text:
    Johnnie BUSTAMANTE, Appellant, v. ALASKA WORKERS' COMPENSATION BOARD, Space Mark, Inc., American Home Assurance, Ounalashka Corporation, and Reliance Insurance Co., Appellees.
    No. S-10003.
    Supreme Court of Alaska.
    Nov. 29, 2002.

      Johnnie Bustamante, pro se, Anchorage.
    Theresa Hennemann and Rebecca J. Hiatt, Holmes Weddle & Bareott, PC, Anchorage, for Appellees.
    Ounalashka Corporation and Reliance Insurance Co. Allan E. Tesche, Russell, Tesche, Wagg, Cooper & Gabbert, Anchorage, for Appellees Space Mark and American Home Assurance.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

CARPENETI, Justice.

I. INTRODUCTION

Johnnie Bustamante's workers' compensation administrative appeal was dismissed in the superior court due to his failure to pay for the preparation of a transcript of the Workers' Compensation Board proceedings. Because the superior court had the power to waive the transcript requirement, we remand for the superior court to decide whether to waive the requirement in this case.

II FACTS AND PROCEEDINGS

Johnnie Bustamante worked for both Space Mark, Inc. and Ounalashka Corporation in 1997. Bustamante claimed an injury from the overuse of his hands while working on computers at Space Mark and filed a claim with the Alaska Workers' Compensation Board (the board). Both employers controverted all benefits. The board found that Bustamante did not suffer a compensable injury in the course and scope of his employment with either employer. Bustamante's claims for benefits were denied and dismissed.

Bustamante alleged six errors in his appeal to the superior court. At the time of filing his appeal, Bustamante also filed a request for court-appointed counsel, an extension of time to prepare his appeal, and an exemption from payment of fees. Superior Court Judge Elaine M. Andrews granted Bustamante an exemption from the payment of fees specified in Administrative Rule 9(Ff)(1). - However, Judge Andrews denied Bustamante's request for counsel, stating that "there is no provision to appoint counsel in these cases."

Bustamante was informed several times that, to prepare the record for appeal, he would need to arrange and pay for the preparation of a transcript of the board's proceedings. In response, Bustamante filed a request for a waiver of all costs and fees, stating that he was a disabled student relying on charity to maintain himself. Judge Andrews issued an order stating that all costs and fees that could be waived had already been waived.

The board, having filed a notice of non-participation in the appeal, filed a motion requesting more time to prepare the record on appeal, citing Bustamante's failure to prepare the transcripts. In response to the second notice sent to him by the board regarding the transcript, Bustamante replied:

I agree that ordinarily I would be responsible to provide transcripts to the superior court under Appellate Rule 604(b). However, since the Alaska Workers['] Compensation Board (AWCB) doubts my competency and [I] have not been provided with appropriate legal coun[sel] to represent me, I cannot comply with your request. Since AWCB doubts my current mental stability, I simply cannot enter into any agreement to authorize production of the requested transcripts.
Recommend AWCB forward requested transcripts to the superior court as soon as possible.
In addition, please be advised that I am a disabled student currently attending Alaska Pacific University and have no financial resources to produce the requested tran-seripts.

Space Mark filed a motion to dismiss Bus-tamante's appeal with prejudice on the grounds that Bustamante had "not paid for or accepted responsibility for the payment of preparation of a transcript." - Ounalashka filed a nonopposition to Space Mark's motion to dismiss. Superior Court Judge Donald D. Hopwood dismissed Bustamante's case without prejudice. Bustamante appeals.

III. STANDARD OF REVIEW

We exercise our independent judgment when interpreting the civil rules, "adopt[ing] the rule of law that is most persuasive in light of precedent, reason, and policy." The decision to appoint counsel for a civil litigant is a procedural decision, which we review for an abuse of discretion. A court abuses its discretion when we are "left with a definite and firm conviction, after reviewing the whole record, that the trial court erred in its ruling."

IV. DISCUSSION

A. The Superior Court Had the Discretion To Allow Deviation from the Requirements of Appellate Rule 604(b).

Bustamante argues that the superior court erred in dismissing his case without reviewing the entire record. Space Mark moved for dismissal on the grounds that Bustamante had not "paid for or accepted responsibility for the payment of preparation of a transcript of Board proceeding as required by Appellate Rule 604(b)."

Appellate Rule 604(b) governs the record on administrative appeals. The preparation of the transcript is governed by Appellate Rule 604(b)(1)(B)(iv), imposing the costs of preparing a transcript on the appellant absent an agreement to the contrary or an order of the court and allowing the agency to require advance payment of the estimated costs.

We have previously expressed our support for the principle that financial hardship should not preclude access to the courts. The text of Appellate Rule 604(b)(1)(B)(iv) supports this principle: The court may order the parties to deviate from the default position that the appellant pays for the tran-seript. The superior court's order denying Bustamante's request for a waiver of costs indicates that the court was not aware of this power, as it stated that "[alll costs and fees that can be waived have been waived."

We have previously held that deviation from Appellate Rule 604(b)(1)(B)Gv) is acceptable to ensure access to the courts. In Baker v. University of Alaska, we were faced with the question whether Appellate Rule 604(b)(1)(B)(iv) allows for accommodation when a party requests relief from the prepayment requirement. While we specifically stated that the case did "not require us to determine whether Baker should be absolved of his duty to pay for preparing the record and transeript, just whether he must pay in advance," we held that Appellate Rule 604(b)(1)(B)iv) allows the superior court to deviate from the ordinary procedure requiring prepayment upon a showing of good cause, citing the principle that "the size of a party's bank account should not foreclose [that] party's opportunity to be heard." While there was no agreement between the parties - pursuant to - Appellate - Rule 604(b)(1)(B)(iv) regarding costs of transcript preparation, the court had the power to order otherwise; this power included waiving the prepayment requirement, requiring the appellant to narrow the designation of needed transcripts, or even allowing designation of the use of tapes (with log notes) if the testimony being reviewed was not so lengthy as to cause an undue burden for the reviewing court. As the court's statement indicates it was not aware of the options available, it was an abuse of discretion simply to dismiss Bustamante's case.

B. Bustamante Was Not Entitled to Appointed Counsel for His Appeal.

Bustamante argues that the trial court should have appointed counsel to assist him in his appeal. To hire private counsel, Bustamante states, one must be competent. Citing to the board's statement questioning his competency, Bustamante apparently asserts that he was entitled to have counsel appointed for him.

In its decision, the board discussed Busta-mante's psychiatric history, including his diagnosis of a conversion disorder. The board relied on Bustamante's previous psychiatric history in coming to its conclusion that this history was the cause of his current conversion disorder, not his work at Space Mark. The board did state that "based on the employee's psychiatric diagnoses, he did not 'knowingly' make false or misleading statement[s]." The board also "question[ed] whether his mental condition may affect his recollection of his medical or pharmacological history, or his ability to testify truthfully." The board, however, did not indicate that Bustamante was not competent to enter into a contract for legal representation. Further, we are unpersuaded that it did anything to prevent Bustamante from hiring counsel.

As it does not appear that the board's decision prevented Bustamante from hiring counsel, we next consider whether the superior court erred in refusing to appoint counsel for Bustamante. Relying on the principles justifying appointment of counsel in criminal cases, we have allowed appointment of counsel in certain civil cases or quasi-civil proceedings. While an indigent person has no right to appointed counsel in most civil cases, we have allowed appointment in several types of cases, including termination of parental rights, child custody, paternity suits, and civil contempt proceedings.

Bustamante's claim does not fall into one of the already recognized exceptions for appointment of counsel in a civil proceeding. We must therefore determine whether Bus-tamante's due process rights were violated by the superior court's failure to appoint counsel. We have adopted the balancing test from Mathews v. Eldridge to determine what process is due:

Identification of the specific dictates of due process generally involves consideration of three distinct factors: the private interest affected by the official action; the risk of an erroneous deprivation of such interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards; and finally, the government's interest, including the fiscal and administrative burdens that additional or substitute procedural requirements would entail.[]

The private interest of a litigant to have counsel in a workers' compensation case is not nearly as strong as the interest involved in cases where the litigants are already afforded appointed counsel by this court. While an unlitigated claim is a species of property, it is an interest that is much less important than the exercise of parental rights, the custody of children, or the deprivation of liberty.

Without counsel, a litigant's chanee of success on a workers' compensation claim may be decreased. However, it is not clear that failing to appoint counsel in a workers' compensation case results in an erroneous deprivation of a litigant's rights, especially considering that the workers' compensation board has extensive experience with pro se litigants and considering the statutory framework for the recovery of attorney's fees for successful workers' compensation claimants.

Finally, the state has a very strong interest in not appointing counsel for workers' compensation litigants. Requiring the state to pay for counsel for workers' compensation claims would be an extraordinary fiscal burden.

As the board did not prevent Bustamante from hiring private counsel with its decision and there is no legal basis for appointment of counsel, the superior court did not err in refusing to appoint counsel for Bustamante.

v. CONCLUSION

Because Bustamante had no right to the appointment of counsel at public expense, we AFFIRM the superior court's denial of his motion for appointment of counsel. Because the superior court was apparently unaware that it had the discretion to waive the requirement that Bustamante prepay for tran-seript preparation costs, or to narrow the designation of needed transcripts, or to order that the appeal be heard by listening to tapes instead of by reading transcripts, we REVERSE the order of dismissal and REMAND for the superior court to exercise its discretion regarding preparation of a tran-seript.

