text:
    2002 WY 97
    Jerald Dennis KEARNS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 00-305.
    Supreme Court of Wyoming.
    June 26, 2002.

      Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; and Ryan R. Roden, Assistant Appellate Counsel, Representing Appellant. Argument by Mr. Roden.
    Hoke MacMillan, Attorney. General; Paul S. Rehurek, Deputy Attorney General; D.
    Michael Pauling, Senior Assistant Attorney General; Theodore Lauer, Director, Progecution Assistance Program; and Carrie Dawn Tate-Meyer, Student Intern, Representing Appellee. Argument by Ms. Tate-Meyer.
    Before LEHMAN, C.J., and GOLDEN, HILL, KITE, and VOIGT, JJ. .
   LEHMAN, Chief Justice.

[11] Appellant Jerald D. Kearns appeals from the judgment and sentence entered after a jury found him guilty of aggravated robbery and the judge sentenced him as an habitual criminal.

[12] We affirm.

ISSUES

[T3] Kearns presents the following issues for our analysis:

I. Whether the district court made reversible error and erred as a matter of law by not discharging and dismissing the jury once it realized that it had improperly read count 3, habitual criminal. charge including appellant's alleged previous felony convictions, to the jury panel.
II. Whether appellant received ineffective assistance of counsel when appellant's counsel erroneously advised appellant to waive the district court's prejudicial error of informing the jury of count 3 of the information, the habitual criminal charge which included appellant's alleged prior felony convictions. *
III, Whether appellant's state and federal constitutional rights not to be placed twice in jeopardy for the same offense were violated by the enhanced penalties of the habitual criminal act.
IV. Whether appellant's conviction for attempted aggravated robbery did not fall within the definition of a violent felony, and the trial court therefore erred in sentencing him as an habitual criminal, and violated his due process rights.

Appellee State of Wyoming offers the following issues for our review:

I. Did appellant voluntarily, knowingly and intelligently waive his right to request that the court discharge the venire and summon a new venire for his trial?
II. Did appellant receive ineffective assistance of counsel regarding appellant's waiver of his right to request that a new venire be summoned for his trial?
III. Was appellant's right against double jeopardy violated when his prior convictions were used to enhance his sentence as an habitual criminal under Wyo. Stat. § 6-10-2017
IV. Did the trial court properly sentence appellant as an habitual criminal, since appellant was convicted of the violent felony of aggravated robbery, and not of attempted aggravated robbery as appellant contends?

FACTS

[14] On August 19, 1999, Kearns was on parole after serving seventeen years of a twenty to twenty-five year sentence for burglary and arson. In 1998, he had been released from the Wyoming State Penitentiary to the Community Alternatives of Casper (CAC). In August of 1999, Kearns was released from CAC. On the morning of August 19, 1999, Kearns decided he wanted to travel to Deadwood, South Dakota, to play some blackjack. He called his parole officer and, instead of asking her if he could travel to Deadwood, he asked her if he could go to Gillette to visit his brother. While the parole officer denied granting Kearns permission to leave town at all, Kearns testified that he believed that she had given her permission as long as he returned to Casper that night. On his way to Deadwood, Kearns purchased a bottle of whiskey to sip on during his trip even though it was a violation of his probation to possess and consume alcohol.

[15] Kearns spent the day in Deadwood. On his way back to Casper, Kearns spotted a hitchhiker. He picked up the hitchhiker, whose name was Millard Lynd, and loaded Lynd's belongings into the car. As they drove toward Wyoming, the two made small talk. Kearns described Lynds claims that he had worked undercover for the NYPD, the FBI, and the CIA in Vietnam as "nutty." During this time, Lynd helped himself to some of Kearns' cigarettes, which were on the dash of the car. After two or three cigarettes, Kearns told Lynd that he should just buy the pack from him. Kearns testified that Lynd gave him a handful of coins for the cigarettes.

[16] Eventually, Kearns pulled onto an off ramp to urinate. Kearns claims that Lynd was yelling at him to hurry up because they needed to get to Gillette before it was too late for him to find a hotel room. According to Kearns, this pushed his last button. This yelling for Kearns to hurry up, the "nutty" talk, and Lynd's taking the cigarettes without permission had irritated Kearns to such a degree that he wanted Lynd out of his car. ©

[T7] At this point, Kearns' and Lynd's versions of the ensuing struggle conflict substantially. Kearns claims that when he got back in the car, he told Lynd to get out of the car and that when Lynd refused, Kearns reached across Lynd, opened the passenger door and began pushing Lynd out of the car. Kearns said that Lynd fought him pretty hard and even broke the rearview mirror off and began hitting Kearns with it. Once Kearns got Lynd out of the car, he continued toward Gillette. By the time Kearns got to Moorcroft, he testified that he had realized that he still had Lynd's belongings. He said he turned around, intending to return Lynd's things to him. This plan was thwarted, however, when Kearns discovered flashing lights where he had foreed Lynd out of the car. Kearns kept driving and dumped the items at an exit near Sundance.

[T8] Lynds version of the struggle begins with Kearns approaching the passenger door from the outside after he had finished urinating. Lynd said Kearns started hitting him through the passenger window and that when Kearns opened the door, Lynd fell out of the car. At some point during the fight, Lynd realized that he was covered in blood and was being cut by some sort of sharp object. He testified that he kept various coins that he was saving in his wallet, some new American quarters and some foreign coins, and that they ended up in Kearns possession when Kearns demanded Lynds money and Lynd handed over his wallet. Lynd explained that after Kearns drove away, some motorists discovered Lynd and called the sheriff and ambulance. Lynd was taken to the Campbell County Memorial Hospital to be treated for his wounds. Coincidentally, Kearns had also stopped at the Campbell County Memorial Hospital for treatment because he was experiencing severe pain due to a chronic kidney stone condition.

[19] Officer Gary Spears of the Crook County Sheriff's Department interviewed Lynd at the hospital and was given a description of the alleged assailant and his vehicle. While Officer Spears was at the hospital, he noticed Kearns, and he recognized that Kearns fit the description of Lynd's assailant. Officer Spears proceeded to the parking lot where he found the car that Lynd described. He then approached Kearns and asked him some questions. Officer Spears confiscated Kearng' clothing, and a search revealed some money, including the identifiable coins that belonged to Lynd. Officer Spears then sent the clothing to the Wyoming State Crime Lab for testing.

[110] On August 20, 1999, Lieutenant William Lessner of the Crook County Sheriff s Department impounded Kearns' car and retrieved - Lynd's dumped - belongings. Kearns was arrested and charged with attempted first-degree murder, aggravated robbery, and with being an habitual criminal. The jury convicted Kearns of the aggravated robbery charge, and the judge sentenced him under the habitual criminal statute to a term of life imprisonment in the Wyoming State Penitentiary. Kearns makes this timely appeal.

DISCUSSION

A. Waiver

[111] Kearns claims that the trial court committed reversible error and erred as a matter of law when it failed to discharge the jury panel after the judge mistakenly read the habitual criminal charge, which included information regarding his previous felony convictions. He maintains that the trial court did not possess the discretion to allow Kearns to waive this error. The State replies that Kearns' waiver was valid because the trial court fully informed Kearns of the mistake and gave him the option of continuing with the sitting jury panel or discharging it and empanelling a new one.

[¥12] When analyzing whether the waiver of a personal right was accomplished effectively, we first inquire into whether the right is a waivable right. Taylor v. State, 612 P.2d 851, 860-61 (Wyo.1980). If the right is one that can be waived, then we analyze whether the waiver was done voluntarily, knowingly, and intelligently. Vargas v. State, 968 P.2d 984, 990 Wyo. Stat. Ann. § 6-10-203 (LexisNexis 2001) applies in cases that involve an habitual criminal charge. It provides: ‘

(a) An information or indictment which charges a person as an habitual criminal shall set forth the charged felony and allege the previous convictions.
(b) The trial on the charged felony shall proceed as in other cases, but the jury shall not be informed of the previous convictions. If the defendant is convicted of the charged felony and does not plead guilty to the charge of the previous convie-tions, he shall be tried immediately by the same jury or judge on the charge of the previous convictions. '
(c) In a trial under this article, a duly authenticated copy of the record of previous convictions and judgments against the defendant of any court of record are prima facie evidence of the previous convictions and may be used in evidence against the defendant.

