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State v. Simpson7/23/2004
In State v. Simpson, 53 P.3d 165 (Alaska App. 2002), we reversed the superior court's ruling that two 1999 Montana convictions for "driving under the influence"did not qualify as prior convictions for purposes of AS 28.35.030(n), felony driving while intoxicated. We decided that the elements of Montana's "driving under the influence" charge were "similar" to the elements of AS 28.35.030. Accordingly, we reinstated the indictment.
This case has returned to us because the superior court again dismissed Simpson's indictment. The superior court ruled that due process was violated by charging Simpson with felony driving while intoxicated because Simpson's Montana convictions arose from non-jury trials at which he was tried in absentia.
The record shows that Simpson was represented by counsel in both of his Montana cases. The Montana court had personally served Simpson with his trial notices and informed him that he would be tried in absentia and without a jury if he did not appear for the trials. (Article 2, section 26 of the Montana Constitution provides that upon "default of appearance..., all cases may be tried without a jury or before fewer than the number of jurors provided by law.") On the day set for each trial, Simpson did not appear, although his counsel was present. The court discharged the jury panel called for each case and proceeded with bench trials. After each trial, the court entered written findings convicting Simpson of driving under the influence .
Simpson argues that these convictions cannot be used as predicate convictions for felony DWI because the Montana convictions are "constitutionally infirm." Simpson relies on two of our cases, State v. Peel and Pananen v. State.
In Pananen, we addressed a prior out-of-state conviction where the defendant had not been afforded a right to counsel. Pananen was convicted of two counts of driving while intoxicated. The trial court sentenced the defendant as a third offender because he had two prior convictions for that offense in Wisconsin. On appeal, Pananen argued that the first of the two Wisconsin DWI convictions was invalid to enhance his sentence because Wisconsin law did not afford the right to court-appointed counsel in his first case.We concluded "that an uncounseled conviction is simply too unreliable to be depended on for purposes of imposing a sentence of incarceration, whether that sentence is imposed directly or collaterally." Based on this conclusion, we held that " ecause Wisconsin law did not extend to Pananen the right to court-appointed counsel for his first DWI offense, Pananen's first Wisconsin conviction should not have been relied upon by the district court as a basis for determining the applicable mandatory minimum sentence."
In Peel, we addressed whether a prior driving while intoxicated conviction, obtained where the defendant had been denied the right to a jury trial, could be used to support a mandatory minimum sentence under Alaska law for driving while intoxicated. Peel had been denied a jury trial because Louisiana law did not permit a jury trial for the offense. The trial court decided that the Louisiana conviction could not be used to trigger a mandatory minimum sentence. The State attempted to distinguish Pananen by arguing that the right to a jury trial was not as critical as the right to counsel. We relied on Baker v. City of Fairbanks and O'Donnell v. Municipality of Anchorage, Alaska decisions that equated the right to counsel and the right to a jury trial, and upheld the trial court's decision not to use the Louisiana driving while intoxicated conviction to trigger the mandatory minimum sentencing provisions.
Simpson's case is distinguishable. In both P
Page 1 2 Alaska DUI Attorneys
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