      . Peter v. Progressive Corp., 986 P.2d 865, 867 (Alaska 1999).

      . Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979).

      . Balough v. Fairbanks N. Star Borough, 995 P.2d 245, 254 (Alaska 2000).

      . Peter Pan Seafoods, Inc. v. Stepanoff, 650 P.2d 375, 378-79 (Alaska 1982).

      . Alaska R.App. P. 604(b)(1) provides, in part:
      (b) Appeals From Administrative Agencies.
      (1) Record on Appeal.
      (A) The record on appeal consists of the original papers and exhibits filed with the administrative agency, and 'a typed transcript of the record of proceedings before the agency.
      (B) Appellate Rule 210 shall apply except that:
      (i) Appellate Rule 210(b)(1) and (2) shall not apply.

      (iv) In the absence of an agreement between the parties or an order of the court to the contrary, all reasonable costs incurred in connection with preparing the transcript and the court's copy of the agency file shall be borne by the appellant. The preparing agency may require advance payment of the costs as reasonably estimated by the agency.

      . Baker v. Univ. of Alaska, 22 P.3d 440, 442-43 (Alaska 2001).

      . Alaska R.App. P. 604(b)(1)(B)(v).

      . 22 P.3d 440 (Alaska 2001).

      . - Id. at 442.

      . Jd.

      . Id. at 443 (internal quotation marks and footnotes omitted) (alteration in original).

      . It is unclear on what legal grounds Busta-mante bases this proposition. While this court has appointed counsel for indigent civil litigants in certain cases, see, e.g., V.F. v. State, 666 P.2d 42, 44-45 (Alaska 1983) (termination of parental rights); Flores v. Flores, 598 P.2d 893, 895 (Alaska 1979) (child custody); Reynolds v. Kimmons, 569 P.2d 799, 803 (Alaska 1977) (paternity); and Otton v. Zaborac, 525 P.2d 537, 538 (Alaska 1974) (civil contempt proceedings for nonpayment of child support), the decision to do so has turned on the requirements of due process, and not the mental state of the party for whom appointed counsel is sought. See also infra at 274-275.

      . Reynolds, 569 P.2d at 801.

      . Langfeldt-Haaland v. Saupe Enters., 768 P.2d 1144, 1146-47 (Alaska 1989).

      . V.F., 666 P.2d at 44-45.

      . Flores, 598 P.2d at 895.

      . Reynolds, 569 P.2d at 803.

      . Otton v. Zaborac, 525 P.2d 537, 538 (Alaska 1974).

      . In the Matter of K.L.J., 813 P.2d 276, 279 (Alaska 1991).

      . 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).

      . In the Matter of K.L.J., 813 P.2d at 279 (quoting Keyes v. Humana Hosp. Alaska, Inc., 750 P.2d 343, 353 (Alaska 1988)).

      . Patrick v. Lynden Transp., Inc., 765 P.2d 1375, 1378 (Alaska 1988).

      . See AS 23.30.145.


source: Caselaw Access Project

author: FABE, Chief Justice.

license: Public Domain

text:
    Michele and Gregory HURST, Appellants, v. VICTORIA PARK SUBDIVISION ADDITION NO. 1 HOMEOWNERS' ASSOCIATION, Appellee.
    No. S-10249.
    Supreme Court of Alaska.
    Nov. 29, 2002.

      Allan E. Tesche, Russell, Tesche, Wagg, Cooper & Gabbert, Anchorage, for Appellants.
    Jesse C. Bell, Brena, Bell & Clarkson, P.C., Anchorage, for Appellee.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

FABE, Chief Justice.

I. INTRODUCTION

The Victoria Park Subdivision Homeowners' Association built a short wood fence at the edge of Lot 48, a lot set aside for recreational purposes. Gregory and Michele Hurst, who live on an adjacent lot, sued, claiming that the fence violated a restrictive covenant proscribing "permanent structures" on Lot 48. The trial court granted summary Judgment to the Association on the grounds that the fence comported with the designated purpose of the restrictive covenant and did not prevent the Hursts from using Lot 48. Because the fence does not violate the restriction against "permanent structures" as that term is used in the restrictive covenant, and because there is no factual issue to preclude summary judgment, we affirm.

II. FACTS AND PROCEEDINGS

A. - Factual History

Gregory and Michele Hurst are the owners of Lot 16 of the Victoria Park Subdivision, located at 7701 Canal Street in the Sand Lake area of Anchorage. Their lot borders Lot 48 of the Victoria Park Subdivision. Victoria Park Subdivision Addition Number 1 Homeowners' Association (the Association) is an Alaska nonprofit corporation organized to govern Lots 32 through 56 of the Victoria Park Subdivision Number 1. Lot 48 was set aside for low-intensity recreational purposes and is subject to a restrictive covenant:

Lot 48 has been deeded to the non-profit corporation formed as provided in Part E-5, except for the reservations of easements. Lot 48 shall only be used for non-intensive recreational and park purposes such as an informal play/picnic area, limited landing for small, manually transportable boats and limited walkway access, while at all times allowing for maximum protection of natural vegetation. Only pedestrian access shall be allowed. No motorized vehicles or aircraft shall be permitted. No permanent structures except incidental recreational structures such as canoe/boat racks, docks, a gazebo, picnic tables, barbecues, etc., will be allowed. Signs will be permitted to help enforce proper use of Lot 48.
The non-profit corporation formed pursuant to E-5 shall maintain, preserve, improve and control the interest in such lot for the use and benefit of all owners in the Victoria Park Subdivision, Addition No. 1, Lots 32 through 56, and for the use and benefit of the owners of Lots 1 through 31, Victoria Park Subdivision, provided the owners of Lots 1 through 31, Victoria Park Subdivision, pay a pro rata share of the costs of Lot 48.

The Hursts are not members of the Association, but they do pay a pro rata share of the costs of Lot 48 as provided for in the covenant and are therefore entitled to the use and enjoyment of the lot.

The Association experienced considerable difficulties controlling access to and use of Lot 48. A stolen automobile was abandoned on Lot 48, items such as boats and a wind surf board were disturbed, and "No Trespassing" signs were removed without permission. There were also incidents of trespassing. Previous owners of the Hursts' lot, Lot 16, had treated Lot 48 as their "private domain" by filling in its wetlands with excavation dirt, mowing the grass, and harassing other Association members who were attempting to use Lot 48. One previous owner of Lot 16 installed flower beds extending twenty feet onto Lot 48. The owner of Lot 17, next to the Hursts, had problems with trespassers crossing his lot to gain access to Lot 43, so he erected a three-foot-high, split-rail wood fence on the boundary between Lots 17 and 48. On December 7, 1997, the Association voted to erect a fence around the remaining open side of Lot 48.

The Hursts purchased Lot 16 in November 1997. On September 14, 1998, the Association informed the Hursts that it intended to construct a low, split-rail fence along the border between Lot 48 and Lot 16. The fence was constructed in the same style and material as the existing fence built by the owner of Lot 17, which also borders Lot 48. It is a three-foot-high, split-rail fence made of wood. It is secured by wood posts inserted approximately two feet in the ground.

B. Procedural History

On September 24, 1998, the Hursts filed a complaint alleging that the fence violated the terms of the restrictive covenant and asking for declaratory judgment, damages, injunc-tive relief, and attorney's fees. The Hursts and the Association both moved for summary judgment. On April 11, 2001, Superior Court Judge Peter A. Michalski concluded that the wood fence did not violate the prohibition against permanent structures, considering the covenant's purpose to set aside land for "non-intensive recreational and park purposes ... while at all times allowing for maximum protection of natural vegetation." Final judgment was entered on June 6, 2001. The Hursts appeal.

III. STANDARD OF REVIEW

We uphold summary judgment only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. The interpretation of a covenant is a question of law to which we apply our independent judgment. Findings of fact will not be disturbed unless they are clearly erroneous.

IV. DISCUSSION

A. The Fence Is Not Prohibited by the Restrictive Covenant.

The issue before us in this case is whether the split-rail wood fence on Lot 48 violates the terms of the restrictive covenant. Both parties have focused on whether other courts have considered fences to be permanent structures in other contexts. Indeed, the Hursts' primary argument is that a fence is a permanent structure, and that it therefore violates the terms of the restrictive covenant. The Hursts cite Thomas v. Depaoli, where a Missouri appellate court concluded that "[the majority rule appears to be that the word 'building' in a restrictive covenant intended to restrain obstruction of view will include any structure having that effect, including a fence." The Hursts also rely on Freedman v. Kittle, where a New York appellate court determined that a fence violated a property's restrictive covenant that prohibited structures "thereon," reasoning that use of the term "thereon" evinced an intent to have views remain unobstructed. However, both of these cases focused on the intent of the parties drafting the covenants to prevent obstruction of views. In contrast, the covenant at issue in this case was not drafted to preserve views for adjacent lot owners, but to maintain Lot 48 for "non-intensive recreational and park purposes." We are thus guided in our analysis by the specific language and purpose of the covenant restricting Lot 48.

