author: COATS, Chief Judge.

text:
    Stanley J. SIMEON, Appellant, v. STATE of Alaska, Appellee.
    No. A-8378.
    Court of Appeals of Alaska.
    April 30, 2004.

      Linda Wilson, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellant.
    Timothy W. Terrell, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

COATS, Chief Judge.

This case raises the question of whether the lawyer or the defendant has the authority to decide whether to request a jury instruction on a lesser included offense. We conclude that the Alaska Rules of Professional Conduct establish that it is the lawyer’s decision.

Factual and 'procedural background

Stanley J. Simeon was convicted of sexual assault in the first degree. Simeon appealed his conviction to this court, arguing that it was plain error for the superior court to fail to provide the jury with instructions on the lesser included offenses of sexual assault in the second degree and assault in the fourth degree. We rejected Simeon’s argument and affirmed his conviction. Simeon then filed an application for post-conviction relief alleging that his trial counsel provided ineffective assistance of counsel because she did not request lesser included instructions on assault.

In response to Simeon’s application, Si-meon’s trial attorney filed an affidavit in which she stated that she had discussed with Simeon whether to ask for instructions on lesser included offenses, that she could not remember why she decided not to request lesser included instructions, and that she believed that her failure to request lesser included instructions was a mistake:

I did not request lesser included instructions for Mr. Simeon’s trial. I remember discussing this matter with Mr. Simeon. I remember wanting his input on this issue and getting his opinion. I do not remember the reason we decided not to request lesser included instructions. It is generally my practice to give considerable deference to the client’s wishes when deciding whether or not to request lesser included instructions, but I do not have a present memory about why I did not request them in this case. I feel my failure to request lesser included instructions was a mistake. At the least, I should have requested a lesser included of simple assault, because there was testimony at trial about a “tussle” or “wrestling” or “horseplay” on Stanley’s part, which the complaining witness perceived as a threat.

Superior Court Judge Fred J. Torrisi conducted an evidentiary hearing on Simeon’s application. Simeon testified at the eviden-tiary hearing. According to Simeon, his trial counsel told him that the evidence against him was weak and therefore she was not going to ask for a lesser included offense. He testified that his trial attorney did not explain to him how lesser included offenses worked — that the jury would have the opportunity to convict him of a lesser offense.

Following the evidentiary hearing, Judge Torrisi dismissed Simeon’s application for post-conviction relief, finding that Simeon had not proven by clear and convincing evidence that his trial counsel had provided ineffective assistance by failing to request jury instructions on lesser included offenses. Judge Torrisi found that both the attorney and Simeon recalled talking about lesser included offenses, although Simeon “seemed confused about exactly what was said.” He stated that “[i]t was clear from Mr. Simeon’s testimony that both he and his attorney believed the case against him was weak, the victim’s testimony [was] inconsistent and the chances of acquittal were high.” Judge Tor-risi referred to the fact that he had conducted the trial and had reviewed the evidence presented at the trial when he ruled on Si-meon’s motion for judgment of acquittal or for a new trial. Judge Torrisi stated that the case had been “a difficult prosecution for the State” and pointed out that the first trial had ended in a hung jury. He concluded that under these circumstances, “not asking for lesser included instructions was within the range of actions that a reasonable attorney might have taken.” He, concluded that Si-meon had not overcome the presumption that his trial counsel had made a reasonable tactical decision when she decided not to request lesser included offense instructions. He therefore dismissed the application for post-conviction relief.

The decision to request lesser included offenses is a decision controlled by the attorney . .

Simeon contends that he, not his lawyer, should have made the decision whether to seek jury instructions on lesser included offenses. He contends that the law requires that such decisions be made by the client, not the lawyer, and that his lawyer therefore acted incompetently when she made this decision herself.

Simeon cites Standard 4-5.2 of the American Bar Association’s Standards for Criminal Justice, “The Defense Function,” which discusses the allocation of decision-making authority between the lawyer and the client in a criminal case. The text of Standard 4-5.2 does not, itself, support Simeon’s position. This standard states that a defense lawyer should make most of the decisions about how to litigate the case, with only a few decisions reserved for the client: (1) what plea to enter, (2) whether to accept a plea agreement, (3) whether to waive trial by jury, (4) whether to testify, and (5) whether to appeal.

But Simeon relies on the commentary to the 1980 version of Standard 4-5.2. This 1980 commentary does indeed suggest that the client should make the decision whether to ask for jury instructions on lesser included offenses:

It is also important in a jury trial for the defense lawyer to consult fully with the accused about any lesser included offenses the trial court may be willing to submit to the jury. Indeed, because this decision is so important as well as so similar to the defendant’s decision about the charges to which to plead, the defendant should be the one to decide whether to seek submission to the jury of lesser included offenses.[ ]

But according to the ABA standards, the commentary is only intended as a guide to interpretation. It is the text of each standard that is authoritative. Moreover, in 1993, the ABA revised the commentary to eliminate the language that Simeon relies on. The commentary to ABA Standard § 4-5.2 now only states: “It is also important in a jury trial for defense counsel to consult fully with the accused about any lesser included offenses the trial court may be willing to submit to the jury.”

Simeon also relies on court decisions which support his position that the decision whether to request lesser included offense instructions is a decision which ultimately should be made by the defendant in a criminal case. But these courts appear to be a minority, and they rely on the pre-1993 ABA commentary without addressing or acknowledging the current commentary. Various other courts have concluded that the décision whether to request lesser included offenses is a decision for the lawyer.

More importantly, however, the Alaska Supreme Court decided this issue when it promulgated the Alaska Rules of Professional Conduct in 1993. Alaska Rule of Professional Conduct 1.2(a) provides that:

In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial, whether the client will testify, and whether to'take an appeal.

The rule specifies clearly those decisions over which the client has the ultimate authority. Since the rule limits the client’s authority to those decisions, it follows that the lawyer has the ultimate authority to make other decisions governing trial tactics — including whether to request lesser included offenses.

Simeon’s lawyer was not ineffective for failing to request instructions on lesser included offenses.

Simeon claims that, even if it was proper for his attorney to make the decision against requesting lesser included offenses, that decision constituted ineffective assistance of counsel. But the law presumes that an attorney has acted competently and that the attorney’s tactical decisions were sound. “The attorney’s reasonable tactical decisions are virtually immune from subsequent challenge even if, in hindsight, better approaches could have been taken.” Where an attorney makes a tactical choice, the defendant must demonstrate that the tactic was unreasonable — that is, a tactic that no competent attorney would use.

In the present case, it appears undisputed that Simeon’s trial attorney made a tactical choice not to request a lesser included offense instruction. Simeon did not present any evidence that the tactic was unreasonable. It is true that Simeon’s attorney stated that she felt that her failure to request a lesser included offense instruction was a mistake. But this statement only tends to show that with hindsight, and an unfavorable verdict, the attorney wished that she would have requested a lesser included offense instruction. The attorney’s statement does not tend to establish that her decision to refuse to request a lesser included offense instruction was an unreasonable tactic. Furthermore, as the supreme court pointed out in Dolchok v. State, a defense counsel’s negative evaluation of her own performance may be more a reflection of her dedication to her representation of the client, and remorse at a disappointing result, than it is an objective assessment of her representation. Accordingly, we conclude that Judge Torrisi did not err in finding that Simeon’s application was deficient because he had npt presented any evidence that his attorney’s tactic of refusing to request a lesser included offense instruction was unreasonable.. Judge Torrisi therefore did not err in dismissing Simeon’s application for post-conviction relief.