(Emphasis added.)

[113] At the beginning of the voir dire process, the trial court read the charging information to the jury panel. Instead of just reading the first two counts, however, the judge mistakenly read the third count as well, which included information about Kearns' prior convictions:

Count 3 alleges that on or about the 19th day of August, 1999, in Crook County, Wyoming, that Mr. Kearns, having been previously convicted of three or more felonies separately brought and tried which arose out of separate occurrences, specifically, felony convictions for grand theft and aiding escape in the state of Arizona; a felony conviction of escape in November 1964 in Arizona; and a felony conviction under the federal law in Louisiana; and felony convictions for aggravated burglary, first degree arson in the State of Wyoming; and that he did commit the crime of attempted murder in the first degree as set out in Count 1 above.
And/or in the alternative, that having had those prior convictions he did commit the crime of aggravated robbery as set out in Count 2 above.

The judge immediately recognized his mistake and met with the prosecutor, defendant, and defense counsel outside the presence of the jury panel to discuss how to proceed:

THE COURT: As I was going through the Information and I was reading the charges to the jury, I got along to Count 8 and as soon as I got into it I realized that I wasn't supposed to be advising the jury of that.
... I tried to get through it as quickly as I could. But it's clearly improper, and we need to discuss what we want to do here. And that may well be that we discharge this jury, the Clerk calls more jurors and we start tomorrow morning.
I really screwed up here. I should not have told the jury that you are being charged as an habitual criminal. The procedures that we have in place say that you go to trial on the underlying offenses with which you're charged-that 'would be Counts 1 and Count 2-and if you were convicted of either of those counts, then we move on to the next stage of the trial where if you want the jury to determine whether or not you were in fact an habitual criminal, then the jury would decide that, but their decision on guilt or innocence on Counts 1 or 2 would be totally unaffected in that way by the knowledge about whether or not you were previously convicted of crimes.
So I want you to understand that-that I made an error there and-it's a pretty serious one, and the remedy for that would be that we could just start with a whole new jury that knows nothing about it, but I want you to understand as well that you, after consultation with your attorney, may have reasons, whatever they are-and you don't need to share them with any of us, but you may have reasons that you want this jury in spite of the fact that I serewed up and told them about prior convictions, and that's entirely up to you after consultation with your attorney.
But I want you to understand unequivocally at this point in time, it's your decision to make, not your attorney|']s. You should listen to his advice, but it's your decision to make and if you want to start tomorrow with an entirely new jury panel, that's what we'll do.
THE DEFENDANT: I'd rather just go forth right now.
THE COURT: Have you talked-
THE DEFENDANT: Yes.
THE COURT Mr. Wolfe?
THE DEFENDANT: Yes, I have.
THE COURT: I don't want to know what your reasons are, but-that's something probably private between you and your attorney, but I'm assuming that you have reasons why you want to proceed with this jury panel instead of putting it off until tomorrow.
THE DEFENDANT: Well, it was going to come out anyway.
THE COURT: Okay.
THE. DEFENDANT: I feel I would have preferred that, you know, he bring it out, but it's okay. They was going to know about it anyway.
THE COURT: Because you intend to testify?
THE DEFENDANT: Yes, uh-huh.
THE COURT: Well, you understand you don't have to testify?
THE DEFENDANT: Yes sir, I do.

[T1i4] Everyone agreed that the jury should be instructed about the information of which they had been mistakenly informed, so the judge explained:

When I was telling you about the charges against Mr. Kearns, I erroneously included in there some information about some pri- or convictions that he may have suffered.
In our system we try cases based upon the facts of this particular case and not anything else. So you're not-you're to disregard the fact that he may have been convicted previously of any offense, and that's not to be part of your consideration in this case in any way. And if you don't feel like you can set that aside and decide based upon the facts and irrespective of that information, then you need to tell the attorneys about that. The error that I made in that respect the defendant has waived and wants to go ahead with this jury.

[115] Throughout the voir 'dire process, defense counsel was afforded the opportunity to inquire into whether the prior convictions would affect the potential jurors' ability to be impartial. At the conclusion of the voir dire process, after the jury was chosen, the judge again gave Kearns the opportunity to discharge the jury and start with a brand new panel in the morning. Kearns reiterated his desire to proceed with the current jury.

[T16]) Kearns argues that he should not have been allowed to waive this error because Wyo. Stat. Ann. § 6-10-208 contains mandatory language that prohibits the jury from being informed of any prior convictions at this stage in the trial proceedings. We disagree. Although in early common law an accused was not allowed to waive any rights that were intended for his protection, it is now generally held that a defendant may waive any rights in which the public does not possess an interest or which are not contrary to public policy. Taylor, 612 P.2d at 859. Some examples of a defendant's waiver privilege include: the defense of double jeopardy, Hutchins v. State, 488 P.2d 519, 521 (Wyo.1971); the right to refuse to testify on the ground of self-incrimination, Harvey v. State, 835 P.2d 1074, 1099 (Wyo.1992); the right to request counsel, Raigosa v. State, 562 P.2d 1009, 1015 (Wyo.1977); the right to a speedy trial, Cosco v. State, 508 P.2d 1403, 1406 (Wyo.1972); and the right to a unanimous jury, Taylor, 612 P.2d at 861. This court stated in Taylor, "if all of these rights and more can be waived upon what ground can we say that the waiver of jury unanimity is so sacred that it cannot be added to the list? We perceive of none." Id. We echo that sentiment regarding the right to not have a jury be informed of prior convictions for purposes of the habitual criminal statute until the habitual criminal phase of the trial.

[117] Section 610-208 does not declare that this is a right that cannot be waived, nor does it provide a mandatory remedy for situations wherein the jury is prematurely informed of this sort of information. We allow defendants to waive other rights even though the governing rules include similar mandatory language. See Wyo. Const. art. 1, § 11 (which provides that "[nlo person shall be compelled to testify against himself in any criminal case, nor shall any person be twice put in jeopardy for the same offense.") See also W.R.Cr.P.48 (which provides that "[al criminal charge shall be brought to trial within 120 days following arraignment unless continued as provided in this rule."). Without express language that this right is not waiva-ble or that if such an error occurs the jury must be dismissed, we are not convinced that this right is "so sacred that it cannot be added to the list" of rights that can be waived.

[T18] While we conclude that this is a right that may be relinquished, we emphasize that waiver can occur only when it is done voluntarily, intelligently, and knowingly in an atmosphere free from express or implied punishment or threat of punishment. To determine whether Kearns voluntarily waived this right, we consider the following exchange:

THE COURT: What I want to make sure you understand is that that's probably-that's probably the kind of an error that you can waive, in other words, you can say, well, I have bigger fish to fry and so it doesn't matter to me. But I want you-I don't want you to feel like there's any pressure-
THE DEFENDANT: No, I don't feel that way at all. |
THE COURT:-with this jury because we'll get you a new jury if you want that.
THE DEFENDANT: I don't feel pressured at all. I'd rather go forward with this jury right here.
THE COURT: Okay. All right.

This discussion convinces us that Kearng' decision to waive this right was completely voluntary. Our review of the transcript reveals that the judge in no way pressured Kearns to waive his right. On the contrary, the judge repeatedly assured Kearns that he was absolutely willing to dismiss this jury and start with a new panel in the morning.

[119] We look again at the transeript to determine whether Kearns' waiver was done knowingly and intelligently:

THE DEFENDANT: Well, see, another thing, too, because the-{[the victim] in his testimony is going to say that I told him I was in prison for 17 years, see, so it was going to come out that way, wasn't it?
THE COURT: Maybe. Maybe not. I don't know. ©
THE DEFENDANT: Anyway, I'd rather go forward. I think it's okay, you know.
THE COURT: Okay. Do you feel like you've discussed that thoroughly with [your attorney]?
THE DEFENDANT: Yes, I have, Your Honor.