Whether a fence falls within the operation of a restrictive covenant prohibiting "permanent structures" depends upon the purpose of the restriction and the nature of the fence. In keeping with this basic principle, the Association suggests two questions that must be answered to determine whether the fence is a structure prohibited by the covenant: what was the purpose of setting aside Lot 48 and does the fence contravene that purpose? The Association maintains that Lot 48 was set aside for non-intensive recreational purposes and was meant to have "limited walkway access" in order to protect the natural vegetation. Since the fence furthers these purposes, the Association asserts, it is not a "structure" under the terms of the covenant. In general, we agree. A three-foot-high, split-rail wood fence does not interfere with or materially obstruct the intended use of the land for non-intensive recreational purposes. If Lot 48 were completely surrounded by a high, impenetrable fence, it could interfere with the intended use of the land, but Lot 48 is accessible by two common entrances, one of which is right next to the Hursts' property.

Interpretation of restrictive covenants is guided by several canons. Where the language of the covenant is not ambiguous, the plain meaning governs. Where the language of the covenant is ambiguous, judicial construction is necessary. Covenants are construed within their own four corners. They are also construed to effectuate the intent of the parties. Onee the intentions of the parties to the covenant are known, their intention serves to limit the scope and effect of the restriction. Because restrictions are in derogation of the common law, they should not be extended by implication, and doubts should be resolved in favor of the free use of land.

Several aspects of the covenant are relevant to our inquiry. First, the covenant prohibits permanent structures and allows "incidental recreational structures" by way of a non-exhaustive list, Since a fence is not for recreation, it cannot be included in the list of "incidental recreational structures" without stretching the meaning of that language. However, the covenant also specifically permits signs "to help enforce proper use of Lot 48,"

While only Part D of the covenant actually restricts Lot 43, other provisions of the covenant shed light on the intended meaning of "permanent structure." For example, Part B-8 provides that "[nlo structure of a temporary character (trailer, basement, tent, shack, garage, barn or other outbuilding) shall be used on any lot at any time as a residence." The Association points out that the examples of structures in this section are all "buildings of a size sufficient to house a resident." Part C-1 of the covenant instructs that "no building, structure, fence or other improvement shall be constructed, placed, erected, re-painted, altered or made without the express approval of the Architece-tural Control Committee." The Association argues that "[in this section, 'structure' does not include a fence because 'fence' is listed separately from 'structure.' " Based upon these uses of the term in other parts of the covenant, the trial court concluded that the covenant drafters intended a narrower use of the term "structure." We agree. When considered in the context of the whole document, the term "structure" does not include a fence.

Moreover, the purpose of the covenant is plain: "Lot 48 shall only be used for non-intensive recreational and park purposes such as an informal play/pienic area, limited landing for small, manually transportable boats and limited walkway access, while at all times allowing for maximum protection of natural vegetation." Thus, the intent of the covenant was to maintain Lot 48 for "non-intensive recreational and park purposes" and the fence is consistent with that purpose. Indeed, "limited walkway access" is entirely consistent with construction of a low fence. The fence may interfere with the Hursts' previously unobstructed view of the lake and the "illusion of space and openness," but the covenant was drafted to protect Lot 48, not the view from Lot 16. Therefore, we conclude that the low, split-rail fence on Lot 48 is not a "permanent structure" within the meaning of this covenant.

The Association also urges this court to consider the duties imposed upon the Association by the covenant to "maintain, preserve, improve and control the interest in such Lot for the use and benefit of all owners" in the Victoria Park Subdivision. The construction of the fence preserves and controls the use of the lot for the benefit of the owners in accordance with that duty. Indeed, it appears that concern for this duty was the reason the Association constructed the fence-the Association was attempting to maintain and preserve the lot in light of difficulties with previous owners of Lot 16, as well as random trespassers. In addition, the Association built the fence to demarcate clearly Lot 48's boundary line as other landowners had attempted adverse possession by extending their gardens and flower beds well onto Lot 43. Thus, the fence comports with the general, affirmative duty that the covenant imposes upon the Association.

B. The Hursts' Argument that the Fence Prevents Reasonable Access to Lot 43 Will Not Be Considered.

In their reply brief, the Hursts argue that the fence prevents reasonable access to Lot 43. They assert they must now "find a public easement somewhere else" or "literally climb over the [Association's] fence." This argument was raised for the first time in reply and was not made in the trial court. Therefore it is not properly before us, and we decline to consider it.

v. CONCLUSION

We conclude that the fence does not violate the restrictive covenant's prohibition of permanent structures on Lot 48. In addition, the fence properly effectuates the affirmative duty imposed by the covenant on the Association to maintain and protect Lot 48. The decision of the trial court is AFFIRMED.

      . The complaint was later amended to add a second count, but no issue involving that count is before this court.

      . Stadnicky v. Southpark Terrace Homeowner's Ass'n, 939 P.2d 403, 404 (Alaska 1997).

      . Kohl v. Legoullon, 936 P.2d 514, 516 n. 1 (Alaska 1997).

      . Id.

      . The Association responds by suggesting that a fence is not permanent where its posts are not supported by a cement foundation. Town of Ogden Dunes v. Wildermuth, 142 Ind.App. 379, 235 N.E.2d 73, 75 (1968). We find this approach unavailing and decline to employ it.
      The Hursts also point out that fences are considered permanent structures in the Anchorage building and zoning codes. Furthermore, they suggest that this court's decision in Persson-Mokvist v. Anderson allows reference to state and local regulations and building codes for interpretation of the covenant at issue. 942 P.2d 1154 (Alaska 1997). - Persson-Mokvist concerned state land that was subdivided into five-acre lots and had a plat note that stated, "[this subdivision is for residential/recreational use." Id. at 1155. In order to discern the meaning of "residential use" and "recreational use," we looked to definitions of these terms "in state land disposal and planning regulations in existence when the subdivision was created." Id. at 1156. However, Persson-Mokvist did not involve a restrictive covenant, and the court consequently had no point of reference to determine the meaning of the language or the intent of the parties. Pers-son-Mokvist thus lacks the operative legal instrument central to this case and is therefore of little use.

      . 778 S.W.2d 745, 749 (Mo.App.1989).

      . 262 A.D.2d 909, 693 N.Y.S.2d 651, 653 (1999).

      . 20 Am.Jur.2d Covenants, Conditions, and Restrictions §§ 190, 224 (1995).

      . Gordon v. Brown, 836 P.2d 354, 357 (Alaska 1992); Lamoreux v. Langlotz, 757 P.2d 584, 587 (Alaska 1988); 20 Am.Jur.2d Covenants, Conditions, and Restrictions § 171.

      . 20 Am.Jur.2d Covenants, Conditions, and Restrictions § 171.

      . See Lamoreux, 757 P.2d at 587.

      . Id.; 20 Am.Jur.2d Covenants, Conditions, and Restrictions §§ 16, 171.

      . 20 Am.Jur.2d Covenants, Conditions, and Restrictions § 171.

      . Lamoreux, 757 P.2d at 587; see also Kalenka v. Taylor, 896 P.2d 222, 226 (Alaska 1995); Lenhoff v. Birch Bay Real Estate, Inc., 22 Wash.App. 70, 587 P.2d 1087, 1089 (1978).

      . The covenant provides that "Lot Forty-three (43) shall be subject only to the provisions of Part D herein." The parties agree that although Lot 43 is only restricted by Part D, the meaning of the terms in Part D should be considered in the context of how those terms are used in other parts of the same document; this accords with the covenant canons of construction. 20 Am. Jur.2d Covenants, Conditions, and Restrictions § 171.

      . Arguments raised for the first time in a reply brief will not be considered. Sumner v. Eagle Nest Hotel, 894 P.2d 628, 632 (Alaska 1995). Moreover, arguments made for the first time on appeal will not be considered. Hoffman Constr. Co. of Alaska v. U.S. Fabrication & Erection, Inc., 32 P.3d 346, 355 (Alaska 2001).


author: Judge JONES.

text:
    Sandie Kay COLBURN, Plaintiff-Appellant, v. Lon KOPIT, Psy.D., Defendant-Appellee.
    No. 01CA0977.
    Colorado Court of Appeals, Div. III.
    June 20, 2002.
    Certiorari Denied Dec. 2, 2002.

      Juanita Benetin, Denver, CO; Mary K. Stroube, Woodland, CA, for Plaintiff-Appellant.
    Kennedy and Christopher, P.C., Elizabeth A. Starrs, John R. Mann, Denver, CO, for Defendant-Appellee.
   Opinion by

Judge JONES.

Plaintiff, Sandie Kay Colburn, appeals the summary judgment entered against her and in favor of defendant, Lon Kopit, Psy.D., an unlicensed psychotherapist, dismissing plaintiff's claims for negligence, breach of fiduciary duty, and outrageous conduct because the statute of limitations had expired. We affirm.

In March 1996, plaintiff sought evaluation by defendant in connection with a custody dispute with her former husband. She later was treated by defendant who, as an unlicensed psychotherapist, was supervised by a licensed psychiatrist.

Plaintiff filed a complaint against defendant on March 27, 2000, alleging that he had been negligent and had breached his fiduciary duty to her by making improper comments during therapy and by encouraging her to have an inappropriate relationship with him.

In a brief order, containing no findings or conclusions, the trial court granted defendant's motion for summary judgment and dismissed plaintiff's complaint with prejudice, on grounds that it had not been filed within the applicable limitations period. This appeal followed.