The judgment of the superior court is AFFIRMED.

      . AS 11.41.410(a)(1).

      . Simeon v. State, Alaska App. Memorandum Opinion and Judgment No. 4440 at 2-3 (Aug. 29, 2001), 2001 WL 987225 at *1-2.

      . ABA Standards for Criminal Justice § 4-5.2 Commentary at 4.68 (2d ed.1980).

      . ABA Standards for Criminal Justice §§ 4-1.1 & 4-1.1 Commentary (3d ed.1993); see also ABA Model Rules of Professional conduct, Preamble ¶¶ 14, 21 (2003).

      . ABA Standards for Criminal Justice § 4-5.2 Commentary at 202 (3d ed.1993).

      . See, e.g., People v. Brocksmith, 162 Ill.2d 224, 205 Ill.Dec. 113, 642 N.E.2d 1230, 1232-33 (1994); State v. Boeglin, 105 N.M. 247, 731 P.2d 943, 945 (1987); State v. Lafferty, 749 P.2d 1239, 1248-49 (Utah 1988); In re Trombly, 160 Vt. 215, 627 A.2d 855, 856-57 (1993).

      . See, e.g., Van Alstine v. State, 263 Ga. 1, 426 S.E.2d 360, 362-64 (1993); State v. Sheppard, 270 Mont. 122, 890 P.2d 754, 758 (1995); Mathre v. State, 619 N.W.2d 627, 629-31 (N.D.2000); State v. Edwards, 119 Ohio App.3d 106, 694 N.E.2d 534, 536-38 (1997); State v. Eckert, 203 Wis.2d 497, 553 N.W.2d 539, 544 (1996).

      . Newby v. State, 967 P.2d 1008, 1016 (Alaska App.1998).

      . Alexander v. State, 838 P.2d 269, 273 (Alaska App.1992).

      . State v. Laraby, 842 P.2d 1275, 1279 (Alaska App.1992).

      . 639 P.2d 277 (Alaska 1982).

        . Id. at 295.


source: Caselaw Access Project

author: MANNHEIMER, Judge.

license: Public Domain

text:
    Michael V. JEFFRIES, Appellant, v. STATE of Alaska, Appellee.
    No. A-8167.
    Court of Appeals of Alaska.
    May 14, 2004.

      Quinlan Steiner, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for the Appellant.
    Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for the Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

MANNHEIMER, Judge.

This appeal requires us to examine the distinction between two degrees of criminal homicide: manslaughter as defined in AS 11.41.120(a)(1), which requires proof of the defendant’s recklessness; and second-degree murder as defined in AS 11.41.110(a)(2), which requires proof of a recklessness so heightened as to constitute “an extreme indifference to the value of human life”.

In prior eases, we have upheld second-degree murder convictions for intoxicated drivers who killed other people. But in each of those instances, the defendant drove in ways that were manifestly extremely dangerous (even leaving aside the fact that the defendant’s perceptions and reactions were impaired due to intoxication). In the present case, the defendant’s physical acts of driving included only one reported lapse: he made a left turn directly in front of an oncoming ear.

To prove Jeffries’s “extreme indifference to the value of human life”, the State relied heavily on evidence that Jeffries had numerous prior convictions for driving while intoxicated, that his license had been revoked for the previous ten years, that he had been drinking all day in violation of the conditions of his probation, and that he had previously refused several times to participate in court-ordered alcohol treatment programs. On appeal, Jeffries argues that this is an improper way to prove “extreme indifference”. He asserts that extreme indifference must be proved solely by the quality of the defendant’s conduct during the episode in question.

Jeffries contends that his particular act of careless driving — the dangerous left turn — • was not particularly egregious compared to the acts of careless driving that would typically lead to manslaughter convictions. Because Jeffries’s physical conduct involved only a- single dangerous left turn, he argues that he should have been convicted only of manslaughter. :

For the reasons explained here, we conclude that Jeffries’s suggested construction of the second-degree murder statute is too narrow. We have examined court decisions from jurisdictions that (like Alaska) have second-degree murder statutes derived from the Model Penal Code. We have also examined court decisions from jurisdictions that retain a common-law definition of murder — a definition that requires proof of “malice”. Both of these groups of jurisdictions have upheld second-degree murder convictions in cases whei’e the government’s proof of extreme recklessness rested primarily on an intoxicated driver’s persistent recidivism and failures at rehabilitation.

We, too, now hold that “extreme indifference to the value of human life” can be proved in this fashion. When a jury deliberates whether an intoxicated driver is guilty of second-degree murder or only manslaughter, the jury can lawfully consider the defendant’s past convictions for driving while intoxicated, the defendant’s refusals to honor license suspensions or abide by the conditions of probation in those prior DWI cases, and the defendant’s past refusals to engage in alcohol treatment programs. We therefore affirm Jeffries’s conviction for second-degree murder.

Underlying facts

On February 8, 2000, Michael V. Jeffries spent most of the day drinking. Viewing the evidence presented at trial in the light most favorable to the State, Jeffries downed approximately twenty beers over the course of several hours. In the mid-afternoon, Jeffries and his long-time girlfriend, Beulah Dean, arrived at the Veterans of Foreign Wars club in Mountain View. They stayed there until approximately 8:00 p.m., with Jeffries continuing to drink beer. Jeffries and Dean then left the VFW to go home; Jeffries was driving.

Some fifteen minutes later, at the corner of DeBarr Road and Columbine Street, Jeffries made a left turn directly in front of an oncoming car. The other driver, who was traveling oh DeBarr Road at a lawful speed of approximately 45 miles per hour, “had [just] enough warning to take [his] foot off the gas” before he collided with the passenger side of Jeffries’s vehicle. When the paramedics arrived a few minutes later, Beulah Dean was bleeding from her head and was completely unresponsive. She was taken to the hospital, where she died a short time later.

When the police contacted "Jeffries at the scene, he staggered when he walked, he leaned on his car for balance, and he smelled of alcoholic beverages. Jeffries’s blood alcohol level tested at .27 percent.

Jeffries had six prior convictions for driving while intoxicated, and his driver’s license had been revoked for the ten years preceding this incident. (Jeffries was not eligible to obtain a driver’s license until 2018.) Jeffries was on probation, and one of his conditions of probation was to refrain from drinking alcoholic beverages. Four times previously, Jef-fries had refused to participate in court-ordered alcohol treatment programs.

Jeffries was initially charged with manslaughter for causing Dean’s' death, but the State later re-indicted Jeffries for second-degree murder. Following a jury trial, Jef-fries was convicted of this charge (as well as driving while intoxicated and driving while his license was suspended or revoked).

The distinction between “recklessness” and “extreme indifference to the value of human life"

Under AS 11.41.120(a)(1), the crime of manslaughter consists of causing the death of another human being while acting at least recklessly with respect to this result. The term “recklessly” is defined in AS 11.81.900(a)(3):

[A] person acts “recklessly” with respect to a result ... when, the person is aware of and consciously disregards a substantial and unjustifiable risk that the re-suit will occur ...; the risk must be of such a nature and degree that disregard of it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation; a person who is unaware of a risk of which the person would have been aware had that person not been intoxicated acts recklessly with respect to that risk[.]

In contrast, the crime of second-degree murder defined in AS 11.41.110(a)(2) requires proof that the defendant “knowingly engage[d] in conduct that result[ed] in the death of another person under circumstances manifesting an extreme indifference to the value of hum^p life”.

