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Brockway v. State12/21/2001
lack of jurisdiction. However, this exception is strictly construed - it does not apply to instances where the defendant had counsel but now claims that his attorney was ineffective.
We now adopt the majority view and hold that Brockway had no right to collaterally attack his 1996 convictions in the current proceedings. This does not necessarily foreclose all relief. Subject to the limitations codified in AS 12.72.020(a), Brockway may be entitled to attack his 1996 convictions by filing a petition for post-conviction relief. And, if Brockway is successful, he may be entitled to resentencing in the present case. But because Brockway did not claim that he was completely deprived of counsel, he had no right to attack his 1996 convictions in the present case.
Alternatively, even assuming that Judge Smith was obliged to hear and adjudicate Brockway's attacks on his 1996 convictions, we conclude that the record supports Judge Smith's ruling that the superior court substantially complied with Criminal Rule 11(c) and that Brockway's pleas were valid.
Next, we address Brockway's argument that Judge Smith erroneously rejected the proposed statutory mitigating factor that Brockway's conduct was among the least serious within the definition of third-degree misconduct involving weapons. Judge Smith found that Brockway had been intoxicated and that the .44 magnum concealed under his clothing was loaded. From our review of the record, we conclude that Judge Smith's findings regarding his rejection of the proposed mitigating factor were not clearly erroneous.
Finally, Brockway contends the 32-month composite term imposed by Judge Smith is excessive. But the plea agreement specified that the superior court could not impose more than a three-year term to serve, and Judge Smith imposed a composite term less than that maximum. Alaska Statute 12.55.120(a) provides that a defendant may not appeal a sentence that was imposed "in accordance with a plea agreement ... and that agreement provided for imposition of a specific sentence or a sentence equal to or less than a specified maximum sentence." Accordingly, we do not have jurisdiction to consider Brockway's excessive sentence claim. Therefore, we refer that claim to the supreme court under Alaska Appellate Rule 215(k).
Conclusion
Brockway's excessive sentence claim is referred to the supreme court. In all other respects, the judgment of the superior court is AFFIRMED.
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