L.

Plaintiff contends that the trial court erred in granting summary judgment in favor of defendant because the limitations period had not expired. We disagree.

Summary judgment is appropriate only when the pleadings and supporting doe-uments demonstrate that no genuine issues exist as to any material fact and that the moving party is entitled to judgment as a matter of law. Our review of an order granting a motion for summary judgment is de novo. Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Bd., 901 P.2d 1251 (Colo.1995).

A.

The General Assembly has specified distinct limitation periods for actions against licensed medical or health care providers and health care institutions, as opposed to other classes of individuals or institutions against which actions may be brought. Section 13-80-102.5, C.R.9.2001. The term "health care professional" is defined to refer to any physician, psychologist, or other health care worker "who is licensed to perform such profession under the laws of this state." Section 13-80-102.5(2)(b), C.R.S.2001; see also People v. District Court, 719 P.2d 722 (Colo.1986)(holding psychologist-patient privilege applies to records of unlicensed psychologist when therapy conducted under authorized supervision).

We conclude that the language of § 18-80-102.5 is unambiguous. See Sandoval v. Archdiocese of Denver, 8 P.3d 598 (Colo.App.2000)(reviewing court - considers plain language of unambiguous statute). Thus, because defendant is not a licensed psychotherapist, the general limitations for tort actions under §§ 18-80-101 and 13-80-102, C.R.S.2001, apply here.

B.

An action alleging breach of fiduciary duty must be filed within three years after the cause of action accrues. Section 13-80-101(1)(f), C.R.S 2001. An action for negli-genee or outrageous conduct must be filed within two years after the cause of action accrues. - Section 18-80-102(1)(a), CRS. 2001.

For purposes of the statute of limitations, a cause of action for breach of fidu-clary duty or negligence accrues on the date the "claimant has knowledge of facts which would put a reasonable person on notice of the nature and extent of an injury and that the injury was caused by the wrongful conduct of another." Jones v. Cox, 828 P.2d 218, 223-24 (Colo.1992). This standard is objective. "The focus is on a .plaintiff's knowledge of facts that would put a reasonable person on notice of the general nature of damage and that the damage was caused by the wrongful conduct of [the defendant]." Peltz v. Shidler, 952 P.2d 793, 796 (Colo.App.1997). The plaintiff need only know or have reason to know the facts that underlie or are essential to the cause of action, but need not know the precise legal theory upon which the action may be brought. Morris v. Geer, 720 P.2d 994 (Colo.App.1986).

Generally, the statute of limitations defense presents a question of fact. But where it is shown that the plaintiff discovered, or reasonably should have discovered, the alleged tortious conduct as of a particular date, the statute of limitations issue may be decided as a matter of law. Broker House Int'l, Ltd. v. Bendelow, 952 P.2d 860 (Colo.App.1998).

IL

Here, plaintiff argues that the therapeutic relationship upon which her claims are based continued until January 1999, when plaintiff last had telephone contact with defendant. However, defendant presented evidence in support of his position that the therapeutic relationship ended on October 31, 1996, the date of plaintiff's last paid appointment with him, and asserts that the basis for any lawsuit was manifest more than three years before plaintiff filed this action. We agree with defendant's latter assertion.

It is undisputed that plaintiff filed her lawsuit on March 27, 2000, a date which is more than three years after her last paid appointment with defendant, but less than two years after their last telephone conversation.

The record reveals that plaintiff acknowledged that defendant made her feel ill at ease by making sexual comments during therapy sessions before the final paid session on October 31, 1996; that she knew at that time the comments were inappropriate in a therapy setting; and that she knew any sexual intimacy with defendant would have been improper. The record further shows that, on July 6, 1996, plaintiff wrote in her journal that she had fallen in love with defendant and believed that her feelings were reciprocated. In November or December 1996, plaintiff also wrote that the two had a "dual" relationship.

The record further reveals that, after the final paid session, defendant refused to continue to treat plaintiff. However, he continued to consult with her from time to time, encouraging her regarding her life choices and her continuing education in counseling. Defendant characterized this aspect of their relationship as professional and not therapeutic in that his meetings with plaintiff were a few minutes in length, were strictly supportive in nature rather than ameliorative, and were not memorialized by treatment notes in plaintiffs file. According to defendant, plaintiff came to his office in the moments between his sessions with clients, reported her progress, and left.

Plaintiff relies on the fact that, in a March 28, 1997, telephone conversation, she and defendant discussed defendant's sexual comments during therapy, and defendant invoked a moratorium that forbids romantic relationships with former clients for two years after the end of a therapeutic relationship. The record suggests that, in seeming compliance with this two-year rule, plaintiff contacted defendant very close to the two-year anniversary of their last appointment to discover whether the nature of their relationship would be collegial or romantic from that point forward. During this period, after the last therapeutic session, plaintiff did not cease to be aware of the disconcert that defendant had caused her during the therapy sessions. See Cassidy v. Smith, 817 P.2d 555 (Colo.App.1991)(plaintiff, aware, of wrongful acts such that statute of limitations began to run); see also Ayon v. Gourley, 47 F.Supp.2d 1246 (D.Colo.1998)(plaintiff aware of injury while abuse was occurring such that statute of limitations began to run).

While the record does not conclusively establish the exact date when plaintiff should have been on notice of the alleged negligence and breach of fiduciary duty by defendant, it established with certainty that she could have known at or about the time of the final paid session on October 31, 1996, when she says she was ill at ease concerning comments containing sexual content. Thus, the record reflects no genuine dispute that she knew or should have known that she had been injured before March 27, 1997.

Therefore, we conclude that the statute of limitations for plaintiff's claims of breach of fiduciary duty, negligence, and outrageous conduct had expired before plaintiff filed this action on March 27, 2000. Accordingly, the trial court did not err in granting defendant's motion for summary judgment and dismissing plaintiff's claims.

The judgment is affirmed.

Judge DAVIDSON and Judge KAPELKE concur.


author: Judge VOUT.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Nathan R. HALL, Defendant-Appellant.
    No. 01CA0363.
    Colorado Court of Appeals, Div. IV.
    Oct. 10, 2002.
    Ken Salazar, Attorney General, Lauren Edelstein Park, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    Heckman & O'Connor, P.C., Brett Steven Heckman, Edwards, Colorado, for Defendant-Appellant.
   Opinion by

Judge VOUT.

Defendant, Nathan R. Hall, appeals the judgment of conviction entered on a jury verdict finding him guilty of eriminally negligent homicide and two petty offenses. We affirm.

While skiing down Vail mountain, defendant collided with another skier, who died as a result of the collision.

Defendant was charged with reckless manslaughter, possession or consumption of alcohol by a minor, and possession of one ounce or less of marijuana. The manslaughter charge was initially dismissed on a finding of no probable cause, but the supreme court reversed the dismissal and remanded the case for trial. People v. Hall, 999 P.2d 207 (Colo.2000).

At trial, the court granted the prosecutor's request for a jury instruction on the lesser included offense of criminally negligent homicide. It denied defendant's request for an instruction on reckless endangerment, reasoning that an instruction on that offense was unwarranted because the victim had died. The jury found defendant not guilty of reckless manslaughter but guilty of eriminally negligent homicide, as well as the two petty offenses.

Defendant's sole contention on appeal is that the trial court erred in refusing to instruct the jury on reckless endangerment as either a lesser included or a lesser nonin-cluded offense of reckless manslaughter. He argues that, because the nature of the risk he allegedly disregarded was in dispute, the jury should have been permitted to convict him of disregarding a risk of injury but not a risk of death. We are not persuaded.

A person commits the crime of manslaughter if he or she "recklessly causes the death of another person." Section 18-8-104(1)(a), C.R.9.2002. A person commits reckless endangerment if he or she "recklessly engages in conduct which creates a substantial risk of serious bodily injury to another person." Section 18-8-208, C.R.S.2002.

In determining a defendant's entitlement to an instruction on a lesser offense, whether the lesser offense is included or not included in the greater charged offense is not dispositive. In either event, the defendant is entitled to an instruction on the lesser offense as long as there is a rational basis in the evidence to support a verdict acquitting the defendant of the greater offense and convicting him or her of the lesser. People v. Garcia, 940 P.2d 357 (Colo.1997); People v. Skinner, 825 P.2d 1045 (Colo.App.1991).

In considering defendant's request for a reckless endangerment instruction here, the trial court recognized that the standard set forth above applies regardless of whether the offense was a lesser included or a lesser nonincluded offense of reckless manslaughter. It then concluded that this standard was not met. Because it was conceded that defendant caused the victim's death, the facts could not support a conviction of reckless endangerment even if defendant were acquitted of reckless manslaughter.

The trial court's conclusion accords with People v. Cauley, 32 P.3d 602 (Colo.App.2001), in which a division of this court held that it was not error to refuse to instruct on the lesser nonincluded offense of reckless endangerment in a case involving child abuse resulting in death. The division reasoned:

Death is not an element of reckless endangerment. Because it was undisputed that defendant's actions caused the death of his daughter, reckless endangerment does not accurately describe his actions. Consequently, there is no rational basis upon which the jury could have acquitted defendant of child abuse resulting in death and convicted him of reckless endangerment, and the trial court did not err in refusing defendant's instruction.

People v. Cauley, supra, 32 P.3d at 609.

