.

Lewis, 2007 WL 293079.

Lewis v. United States, No. 03-30281, 2004 WL 2203945 (9th Cir. Sept. 28, 2004) (unpublished), judgment vacated, 543 U.S. 1181 (2005).

See United States v. Booker, 543 U.S. 220, 226, 259-60 (2005).

Id. (citing Blakely v. Washington, 542 U.S. 296 (2004)).

Lewis v. United States, 543 U.S. 1181 (2005), on remand 421 F.3d 1152 (9th Cir. 2005).

On September 12, 2005, Judge Sedwick issued an order from chambers, reconsidering Lewis's federal sentence. Judge Sedwick noted that Lewis had committed so many crimes that he had accumulated 23 criminal history points, ten points higher than the score required to trigger the highest offender range under the sentencing guidelines. The judge concluded that a lengthy sentence was required to protect the public: "[I]t is only necessary to look at Lewis' long string of crimes to realize he will likely re-offend as soon as he is out of prison. . . . A long sentence assures a lengthy separation from alcohol and provides an opportunity for treatment in a structured setting." The judge also found that a lengthy sentence was important because of the circumstances of the offense: "The use of a very high-powered firearm to penetrate an oil pipeline is conduct that risked exceedingly grave environmental and economic losses, and risked bodily injury and loss of life of those responding to the disaster created by a flood of hydrocarbons." Judge Sedwick concluded that he would have imposed the same maximum 120-month sentence, even if he had recognized that the guidelines were only advisory.

United States v. Lewis, No. A01-149 CR JWS, 2005 WL 2340705 (D. Alaska 2005) (unpublished), aff'd, 213 Fed. Appx. 574 (9th Cir. 2006), cert. denied, 549 U.S. 1360 (2007).

Id. at *1.

Id. at *2.


Id. at *3.

Lewis filed the present post-conviction relief action in 2006. He alleged that his trial counsel in state court rendered ineffective assistance of counsel by failing to defend against his state prosecution for shooting the pipeline on the basis that the federal court had relied on the facts of the state offense when imposing the federal sentence. He argued that former AS 12.20.010 prohibited the state prosecution under these circumstances. The State filed a motion to dismiss, asserting that Lewis's application failed to allege a prima facie case of ineffective assistance of counsel. Judge Kauvar granted the motion, concluding that Lewis's trial counsel was not ineffective because AS 12.20.010 did not bar Lewis's prosecution in state court. Lewis now appeals.


Former AS 12.20.010 prohibited a state prosecution after conviction for the same act in another jurisdiction:

When an act charged as a crime is within the jurisdiction of the United States, another state, or a territory, as well as of this state, a conviction or acquittal in the former is a bar to the prosecution for it in this state.

Former AS 12.20.010 (2006).

Lewis argues that this statute was intended to give greater preclusive effect to a federal prosecution than the double jeopardy clause would give to an Alaska prosecution. He relies on the fact that this statute was originally enacted by Congress when Alaska was part of the Oregon Territory. Lewis notes that, during territorial days, the federal government exercised a great deal of control over Alaskan affairs. He argues that the statute should be interpreted to bar a state prosecution if the federal government uses some of the same evidence to obtain a federal conviction.

Section 2118 of the 1913 Compiled Laws of Alaska provided:

That when an act declared to be a crime is within the jurisdiction of any State, county, or Territory, as well as within [this] District, a conviction or acquittal therefor in the former is a bar to a prosecution therefor in [this] District.

See also
Carter's Annotated Alaska Code at 46 (1900); Hill's Ann. Laws Or. § 1219 (1864).

Lewis's position runs contrary to our previous decisions construing this statute. In the absence of this statute, a prosecution by another state or the federal government would not insulate a defendant from a successive prosecution in Alaska. Alaska Statute 12.20.010 was intended to protect criminal defendants from the harsh effects of this "separate sovereigns" doctrine. In other words, the statute was "designed to complement the double jeopardy clause by protecting criminal defendants against successive prosecutions by different governments." In cases construing this statute, we have analyzed the defendant's conduct, the elements of the offenses in question, and the societal interests involved to determine if offenses in different jurisdictions are the same "act" under this statute.

See Bartkus v. Illinois, 359 U.S. 121 (1959); Abbate v. United States, 359 U.S. 187 (1959).