Alaska’s criminal code does not contain an express definition of “extreme indifference to the value of human life”. However, this Court defined this phrase in Neitzel v. State, 655 P.2d 325 (Alaska App.1982). We concluded that “extreme indifference to the value of human life” was intended to codify the common-law concept of “reckless murder”.

As we explained in Neitzel, murder was defined at common law as a homicide committed with “malice”. Generally speaking, “malice” referred to any intentional homicide that was not justified, excused, or mitigated. However,

[the][c]ommon-law courts permitted a jury to find malice [even] in the absence of a specific intent to kill [when the defendant’s] act was done with such heedless disregard of a harmful result, foreseen as a likely possibility, that it differ[ed] little in the scale of moral blameworthiness from an actual intent to [kill].... Typical examples of this kind of murder are: shooting ... into a home, room, train, or automobile in which others are known to be or might be.

Neitzel, 655 P.2d at 327.

The Model Penal Code contains a provision— § 210.2(l)(b) — that declares a homicide to be murder if “it is committed recklessly under circumstances manifesting extreme indifference to the value of human life”. The drafters of the Model Penal Code intended this provision to apply to “[the] kind of reckless homicide that cannot fairly be distinguished [in terms of blameworthiness] from homicides committed purposely or knowingly”. As explained in the Commentary to this provision of the Model Penal Code,

[R]isk [is always] a matter of degree[,] and the motives for risk creation may be infinite in variation[.] ... [If] the actor’s conscious disregard of the risk, given the circumstances of the case, so far departs from acceptable behavior that it constitutes a “gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation ..[this culpable mental state is] sufficient for a conviction of manslaughter_In a prosecution for murder, however, the [Model Penal] Code calls for the further judgment [of] whether the actor’s conscious disregard of the risk, under the circumstances, manifests extreme indifference to the value of human life.... Whether [the actor’s] recklessness is so extreme that it demonstrates [extreme] indifference [to the value of human life] is not a question ... that can be further clarified. It must be left directly to the trier of fact under instructions which make it clear that [a] recklessness that can fairly be [likened] to purpose or knowledge should be treated as murder and that less extreme recklessness should be punished as manslaughter.

American Law Institute, Model Penal Code and Commentaries (1980), Part II, § 210.2, pp. 21-22.

This provision of the Model Penal is the source of our “extreme indifference” provision, AS 11.41.110(a)(2). After reviewing the statutory history of this language, we concluded in Neitzel that the Alaska Legislature intended AS 11.41.110(a)(2) to apply to cases where the defendant “knowingly engage[s] in conduct ... which[,] in light of the circumstances[,] is reckless to the point that it manifests an extreme indifference to the value of human life”.

The word “reckless” in that last sentence is used in its technical sense — i.e., the sense defined in AS 11.81.900(a)(3). When Neitzel was litigated, the State argued that the phrase “extreme indifference to the value of human life” referred to “an objective standard” of dangerousness, and that this concept was therefore “similar to negligence rather than ... recklessness” in the sense that the State did not have to prove the defendant’s subjective' awareness of the risk. This Court rejected the State’s interpretation of the statute; we held that “extreme indifference to the value of human life” is an extreme form of recklessness, not an extreme form of negligence.

Neitzel lists four factors that a jury should weigh when deciding whether a defendant’s conduct manifested “recklessness” or “extreme indifference to the value of human life”: the “social utility of the actor’s conduct”, the “magnitude of the risk [that the defendant’s] conduct create[d], including both the nature of the foreseeable harm and the likelihood that the conduct [would] result in that harm”; “the [extent of the] actor’s knowledge of the risk”; and “any precautions [that] the actor [took] to minimize the risk.”

Neitzel actually lists the third factor as “the actor’s knowledge of the risk”. But this passage from Neitzel is addressed to the broader issue of how a jury should differentiate three levels of culpability: criminal negligence, recklessness, and extreme indifference to the value of human life. As the Neitzel opinion points out, the actor’s knowledge of the risk is the factor that generally distinguishes “criminal negligence” from “recklessness”.

When the jury is debating “recklessness” versus “extreme indifference to the value of human life”, both of these levels of culpability presuppose that the defendant was aware of the risk (or that the defendant would have been aware of the risk but for intoxication)." Therefore, in distinguishing betweeh recklessness and extreme indifference to the value of human life, the pertinent question is not whether the actor was “aware of' the risk [of death]” — for, leaving aside instances of intoxication, the actor must have been subjectively aware of this risk to support a finding of either recklessness or extreme indifference. Rather, the pertinent question is whether the defendant’s level of awareness of the risk exceeded the level of awareness necessary to establish the defendant’s recklessness as defined in AS 11.81.900(a)(3).

Jeffries’s argument that the State’s evidence is insufficient, as a matter of law, to support a conviction for second-degree murder

Jeffries contends that a drunk-driving homicide should typically lead to a manslaughter conviction, and that a conviction for second-degree murder is justified only in extreme eases. We agree with this contention.

In St. John v. State, this Court held that “evidence that a defendant drove while intoxicated and, as a result, caused the death of another person” is sufficient to establish “a prima facie case of the recklessness necessary for a finding that the defendant committed manslaughter”. And in Neitzel, we suggested that an intoxicated driver should not be convicted of “extreme indifference” murder unless the driver’s actions “create[d] a much greater risk [of] death” than the risk that is created by simply driving home from a bar in an intoxicated condition.

Thus, our case law supports Jeffries’s contention that a typical drunk driving homicide should be prosecuted as manslaughter. But Jeffries’s appeal requires us to examine and clarify what is meant by a “typical” drunk driving homicide.

Jeffries argues that defendants who commit drunk driving homicides can not properly be convicted of “extreme indifference” second-degree murder unless their handling of the motor vehicle on the occasion in question manifested an extreme degree of overt dangerousness or heedlessness — a degree of overt dangerousness or heedlessness far exceeding the type of careless driving that one might expect from an intoxicated person who was apparently trying to drive safely. Jef-fries asserts that “extreme indifference to human life” can not be established in the way that the State sought to prove this element at his trial — to wit, by showing that Jeffries had a history of past convictions for driving while intoxicated, that Jeffries had repeatedly refused to engage in rehabilitative treatment, and that Jeffries had for years continued to drive and to drink even though he knew that he was prohibited by law from doing either (because his license was revoked and his conditions of probation prohibited him from drinking).

In several of our past cases dealing with vehicular homicide charged as second-degree murder, the defendant’s conduct has fit the definition suggested by Jeffries. That is, the defendants engaged in egregiously dangerous driving — much more dangerous than simply taking control of a vehicle while intoxicated and then driving carelessly.

For instance, in Foxglove v. State, 929 P.2d 669 (Alaska App.1997), the defendant intentionally drove his snow machine at a speed of 70 miles per hour through a crowd of people gathered around a bonfire. In Ratliff v. State, 798 P.2d 1288(Alaska App.1990), the defendant weaved across the road, forcing one oncoming car completely off the road and into a snowbank, and forcing another car to veer almost off the road in order to avoid a head-on collision. Ratliff then entered the wrong side of a divided highway, passing two pairs of large signs that warned him he was going the wrong way. Driving in excess of the speed limit, and disregarding the efforts of motorists who flashed their lights to get his attention, Ratliff drove for two miles before colliding head-on with another car. In Stiegele v. State, 714 P.2d 356 (Alaska App.1986), the defendant spun his truck around 360 degrees, then headed up a road on the left side. Shortly afterwards, the police observed the defendant’s truck traveling down the wrong side of the road at approximately 85 miles per hour, then leave the road and crash into the woods. Witnesses testified that, before the crash, the passengers in the truck were screaming for Stiegele to stop. And in Pears v. State, 672 P.2d 903 (Alaska App.1983), the defendant repeatedly exceeded the speed limit and ran through stop signs and red lights, disregarding the warnings of his passenger. He then dropped off his passenger and continued driving. Just before the fatal collision, Pears saw that the cars in front of him were stopping for a red light, so' he drove around those cars in the right-turn lane, then entered the intersection without slowing down. Pears collided with one of the cars entering the intersection on the green light; he knocked this other car 146 feet.