Similarly, another division of this court held, in People v. Hauschel, 37 Colo.App. 114, 550 P.2d 876 (1975), that it was not error to refuse a tendered instruction on the lesser offense of reckless endangerment where it was undisputed that the assault was committed with a deadly weapon and that bodily injuries were inflicted on both victims. In such cireumstances, the division concluded, the evidence could not rationally permit an acquittal of first degree assault and a conviction of reckless endangerment.

Although defendant argues that Cauley was wrongly decided, its conclusion, like that in Hauschel, is consistent with other Colorado cases holding that there is no right to a jury instruction on a lesser offense if the element that distinguishes the greater from the lesser offense is uncontested. In such cireumstances, the jury cannot rationally acquit the defendant of the greater offense and convict him or her of the lesser. See Apodaca v. People, 712 P.2d 467 (Colo.1985)Gin-struction on lesser included offense of attempted second degree kidnapping properly refused where undisputed evidence established completed crime of second degree kidnapping); Graham v. People, 199 Colo. 439, 610 P.2d 494 (1980)(defendant not entitled to theft instruction where his own testimony established that he had committed the greater offense of simple robbery); People v. Lucas, 992 P.2d 619 (Colo.App.1999)(defendant charged with robbery and first degree murder was not entitled to instruction on lesser nonincluded offense of assault where uncon-troverted evidence established robbery); People v. Price, 969 P.2d 766 (Colo.App.1998)(no rational basis for acquitting defendant of theft of amount greater than $15,000 but convicting her of theft of lesser amount where amount stolen concededly was in excess of $15,000); People v. Moore, 902 P.2d 366 (Colo.App.1994)(where evidence showed defendant's blows contributed to victim's death, there was no rational basis to convict of third degree assault and acquit of manslaughter), aff'd, 925 P.2d 264 (Colo.1996); People v. Ortega, 899 P.2d 236 (Colo.App.1994)(where evidence undisputed that defendant was in custody, no rational basis to acquit of second degree assault and convict of obstructing a police officer); see also People v. Ramirez, 18 P.3d 822, 827 (Colo.App.2000)(instruction on third degree assault properly refused where record could not support finding that assault was accompanied merely by criminal negligence; "the mere chance that a jury may reject uncontro-verted testimony and convict on the lesser charge does not require the trial court to instruct the jury on the lesser charge"); People v. Rea, 7 P.3d 995 (Colo.App.1999)(trial court properly refused to instruct on lesser nonincluded offense that did not apply to defendant's conduct).

Under these cases and Cawley, with which we agree, it was not error for the trial court here to refuse to instruct on reckless endangerment where it was undisputed that a death had occurred as a result of defendant's conduct. Reckless endangerment did not "accurately describe [defendant's] actions," see People v. Cauley, supra, and there was no rational basis upon which the jury could have acquitted him of reckless manslaughter and convicted him of reckless endangerment.

The cases on which defendant relies do not warrant a contrary conclusion. In Keeble v. United States, 412 U.S. 205, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973), the Supreme Court held that an American Indian prosecuted in federal court under the Major Crimes Act was entitled to a jury instruction on a lesser included offense even though the lesser offense was not one of the crimes enumerated in the Act. However, in Keeble, the defendant was not charged with and did not concede causing death, and the government explicitly conceded that any non-Indian who had committed the same act and requested the instruction would have been entitled to it.

Although the court held in United States v. Pino, 606 F.2d 908 (10th Cir.1979), that a defendant convicted of involuntary manslaughter was entitled to an instruction on the lesser included offense of careless driving, it does not appear from the court's opinion that the government argued that instructing on the lesser offense was improper because a death had occurred. None of the other cases on which defendant relies involves a request for a jury instruction on a lesser offense not having death as an element in a situation where the defendant concededly caused the victim's death.

We also note that, even under defendant's theory that he disregarded only a risk of injury, he would be guilty of at least a reckless assault on the victim. See § 18-3-204(1), (recklessly causing bodily injury to another). Because there is no rational basis in the evidence to acquit of an assault and convict simply of reckless endangerment, defendant was not entitled to an instruction on reckless endangerment. See Graham v. People, supra.

Finally, defendant argues for the first time in his reply brief that the trial court's ruling violated his due process rights. Because this argument was not raised before the trial court or in his opening brief, we do not consider it. See People v. Cagle, 751 P.2d 614 (Colo.1988); People v. Czemerynski, 786 P.2d 1100 (Colo.1990).

The judgment is affirmed.

Judge DAVIDSON and Judge DAILEY COMCut.


author: /s/ Rudolph Hargrave CHIEF JUSTICE

text:
    2002 OK 78
    In the Matter of the REINSTATEMENT OF James B. BLEVINS, Jr. to Membership in the Oklahoma Bar Association and to the Roll of Attorneys.
    No. 4701.
    Supreme Court of Oklahoma.
    Oct. 7, 2002.
   ORDER OF REINSTATEMENT TO OKLAHOMA BAR ASSOCIATION AND ROLL OF ATTORNEYS

11 This case is before the Court pursuant to Rule 11 (Reinstatement), Rules Governing Disciplinary Proceedings, 5 0.8.2001, Ch.1, App.1-A (RGDP), for consideration of petitioner, James B. Blevins, Jr.'s, March 22, 2002 petition for reinstatement to membership in the Oklahoma Bar Association (OBA). This Court approved petitioner's resignation from the OBA in January 1997 after he submitted his affidavit of resignation in late 1996 at a time when a disciplinary proceeding was pending against him with the OBA. Oklahoma Bar Ass'n v. Blevins, 1997 OK 4, 934 P.2d 327. The driving force behind the resignation was his plea of no contest to a state felony charge of attempting to obtain money by false pretenses.

T2 A hearing was held on the reinstate ment petition in June 2002 before a Professional Responsibility Tribunal (PRT) trial panel. The matter of petitioner's request for reinstatement was investigated by the OBA through its Office of General Counsel and the OBA has no objection to this Court ordering petitioner's reinstatement. The PRT trial panel report filed in August 2002 recommends petitioner be reinstated. In September 2002 a joint brief of the OBA and petitioner was filed that, in essence, requests the petition for reinstatement be approved.

13 When this Court in the exercise of its exclusive jurisdiction considers a petition for reinstatement a de novo standard of review is applied. Matter of Reinstatement of Gassaway, 2002 OK 48, ¶ 3, 48 P.3d 805, 806. Recommendations of a PRT trial panel are merely advisory [Matter of Reinstatement of Kamins, 1988 OK 32, 752 P.2d 1125, 1129] and, although Rule 11.5 (Findings Prerequisite to Reinstatement) requires the PRT to make certain findings as to a petitioner's moral character, competency in the law and whether he/she engaged in any unauthorized law practice during a period of suspension, disbarment or resignation, the ultimate responsibility and decision-making authority as to whether reinstatement is warranted rests with this Court. See Matter of Reinstatement of Smith, 1994 OK 19, 871 P.2d 426, 427.

14 Moreover, an applicant for reinstatement in petitioner's situation bears the heavy burden of showing, by clear and convincing evidence, that reinstatement is warranted. Matter of Reinstatement of Smith, supra, 871 P.2d at 427-428. In regard to a reinstatement application, a petitioner that has resigned his membership in the OBA pending a bar disciplinary proceeding has the same burden as an individual that has been disbarred by this Court. Matter of Reinstatement of Kamins, supra, 752 P.2d at 1129. In such a proceeding the applicant is required to present stronger proof of qualifications than one seeking admission to the OBA for the first time. Rule 11.4 (Standard of Proof for Petitions for Reinstatement), RGDP. This Court has also delineated eight factors considered in determining fitness for reinstatement. Matter of Reinstatement of Gassaway, supra, 2002 OK 48, at ¶ 3, 48 P.3d at 806. They are: (1) applicant's present moral fitness, (2) demonstrated consciousness of the conduct's wrongfuiness and the disrepute it has brought upon the legal profession, (3) the extent of rehabilitation, (4) the original misconduct's seriousness, (5) conduct after resignation, (6) time elapsed since the resignation, (7) applicant's character, maturity and experience when he resigned, and (8) present legal competence. See id Upon de novo review, we conclude the record demonstrates that petitioner has, by clear and convincing evidence, satisfied all of the above-enunciated criteria for reinstatement.

T5 Petitioner was admitted to practice law in Oklahoma in 1979 following graduation from the Oklahoma City University College of Law and his successful completion of the Oklahoma Bar Exam. He was a practicing attorney from that time until approximately November-December 1996 when he submitted his resignation. As above-noted, we approved his resignation in Oklahoma Bar Ass'n v. Blevins, supra. Also, as noted, the genesis of the resignation was his no contest plea to a felony charge of attempting to obtain money by false pretenses and the conduct he engaged in that culminated in that plea.

T 6 The record shows that the charge arose when petitioner, a contract attorney for the Oklahoma Indigent Defense System (OIDS) in Logan County, agreed to represent two Mexican citizens for $10,000.00 who had been charged with a drug trafficking offense, even though he had already been appointed to represent them as indigents under his OIDS contract. Quite forthrightly, petitioner admitted the motivation behind his conduct was greed. The conduct occurred in the summer of 1995 and petitioner never actually received the $10,000.00. Petitioner pled no contest to the charge in late 1996 and upon his plea the judge handling the matter deferred judgment for two years and ordered petitioner to pay court costs, which he did. The petitioner met all the conditions of the deferred judgment and, upon motion, the no contest plea was expunged and the criminal charge dismissed with prejudice in late December 1998.