In the interest of space, we will not recite every word that was uttered on this topic. The above quoted colloquy is representative. We will say that. our review of the transcript reveals lengthy exchanges between the judge and Kearns, which illustrate the judge's complete willingness to dismiss the jury and effort to establish that Kearns was making this decision intelligently and voluntarily. It is clear that Kearns wanted to proceed with the jury knowing the drawbacks of such a decision and despite assurances that it would be no problem to discharge the current jury. Accordingly, we conclude that Kearns' waiver was effective.

B. Effective Assistance of Counsel

[T20] Kearns asserts that he received ineffective assistance of counsel when his attorney advised him to waive the trial court's error of informing the jury of the prior felony convictions underlying the habit, ual criminal charge. The State counters that Kearns has failed to prove that his trial counsel provided him with ineffective assistance of counsel. This court articulated our well established law of ineffective assistance of counsel in Jackson v. State, 902 P.2d 1292, 1295 (Wyo.1995). We reiterated this standard in Grainey v. State, 997 P.2d 1035, 1038-39 (Wyo.2000):

© When reviewing a claim of ineffective assistance of counsel, the paramount determination is whether, in light of all the cireumstances, trial counsel's acts or omissions were outside the wide range of professionally competent assistance. Herdt v. State, 891 P.2d 798, 796 (Wyo.1995); Starr v. State, 888 P.2d 1262, 1266-67 (Wyo. 1995); Arner v. State, 872 P.2d 100, 104 (Wyo.1994); Frias v. State, 722 P.2d 185, 145 (Wyo.1986). The reviewing court should indulge a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Herdt, at 796; Starr, at 1266; Arner, at 104; Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984).
Under the two-prong standard articulated in Strickland and Frigs, an appellant claiming ineffective assistance of counsel must demonstrate on the record that counsel's performance was deficient and that prejudice resulted. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Starr, at 1266; King v. State, 810 P.2d 119, 125 (Wyo.1991) (Cardine, J., dissenting); Campbell v. State, 728 P.2d 628, 629 (Wyo.1986); Frias, 722 P.2d at 145. In other words, to warrant reversal on a claim of ineffective assistance of counsel, an appellant must demonstrate that his counsel failed to "render such assistance as would have been offered by a reasonably competent attorney" and that "counsel's deficiency prejudiced the defense of [the] case." Lower v. State, 786 P.2d 346, 349 (Wyo.1990). "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686, 104 S.Ct. at 2064.

[T21] The theory upon which Kearns asserts his ineffective assistance of counsel claim is that "[tlhere is no logical reason why trial counsel, as a matter of strategy, should want a jury that had already been poisoned and prejudiced against his client." We agree with the State that Kearns has failed to satisfy the first prong of the Strickland standard by failing to demonstrate that his attorney's performance was deficient. Upon recognizing his error, the judge immediately met with the parties and informed them that he had mistakenly read the information pertaining to Kearns' prior convictions and that he would be happy to dismiss the venire and start fresh the next morning. The lengthy conversations that appear in the record, some of which we reproduced in our discussion on the first issue, convince us that Kearns had sound advice in making his decision to keep the current panel. One additional comment that Kearns made during the discussion on this issue was that at least this way the defense had the opportunity to voir dire the potential jurors on this specific topic to see if the fact that he had prior convictions would prejudice any of them in this case. In our opinion, Kearns made a good point. Given the facts of this case, it was likely a valuable opportunity and good strategy to be able to question the potential jurors about whether Kearns' prior convictions would affect their ability to remain impartial. The fact that the jury ultimately found Kearns guilty of one of the charged crimes does not translate to a conclusion that he should have opted for a new jury. Indeed, the fact that the jury found Kearns not guilty of the attempted first degree murder charge is a good indication that the jury was not determined to convict Kearns of a crime that was not supported by the evidence just because he had prior convictions.

C. Double Jeopardy

[122] Kearns contends that his state and federal constitutional rights not to. be placed twice in jeopardy for the same offense were violated when the trial court used Kearns' prior convictions to enhance his punishment under the habitual criminal statute. He maintains that because the prior crimes were used to enhance his last sentence, they cannot also be used to enhance his current sentence. The State replies that enhanced punishment under the habitual criminal statute does not result in multiple punishments because being an habitual criminal is a status, not a criminal offense.

[123] The double jeopardy clause, found in the Fifth Amendment to the United States Constitution and at art. 1, § 11 of the Wyoming Constitution, protects an accused from 'multiple punishments for the same crime. Halbleib v. State, 7 P.3d 45, 47 (Wyo.2000). The habitual criminal statute, however, does not create new or separate crimes nor does it work to convict a defendant of the crime of being an habitual criminal. Evans v. State, 655 P.2d 1214, 1225 (Wyo.1982). Wyo. Stat. Ann. § 6-10-201 (LexisNexis 2001) provides:

(a) A person is an habitual criminal if:
(i) He is convicted of a violent felony; and
(i) He has been convicted of a felony on two (2) or more previous charges separately brought and tried which arose out of separate occurrences in this state or elsewhere.
(b) An habitual criminal shall be punished by imprisonment for:
(i). Not less than ten (10) years nor more than fifty (50) years, if he has two (2) previous convictions;
(ii) Life, if he has three (8) or more previous convictions.

[T24] The intent behind Wyoming's habitual criminal statute is to provide enhanced punishment to an individual who has engaged in a pattern of violent criminal con-duet. For that reason, the fact that some prior crimes have already been used to enhance a sentence does not preclude the use of the same erimes to enhance a later sentence. In fact, to say that a defendant has a clean slate once the offenses are used to enhance a punishment runs completely contrary to the plain language of the statute as well as to what the legislature intended this statute to accomplish:

Habitual criminal statutes, which have been, declared to be sound in principle and sustained by reason, are based on the concept that the legislature may require the courts to take into consideration the persistence of the accused in a criminal course. However, the enhanced punishment authorized under statutes of: this kind is an incident of the subsequent offense, that is, the offense for which the accused is being tried, and, on conviction, the defendant is subject to more severe punishment as a result of the incorrigible nature of his conduct demonstrated by the previous criminal record. Accordingly, a statute authorizing the imposition of enhanced punishment on recidivists does not create a separate offense, and one who is indicted as a second or a subsequent offender is not accused of any crime other than the one principally charged. A habitual criminal statute does not punish a defendant for his previous offenses but for his persistence in crime, and it has been said that to be a habitual eriminal involves a status rather than the commission of a separate offense.

Evans, 655 P.2d at 1220-21 (quoting 39 Am.Jur.2d, Habitual Criminals and Subsequent Offenders, § 2, pp. 308-810 (1968)).

[125] Kearns insists that allowing the prior crimes to be used a second time to enhance his current sentence is tantamount to imposing multiple punishments for the same crime, which was proseribed' by this court as violating the defendant's right not to be placed twice in jeopardy in Cook v. State, 841 P.2d 1345, 1347 (Wyo.1992). Kearns reliance on our Cook decision is misplaced. It is the repetition of violent eriminal conduct that triggers the statute to provide greater penalties for subsequent violent offenses. Evans, 655 P.2d at 1225. Habitual criminality is a status rather than a substantive offense, and a finding of such only enhances the punishment for the most recent qualifying offense. Id. The trial court did not impose multiple punishments for the same crime. It merely enhanced Kearns' current sentence as a result of Kearns' propensity to persist in his violent criminal ways.

D. Violent Felony

[126] Kearns finally argues that he was not convicted of a violent felony pursuant to Wyo. Stat. Ann. § 6-10-201(a) and that he, therefore, should not have been sentenced as an habitual criminal. The State insists that the judge misspoke during the sentencing proceeding, calling Kearns' conviction one for attempted aggravated robbery rather than for aggravated robbery and that this error was harmless. During the sentencing proceeding, the judge stated that Kearns had been convicted of attempted aggravated robbery, and this erroneous choice of words was carried over to, and memorialized in, the judgment and sentence. This description of the offense with which Kearns was convicted as attempted aggravated robbery was obviously a mistake because the third amended information charged Kearns with aggravated robbery, the jury instructions instructed the jury on' the crime of aggravated robbery, and the jury convicted Kearns of aggravated robbery.