On the other hand, some of our prior cases involving intoxicated drivers convicted of second-degree murder have arisen from episodes in which the physical actions of the intoxicated drivers were fairly typical of what one might expect from an intoxicated person. In both Richardson v. State, 47 P.3d 660, 661 (Alaska App.2002), and Puzewicz v. State, 856 P.2d 1178, 1179 (Alaska App.1993), the defendants crossed the center line and collided with an oncoming car.

in particular, the facts of Puzewicz are similar in most respects to the facts of Jef-fries’s case. Puzewicz spent most of the day drinking beer, and then he went driving in the evening and killed two people. Although Puzewicz claimed to have drunk only foui' or five beers in the hours preceding the collision, his blood alcohol level was .219 percent.

Puzewicz had three prior convictions for driving while intoxicated, and he was on probation from his third DWI conviction when he committed the murders. Puzewicz was not supposed to be driving at all — because, as a result of his third DWI conviction, Puz-ewicz’s driver’s license had been revoked for ten years. Moreover, Puzewicz had failed to undertake the residential treatment program that was required as part of his sentence for that prior conviction, and the district court had issued an unserved warrant for his arrest.

However, the Puzewicz decision has little precedential value on the issue raised by Jeffries in this case. Puzewicz only pursued a sentence appeal, so this Court did not reach the question of whether the above-described evidence was legally sufficient to support Puzewicz’s murder convictions.

Nevertheless, decisions from other states that have murder statutes based on the Model Penal Code suggest that the facts of Puz-ewicz are sufficient to support a conviction for “extreme indifference” murder.

Kentucky has an “extreme indifference” murder statute similar to Alaska’s. In Estep v. Commonwealth, 957 S.W.2d 191 (Ky.1997), the Supreme Court of Kentucky held that an intoxicated motorist who crossed the center line and collided with an oncoming vehicle could be convicted of murder under this statute based primarily on evidence of her extreme intoxication:

[Kentucky Statute] 507.020(l)(b) permits a conviction for wanton murder for the operation of a motor vehicle under circumstances manifesting extreme indifference to human life.... [C]onduct such as Es-tep’s has been held to constitute wanton murder under such a statutory standard. Walden v. Commonwealth, Ky., 805 S.W.2d 102 (1991), held that a wanton murder conviction was proper because the conduct of the defendant amounted to more than a typical automobile accident by virtue of the extreme rate of speed and level of intoxication.... [T]his Court concluded that ... the extreme nature of the intoxication was sufficient evidence from which a jury could infer wantonness so extreme as to manifest extreme indifference to human life. Id.
The evidence in this case demonstrated that Estep was driving her truck at a high rate of speed in an improper manner under the influence of drugs. Blood tests revealed the existence of five different types of drugs in Estep’s body: Xanax, Elavil, Soma, Valium and Hydrocodone.
Eyewitnesses testified that Estep was seen passing at a rate of speed greater than 50 miles per hour in a no-passing zone near a curve in the road. The testimony indicated that after she completed passing one automobile, she failed to return to the proper lane and collided with a car on the wrong side of the road. One of the passengers in the other vehicle testified that ... Estep was slumped over in her seat and that she raised her head only seconds before the fatal crash. There was evidence that[,] when Estep was taken to the hospital for observation following the accident[,] she kept passing out and appeared “pretty zonked.” [This] was sufficient evidence that Estep was operating a motor vehicle under circumstances manifesting extreme indifference to human life and she wantonly engaged in conduct which created a grave risk of death and caused the death of another person.

Estep, 957 S.W.2d at 192-93.

The Alabama Court of Criminal Appeals reached a similar conclusion in Allen v. State, 611 So.2d 1188 (Ala.Crim.App.1992). Quoting the Kentucky court’s decision in Walden with approval, the Alabama court agreed that “ [depending on the situation, drunk driving may be :.. a circumstance that a jury could find to ‘manifest[ ] extreme indifference to human life.’” The Alabama court then upheld a murder conviction for an intoxicated driver whose careless driving was manifested primarily by an inability to keep his vehicle within the proper lane of travel:

[T]he “situation” that will support a conviction for reckless murder must involve something more than simply driving after having consumed alcohol and becoming involved in a collision. As noted above, [Alabama’s reckless murder statute] contemplates conduct that is the culpable equivalent of intentional murder.
In the present case, ... the testimony of the State’s witnesses [showed] that the appellant was driving his vehicle in a reckless manner by weaving in his own lane; by swerving into the oncoming lane; by running off the surface of the road onto a low shoulder and attempting to return in an unsafe manner; or by engaging in a combination of any of the three. The prosecution: also presented evidence ... that the appellant was legally intoxicated while driving his car in a reckless manner... Although it- is a close question, we' find that there was sufficient evidence from which the jury could have. concluded that the appellant’s overall conduct was so grossly wanton that it manifested an extreme indifference to human life.

Allen, 611 So.2d at 1192-93.

The decision in Allen conforms to two earlier Alabama decisions, Patterson v. State, 518 So.2d 809 (Ala.Crim.App.1987), and Slaughter v. State, 424 So.2d 1365 (Ala.Crim.App.1982).

The defendant in Patterson had previously undergone alcohol abuse treatment, and he had been arrested for driving while intoxicated within the previous year. During the twelve hours preceding the homicide, Patterson drank three bottles of wine; his blood alcohol level was .30 percent. Patterson’s car jumped the median of a divided road, crossed into the oncoming lanes, and struck two vehicles. Under these facts, the court affirmed Patterson’s conviction for extreme indifference murder.

The defendant in Slaughter, who had been arrested at least four times previously for driving while intoxicated, spent the day drinking and then he went driving. During the drive, Slaughter either passed out from intoxication or fell asleep; his car crossed the roadway, jumped the curb, and killed a woman who was working in her front yard. On appeal, the Alabama court held that these facts were sufficient to establish extreme indifference murder.

Likewise, in State v. Schultz, 141 N.H. 101, 677 A.2d 675, 678 (1996), the New Hampshire Supreme Court held that “extreme indifference [murder] does not require proof of particularly vicious conduct. Rather, the critical factor is the degree to which the defendant disregards the risk of death to another.”

We now turn to jurisdictions that retain the common-law definition of murder (i.e., those jurisdictions that define murder as a homicide committed with “malice”). As explained above, the common law recognized extreme recklessness as a category of malice. And courts applying the common-law definition of murder have affirmed murder convictions for homicides committed by intoxicated drivers.

Many of these court decisions involved defendants who engaged in egregiously dangerous driving. However, some of these “reckless murder” eases involved driving that one might typically expect of an intoxicated driver: impatiently attempting to pass a slower vehicle, inability to keep their vehicle traveling in a straight line, failing to see traffic signs and road markings, miscalculating distances, or misjudging the motion of other vehicles.