T7 Since his resignation petitioner has worked as an oil and gas landman, and for an abstract company. He purchased the abstract company on or about October 1, 1998 and that is currently his business. No adverse testimony or objections to his reinstatement are contained in the record submitted. The record also shows petitioner avoided doing anything after his resignation that would impede or negatively reflect upon his reinstatement application to the OBA. The record is further clear that he has kept up his competency in the law by reading the Oklahoma Bar Journal and taking over one hundred (100) hours of continuing legal education since his resignation. Of course, his work as an oil and gas landman and in the abstract business would have also provided some law-related experience. There is absolutely no indication in the record that he practiced law after he resigned.

1 8 Witnesses, both lay and legal (including a district court judge) vouched for his good character, his legal ability and his remorse-fulness concerning his misconduct. 'The record also plainly shows that petitioner had no previous difficulties with the OBA and the conduct leading to the criminal charge against him was a one-time incident. Petitioner's own testimony also reveals he realizes the wrongfulness of his conduct and the discredit it brought on, not only himself, but on the entire legal profession in Oklahoma.

19 Based on our review of this matter, petitioner has met all the prerequisites for reinstatement provided in Rule 11 of the RGDP and this record shows, by clear and convincing evidence, that reinstatement is warranted. It is, therefore, ORDERED that petitioner, James B. Blevins, Jr., be reinstated to membership in the Oklahoma Bar Association and that his name be placed on the Roll of Attorneys licensed to practice law in the State of Oklahoma.

DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 7TH DAY OF OCTOBER, 2002.

/s/ Rudolph Hargrave CHIEF JUSTICE

11 ALL JUSTICES CONCUR.

      . Rule 11.1(e) of the Rules Governing Disciplinary Proceedings, 5 0.$.2001, Ch.1, App.l-A (RGDP), provides that an attorney that has resigned from membership in the Oklahoma Bar Association pending a disciplinary proceeding shall not be permitted to file an application for reinstatement within five (5) years of the effective date of the resignation.

      . Upon petitioner's waiver of venue the criminal case/charge was handled in Pontotoc County, rather than Logan County. One of petitioner's character witnesses at the Professional Responsibility Tribunal (PRT) trial panel hearing testified that the District Attorney's Office in Logan County had recused/disqualified from the criminal case. Said witness was an assistant DA in Logan County when the charges were processed through the judicial system.

      . We note that on September 26, 2002 the Oklahoma Bar Association (OBA) filed a document in this matter entitled receipt for costs which states that petitioner has made full payment of the costs ($758.30) incurred in this reinstatement proceeding. Rule 11.1(c) of the RGDP requires that an attorney seeking reinstatement pay the costs of investigating and processing (including the cost of any hearing transcript) the application for reinstatement.


text:
    2002 OK CR 33
    Eric Christopher FRAZIER, Petitioner, v. STATE of Oklahoma, Respondent.
    No. PC-2002-713.
    Court of Criminal Appeals of Oklahoma.
    Oct. 3, 2002.
    As Corrected Jan. 22, 2003.
   ORDER AFFIRMING DENIAL - OF POST-CONVICTION RELIEF IN PAROLE REVOCATION PROCEEDINGS

T1 On June 5, 2002, Petitioner, pro se, brought an appeal from a final order of the District Court of Tulsa County, Case No. CF-00-2155. This final order was pronounced by the Honorable Jefferson Sellers, District Judge, on April 22, 2002, and a journal entry thereof filed with the trial court clerk on May 8, 2002. The order denied an Application for Post Conviction Relief filed by Petitioner on February 25, 2002.

12 Petitioner's post-conviction Application alleged he had been granted parole upon those sentences he was serving in CF-O00-2155. The Application claimed such parole had been wrongfully revoked, and that he is being unlawfully held due to parole revocation proceedings against him. In its order denying post-conviction relief, the District Court found that parole revocation proceedings had indeed been instituted against Petitioner, and that on February 20, 2002, a parole revocation hearing was held by the Pardon and Parole Board.

13 The District Court found that Petitioner's revocation hearing was held before Hearing Officer, Cary M. Pirrong, and that Pirrong had made a recommendation to the Governor for the State of Oklahoma that Petitioner's parole be revoked. The following finding was also made by the District Court: "Petitioner's parole has not been formally revoked at this time for the reason that the Governor bas not ruled on the recommendation of the Hearing Officer." (Dist. Ct. Order at 8.) For this, as well as other reasons set forth within its order, the District Court concluded Petitioner's post-conviction application should be denied.

{4 The Post Conviction Procedure Act is generally targeted toward challenges to a defendant's judgment and sentence, but at 22 0.8.2001, § 1080(e), an exception is found. That provision permits a convicted person to institute a post-conviction proceeding when "his sentence has expired, his suspended sentence, probation, parole, or conditional release unlawfully revoked, or he is otherwise unlawfully held in custody or other restraint." It is this provision that makes a post-conviction action the proper method for a defendant to challenge the revocation of his parole.

15 In Petitioner's matter, he admits that the Governor has not yet revoked his parole. (Appellate Brief of Pet'r at 1.) Consequently, the "unlawfully revoked" parole, recognized within Section 1080(e) as a ground for post-conviction relief, does not exist in Petitioner's matter. Therefore, Petitioner cannot show entitlement to post-conviction relief upon grounds that he has suffered an unlawfully revoked parole.

T6 There remains, however, Petitioner's claim that he is being unlawfully held under those parole revocation proceedings brought against him by the State. The same subsection of the Post Conviction Procedure Act that permits a challenge of a parole revocation also permits a convicted person to institute post-conviction proceedings when he is "otherwise unlawfully held in custody or other restraint." As applicable to Petitioner's situation, we find that the intent of this provision is to permit an individual held in eusto-dy for parole violations to bring a post-conviction application for his release when it can be shown that there exists no lawful reason for his continued restraint.

17 In other words, his post-convietion action may substitute for that which previous to the Act would have been brought as a writ of habeas corpus. We therefore hold that an applicant may not commence a post-conviction challenge of parole revocation proceedings until revocation of his parole has occurred, unless he can show there is no lawful authority whatsoever for his restraint, or if there was lawful authority, that such authority has lapsed or been exceeded.

{8 Petitioner's post-conviction pleadings before the District Court alleged nothing that would demonstrate the State was without jurisdictional authority to restrain Petitioner. According to Petitioner's own allegations, on December 7, 2001, while Petitioner was incarcerated in the Tulsa County Jail on a misdemeanor complaint, parole officers advised him that revocation proceedings had been commenced which caused "a hold" to be placed upon Petitioner. (Application for Post Conviction Relief at 3.) The limited record provided by Petitioner reveals that on December 7th, the officers served Petitioner with a "Notice of Probable Cause Hearing," and that Petitioner waived his right to the probable cause hearing but reserved his right to a formal executive revocation hearing.

T9 The record also supports the District Court's finding that the executive revocation hearing was held on February 20, 2002, and that after considering the evidence, the Hearing Officer found Petitioner violated the terms of his parole. The Hearing Officer's formal, written recommendation of revocation addressed to the Governor is dated March 1, 2002. On their face, these proceedings are wholly consistent with the constitutional rights afforded a parolee accused of violating his parole.

[ 10 Before the District Court, Petitioner's primary challenge to these proceedings was one of error occurring "[bly D.0.C. placing a D.0.C. hold onto me, without having a hearing revocation within the time of 20 days, that is required by statute." (Application for Post Conviction Relief at 4.) The statute to which Petitioner refers is 22 0.98.2001, § 991 b(A). By its terms, this provision applies only to revocations of orders suspending sentences. There is nothing that makes it applicable to parole revocation proceedings, and certainly nothing that would reveal the parole revocation proceedings against Petitioner, and Petitioner's restraint pursuant to those proceedings, was without any authority.

111 Moreover, the District Court found required procedures were followed and Petitioner was not denied due process. (Dist. Ct. Order at 8.) Petitioner does not demonstrate any error in this finding. Even if the District Court were to find any credence to Petitioner's claim there was an improper delay in holding the revocation hearing, onee a proper revocation hearing is conducted, the claim of delay is rendered moot. Contrary to Petitioner's arguments, if the revocation hearing was not conducted according to law, the remedy is not release. The judicial remedy is instead issuance of an order that an appropriate executive revocation proceeding be held.

112 Petitioner also complained to the District Court that his waiver of the probable cause hearing was not voluntarily or intelligently given. In this appeal, Petitioner does not explain how this cireumstance somehow robbed the subsequent executive revocation hearing of its lawful authority or validity, or how such cireumstance otherwise caused Petitioner's current confinement to be without authority. Petitioner therefore does not show this claim demonstrates the District Court erred in denying him post-conviction relief.

113 To summarize, we hold that an individual, held on a complaint that he has violated parole, and who brings a post-conviction proceeding under Section 1080(e) prior to a formal revocation of his parole by the Governor, must, at the minimum, demonstrate some jurisdictional defect in his detention before he will be entitled to post-conviction relief, If only non-jurisdictional error has occurred, the individual must then wait until the Governor has revoked the parole before he may commence a post-conviction review of the parole revocation proceedings.

