Hank v. State

551 P.3d 599

Tolookqaqsiiq HANK, Appellant,

v.STATE of Alaska, Appellee.

Court of Appeals No. A-13652

Court of Appeals of Alaska.

June 7, 2024

Appeal from the Superior Court, Third Judicial District, Anchorage, William F. Morse, Judge. Trial Court No. 3AN-19-00787 CR

Marianna C. Carpeneti, Carpeneti Law Office, LLC, Homer (opening brief) and Daniel Westerburg, Attorney at Law, Green Valley, Arizona (reply brief, oral argument, and supplemental brief), under contracts with the Office of Public Advocacy, Anchorage, for the Appellant. Diane L. Wendlandt (initial brief) and Hazel C. Blum (oral argument and supplemental brief), Assistant Attorneys General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.

Before: Allard, Chief Judge, and Harbison and Terrell, Judges.

OPINION

Judge ALLARD.

Tolookqaqsiiq Hank was convicted, following a jury trial, of third-degree weapons misconduct (felon in possession) after his stepmother found him sleeping next to a pistol.¹ Prior to trial, Hank’s attorney stated that Hank would stipulate to two of the three elements required to prove felon in possession. Specifically, Hank would stipulate that he had previously been convicted of a felony and that he was aware that he had previously been convicted of a felony. Hank’s attorney explained that Hank was stipulating to these facts for "strategic reasons" in order to prevent the jury from learning about the nature of his prior convictions.

The prosecutor agreed to the stipulation, provided that the court made clear that the stipulation constituted proof beyond a reasonable doubt of the elements covered by the stipulation. Hank’s attorney agreed, and the superior court later instructed the jury that it "must" accept the stipulated facts as true. The jury ultimately convicted Hank, rejecting his defense that he did not knowingly possess the pistol. At sentencing, the court imposed a sentence of two years to serve, which was the lowest sentence within the applicable presumptive range.

Hank raises two arguments on appeal. First, he contends that it was structural error for the superior court to instruct the jury on the parties’ stipulation without first obtaining his personal waiver of his right to a jury trial on the two elements of the offense that would be established by the stipulation. Second, Hank argues that the superior court plainly erred at sentencing by failing to find, sua sponte, the mitigating factor described by AS 12.55.155(d)(9) — i.e., that his conduct was among the least serious within the definition of the offense. For the reasons explained here, we reject both claims of error and we affirm Hank’s conviction and sentence.

Underlying facts and prior proceedings

At the time of the incident, Hank was staying with his father and stepmother, and was sleeping on the floor of their living room. According to the testimony at trial, when his stepmother woke up to get one of her children ready for school, she saw that Hank had a pistol lying on the floor next to him. She woke up Hank and told him to put the gun away because she was worried about the safety of her children. Instead, Hank rolled over to cover up the gun. Hank’s stepmother then texted a person about the gun, who in turn called the police.

When the police arrived, they woke up Hank and found a pistol in a hat on the floor where Hank had been sleeping. Later, when Hank was searched at the jail, officers found five bullets in his pockets that matched the caliber of the gun. Both Hank’s stepmother and his father testified that neither kept guns in the house.

Hank testified in his own defense. In his testimony, Hank denied ever knowingly possessing the firearm. Hank claimed that the first time he saw the gun was when the police woke him up. Hank’s defense was that his stepmother had planted the gun on him so that he would be sent back to jail.

The jury rejected this defense and found Hank guilty of third-degree weapons misconduct. At sentencing, the defense attorney did not propose any mitigating factors and the superior court found none. The court sentenced Hank to 2 years to serve, the minimum sentence under the applicable presumptive range.²

This appeal followed.