For instance, in Geter v. State, 219 Ga. 125, 132 S.E.2d 30 (1963), the court upheld the murder conviction of a defendant who, driving while intoxicated, attempted to pass the cars ahead of him on an uphill grade, at a place where the roadway was marked with a “no passing” double yellow line. As the defendant crested the hill on the wrong side of the road, he struck an oncoming vehicle and killed three of its occupants. Similarly, in Shiflet v. State, 216 Tenn. 365, 392 S.W.2d 676 (1965), the court upheld the murder conviction of an intoxicated driver who veered into the oncoming lane of traffic and struck another vehicle. In State v. Goodman, 149 N.C.App. 57, 560 S.E.2d 196 (2002), the court upheld the murder conviction of an intoxicated driver who struck another vehicle when he ran a red light (apparently after passing out, with his “head and arm hanging out of the driver’s side window”). A major factor in the court’s decision was the fact that the defendant had numerous prior convictions for driving while intoxicated and other traffic offenses. And in Commonwealth v. Taylor, 461 Pa. 557, 337 A.2d 545 (1975), the court upheld the murder conviction of an intoxicated driver who passed another car at a high rate of speed and struck two boys who were bicycling along the other side of the road. The court stated:

The intoxicated condition of the driver, the excessive rate of speed" [at] which he was traveling, the distance the bodies and bicycles were propelled upon impact, his awareness that this was an area where children were likely to traverse, thé absence of any physical or climatic condition which could explain or contribute to the happening of the accident and the appellant’s failure to stop immediately after impact, all exhibit the wickedness of disposition, the hardness of heart, cruelty and recklessness associated with murder in the second degree.

Taylor, 337 A.2d at 548.

Based on these authorities, we hold that in eases of homicide caused by an intoxicated driver, the element of “extreme indifference to the value of human life” required for conviction of second-degree murder under AS 11.41.110(a)(2) can be established not only through evidence that the defendant engaged in egregiously dangerous driving, but also through evidence of the defendant’s extreme intoxication, the defendant’s decision to ignore warnings not to drive, the defendant’s past convictions for driving while intoxicated, the defendant’s refusal to participate in court-ordered treatment for alcohol abuse imposed as part of the defendant’s sentence or conditions of probation from previous DWI convictions, and the defendant’s decision to drive despite a license suspension or revocation stemming .from previous DWI convictions.

The presence of some or all of these factors does not necessarily prove that the defendant acted with extreme indifference to the value of human life. However, the jury is entitled to consider these factors when deciding whether the government has proved that the defendant acted with the extreme degree of recklessness that will support a murder conviction under AS 11.4L110(a)(2).

Jeffries’s argument that the trial judge allowed the State to present irrelevant or unfairly prejudicial evidence

Jeffries also argues that the trial judge committed error by allowing the State to introduce evidence of Jeffries’s prior DWI convictions, evidence of Jeffries’s failures to participate in court-ordered alcohol treatment programs, and evidence of the fact that Jeffries’s conditions of probation from his prior DWI convictions prohibited him from consuming alcoholic beverages. Jeffries argues that this evidence was either irrelevant or was so unfairly prejudicial that it should have been excluded under' Evidence Rule 403.

For the reasons explained in the preceding section of this opinion, we reject Jeffries’s arguments. The jury had to decide Jeffries’s degree of recklessness. In this context, the evidence of Jeffries’s prior convictions was offered, not to prove his characteristic behavior, but rather to establish his level of awareness of the risks created by his driving while intoxicated.

Likewise, Jeffries’s repeated refusal .to participate in court-ordered alcohol treatment programs, and his refusal to abide by the condition of probation that barred him from drinking, were both relevant to show the degree of Jeffries’s disregard for the safety of others. This evidence tended to prove that Jeffries had been put on notice that his drinking behavior was dangerous to others and had to change, and it also tended to prove that Jeffries consciously refused to act on these warnings.

Conclusion

The judgfement of the superior court is AFFIRMED. .

      . Neitzel, 655 P.2d at 327.

      . Id.

      . Id.

      . Quoting Rollin M. Perkins, Criminal Law (2nd edition 1969), § 1, pp. 36 & 768.

      . Quoted in Neitzel, 655 P.2d at 332.

      . American Law Institute, Model Penal Code and Commentaries (1980), Part II, § 210.2, p. 21, quoted in Neitzel, 655 P.2d at 335.

      . Quoted in Neitzel, 655 P.2d at 335-36.

      . Id. at-335.

      . Id. at 332-33.

      . Id. at 332. Compare AS 11.81.900(a)(3) (the definition of "recklessly”) with AS 11.81.900(a)(4) (the definition of “criminal negligence”).

      . Neitzel, 655 P.2d at 334.

      . Id. at 336-37.

      . Id. at 336.

      . Id. at 337.

      . 715 P.2d 1205, 1209 (Alaska App.1986).

      . Neitzel, 655 P.2d at 337.

      . Foxglove, 929 P.2d at 670.

      . Ratliff, 798 P.2d at 1289-90.

      . Stiegele, 714 P.2d at 358-59.

      . Pears, 672 P.2d at 909.

      . Puzewicz, 856 P.2d at 1179.

      . Id.

      . Id. at 1180.

      . Id.

      . See Kentucky Stats. § 507.020(l)(b) (Baldwin 2003).

        .Id.

      : Allen, 611 So.2d at 1192.

      . Overruled on other grounds in Fore v. State, 858 So.2d 982, 990 (Ala.Crim.App.2003).

      . 518 So.2d at 816.

      . Id. at 811-12.

      . Id. at 810-11.

      . Id. at 816.

      . 424 So.2d at 1367.

      . Id. at 1366.

      . Id. at 1367.

      . See, e.g,, United. States v. Fleming, 739 F.2d 945 (4th Cir.1984); State v. Boone, 294 Or. 630, 661 P.2d 917, 920-22 (1983).

      . Geter, 132 S.E.2d at 31, 35.

      . Shiflet, 392 S.W.2d at 678.

      . Reversed on other grounds, State v. Goodman, 357 N.C. 43, 577 S.E.2d 619 (2003).

      . Goodman, 560 S.E.2d at 198.

      . Id. at 199-200.:

      . Taylor, 337 A.2d at 546.

      . Accord, Fleming, 739 F.2d at 949; Patterson, 518 So.2d at 814. See also State v. Goodman, 357 N.C. 43, 577 S.E.2d 619 (2003) (approving the analysis of the dissenting opinion in the intermediate court of appeals, 560 S.E.2d at 206: although a defendant’s prior driving convictions are admissible to prove the malice aforethought required for second-degree murder, the admissibility of those prior convictions is constrained by the requirements that the convictions be (1) recent and (2) based on similar driving misconduct).


text:
    David Lee PARKER, Appellant, v. STATE of Alaska, Appellee.
    No. A-8114.
    Court of Appeals of Alaska.
    May 14, 2004.

      Averil Lerman, Assistant Public Advocate, and Brant G. McGee, Public Advocate, Anchorage, for the Appellant.
    Timothy W. Terrell, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for the Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION ON REHEARING

MANNHEIMER, Judge.

In February 2000, David Lee Parker pleaded no contest to three felonies as part of a plea bargain with the State of Alaska, but he later sought permission to withdraw his pleas. Parker asserted that he decided to accept the State’s plea bargain, rather than going to trial, because he was laboring under a mistaken belief concerning the consequences of winning a suppression issue on appeal. Following an evidentiary hearing, the superior court concluded that even if Parker had misunderstood the consequences of winning the suppression motion, this mistaken understanding had not been the motive for Parker’s decision to accept the State’s offered plea bargain. Accordingly, the superior court ruled that Parker had failed to present á fair and just reason for withdrawing his pleas. We affirmed the superior court’s decision in Parker v. State, Alaska App. Memorandum Opinion No. 4850 (March 31, 2004), 2004 WL 720111.