[127] W.R.Cr.P. 36 applies to clerical errors, and it provides:

Clerical mistakes in judgments, orders or other parts of the record and errors in the record arising from oversight or omission may be corrected by the court at any time and after such notice, if any, as the court orders.

We must, therefore, determine whether the judge's error constituted a clerical error or a judicial error, the latter of which does not fall within the remedial provisions of W.R.Cr.P. 36. Eddy v. First Wyoming Bank N.A.-Lander, 718 P.2d 228, 288 (Wyo.1986). This court has previously distinguished the two types of errors by explaining that "all errors, mistakes, or omissions which are not the result of the exercise of the judicial function" may be called clerical errors, while a judicial error is one that is "the deliberate result of judicial reasoning and determination." Matter of Kimball's Estate, 583 P.2d 1274, 1277-78 (Wyo.1978) (quoting Holmes v. Holmes, 66 Wyo. 317, 211 P.2d 946, 953 (Wyo.1949)).

[128] In Holmes, we made the following attempt to distinguish the two types of errors:

It is said in 30 Am.Jurisprudence 876: "The authority of the court in this connection does not extend beyond the power to make the journal entry speak the truth, and may be exercised only to supply omissions in the exercise of functions which are clerical merely. It is, however, often difficult to distinguish between clerical and judicial errors. The distinction between a clerical error and a judicial one is not dependent upon its source. Clerical errors may include mistakes in papers evidencing the judgment of the court made by the court itself." In 126 A.L.R. 977, it is stated: "Clerical errors in judgments, orders, or decrees are not, by the majority rule, limited to mistakes of the clerk, but include also errors made by the judge where of a clerical or ministerial nature." In 126 ALR. 978, it is stated: "Although an error in a judgment, order, or decree was originally made by an attorney when preparing the same for the signature of the judge or clerk, it may none the less be a 'clerical' error." In See. 146, Freeman on Judgments, 5th Ed., the author states: "But 'clerical is employed in a broad sense as contradistinguished from "Judicial error and covers all errors, mistakes, or omissions which are not the result of the exercise of the judicial function. In other words, the distinction does not depend so much upon the person making the error as upon whether it was the deliberate result of judicial reasoning and determination, regardless of whether it was made by the clerk, by counsel or by the judge. Mistakes of the court are not necessarily judicial error. Thus if the judgment or some provision in it was the result of inadvertence, as where the court was laboring under a mistake or misapprehension as to the state of the record or as to some extrinsic fact, but for which a different judgment would have been rendered, the judgment may be vacated or may be corrected to correspond with what it would have been but for the inadvertence or mistake."

Holmes, 211 P.2d at 958.

[129] We hold that the error in this case was a clerical one. It is clear from the record that the judge's use of the word "attempted" to describe the aggravated robbery conviction was not the deliberate result of judicial reasoning and determination. Indeed, the judge could not have applied any judicial reasoning or made any judicial determination when he described the crime that Kearns had been convicted of as attempted aggravated robbery because he did not have the authority to decide of what erimes Kearns was guilty. The judge's use of the word "attempted" was, instead, a clerical error which may be corrected by virtue of W.R.Cr.P. 36 to accurately reflect the offense of which Kearns was convicted.

[130] Before a defendant can be sentenced as an habitual criminal, the crime for which he is currently being sentenced must qualify as a violent felony. Because this court has recognized aggravated robbery as a violent felony for purposes of the habitual criminal statute, we hold that the trial court properly sentenced Kearns as an habitual criminal. Oakley v. State, 715 P.2d 1374, 1380 (Wyo.1986).

[131] Affirmed with instructions to the trial court to enter a corrected judgment and sentence pursuant to W.R.Cr.P, 86.

      . Although the cases cited in this section are civil, we find them appropriate to this discussion because the corresponding rule for criminal proceedings provides for the same remedy in clerical error situations.


source: Caselaw Access Project

author: KITE, Justice.

license: Public Domain

text:
    2002 WY 96
    Deborah HENSLEY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). Deborah Hensley, Appellant (Defendant), v. The State of Wyoming, Appellee (Plaintiff).
    Nos. 00-174, 01-90.
    Supreme Court of Wyoming.
    June 26, 2002.

      Kenneth M. Koski, State Public Defender; Marion Yoder, Senior Assistant Public Defender; Donna D. Domonkos, Appellate Counsel; and Tina N. Kerin, Assistant Appellate Counsel, Representing Appellant in Case No. 00-174.
    Gay Woodhouse, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Deyon Coleman, Interim Faculty Director of the Prosecution Assistance Program; Vicki K. Johnston, Student Intern for the Prosecution Assistance Program, Representing Appellee in Case No. 00-174.
    Kenneth M. Koski, State Public Defender; Marion Yoder, Senior Assistant Public Defender; Donna D. Domonkos, Appellate Counsel; and Tina N. Kerin, Assistant Appellate Counsel, Representing Appellant in Case No. 01-90.
    Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; T. Alan Elrod, Assistant Attorney General, Representing, Appellee in Case No. 01-90. .
    Before LEHMAN, C.J., and GOLDEN, HILL, KITE, and VOIGT, JJ.
   KITE, Justice.

[T1] After being convicted of conspiracy to deliver and delivery of methamphetamine, Deborah Hensley learned the state had failed to disclose evidence she could have used to impeach the prosecution's primary witness. Ms. Hensley filed a motion for a new trial pursuant to Brady v. Maryland, 373 U.S. 83, 87, 88 S.Ct. 1194, 10 L.Ed.2d 215 (1963), which the trial court denied. The related case of Davis v. State, 2002 WY 88, 47 P.3d 981 is controlling and dictates we reverse and remand for a new trial because of the prosecution's failure to disclose potentially exeul-patory evidence. We also consider and affirm the trial court's admission of the drug transaction tape as this question will likely recur in any new trial.

ISSUES

[12] The issues we will address are rephrased as follows:

1. Did the trial court err in denying Ms. Hensley's motion for a new trial?
2. Did the trial court abuse its discretion when it admitted the entire tape of the drug transaction into evidence?

FACTS

[13] This appeal involves the same controlled methamphetamine buy as Davis, 2002 WY 88, 47 P.3d 981 in which we reversed Rex Davis' conviction. Although the cases were prosecuted separately, Mr. Davis and Ms. Hensley faced identical charges. Mr. Davis challenged the denial of his motion for a new trial based on the same Brady violation as Ms. Hensley alleges occurred in her case. See Davis, 2002 WY 88, ¶1, 47 P.3d 981.

[14] In 1998, the Department of Criminal Investigation (DCI) tape recorded Roberta Morris selling methamphetamine to a DCI confidential informant on three occasions. Ms. Morris subsequently agreed to work as an informant for DCI because she was told DCI would put in a good word for her with the prosecutor if she was officially charged on these methamphetamine sales.

[15] On June 3, 1999, DCI arranged for Ms. Morris to go to Richard Wilkie's residence as a DCI informant to purchase methamphetamine. In order to prepare her for the controlled buy, the DCI agents searched her car and person, wired her with recording equipment to allow the transaction to be recorded, and gave her money to buy an "eightball" of methamphetamine. The DCI agents then positioned. themselves around Mr. Wilkie's residence in order to monitor the transaction. '

[T6] When Ms. Morris arrived on Mr. Wilkie's street, she saw him visiting with neighbors at their house. She approached Mr. Wilkie and asked him to "call and see if he could find any meth." Mr. Wilkie made two telephone calls to an unidentified person and left messages. For approximately forty-five minutes, he and Ms. Morris wandered back and forth between the neighbors' house and Mr. Wilkie's place. Ms. Morris testified that one of the neighbors and Mr. Wilkie smoked marijuana during that time but she did not. The tape recording of the encounter was difficult to understand because of disruptive background noise from conversations, barking dogs, a television, and extremely loud music. Mr. Wilkie made a third call and purportedly spoke with Ms. Hensley. Then he and Ms. Morris waited for Ms. Hensley and her friend-Mr. Davis-to arrive.