114 IT IS THEREFORE THE ORDER OF THIS COURT that the April 22, 2002, order of the District Court of Tulsa County, in Case No. CF-00-2155, denying Petitioner post-conviction relief as concerns parole revocation proceedings, is AFFIRMED.

" 15 IT IS SO ORDERED.

16 WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 3rd day of October, 2002.

/s/ Gary L. Lumpkin GARY L, LUMPKIN, Presiding Judge (concur in results)

/s/ - Charles A. Johnson CHARLES A. JOHNSON, Vice Presiding Judge.

/s/ Charles S8. Chapel CHARLES S. CHAPEL, Judge

/s) Reta M. Strubhar RETA M. STRUBHAR, Judge

/s/ - Steve Lile STEVE LILE, Judge

      . The limited record provided by Petitioner indicates that his judgments and sentences in CF-00-2155 are for Possession of a Controlled Drug, four years imprisonment; False Personation, one year imprisonment; - Resisting Arrest, ninety days; and Driving Under Suspension, six months. Petitioner was also convicted in CF-00-2155 of Failure to Stop, for which he received only a fine. The record further indicates Petitioner's sentences were ordered to run concurrently, and that Petitioner served approximately one year in the custody of the Department of Corrections on these sentences before being paroled in September of 2001.

      . Inexplicably, the District Court's five-page final order is paginated beginning with the number "5" and ending with the number "9." We use the page-number references assigned by the District Court in our citation to the District Court's final order.

      . See In re Sanders, 1977 OK CR 248, ¶ 3, 568 P.2d 331, 331 (dismissing writ proceeding because petitioner had not followed required post-conviction procedures "for challenging the validity of the revocation of his parole") overruled on other grounds by Delfrate v. Oklahoma Dep't of Corrections, 1999 OK CR 42, ¶ 22, 991 P.2d 549, 553; see also Rule 1.2(D)(1), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2002) ("Procedures for review of revocation of parole are governed by the Post Conviction Procedure Act, Sections 1080 to 1089 of Title 22 and Section V of these Rules.").

      . The language stating that "this act encompasses and replaces all common law and statutory methods of challenging a conviction or sentence" indicates that it is the intent of the Act to place into effect a statutory procedure that would substitute or supercede prior available remedies. 22 ©.$.2001, § 1080. See also Twyman v. Oklahoma Pardon & Parole Bd., 1992 OK CR 53, ¶¶ 4-5, 837 P.2d 480, 481 (holding that although "(the writ of habeas corpus has not been suspended or altered by the Post Conviction Procedure Act," petitioner's habeas action challenging his parole revocation would nonetheless be dismissed because "he has not followed the [post-conviction] proceedings provided by law for challenging the validity of the revocation of his parole").

      . This is consistent with the scope of actions for habeas corpus, a proceeding that runs only to the jurisdictional aspects of a prisoner's confinement. Ex parte Tidwell, 92 Okl.Cr. 263, 265, 222 P.2d 760, 762 (1950). To hold otherwise, and thereby permit an individual to bring a post-conviction action prior to parole revocation, would be to permit piecemeal challenges to every stage of the State's prosecution of a parole revocation. Such a procedure would be contrary to most forms of judicial review and contrary to the intent of the Act. This point can be seen by comparison to the direct appeal process for criminal convictions. Generally speaking, unless a defendant in the course of a criminal prosecution can demonstrate error occurring that is so grievous as to be outside the jurisdiction of the trial court, there is no remedy or right of review for non-jurisdictional error until such time as a final judgment of conviction has occurred. 22 O.S. 2001, § 1051. We do not believe it the intent of the Legislature, in enacting the Post Conviction Procedure Act, to give convicted post-conviction applicants a greater right of review than that afforded defendants who have not yet been. convicted. Consequently, a parolee must generally wait until parole revocation has occurred before commencing any post-conviction action, for the Act does not permit a pre-revocation right of review when the parole revocation proceedings are jurisdictionally sound.

      . In Baker v. State, we summarized the due process requirements for parole revocations:
      The United States Supreme Court has recognized two important stages in the typical process due for parole or probation revocations. The first stage requires that, when a probationer is arrested and detained at the direction of his parole officer, the probationer should be given notice and allowed to attend a preliminary hearing held by a person not directly involved in the case, as promptly as convenient after arrest, to determine whether there is probable cause to detain the probationer for a final decision on revocation. The second stage requires a revocation hearing within a reasonable time after detention before a neutral and detached hearing body, at which the probationer must have an opportunity to be heard, to evaluate contested facts and determine whether revocation is warranted. The Supreme Court left it to the discretion and responsibility of each state to develop revocation procedures within the framework of minimum due process requirements.
      Baker v. State, 1996 OK CR 49, ¶ 17, 927 P.2d 577, 582 (citations and footnote omitted).

      . The applicable statute for arrest and prosecution of parole violators is 57 0.S.2001, § 516.

      . See Berry v. Anderson, 1972 OK CR 192, ¶ 4, 499 P.2d 959, 960 (where petitioner for fourteen months was committed to the penitentiary for a parole violation before he was afforded a proper parole revocation hearing, he was nonetheless ineligible for relief because "petitioner's challenge in this proceeding, after he has been afforded a proper revocation hearing, comes too late").

      . See Boggs v. State, 1976 OK CR 155, ¶ 4, 551 P.2d 1166, 1168 (if trial court finds "proceedings resulting in appellant's parole revocation were not conducted according to law, then and in that event, the trial court should direct that appropriate executive proceedings be instituted").


text:
    2002 OK CR 37
    Cody Tyler PHILLIPS, Appellant, v. STATE of Oklahoma, Appellee.
    No. F 2002-0775.
    Court of Criminal Appeals of Oklahoma.
    Nov. 20, 2002.
   ORDER DENYING APPELLANTS MOTION TO HOLD YOUTHFUL OF. FENDER APPEAL IN ABEYANCE AND ORDER GRANTING EXTENSION OF TIME TO FILE BRIEF

11 On October 3, 2002, Appellant, by and through counsel Robert Nigh, Jr., filed a motion requesting the above styled appeal be held in abeyance pending Appellant's treatment as a Youthful Offender in the custody of the Rogers County Office of Juvenile Affairs. Counsel, in part, sets forth the following:

1. By Information filed June 5, 2001, the Appellant, Cody Tyler Phillips, was charged in Rogers County Information No. CF-2001-269 with Murder in the First Degree in violation of 21 O.S. 1998, § 701, or in the alternative Murder in the Second Degree in violation of 21 0.8.1976, § 701.8.
Mr. Phillips' motion for certification as a Youthful Offender or juvenile was initially denied by the trial court. This Court reversed and directed that Mr. Phillips be tried as a Youthful Offender. C.T.P. v. State, 40 P.3d 490 (Okl.Cr.2002).
Jury trial was held from May 14, 2002, to May 17, 2002, before the Honorable Jack K. Mayberry, Judge of the District Court. At the close of the trial the jury found Mr. Phillips guilty of Murder in the Second Degree in violation of 21 0.8.1976, § 701.8. On June 11, 2002, thé Court ordered Mr. Phillips placed in the custody of the Office of Juvenile Affairs for an indeterminate term. The Judgment and Sentence was filed on June 18, 2002. ...
The Appellant timely filed Notice of Intent to 'Appeal and Designation of Record. The Appellant remains in the custody of the Office of Juvenile Affairs. A direct appeal has been duly initiated and perfected in this Court pursuant to 22 0.S.1991, § 1051, and Section 8, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (1999). The Petition in Error was duly filed on September 5, 2002. Currently Mr. Phillips' principle brief is due on November 11, 2002.

1 2 Counsel states that in the event Appellant successfully completes his Youthful Offender treatment, he wishes to dismiss this appeal and counsel believes Appellant's treatment in a juvenile facility as a Youthful Offender is appropriate. Counsel also states: "Mr. Phillips wishes to take advantage of the services available to him in the custody of the Office of Juvenile Affairs, and for that reason does not wish to proceed with the appeal." However, counsel states that if an effort is madé to bridge Appellant to the Oklahoma Department of Corrections, he "believes errors which occurred at Mr. Phillips' jury trial should be raised on appeal to prevent this result."

T3 Appellate counsel cites no authority to hold the above styled appeal in abeyance until it is determined whether the State will request Appellant be bridged to the Department of Corrections, and we find none. Petitioner's conviction must be timely appealed as is required for all appeals to this Court. However, if in the future Appellant is revoked from the Youthful Offender treatment plan or upon reaching eighteen/nineteen years of age is transferred to the custody of the Department of Corrections pursuant to Section 7306-2.10 of Title 10, then Appellant can appeal the revocation/transfer to the Department of Corrections. See 10 0.8.2001, § 7806-2.10(H). At that time this Court will review to determine whether there is sufficient evidence to revoke by a clear and convincing evidence standard, or if there has been an abuse of discretion in transferring the Youthful Offender to the Department of Corrections rather than discharging the Youthful Offender.

"I 4 Accordingly, Appellant's motion to hold the appeal in abeyance is DENIED. As the Notice to Transmit was issued on September 11, 2002, Appellant's brief is due to be filed on or before November 10, 2002. Due to the time required to address the issue presented, Petitioner's October 3, 2002, request for an extension of time to file the brief is GRANTED, and Petitioner's brief shall be filed on or before December 10, 2002.