Parker now seeks rehearing of our decision. He points out that, in addition to challenging the superior court’s refusal to let him withdraw his pleas, he also challenged his sentence on various grounds. Parker is correct that we failed to decide his sentence appeal issues. We apologize to the parties for failing to address those issues in our previous decision, and we address them now.

Parker also seeks reconsideration of our decision of the plea-withdrawal issue. For the reasons explained here, we reaffirm our decision of that issue.

The basic facts of the plea-withdrawal issue

Parker had a sexual relationship with V.M., a seventeen-year-old girl. Parker took sexually suggestive photos of V.M. and he also made videotapes of their sexual relations. The photographs and videos were apparently made for private, non-commercial purposes. Parker kept the photos and videos in a briefcase. These materials came to the attention of the authorities when Parker’s son brought the briefcase to the police.

Even though Parker’s sexual relations with V.M. were lawful (since V.M. was older than sixteen), Alaska’s exploitation of minors statute, AS 11.41.455(a), forbids sexually explicit photography and videography of a child younger than eighteen. Parker was therefore indicted for unlawful exploitation of a minor and possession of child pornography. He was also indicted for third-degree controlled substance misconduct (distributing marijuana to a minor) and interference with official proceedings (offering a benefit to V.M.'in an attempt to influence her testimony).

Seven months later, Parker was indicted on far more serious charges. The police discovered LSD inside Parker’s briefcase, and further investigation revealed evidence that Parker had given LSD to three minors: V.M., A.B., and J.O. Based on this investigation, the grand jury indicted Parker on three counts of first-degree controlled substance misconduct. This offense is an unclassified felony with a maximum penalty of 99 years’ imprisonment.

The primary strategy of the defense was to seek suppression of the evidence against Parker. In pursuit of this strategy, Parker’s attorney — John Bernitz — filed a motion alleging that the police had illegally obtained Parker’s briefcase. But in the meantime, Bernitz engaged in plea negotiations with the State. These negotiations intensified after the superior court denied Parker’s suppression motion and Parker’s case was calendared for trial.

On January 11, 2000, Parker and Bernitz made an offer to the State. When the State did not respond, Parker and Bernitz made a revised offer ón February 10: p Parker would plead no contest to one class A felony, with a 7-year ceiling on Parker’s prison term, and Parker would preserve his right to litigate the suppression motion on appeal (i.ePar-ker’s pleas would be Cooksey pleas).

Four days later, on February 14, the State responded with a counter-offer. The State would reduce Parker’s three unclassified felonies (the three counts charging distribution of LSD to minors) to a single class A felony — a single consolidated count of attempted distribution of LSD to minors — with the proviso that Parker would concede aggravating factor AS 12.55.155(e)(10), conduct among the most serious within the definition of the offense (because he was actually guilty of the completed crime). Parker would plead no contest to this reduced charge, as well as to one count of exploitation of a minor and one count of possession of child pornography.

Bernitz discussed the Státe’s counter-offer with Parker.' Parker said that he was willing to plead no contest to the three charges proposed by the State, but he wanted to preserve his right to litigate the suppression motion on appeal. Bernitz then contacted the State and said that Parker would plead no contest to the three charges if his pleas could be Cooksey pleas — i.e., if Parker could reserve his right to appeal the superior court’s denial of the suppression motion.

Sometime mid-day on February 15, 2000, the district attorney’s office delivered a memo to Bernitz in which the prosecutor rejected the suggestion of Cooksey pleas. The prosecutor’s memo stated that Cooksey pleas would not be legal in Parker’s case because the suppression issue that Parker wished to litigate (suppression of the contents of the briefcase) would not be disposi-tive of the charges against Parker. The text of the third paragraph of this memo read:

[A] problem with a Cooksey plea in this case [is that] the search issue is [not] truly dispositive. The principal victim, V.M., could testify about most, if not all, of the crimes Mr. Parker is charged with, even if the entire contents of the briefcase were suppressed. Other witnesses could also testify about those crimes, [even] without the briefcase.

After Bernitz received this memo from the prosecutor, he sent a memo in reply. In his memo, Bernitz stated that he was going to meet with Parker before noon that day, and they were going to discuss whether to accept the State’s offer (that is, whether to give up the idea of Cooksey pleas) or go to trial.

Bernitz did indeed meet with Parker that day, and he made written notes of their discussion. Bernitz explained to Parker that if Parker chose to reject the State’s offer and go to trial, he would face more prison time if he was convicted (because Parker would be tried on three unclassified felonies), but Parker would preserve the motion seeking suppression of the contents of the briefcase. On the other hand, if Parker accepted the State’s offer, he could avoid having to go through a trial and he would face less prison time, but he would have to abandon the suppression motion.

Bernitz advised Parker that, in his opinion, Parker would probably lose at trial. Moreover, Bernitz advised Parker that even if Parker went to trial, so that he could preserve the suppression issue, Parker would probably lose the appeal.

Bernitz’s concluding note from that meeting was, “[Parker] was unwilling to take the risk, so he decided to take [the State’s] offer.” The parties appeared in court the following day (February 16, 2000), and Parker entered no contest pleas to the three charges proposed by the State.

Later, when Parker sought to withdraw his pleas, he asserted that he had been misled by the final sentence of the district attorney’s memo quoted above. Parker testified that he believed that sentence to mean that, even if he pursued the suppression issue on appeal and won, the police who discovered the LSD in the briefcase would still be able to testify about what they had found (even though the physical substance itself was suppressed). Parker asserted that this mistaken belief was the reason he chose to accept the State’s plea bargain rather than going to trial and, if convicted, pursuing an appeal.

John Bernitz also testified at the plea-withdrawal hearing. Bernitz acknowledged that he advised Parker that winning the suppression motion would not stop the State from proving the drug offenses — not because the police could still testify about finding the LSD in Parker’s briefcase, but because the three teenagers could still testify that Parker gave them LSD (that is, LSD other than what was found in the briefcase). Bernitz declared that he remembered “several conversations” with Parker in which they discussed the possibility that the three teenagers could testify against him even if his suppression motion was successful on appeal.

After hearing Parker’s and Bernitz’s testimony, Judge Card concluded that even if Parker had been laboring under the mistake he claimed, this was not the reason why Parker decided to accept the State’s plea bargain. As we explained in our prior decision:

Judge Card noted that Parker had a substantial motive to reach a plea agreement with the State: he was charged with three counts of distributing LSD to minors, an unclassified felony with a maximum sentence of 99 years’ imprisonment. Moreover, Parker understood that he still could be convicted of these offenses based on the young women’s testimony, even if the Court of Appeals ultimately agreed with him about suppressing the briefcase.
In addition, Judge Card noted that Ber-nitz, in a pre-hearing affidavit, had stated that one of Parker’s main motivations for choosing to accept the plea bargain was his desire to spare his family the stress that a trial would entail. According to Bernitz, Parker repeatedly told him that his mother was urging him not to go to trial because a trial would put too much stress on Parker’s young sons. Judge Card noted that he had independent knowledge, from prior court hearings in Parker’s case, that one of Parker’s sons “suffered from a debilitating disease” and had become “very distraught” at one hearing.
Judge Card concluded that “those are the types of things [that] Mr. Parker was thinking about at the time he entered his plea[s]”, rather than Parker’s alleged misunderstanding about the admissibility of police testimony.

