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Sanden v. State5/30/2001
MEMORANDUM OPINION AND JUDGMENT
No. 4403
Charles W. Sanden was convicted of one count of felony driving while intoxicated (DWI) after a bench trial. He appeals, contending that the superior court erroneously found that Sanden had two prior DWI convictions. Because we conclude that Sanden either waived or did not preserve his claims, we affirm.
Sanden was arrested for DWI on March 6, 1999. Sanden had two prior DWI convictions within the preceding five years (one from 1994 and the other from 1997). The State charged him with felony DWI.
Sanden agreed to a court trial, and he stipulated that he had driven a motor vehicle while his blood-alcohol level was .259 percent. Sanden also conceded that he had pleaded no contest to DWI in 1994 and in 1997. However, Sanden asserted that his 1994 conviction was invalid because the district court had failed to inform him of his right to a jury trial before he entered his no contest plea. Superior Court Judge pro tem Sigurd E. Murphy rejected Sanden's attack on his 1994 conviction and, accordingly, he found Sanden guilty of felony DWI in the present case.
Before sentencing, Sanden attacked his 1997 DWI conviction. Sanden claimed the 1997 conviction was invalid because he had been denied his right to allocution. Sanden, however, has provided no record that Judge Murphy ever considered or ruled on this motion. Sanden claims that Judge Murphy ruled on this motion during the hearing on October 15, 1999, but the record indicates that Sanden did not file the motion attacking the validity of the 1997 DWI conviction until November.
The parties disagree as to whether the law allows felony DWI defendants to attack their prior convictions in the felony DWI prosecution itself. Sanden argues that a defendant's prior convictions are elements of the felony offense, and that a defendant may attack the validity of the prior conviction as part of the defense to the charge. The State argues that the prior convictions cannot be attacked directly in the felony DWI prosecution - that the defendant must pursue a collateral attack on the convictions (i.e., by filing a petition for post-conviction relief). We need not resolve this issue in Sanden's case because we conclude that, even if Sanden was authorized to attack his prior convictions as part of his defense to the felony prosecution, Sanden (1) has failed to adequately brief the validity of his 1994 conviction and (2) has failed to preserve his attack on the 1997 conviction.
Sanden did not designate any portion of the electronic record from either prior DWI conviction for transcription in this case. Thus, none of the proceedings from those cases are part of the appellate record. We do have the evidence Sanden provided to Judge Murphy (partial - and uncertified - transcriptions of portions of Sanden's change of plea hearings in both the 1994 and 1997 cases), and Judge Murphy's written decision regarding the 1994 conviction.
Sanden claimed that his 1994 DWI conviction was invalid because the judge who accepted his no contest plea failed to inform him of his right to a jury trial. Judge Murphy reviewed the record of that earlier case and rejected Sanden's claim on the merits. But in addition, Judge Murphy ruled that Sanden had no right to attack his 1994 conviction in the first place.
Judge Murphy pointed out that, under Alaska Criminal Rule 11(h)(3), defendants who seek to withdraw their plea after sentencing must pursue a petition for post-conviction relief under AS 12.72. Under the statute of limitations codified in AS 12.72.020(a)(3)(A), such a petition must be filed within two years of the date the conviction became final (if t
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