[T7] Ms. Hensley and Mr. Davis arrived in a pickup truck, and Mr. Wilkie and Ms. Morris walked to the curb in front of Mr. Wilkie's house to meet with them. Ms. Morris spoke to Ms. Hensley at the door of the truck. Two women's voices can be heard on the tape recording. Ms. Morris identified her voice as the voice requesting a "ball" and Ms. Hensley's voice as the voice responding they had a gram. Ms. Morris asked how much, and Ms. Hensley replied, "eighty." Although Ms. Morris testified Mr. Davis told Ms. Hensley how to respond, his voice cannot be heard on the tape. After the interchange, the women and Mr. Wilkie went into the house to complete the transaction.

[T8] The DCI agents ultimately arrested Ms. Hensley and Mr. Davis and charged each with one count of delivery of methamphetamine and one count of conspiracy to deliver methamphetamine. The state tried them separately. Ms. Morris was the only witness to testify regarding the alleged drug buy because Mr. Wilkie died before the trial and neither Ms. Hensley nor Mr. Davis testified.

[T9] The primary issue at trial was. Ms. Hensley's objection to the admission of the tape recording of the buy on the basis that it included the neighbors' and Mr. Wilkie's voices and they were unavailable at trial Ms. Hensley argued, therefore, the admission of the tape violated the hearsay rule and her constitutional right to confront witnesses. The prosecution contended the tape was akin to a crime seene photograph and merely used to corroborate Ms. Morris' testimony regarding the controlled buy. The defense presented the theory, through cross-examination, that Ms. Morris was not credible because she was a drug user and former drug dealer who knew how to, and did, manipulate the recording device by creating loud background noise to cover up her own drug use during the controlled buy. The trial court admitted the tape into evidence, ruling it was not offered to prove the truth of the matters asserted by the unavailable witnesses and was the best evidence of what occurred at the seene.

[T10] In order for the state to prevail, the jury had to be convinced Ms. Morris was a reliable and credible informant. The prosecution sought to bolster Ms. Morris' eredi-bility through the testimony of a veteran Green River police department officer who worked concurrently as a DCI agent. The agent testified regarding his experience with confidential informants and how Ms. Morris' work compared to others:

Q. How many CIs have you personally worked with?
A. Probably-probably about ten in the last year. Excuse me, the last year and a half. Almost two years now, I would say ten.
Q. You heard [Ms. Morris] testify, and in fact, she agreed with [the defense's] question regarding how many buys she had made for DCI, and I think that it was somewhere around five, five to ten?
A. Yes.
Q. Do you know how many buys [Ms. Morris] has personally made? A. It's closer to-between 10 and 12. I'm not positive. It was between 10 and 12, I believe. Definitely more than 5.
Q. In your experience, does your average CI do that many buys?
A. No. She's probably done the best job so far since I've been here.
Q. In terms of number of buys?
A. And quality and numbers and keeping in touch, yes.

In a further effort to reinforce Ms. Morris' credibility, the prosecution elicited testimony from her that she was trying to address her methamphetamine addiction and extricate herself from the drug lifestyle. Ms. Morris testified that she used 'methamphetamine only once during the two years she worked for DCI. The jury convicted Ms. Hensley, and the trial court sentenced her to concurrent four- to eight-year prison terms on each count with credit for presentence confinement.

[T 11] Shortly after Mr. Davis' sentencing was reported in the local newspaper, Charlotte Shepard, formerly known as Charlotte Powell, an informant for the Rock Springs police department and former DCI informant, contacted Mr. Davis' defense counsel and told him she had taped a conversation with Ms. Morris in February of 2000, approximately two months before Ms. Hensley's trial, in the context of a murder investigation. Ms. Morris was not a suspect in the murder case but was thought to have some relevant information. Ms. Powell advised the defense that Ms. Morris was recorded on the tape using nareoties. On this evidence, the defense filed a motion for a new trial alleging a Brady violation. .

[112] At the hearing on the motion, the defense contended Ms. Morris could be heard on Ms. Powell's tape consuming methamphetamine which proved, contrary to her trial testimony and the prosecution's trial contentions, she was actively using illegal drugs at the time of trial. , Ms. Powell testified that DCI personnel were angry with her when they learned she had worn a wire to record her conversation with Ms. Morris. She stated that she went to Ms. Morris' apartment where she saw methamphetamine and drug paraphernalia. She also testified that both her conversation with Ms. Morris about the murder investigation and sounds of Ms. Morris and another person consuming methamphetamine were recorded on the audio tape. She also had observed Ms. Morris using drugs on several other occasions after February 2000. Ms. Powell further testified Ms. Morris told her, after Mr. Davis' trial, that Mr. Davis had not been involved in the drug transaction but she felt compelled to testify against him because of her desire to have DCI assist her in retaining custody of her children. Ms. Powell claimed Ms. Morris told her, again contrary to Ms. Morris' trial testimony, she knew how to manipulate the recording device to prevent DCI from hearing what actually occurred during a controlled buy and had provided perjured testimony regarding her drug use.

[113] The trial court determined that no Brady violation had occurred and denied Ms. Hensley's motion for a new trial. This appeal followed.

DISCUSSION

A. Brady Violation Analysis

[T14]

We must determine ... whether the government's failure to disclose evidence favorable to the defendant deprived the defendant of a fair trial under Brady by considering whether the "favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." [Strickler v. Greene, 527 U.S. 263,] 290, 119 S.Ct. [1936,] 1952, 144 LEd2d 286 [ (1999) 1 (quoting Kyles [v. Whitley ], 514 U.S. {419,] 485, 115 S.Ct. [1555,] 1566, 181 L.Ed.2d 490 [ (1995) 1). In order to establish a Brady violation, a defendant must demonstrate that the prosecution suppressed evidence, the evidence was favorable to the defendant, and the evidence was material. We have previously decided that the materiality of withheld evidence and its possible effect on the outcome of the trial are mixed questions of fact and law. Generally, the denial of a motion for a new trial is reviewed for an abuse of discretion; however, a claim of failure to disclose evidence in violation of Brady is properly reviewed de novo.

Davis, 2002 WY 88, 116, 47 P.3d 981 (some citations omitted).

[T 15] The analysis of the Brady issue in Ms. Hensley's trial is indistinguishable from our analysis of the same issue in Davis. Therefore, our decision in Davis governs and provides in relevant part:

The first element requires that we determine whether [the defendant] showed that the prosecution suppressed evidence. [The defendant] presented testimony showing that DCI knew about the Powell tape before trial. When the prosecution learned about it after trial, it did disclose. A prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police. Kyles, 514 U.S. at 487-88, 115 S.Ct. at 1567. In this case, the Powell tape is admissible (FN3) to impeach Morris' testimony at [the defendant's] trial that she had used drugs two months before trial when she had actually used drugs more recently and to impeach the DCI agents' testimony vouching for Morris' credibility. The discovery of the Powell tape directly led to the defense's discovery of Powell's post-trial conversation with Morris where Powell alleges that Morris said she had intentionally shut off the tape recorder, and stated different motives for testifying.... Powell's version of Morris' post-trial statements contradicts Morris' trial testimony and could potentially be recognized as improperly suppressed Brady evidence. See Paradis v. Arave, 240 F.3d 1169, 1178-79 (9th Cir.2001). These post-trial contradictions obviously could not have been disclosed before trial, however, and, because they were not in existence before trial, cannot be part of an analysis as to whether the suppression of the Powell tape was a Brady violation. Strickler, 527 U.S. at 288, 119 S.Ct. at 1949. Nevertheless, by showing that the State failed to disclose the Powell tape which did exist before trial, [the defendant] has met [her] burden on this element.
The next element, that [the defendant] prove the evidence would have been favorable to [her], is also established by the record. Favorable evidence includes impeachment evidence, and the undisclosed Powell tape of Morris' use of drugs is impeachment evidence, particularly so when her use was at a time different than that to which she had testified. The Powell tape is also impeachment evidence because, at trial, the defense had no evidence and could only suggest that Morris' motives were not as pure as she testified. Furthér, the defense at trial had no evidence with which to challenge the prosecution's bolstering (FN4) of Morris' eredi-bility with the testimony of [the] DCI agent[ ] who vouched for Morris' eredibility [stating she was the best CI he had worked with both as to quality and quantity of her work]. (FN5) In the hands of defense counsel, the Powell tape's disclosure indicating that DCI knew that Davis was engaging in illegal activities would have been most useful for challenging all of this testimony.
The final element requires that we focus on the materiality of the undisclosed evidence, mindful that favorable evidence is material if "its suppression undermines confidence in the outcome of the trial." [United States v.] Bagley, 478 U.S. [667,] 678, 105 S.Ct. [3875,] 8381, 87 L.Ed.2d 481 [ (1985) ]. In Kyles, the Court further reviewed the meaning of materiality as it relates to the final result of the trial: "Bagley's touchstone of materiality is a 'reasonable probability' of a different result, and the adjective is important. The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but 'whether in its absence he received a fair trial, understood as a trial resulting in a verdiet worthy of confidence. A 'reasonable probability' of a different result is accordingly shown when the government's evidentiary suppression 'undermines confidence in the outcome of the trial"" Kyles, 514 U.S. at 484, 115 S.Ct. at 1566 (citing Bagley, 478 U.S. at 678, 105 S.Ct. at 8381) (emphasis added). *
In Strickler, the Court distinguished between finding a "reasonable probability" that the outcome might have been different requiring a reversal and finding a "reasonable possibility" requiring that the conviction be affirmed. 527 U.S. at 291, 119 S.Ct. at 1958. The dissent in Strickler cautioned that the continued use of the term "probability" promoted the likelihood that courts would apply the forbidden "more likely than not" determination and thus violate Kyles, and it proposed that the term be deemed "inevitably imprecise," thus warranting changing the term to a "significant possibility." Id. at 298, 119 S.Ct. at 1956 (Souter and Kennedy, JJ., concurring and dissenting). The differing conclusions on materiality reached by Strickler's majority and dissent in analyzing the particular facts illustrate not only that the preceding discussion is not idle intellectualizing but also that a conclusion regarding materiality may well be entirely subjective when credibility judgments are at issue.
The subjectivity presented when evaluating the significance of credibility determinations is particularly troublesome in this case where Morris' credibility was the critical issue. Perhaps we could simply dispose of this case by simplistically concluding that had the Powell tape been disclosed, Morris would not have testified that she had used drugs two months earlier, but would have testified that she used them one month earlier; or by agreeing with the trial court that Morris had admitted that she had used drugs on a single oceasion and a new trial is not required; or by deciding that the difference in time frames relating to Morris' drug use does not undermine our confidence in the verdict.
However, our review indicates that ... portions of the Morris tape [were] inaudible, and, therefore, [the defendant's] trial was dependent entirely upon Morris' testimony. Impeachment evidence that could be used to discredit such an important witness or cast doubt on her veracity is usually material. As previously discussed, the prosecution presented DCI agent testimony that bolstered Morris' credibility.... The Powell tape could have been used to discredit that testimony also. "The question is not whether the State would have had a case to go to the jury if it had disclosed the favorable evidence, but whether we can be confident that the jury's verdict would have been the same." Kyles, 514 U.S. at 458, 115 S.Ct. at 1575.

Davis, 2002 WY 88, T1 17-22, 47 P.3d 981.

[116] The only evidence implicating Ms. Hensley in the controlled buy was Ms. Morris' testimony and an exceptionally bad tape recording. We must, therefore, conclude the undisclosed evidence, which could have been used to impeach Ms. Morris, was material. We reverse Ms. Hensley's conviction and remand this case for a new trial.

B. Admission of Audio Tape

[117] We address the admissibility of the audio tape of the drug transaction because that issue.will likely arise again in the event of a new trial.

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

W.R.E. 403. "The balancing test required by Rule 403 is assigned to the sound discretion of the trial court." - Prindle v. State, 945 P.2d 1180, 1183 (Wyo.1997), abrogated on other grounds by Vaughn v. State, 962 P.2d 149, 151 (Wyo.1998).

" 'Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the cireumstances and without doing so arbitrarily or capriciously" Oldman v. State, 998 P.2d 957, 960 (Wyo.2000) (quoting [Martin v. State, 720 P.2d 894, 897 (Wyo.1986)]).

Stout v. State, 2001 WY 114, ¶ 7, 35 P.3d 1198, 17 (Wyo.2001).

[118] "[This Court [has] said that tape recordings of drug transactions are non-testimonial, and 'should be made available for a jury's review as any other exhibit. Warner v. State, 897 P.2d 472, 475 (Wyo.1995)." Contreras v. State, 7 P.3d 917, 919 (Wyo.2000). The court has stated further

"a trial court's ruling permitting a jury to review the tapes should not be disturbed on appeal absent a clear abuse of discretion.... In addition, the exercise of that discretion should be upheld so long as the audio recording is otherwise admissible, and where the state introduces something more than a minimal amount of other evidence of culpability."

Id. (quoting Warner, 897 P.2d at 475).

[T19]) Ms. Hensley objected to the tape of the controlled buy, arguing it violated the hearsay rule and her constitutional right to confront witnesses because the neighbors' and Mr. Wilkie's voices could be heard on the tape and they did not testify at trial. The trial court overruled the objection, concluding the tape was not offered to prove the matters asserted by the unavailable witnesses and was the best evidence of what was said that day by Ms. Hensley and Ms. Morris.

[¥20] We conclude admission of the tape was within the trial court's broad discretion. Ms. Morris' eyewitness testimony and the DCI witnesses' testimony laid a proper foundation for the tape, assuring its trustworthiness.

The informant explained how she had been equipped with the portable recording device by the DCI agents, and she described the transaction ... in detail. The DCI agent testified that he assisted in equipping the informant with the tape recorder; monitored the informant throughout the transaction; and retrieved the micro cassette from the informant after the transaction was completed. "Admission is especially appropriate where a witness who heard the statements also testifies and the recording gives independent support to his testimony." U.S. v. Davis, 780 F.2d 838, 846 (10th Cir.1985), followed by, U.S. v. Hanif, 1 F.3d 998, 1002 (10th Cir.1993). The testimony from the informant and the DCI agent who monitored the transaction laid more than sufficient foundation to in'sure the trustworthiness and accuracy of the tape recordings. They were properly admitted into evidence.... __

Crisp v. State, 944 P.2d 1165, 1168 (Wyo.1997). The tape was difficult to understand and, consequently, may not have been of significant benefit to the state's case. Discerning what was said by Mr. Wilkie and the neighbors is difficult, but none of what was said by them appears to implicate Ms. Hensley in any criminal activity. The tape was relevant to the proceedings, and the trial court had the discretion to allow its admission. The tape was properly admitted and played for the jury. See Contreras, 7 P.3d at 919-20.

[121] Affirmed in part, reversed in part, and remanded.

      . Mr. Wilkie died prior to Ms. Hensley's trial.

      . Ms. Morris testified that an "eightball" was short for one-eighth of an ounce of methamphetamine.

      . Consistent with the references in Davis, we shall refer to Ms. Shepard as Ms. Powell throughout the remainder of this opinion.

      . - Mr. Wilkie's death was unrelated to the murder investigation.

      . Footnote three reads:
      Prior inconsistent statements by a witness are admissible under W.R.E. 613(b): "(b) Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in Rule 801(d)(2).' " Monn v. State, 811 P.2d 1004, 1006 (Wyo.1991).
      Davis, 2002 WY 88, 117 n. 3, 47 P.3d 981.