Parker v. State, Memorandum Opinion No. 4850 at 12, 2004 WL 720111 at *6-7..

Parker’s request for reconsideration of our decision

In his petition for rehearing, Parker asserts that this Court “reviewed the trial court record, and essentially concluded that Parker ... only sought to withdraw his plea for reasons unrelated to the reasons he asserted and testified about [in the] evidentiary hearing [in] the trial court.” This is a mis-characterization of what an appellate court does, and a mischaracterization of what we did in Parker’s case.

It was Superior Court Judge Larry D. Card who concluded that Parker’s decision to plead no contest was not .materially influenced by Parker’s mistaken understanding concerning the consequences of winning the suppression motion. Our task, as an appellate court, was not to reweigh the evidence or to make our own decision about Parker’s reasons for entering his pleas. Rather, our task was to determine whether the evidence presented at the evidentiary hearing supported Judge Card’s decision.

Parker further asserts that we misconstrued the trial court record when we asserted, on page 14 of our opinion, that “Parker did not challenge” Bernitz’s testimony that he had held several discussions with Parker about the suppression motion and the related problem that, even if Parker ultimately won the suppression motion, the three teenagers could still testify that Parker delivered LSD to them. In his petition for rehearing, Parker asserts that this is an erroneous characterization of the record:

Although David Parker understood that the teenage girls might well be able to testify against him at a retrial (if he were to win the appeal of the denial of his suppression motion, and succeed in suppressing the LSD [in the briefcase])[,] he never believed that he would be convicted of serious drug charges on their unsupported testimony alone. ... Parker was willing and ready to go forward and face the testimony of the teenagers; it was his mistaken idea that [their] testimony would then be corroborated by police testimony that [convinced] him to enter [his no con- ' test] plea[s]. Although he knew [that] he “could” get convicted on the basis of the teenagers[’] testimony, Parker did not think that he would get convicted bn the basis of [their] testimony alone.

(Emphasis in the original)

But Parker’s petition for rehearing contains no citations to the record to support these factual assertions. We have re-read Parker’s testimony at the hearing (transcript pages 375 to 421), and we are unable to find any instance where Parker asserted that he would have been willing to risk retrial, even with the teenagers testifying' against him, so long as the police were barred from giving corroborating testimony about their discovery of another quantity of LSD in Parker’s briefcase. If anything, Parker’s testimony at the evidentiary hearing indicates that he did not draw any distinction between the teenagers’ testimony and police testimony.

In his direct testimony, Parker repeatedly declared that hfe lost heart in his case after he read the district attorney’s memo and concluded that, even if he won his suppression motion on appeal, “all the testimony” and “all the witnesses” could be used against him at a retrial. Parker’s repeated references to “all” of the witnesses prompted the State’s attorney to engage in the following cross-examination:

Prosecutor: I ... want to focus [the inquiry] a little tighter than that. Were you [and Bernitz] just talking about the [LSD], or [were you] talking about everybody?
Parker: We were talking about testimony.
Prosecutor: All the testimony?
Parker: All testimony; all the testimony.... [The district attorney’s memo] says that, you know, it says other witnesses, all the witnesses, everybody.
Prosecutor: Okay, well ... I want to be a little more specific because, ... [in] the last sentence of the third paragraph ... [the district attorney’s memo] actually says, “other witnesses” rather than “all witnesses”, doesn’t it?
Parker: Yes, sir, but I didn’t make a distinction like that.

We note, moreover, that when Judge Card announced his decision (denying Parker’s motion to withdraw his pleas), the judge spoke at length about the fact that, even if the contents of the briefcase were suppressed, the State would still be able to present the “testimony of the young women ... about having received LSD [from Parker]”. The judge declared that, because the women’s testimony would still be available to the State, Parker “had a substantial motivation to negotiate his case [down] to a single class A felony, as opposed to having the potential for [conviction of] three unclassified felonies”.

A little later in his remarks, Judge Card again declared that Parker “had very good reasons” for accepting the State’s plea bargain. He directed the parties’ attention to Bernitz’s pre-hearing affidavit, in which Ber-nitz stated that he explained to Parker “that even if the briefcase contents were suppressed, the victims would still be able to testify”. Judge Card then emphasized Ber-nitz’s choice of words: “[He said] the ‘victims’. The police were not ‘victims’.”

As explained above, Parker asserts in his petition for rehearing that his decision to accept the State’s plea bargain hinged primarily on his evaluation of his differing chances for success (1) at a retrial in which only the three teenagers would testify about the drug charges, versus (2) a retrial in which both the teenagers and the police would testify. Given Parker’s current assertion about his decision-making process, we find it significant that Parker and his attorney listened to Judge Card give the above-described analysis of Parker’s motivation for accepting the plea bargain, and they never objected or sought an opportunity to clarify their position.

In sum, we conclude that the assertions of fact contained in Parker’s petition for rehearing concerning his reasons for accepting the plea bargain were never presented to the trial court and are not supported by the record. We therefore deny Parker’s petition on this issue.

Parker’s sentence appeal

Parker pleaded no contest to three crimes: attempted first-degree -misconduct involving a controlled substance (ie., attempted delivery of LSD to a minor), unlawful exploitation of a minor (for taking sexually explicit photographs and videos of his seventeen-year-old girlfriend), and possession of child pornography (possessing these same photographs and videos).

As part of his plea bargain, Parker stipulated that his conduct with regard to the drug charge was “among the most serious” (aggravator AS 12.55.155(c)(10)) because he was factually guilty of the completed crime, not just the attempt. However, Parker asked the superior court to find that his other two offenses (exploitation of a minor and possession of child pornography) were mitigated under AS 12.55.155(d)(9); that is, Parker asked Judge Card to find that his conduct was among the least serious included within the definitions of these crimes.

In arguing for mitigator (d)(9), Parker noted that all of the photographs and videos seized by the State depicted V.M., Parker’s seventeen-year-old girlfriend. As we have explained, Parker’s sexual -relations with V.M. were lawful (because she was over the age of consent). Parker further noted that the State produced no evidence that Parker had distributed or shown these photos and videos to anyone else (besides V.M.). Parker argued that, considering all of the conduct encompassed by the statutes defining exploitation of a minor and possession of child pornography, Parker’s private creation and private possession of photographic and video-graphic images for the personal use of himself and his lover was among the least serious conduct.

We agree. We acknowledge -that Parker, by pleading no contest to these offenses, abandoned his earlier contention that Alaska’s exploitation of a minor statute and possession of child pornography statute were unconstitutional as applied to his conduct in this case. Nevertheless, Parker was still entitled to argue that, given the lawfulness of his sexual relations with V.M., and given the lack of evidence that Parker distributed these images to anyone else (whether commercially or non-commercially), his conduct was minimally serious when compared to the chief evils targeted by these statutes: the commercial creation of child pornography and its distribution to pedophiles.

The State argues that Parker’s conduct can not be deemed among the least serious because

[the exploitation of a minor statute] is concerned with ... the adverse effects on a minor’s future ability to form normal adult sexual relationships [after the] minor is manipulated into engaging in sexual activity. The statute is-concerned with disparities in power and maturity.... The record actually demonstrates that the 51-year-old Parker manipulated' or induced the 16- [and 17-] year-old V.M. to pose [in sexually suggestive ways] and engage in occasional sexual acts....

One can hardly argue with the State’s position that disparities in maturity and power can sometimes lead to unfair manipulation or unfair pressure to engage in sexual conduct. This is true regardless of the ages of the people involved. But the Alaska legislature has declared that, in most instances, persons who have attained the age of sixteen are mature enough to make these decisions for themselves.