1 5 IT IS SO ORDERED.

T6 WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 20th day of November, 2002.

/s/ Gary L. Lumpkin GARY L. LUMPKIN, Presiding Judge

/s/ Charles A. Johnson . CHARLES A. JOHNSON, Viee Presiding Judge

/s/ Charles 8. Chapel CHARLES S. CHAPEL, Judge

/s/ Reta M. Strubhar RETA M. STRUBHAR, Judge

/s/ - Steve Lile STEVE LILE, Judge


author: LUMPKIN, Presiding Judge. CHAPEL, Judge

text:
    2002 OK CR 39
    Richard Earl WILLIAMS, Appellant, v. STATE of Oklahoma, Appellee.
    No. F-2001-1422.
    Court of Criminal Appeals of Oklahoma.
    Nov. 26, 2002.
    Anthony McKesson, Assistant Public Defender, Oklahoma City, OK, counsel for appellant at trial.
    Robert Macy, District Attorney, Mark Lane, Ashley Altshuler, Assistant District Attorneys, Oklahoma City, OK, counsel for the State at trial.
    Kimberly J. Tabor, Assistant Public Defender, Oklahoma City, OK, counsel for appellant on appeal.
    W.A. Drew Edmondson, Attorney General of Oklahoma, Kellye Bates, Assistant Attorney General, Oklahoma City, OK, counsel for appellant on appeal.
   SUMMARY OPINION

LUMPKIN, Presiding Judge.

11 Appellant Richard Earl Williams was tried by jury for the erimes of Distribution of Controlled Dangerous Substances (Count I) (63 0.S.Supp.1999, § 2-401); Possession of a Controlled Dangerous Substances (Count II) (63 O0.S.Supp.1999, § 2-402) After Former Conviction of Four Felonies; and Possession of Drug Paraphernalia (Count IV) (63 0.S.Supp.1999, § 2-405), in Case No. CRF-2000-1288, in the District Court of Oklahoma County. The jury found Appellant guilty in Counts II and IV and recommended twenty (24) years imprisonment in Count II and one year imprisonment and a one thousand dollar ($1,0000) fine in Count IV. The trial court suspended the fine in Count IV, but imposed the prison sentences recommended by the jury. The sentences were ordered to be served concurrently. It is from this judgment and sentence that Appellant appeals.

2 Appellant raises the following proposition of error in support of his appeal:

I. The trial court failed to properly instruct the jury on the applicable range of punishment, and thus violated Appellant's right to due process and fundamental fairness.

T3 After a thorough consideration of this proposition and the entire record before us on appeal including the original record, transcripts, and briefs of the parties, we have determined that neither reversal nor modification is warranted under the law and the evidence.

T 4 In his sole proposition of error, we find Appellant is not entitled to the benefit of 21 0.S.2001, § 51.1(C) as the 2001 amendment does not apply retroactively to Appellant's case. Nestell v. State, 954 P.2d 143, 144 (Okl.Cr.1998). See also Bowman v. State, 789 P.2d 631, 632 (Okl.Cr.1990). As there is no express indication that the Legislature intended the amendment changing the range of punishment to be applied retroactively, Appellant was entitled only to an application of the law which was in effect at the time he committed the crime. See State v. Watkins, 837 P.2d 477, 478 (Okl.Cr.1992); J.M.R. v. Moore, 610 P.2d 811, 814 (Okl.Cr.1980). Therefore, the trial court did not abuse its discretion in instructing the jury pursuant to 21 0.8.Supp.2000, § 51.1(B). See Gilson v. State, 8 P.3d 883, 914 (Okl.Cr.2000) (the determination of which instructions shall be given to the jury is a matter within the discretion of the trial court. Absent an abuse of that discretion, this Court will not interfere with the trial court's judgment if the instructions as a whole accurately state the applicable law).

15 Further, we find that as Appellant was not entitled to a jury instruction pursuant to 21 0.9.2001, § 51.1(C), trial counsel's failure to object to the absence of such an instruction or to request such an instruction was not ineffective assistance of counsel. Phillips v. State, 989 P.2d 1017, 1044 (Okl.Cr.1999).

T 6 Accordingly, this appeal is denied.

DECISION

T7 The Judgment and Sentence is AFFIRMED.

JOHNSON, V.P.J., STRUBHAR and LILE, JJ,; concur.

CHAPEL, J.;: dissent.

CHAPEL, Judge

Dissenting.

T1 I dissent to affirming Williams's sentence for Count II, as his jury was improperly instructed on the punishment range for the crime for which Williams was tried and convicted.

{2 The ecrime-possession of a controlled substance after former conviction of two or more felonies-was committed on February 23, 2000. The then-applicable sentencing range was twenty (20) years to life imprisonment. However, on July 1, 2001, the legislature amended the minimum punishment under the general enhancement statute from "not less than twenty (20) years" to "three times the minimum term for a first-time offender. When Williams was tried on November 5-7, 2001, his jury was instructed on the old, pre-2001 punishment range. While the majority opinion asserts that the instruction correctly invoked the punishment range in effect when the crime was committed, common sense suggests otherwise, as precedent has recently confirmed.

13 In Salazar v. State, this Court categorically stated that "procedural changes in the law, which do not prejudice or operate to the detriment of the defendant, apply to all trials occurring after the enactment of the statute" This rule, followed by numerous states, should be applied to all cases including the present one. The legislative change to the punishment range was procedural, and benefited defendants by decreasing the minimum sentence a jury could choose to impose. It should have been applied to Williams's case: directly contrary to Salazar, it was not.

T4 The rule of Salazar should apply irrespective of whether the legislature expressly stated that a sentencing change should be imposed retroactively.

When the legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could[.]

Moreover, why would the legislature arbitrarily punish Defendant 1 more severely than Defendant 2 merely because he committed the identical crime on June 30 rather than July 1, 20017 Punishment is designed to deter, rehabilitate, and remove danger from society. If the Oklahoma Legislature determines that a penalty range can meet these goals, it should apply to all pending actions rather than splitting hairs based upon the precise date of the offense.

15 Consistent with these principles, some jurisdictions require the legislature to specifically state that the amended lesser punishment does not apply to crimes committed before the date of its passage. I endorse this approach and would always apply the Salazar rule to a procedural statute enacted prior to sentencing absent specific and contrary legislative direction. Doing so is more just, more efficient, and more sensible than the approach the majority would have us take.

16 Here, Williams was tried after the amended statute became effective. Salazar should have been followed and the lowered range of punishment should have been applied at his trial. Williams's sentence should be modified to the minimum (6) years' imprisonment, and this Proposition should be granted.

      . Appellant was charged conjointly with Willard Maurice Callahan, William Kenneth Davis, and Roderick Laverne Gardner. Appellant was not charged in Count III of the felony information. (O.R.2).

      . 21 0.$.Supp.2000, § 51.1(B).

      . 21 0.8.2001, § 51.1(C) and 63 0.$.2001, 2-402 (minimum punishment for possession of controlled dangerous substance two (2) years imprisonment).

      . The majority would make an exception upon legislative intent for retroactive sentencing application.

      . Salazar v. State, 1993 OK CR 21, 852 P.2d 729, 737 (emphasis supplied). '

      . See e.g. People v. Dennis, 17 Cal.4th 468, 503-04, 71 Cal.Rptr.2d 680, 950 P.2d 1035 (Cal.1998); Colorado v. Bloom, 195 Colo. 246, 251, 577 P.2d 288, 292 (Colo.1978); Payne v. State, 688 N.E.2d 164, 165 (Ind.1997); State v. Reams, 284 Mont. 448, 945 P.2d 52, 56, (1997); State v. Urbano, 256 Neb. 194, 589 N.W.2d 144, 154 (1999); People v. Behlog, 142 A.D.2d 983, 984, 530 N.Y.S.2d 404 (N.Y.A.D.1988); State v. Varner, 310 S.C. 264, 423 S.E.2d 133, 133-134 (1992); and State v. Yates, 918 P.2d 136, 138 (Utah App.1996). Additionally, some of the states following this approach do so based upon statutes requiring such a result. See State v. Austin, 503 N.W.2d 604, 605-06 (Iowa 1993); Daniels v. State, 742 So.2d 1140, 1145 (Miss.1999); State v. Edwards, 983 S.W.2d 520, 521-22 (Mo.1999); State v. Burton, 11 Ohio App.3d 261, 464 N.E.2d 186, 186 (1983); State v. Pearson, 858 S.W.2d 879, 883 (Tenn.1993); Harris v. State, 913 S.W.2d 706, 709-710 (Tex.App.1995); and State v. Lapan, 158 Vt. 382, 609 A.2d 970, 972 (Vermont 1992). Oklahoma does not have such a statute.

      . In re Estrada, 63 Cal.2d 740, 745, 48 Cal.Rptr. 172, 408 P.2d 948 (Cal.1965).

      . This is referred to as a "savings clause" in jurisdictions following this rule. See Payne v. Indiana, 688 N.E.2d 164, 165 (Ind.1997); State v. Reams, 284 Mont. 448, 945 P.2d 52, 56 (1997); State v. Urbano, 256 Neb. 194, 589 N.W.2d 144, 154 (1999).