      . Footnote four reads:
      "The jury is charged with resolving the factual issues, judging the witnesses' credibility, and ultimately determining whether the accused is guilty or innocent. Gayler v. State, 957 P.2d 855, 860 (Wyo.1998); Zabel v. State, 765 P.2d 357, 362 (Wyo.1988). A witness may not, therefore, vouch for the credibility of another witness or a victim. Gayler, 957 P.2d at 860; Curl v. State, 898 P.2d 369, 373-74 (Wyo.1995)." Newport v. State, 983 P.2d 1213, 1215 (Wyo.1999). Whether [the defendant] can be heard on the tape making the precise statements that Morris alleged [she] made is a question of fact for the jury to determine.
      Davis, 2002 WY 88, ¶ 18 n. 4, 47 P.3d 981.

      . Footnote five reads in pertinent part:
      In its presentation of its case, the prosecution established Morris as an informant whom the jury could find trustworthy in several ways. First, Morris testified that her motives for acting as a DCI informant were to cooperate for favorable treatment regarding her own arrests for drug violations; to avoid the possibility of losing custody of her children; and to escape her life as a drug addict in the drug world although she forthrightly disclosed that since becoming a DCI informant, she had used drugs once two months before trial. Second, a DCI agent testified and vouched for Morris' credibility.
      Davis, 2002 WY 88, ¶ 18 n. 4, 47 P.3d 981.


author: CARPENETI, Justice.

text:
    FAIRBANKS FIRE FIGHTERS ASSOCIATION, LOCAL 1324, Appellant, v. CITY OF FAIRBANKS, Appellee.
    No. S-9715.
    Supreme Court of Alaska.
    June 7, 2002.

      Michael A. MacDonald, Downes, MacDonald & Levengood, P.C., Fairbanks, for Appellant.
    Joseph W. Evans, Law Office of Joseph W. Evans, Fairbanks, for Appellee.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

CARPENETI, Justice.

I. INTRODUCTION

This appeal poses the question whether the Alaska Labor Relations Agency has jurisdiction to decide if an issue is arbitrable. The agency ruled that it had that power, and held that the underlying issue in this case was arbitrable. The superior court concluded that the agency did not have that power, but agreed that the underlying issue was arbitra-ble, and so it affirmed the agency decision. We first hold that, while the arbitrability issue is technically moot under the procedural posture of this case, the public interest exeeption to the mootness doctrine applies; we therefore reach the merits of this appeal. Because we conclude that AS 23.40.210 reserves the power to determine arbitrability to the Alaska Labor Relations Agency, we reverse the contrary ruling of the superior court and affirm the agency's ruling that it had the power to decide whether the underlying dispute was arbitrable.

II. FACTS AND PROCEEDINGS

Fairbanks Fire Fighters Association, Local 1824(the union) filed grievances against the City of Fairbanks on behalf of Jim Rice and Lee Despain under provisions of the collective bargaining agreement (CBA) between the union and the city. The union claimed that the city improperly refused to rehire Rice and Despain for positions that were open in the fire department. The two men had previously been employed as firefighters by the city but resigned those positions under conditions that led them to sue the city for constructive discharge. Rice and Des-pain prevailed at trial on their claims of constructive discharge, and the court awarded monetary damages in their favor but did not order reinstatement.

The union sought to enforce the CBA's arbitration provisions before the Alaska Labor Relations Agency (ALRA). However, the city responded that this grievance was not arbitrable under the CBA because Rice and Despain were no longer employees of the city when the grievance arose. The city also argued that the ALRA did not have the power to decide the issue of arbitrability and that only the court could decide which issues were and were not arbitrable.

The ALRA disagreed with the city on both points. In its decision, the ALRA ruled that it had the jurisdiction to determine what cases are arbitrable under the CBA. Using that power, the ALRA further held that the underlying grievance involving Rice and Des-pain was arbitrable.

The city appealed the ALRA decision to the superior court. In his decision, Superior Court Judge Pro Tem Mark I. Wood held that the ALRA's ruling with regard to its ability to hear questions of arbitrability was erroncous. However, the superior court also held that the error was harmless because the arguments offered by the city as to why Rice and Despain were not covered by the CBA were meritless. The court accordingly held that the grievance was subject to the arbitration provisions of the CBA, and explicitly affirmed the ALRA's order.

~The union now brings this appeal challenging the superior court's finding that the ALRA did not have the power to determine whether or not the issues in this case are arbitrable. The city has not appealed the superior court's ultimate decision that the grievance is subject to arbitration.

III. STANDARD OF REVIEW

We resolve issues of standing and mootness using our independent judgment because they are questions of law involving matters of judicial policy.

In administrative appeals, we directly review the agency action in question. We apply a "substitution of judgment" standard to the agency's decision that it has the power to determine issues of arbitrability, because that ruling is a legal conclusion concerning statutory and common law interpretation that does not implicate agency expertise. "The substitution of judgment standard ... applies where the ageney's expertise provides little guidance to the court or where the case concerns statutory interpretation or other analysis of legal relationships about which courts have specialized knowledge and expertise."

IV. DISCUSSION

A. This Case Is Moot, but We Review It under the Public Interest Exception to the Mootness Doctrine.

The party bringing this appeal, the union, prevailed before the ALRA. The superior court affirmed that ruling. The city does not appeal the adverse decisions of either the agency or the superior court. The first question is whether the union can appeal a decision in its favor simply because it was dissatisfied with the reasoning of the superior court.

1. This appeal is moot.

We have ruled that, " 'Tulnder ordinary cireumstances, we will refrain from deciding questions where events have rendered the legal issue moot.'" A claim is moot if it is no longer a present, live controversy, and the party bringing the action would not be entitled to relief, even if it prevails. Mootness can also occur when "a party no longer has a personal stake in the controversy and has, in esserice, been divested of standing." "The basic requirement for standing in Alaska is adversity."

This case presents an unusual twist on the usual mootness consideration. In most cases, mootness is found because the party raising an appeal cannot be given the remedy it seeks even if the court agrees with its legal position. In this case, the union has already been given the remedy it seeks, and we cannot give it any further relief even if we agree with the union's legal argument. The union merely asks us to resolve an intermediate legal question-whether the ALRA has the power to decide its own jurisdiction-differently than the superior court did, while reaching the same ultimate conclusion that the superior court reached.

Although the situations are not exactly the same, we have previously found that issues were moot because the appellant was able to secure relief, even though the means by which appellant secured relief were different from those argued by the appellant below. The facts of the present case present an even easier case for mootness because the union has been able to secure relief. As a result, we find that the superior court's decision to affirm the determination of the ALRA has rendered the union's appeal moot.

2. This appeal merits application of the public interest exception to the mootness doctrine.

We have held that we can "choose to address certain issues if they fall under the public interest exception to the mootness doctrine." There are three main factors that we consider in deciding whether to apply the public interest exception: "(1), whether the disputed issues are capable of repetition, (2) whether the mootness doctrine, if applied, may cause review of the issues to be repeatedly cireumvented, and (8) whether the issues presented are so important to the public interest as to justify overriding the mootness doctrine." None of the individual factors is dispositive; rather, we use our discretion to determine whether the public interest dictates that immediate review of a moot issue is appropriate.

With regard to the first requirement, we' have refused to apply the public interest exception to unusual factual cireum-stances that were unlikely to repeat themselves or situations where the applicable statute or regulation was no longer in force and was unlikely to be reinstated. Neither of those exceptions applies here. This issue is likely to repeat itself as questions of arbi-trability are likely to arise with regard to other CBAs put before the ALRA in the future, and no statutory change has occurred.

The second requirement for the public interest exception is that the issue will continually evade court review. This question is close. It is possible that this issue will arise again when it is not moot. In Legislative Council v. Knowles, we were uncertain as to whether the issue would evade review in the future, but we were persuaded to apply the public interest exception because in that case the threatened harm resulted when a claim was brought, not when it was concluded. This case presents a similar situation. Arbitrability is a threshold question; thus, the harm is caused by the means of resolution and not the resolution itself. Therefore, we find that this requirement is met.