Booth v. State, 903 P.2d 1079, 1085-86 (Alaska 1995).

Id. at 1085; see also State v. Bonham, 28 P.3d 303, 306 (Alaska App. 2001) (same).

For example, in Seaman v. State, the defendant was convicted in Arizona of custodial interference based on his act of keeping his son from the lawful custody of the son's natural mother. Seaman contended that his Arizona conviction barred his later prosecution for custodial interference in Alaska. But this court concluded that the Alaska prosecution was for a different criminal act — Seaman's conduct in removing his son from the state of Alaska. We relied on cases construing the double jeopardy clause of the Alaska Constitution to explain that Seaman's separate criminal acts of removing his son and then keeping him from his mother could support separate convictions.

825 P.2d 907, 909 (Alaska App. 1992).


Id. (citing Whitton v. State, 479 P.2d 302, 312 (A laska 1970); Yearty v. State, 805 P.2d 987, 993-96 (Alaska App. 1991); Rodriguez v. State, 741 P.2d 1200, 1206-08 (Alaska App. 1987)).

Similarly, in Booth v. State, the defendant was convicted of assault in the Metlakatla Indian Community. We concluded that, if this charge had been prosecuted by the State of Alaska, the double jeopardy clause would have barred a second prosecution. We also concluded that AS 12.20.010 was intended to extend this protection against successive prosecution to situations in which separate sovereigns institute the prosecutions. Therefore we held that the statute prohibited the State from pursuing a state prosecution for the same assault.

Id. at 1089.



In Bonham v. State, we considered a dispute that is similar to the present case. Bonham was convicted of mail fraud in federal court. She contended that her federal conviction encompassed all of the misleading filings that formed the basis of her state charges of perjury and false securities reports. In analyzing this claim, we noted that AS 12.20.010 did not necessarily bar all related charges arising out of the same episode or transaction. We compared the elements of the federal and state offenses in light of the misconduct that was charged in each jurisdiction and concluded that Bonham's federal conviction was not for the same act charged in her state prosecution.

Id. at 304.

Id. at 306.

Id. at 306-07.

Id. at 307-08.

In the present case, Lewis's federal offense of felon in possession of a firearm required proof that he had at least one prior felony conviction and that he possessed a rifle. The purpose of felon in possession statutes is to prevent the use of firearms in violent crime. The offense did not require proof that Lewis used a rifle to damage an oil pipeline.

See Davis v. State, 499 P.2d 1025, 1038 (Alaska 1972), overruled on other grounds, 415 U.S. 308 (1974).

Lewis's state prosecution required proof that he "intentionally damage[d] an oil or gas pipeline." This offense is intended to protect against the serious economic and environmental damage associated with damage to an oil pipeline. The offense did not require proof that Lewis had previously been convicted of a felony.

See former AS 11.46.480(a)(3) (2000).

Wertz v. State, 611 P.2d 8, 10 n. 2 (Alaska 1980).

Because of the differences in intent and conduct between these two offenses, they would support separate convictions if they had both been brought under state law. But Lewis argues that a state prosecution is now barred because the federal judge relied on Lewis's criminal mischief offense in imposing his federal sentence.

Cf. Leonard v. State, 655 P.2d 766, 771-72 (Alaska App. 1982) (concluding that separate convictions were warranted for misconduct involving weapons in the second degree and criminal mischief in the third degree for firing a rifle at a cabin and a pickup truck and damaging both).

In Bonham, we concluded that the federal double jeopardy clause was not violated "when a defendant is convicted and sentenced for a crime even though another judge already has considered the facts of that crime when calculating the defendant's sentence for a separate crime under the federal sentencing guidelines." We also concluded that Bonham had failed to identify anything in the text, context, or the history of the state double jeopardy clause to show that it should be interpreted to provide greater protection than the federal constitution. We reach the same conclusion in this case. Judge Sedwick considered the entirety of Lewis's misconduct when he determined the appropriate sentence for the federal charge. But this consideration did not convert the federal charge of felon in possession of a firearm into a prosecution for damaging an oil pipeline. So, AS 12.20.010 did not prohibit the State from prosecuting Lewis for criminal mischief in the first degree for intentionally shooting the oil pipeline.

28 P.3d at 308 (citing Witte v. United States, 515 U.S. 389 (1995)).



We AFFIRM the superior court's judgment dismissing the application for post-conviction relief.