Hank’s argument that it was structural error for the superior court to instruct the jury that they must accept the stipulated facts as true without first obtaining Hank’s personal jury trial waiver

[1] To prove Hank guilty of third-degree weapons misconduct (felon in possession), the State was required to prove the following elements beyond a reasonable doubt: (1) Hank knowingly possessed a firearm capable of being concealed on his person; (2) Hank had previously been convicted of a felony; and (3) Hank was aware of, or recklessly disregarded the fact that he had been convicted of a felony.³

Prior to trial, Hank’s attorney stated that Hank would stipulate that he had previously been convicted of a felony. She stated she was stipulating for "strategic reasons" — so that the jury would not hear any details about his prior convictions. The prosecutor stated that Hank would also have to stipulate that he was aware that he had a prior felony conviction.⁴ Hank’s attorney agreed that Hank would stipulate to this fact as well. The prosecutor further stated that the State would agree to a stipulation only if the language of the stipulation made clear that the stipulation satisfied those elements beyond a reasonable doubt. Hank’s attorney agreed to this. The jury was subsequently instructed that the parties had stipulated that Hank had a prior felony conviction and that he was aware of that conviction, and therefore the jury "must" accept these facts as true. The prosecutor also told the jurors during closing arguments that they "d[id not] need to deliberate" on the elements that were covered by the stipulation because those elements were "already proven beyond reasonable doubt" through the stipulation.

Hank did not object to this course of action during the trial court proceedings. Nor is there anything in the record to suggest that Hank was in disagreement with the strategic decision to stipulate to these elements. But Hank nevertheless argues for the first time on appeal that it was error for the court to instruct the jury that it "must" accept the stipulated facts as true without first obtaining his personal jury trial waiver. He further argues that the failure to obtain his personal jury trial waiver was structural error — that is, it was error that requires automatic reversal of his conviction regardless of whether he actually disagreed with his attorney’s decision to stipulate, or whether that decision caused him prejudice.

Hank’s argument partly rests on his assumption that a defense attorney’s stipulation to facts that establish an element of a criminal offense necessarily qualifies as a defendant’s waiver of the right to a jury trial on that element, such that a personal colloquy with the defendant is required under Alaska law. But we have previously rejected such an assumption in a number of published decisions.⁵

[2, 3] The first time we rejected this type of claim was more than twenty-five years ago in Ross v. State.⁶ In that case, we clarified that "a defendant’s willingness to stipulate to prior convictions does not answer the question of who will be the trier of fact on this element of the crime."⁷ As we explained,

Criminal cases are decided by jury unless the defendant waives the right to jury trial and the government consents to have the case tried to the court. In a jury trial, even when the parties reach a stipulation concerning the defendant’s prior convictions, the stipulation will be presented to the jury, and the jury will decide the prior convictions element.⁸

We relied on this same reasoning in a more recent case, Marshall v. State.⁹ Marshall involved a defendant who was charged with failure to register as a sex offender.¹⁰ At trial, Marshall’s defense attorney stipulated to the fact that Marshall was required to register as a sex offender in order to prevent the jury from learning that Marshall’s prior sex offense was for sexual abuse of a minor.¹¹ Like Hank, Marshall obtained the benefit of this stipulation at trial only to argue on appeal that his conviction should be reversed because the court accepted the stipulation without obtaining a personal waiver from Marshall.¹² Also like Hank, Marshall argued that the absence of a personal waiver was structural error requiring automatic reversal of his conviction, regardless of prejudice.¹³

We rejected this argument based on our reasoning in Ross. As we explained, "there is a distinction between a defendant stipulating to facts at a jury trial and a defendant waiving his right to a jury trial on those same facts."¹⁴ Noting that Marshall’s jury was instructed on all of the elements of the crime, including the element that was the subject of the stipulation, we concluded that a personal waiver was not required because the jury remained the fact finder.¹⁵

In Marshall, we acknowledged that the prosecutor had argued to the jury that "the State does not need to prove [the first element], with the stipulation," but we concluded that the prosecutor’s statement (which was not objected to) was an inartful way of expressing what was otherwise true — which was that the stipulation was proof beyond a reasonable doubt that the State was entitled to rely on to meet its burden.¹⁶

This case is very similar to Marshall. Like in Marshall, the jury in Hank’s case was instructed on all of the elements of felon in possession, including the elements that had been stipulated to by the defense. The jury was also instructed on the State’s burden of proof beyond a reasonable doubt.

On appeal, Hank seeks to distinguish Marshall from his case on the ground that Marshall did not involve a mandatory stipulation instruction. The jury in Marshall was instructed only that the parties had "agreed" or "stipulated" to the facts of...