The third requirement is also satisfied. We have applied the public interest exception to situations, otherwise moot, where the legal power of public officials was in question. Specifically, in Knowles, we applied the exception to the issue whether the governor had the right to bring suit against the legislature. Even though later enactments resolved the immediate conflict between the governor and legislature, we agreed to consider, under the public interest exception, the meaning of a constitutional: prohibition of such suits. Similarly, in Kodiak Seafood Processors Ass'n v. State, we considered the issuance of a permit for fishing in waters that had been closed for over twenty-five years, despite the fact that the permit was revoked prior to trial, which rendered many of the issues moot. We refused on mootness grounds to consider issues of procedural error that were admitted by the Department of Fish and Game, but we did consider whether the commissioner had exceeded his authority. We ruled that "the scope of the Commissioner's power is an issue of public interest."

The present case meets the "important public interest" requirement. As this case raises a question of the power of government officials, the issues are sufficiently important to the public interest to merit consideration. Therefore, the issue, though moot, has met the three-prong public policy exception test.

B. The ALRA Has Jurisdiction To Decide Whether an Issue Is Arbitrable.

The union argues that there are statutory, contractual, and policy reasons that support the agency's power to decide the arbitrability of this dispute. The superi- or court disagreed and ruled that "the ALRA erred by concluding that it had jurisdiction to resolve [arbitrability]."

In State v. Public Safety Employees Ass'n we held that questions of arbitrability should be determined by the court unless the parties "clearly and unmistakably provide otherwise." - The decision in PSFA adopted the federal rule as stated by the United States Supreme Court in AT & T Technologies, Inc. v. Communications Workers of America. The Supreme Court based its decision in that case on the long-established legal principle that because the duty to arbitrate is contractual in nature, " 'a compulsory submission to arbitration cannot precede judicial determination that the collective bargaining agreement does in fact create such a duty." However, PSEA is inapplicable to the present situation.

PSEA dealt with the issue of whether a court or an arbitrator should decide questions of arbitrability. Here, the issue is whether the court or the ALRA, an administrative agency, has jurisdiction to determine questions of arbitrability. The latter issue is covered by positive statutory law giving the ALRA _ jurisdiction. Specifically, - AS 23.40.210 provides, in relevant part: |

The agreement shall include a grievance procedure which shall have binding arbitration as its final step. Either party to the agreement has a right of action to enforce the agreement by petition to the labor relations ageney.[]

The union asserts that the ALRA has the power to decide arbitrability because this statute gives the agency the power to "en-foree the CBA, including the requirement for grievance arbitration." We agree.

Because arbitrators have such broad discretion, it is often problematic for them to decide their own jurisdiction, for if they are wrong, there may be essentially no review. This is so because the superior court reviews an arbitrator's decision under a standard giving extreme deference to the arbitrator. On the other hand, a decision by the ALRA goes through an administrative appeals process in which the decision is subject to varying standards of scrutiny that allow for a much more piercing review than review of an arbitrator's decision. Therefore; the concerns about the non-appealable nature of an arbitrator's award are not present with administrative agency decisions.

v. CONCLUSION

Because this appeal does not present a live controversy we conclude that the appeal is moot. But we also conclude that the public policy exception to the mootness doctrine applies and we therefore reach the merits of the appeal. For the reasons stated above, we hold that the ALRA has jurisdiction to decide questions of arbitrability under AS 23. 40.210. We therefore REVERSE the decision of the superior court; we AFFIRM the decision of the ALRA that it had the power to decide whether the present dispute is arbitrable.

      . Arbitrability is technically moot because the city has not appealed the superior court's ruling that the underlying dispute was arbitrable.

      . City of Fairbanks v. Rice, 20 P.3d 1097 (Alaska 2000).

      . Kleven v. Yukon-Koyukuk School Dist., 853 P.2d 518, 525 n. 13 (Alaska 1993) (citing Bowers Office Prod., Inc. v. Univ. of Alaska, 755 P.2d 1095, 1096 (Alaska 1988)).

      . N. Alaska Envtl. Ctr. v. State, Dep't of Natural Res., 2 P.3d 629, 633 (Alaska 2000).

      . - Id. (internal quotation marks omitted).

      . Gerstein v. Axtell, 960 P.2d 599, 601 (Alaska 1998) (quoting Kodiak Seafood Processors Ass'n v. State, 900 P.2d 1191, 1195 (Alaska 1995)).

      . Id. (citing O'Callaghan v. State, 920 P.2d 1387, 1388 (Alaska 1996)).

      . 15 Martin H. Repish, Moore's Federal Practice § 101.90 (3d ed.1998).

      . Trustees for Alaska v. State, 736 P.2d 324; 327 (Alaska 1987) (citing Moore v. State, 553 P.2d 8, 24 n. 25 (Alaska 1976)).

      . See, e.g., R.I. v. C.C., 9 P.3d 274, 278 (Alaska 2000); O'Callaghan, 920 P.2d at 1388; Alaska Consumer Advocacy Program v. Alaska Pub. Util. Comm'n, 793 P.2d 1028, 1032 n. 1 (Alaska 1990).

      . Allen v. State, Dep't of Revenue, Child Support Enforcement Div., 15 P.3d 743, 749 (Alaska 2000) (finding that appeal of lower court's denial of claim as untimely was moot since same issue was to be decided in separate, pending case); Gerstein v. Axtell, 960 P.2d 599, 601 (Alaska 1998) (holding that successful acquisition of easement through eminent domain proceeding mooted claim for use of easement as property right).

      . Kodiak Seafood Processors Ass'n v. State, 900 P.2d 1191, 1196 (Alaska 1995).

      . Id.

      . See, e.g., Legislative Council v. Knowles, 988 P.2d 604, 606-07 (Alaska 1999); Krohn v. State, Dep't of Fish & Game, 938 P.2d 1019, 1021 (Alaska 1997) (quoting Kodiak Seafood Processors Ass'n, 900 P.2d at 1196).

      . O'Callaghan, 920 P.2d at 1388-89 (concerning legality of specific procedures surrounding decision of candidate for lieutenant governor to change party affiliation during campaign).

      . Krohn, 938 P.2d at 1022-23 (refusing to decide moot issues under provisions of Open Meetings Act that were subsequently amended).

      . 988 P.2d 604 (Alaska 1999).

      . Id. at 606-07.

      . Id.

      . Id.

      . 900 P.2d 1191 (Alaska 1995).

      . Id. at 1193-94.

      . Id. at 1196.

      . Id.

      . 798 P.2d 1281 (Alaska 1990) . [hereinafter "PSEA "].

      . Id. at 1285 (quoting AT & T Techs., Inc. v. Communications Workers of America, 475 U.S. 643, 649, 106 S.Ct. 1415, 89 LEd.2d 648 (1986)).

      . 475 U.S. 643, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986).

      . - Id. at 649, 106 S.Ct. 1415 (quoting John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 546-47, 84 S.Ct. 909, 11 LEd.2d 898 (1964)).

      . AS 23.40.210(a).

      . An arbitrator's award arising out of a labor management contract is reviewed under a gross error standard, which means that "only those mistakes which are both obvious and significant" warrant reversing the arbitrator's award. Public Safety Employees Ass'n, Local 92, Int'l Union of Police Ass'ns, AFL-CIO v. State, 895 P.2d 980, 984 (Alaska 1995) (quoting City of Fairbanks v. Rice, 628 P.2d 565, 567 (Alaska 1981)). We have also held that when the agreement incorporates the Uniform Arbitration Act, AS 09.43.010-.180, an even stricter standard applies: "there are no statutory grounds for review of an arbitrator's determination as to the meaning of contract provisions which do not pertain to the issue of arbitrability." (Ahtna, Inc. v. Ebasco Constructors, Inc., 894 P.2d 657, 661 (Alaska 1995) (internal quotations omitted).)

      . Review of administrative decisions occurs under varying standards based on the issue being appealed:
      We have recognized four principal standards of review of administrative decisions. The "substantial evidence" test is used for questions of fact. The "reasonable basis" test is used for questions of law involving agency expertise. The "substitution of judgment" test is used for questions of law where no expertise is involved. The "reasonable and not arbitrary" test is used for review of administrative regulations.
      Handley v. State, Dep't of Revenue, 838 P.2d 1231, 1233 (Alaska 1992) (citing Jager v. State, 537 P.2d 1100, 1107 n. 23 (Alaska 1975)).