The State’s argument that V.M. was “manipulated into engaging in sexual activity” is really an attack on the legislature’s decision to establish sixteen as the age of consent. But this Court has no authority to re-evaluate the legislature’s decision in this matter.

In sum, we agree with Parker that his private creation and private possession of sexual images of his seventeen-year-old girlfriend constituted conduct among the least serious within the definition of exploitation of a minor and possession of child pornography. Judge Card’s • decision to the contrary is clearly erroneous. Parker must be resen-tenced.

Parker also argues that Judge Card imposed an illegal sentence on the possession of child pornography count. Possession of child pornography is a class C felony. Parker, as a second felony offender, faced a presumptive term of 2 years’ imprisonment for this charge.

When-a defendant is subject to presumptive sentencing, the sentencing judge can not adjust the specified presumptive term upward — even if the increased term of- imprisonment is suspended in whole or in part— unless the State proves one or more aggravating factors under AS 12.55.155(c). The State did not prove any aggravators with respect to the child pornography charge, but Judge Card nevertheless sentenced Parker to serve 3 years with 1 year suspended.

On appeal, the State concedes that this sentence is illegal, and we conclude that the State’s concession is well-founded. The superior court must'reduce Parker’s sentence on this count to no more than 2 years’ imprisonment — the 2-year presumptive term with no additional suspended jail time. Moreover, the superior court must consider whether this 2-year presumptive term should be reduced based on the “least serious” miti-gator that was mistakenly rejected at Parker’s initial sentencing.

Conclusion

We re-affirm our prior decision concerning Parker’s effort to withdraw his pleas. However, we reverse the decision of the superior court regarding mitigator (d)(9), and we vacate Parker’s sentence for possession of child pornography because that sentence is illegal.

Parker’s convictions are AFFIRMED. Parker’s sentences for exploitation of a minor and for possession of child pornography are VACATED. The superior court shall resen-tence Parker in conformity with this opinion.

      . See AS 11.41.434(a)(3).

      . AS 11.41.455(a) and AS 11.61.127(a), respectively.

      . AS 11.71.030(a)(2) and AS 11.56.510(a)(2)(A), respectively.

      . AS 11.71.010(a)(2).

      . AS 11.71.010(c); AS 12.55.125(b).

      . See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).

      . AS 11.71.010(a)(2).

      . AS 11.41.455(a).

      . AS 11.61.127(a).

        .See Parker, Memorandum Opinion No. 4850 at 4, 2004 WL 720111 at *2.

        . Compare Ashcroft v. Free Speech Coalition, 535 U.S. 234, 254-55, 122 S.Ct. 1389, 1404, 152 L.Ed.2d 403 (2002) (striking down the portion of the Child Pornography Prevention' Act of 1996 that prohibited the creation of computerized images depicting sexual activity with underage children); Massachusetts v. Oakes, 491 U.S. 576, 109 S.Ct. 2633, 105 L.Ed.2d 493 (1989) (declining to decide the constitutionality of a statute that prohibited adults from posing or exhibiting nude minors "for purposes of visual representation or reproduction in any book, magazine, pamphlet, motion picture, photograph, or picture” because the state legislature had amended the statute in the interim).

      . See Lepley v. State, 807 P.2d 1095, 1099 n. 1 (Alaska App.1991) (a sentencing judge's findings as’ to the existence of aggravating and mitigating factors are reviewed under the "clearly erroneous” standard).

      . See AS 11.61.127(d).

      . AS 12.55.125(e)(1).

      . See Connolly v. State, 758 P.2d 633, 635, 636 & n. 3 (Alaska App.1988); McManners v. State, 650 P.2d 414, 416 (Alaska App.1982).

      . See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (holding that an appellate court is obliged to independently evaluate any concession of error by the State in a criminal case).


author: Justice BENDER

text:
    Richard ARCHER, Petitioner v. FARMER BROS. CO., a California corporation; Al Henshaw; and Dennie Rawson, Respondents.
    No. 02SC583.
    Supreme Court of Colorado, En Banc.
    May 17, 2004.
    David Littman, P.C., David Littman, Denver, Colorado, Johnson & Ayd, P.C., Patricia M. Ayd, James D. Johnson, Denver, Colorado, Attorneys for Petitioner.

      Stromberg Cleveland Crawford & Schmidt, P.C., Colleen M. Rea, Paul D. Godec, Peter C. Middleton, Denver, Colorado, Attorneys for Respondent Farmer Bros. Co.
    DiManna & Jackson, P.C., Gary M. Jackson, Neeti Pawar, Denver, Colorado, Attorneys for Respondents A1 Henshaw and Den-nie Rawson.
   Justice BENDER

delivered the Opinion of the Court.

In this case, we review the court of appeal’s decision in Archer v. Farmer Bros. Co., 70 P.3d 495 (Colo.App.2002), affirming the trial court’s award of costs to individual defendants A1 Henshaw and Dennie Rawson.

The court of appeals held that the trial court correctly determined that Henshaw and Rawson were “prevailing parties” under both Colorado Rule of Civil Procedure 54(d) and section 13-16-105, 5 C.R.S. (2003), despite the fact that the Plaintiff, Richard Archer, prevailed on a single issue in the case. The court of appeals held that under the circumstances of this case, the trial court did not abuse its discretion when it reached this conclusion. We agree, and accordingly we affirm the judgment of the court of appeals.

Facts and Proceedings Below

Richard Archer had been an employee of Farmer Bros. Co. for twenty-two years when Farmer Bros, instigated an investigation into Archer’s alleged misconduct. While the investigation was pending, Archer suffered from a heart condition that was believed at the time to be a heart attack. Farmer Bros, ultimately decided to terminate Archer, and Henshaw and Rawson, Archer’s supervisors, were told to inform him of the decision.

Henshaw and Rawson delivered the news to Archer at the home of Archer’s mother-in law, where he was recovering from his apparent heart attack. Archer was resting in bed, partially dressed, when Henshaw and Raw-son informed him he had been terminated. They gave Archer his final paycheck and demanded the keys to the company van, which was parked outside. Archer was visibly upset by the incident and demanded that they leave. That evening, Archer attempted suicide.

Archer sued Farmer Bros, and Henshaw and Rawson for violations of the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), and the Colorado Anti-Discrimination Act (CADA), and for intentional infliction of emotional distress (outrageous conduct). The trial court dismissed the ADA and CADA claims against all defendants and the ADEA claim against Henshaw and Rawson before the case went to the jury. The jury found for Farmer Bros, on the ADEA claim. It found for Archer, however, on the outrageous conduct claim, and awarded him $30,500.00 in non-economie damages and $30,500.00 in exemplary damages from Farmer Bros., and $2500.00 and $2,499.00 in non-economic damages from Henshaw and Rawson respectively-

All parties requested attorney’s fees and costs. The trial court denied Farmer Bros.’ and Archer’s requests, but awarded costs in the amount of $554.02 to Henshaw and Raw-son. The trial court found that Henshaw and Rawson were entitled to costs under both C.R.C.P. 54(d) and section 13-16-105, 5 C.R.S. (2003), because they were “prevailing parties” in the litigation against Archer. The court explained that “when a case involves multiple claims, some of which are successful and some of which are not, trial courts have great discretion in determining which party, if any, was the ‘prevailing party’ within the meaning of C.R.C.P. 54(d) or other cost-shifting provisions.” It then observed that the verdict against Henshaw and Rawson was l/24th the size of that against Farmer Bros, and was not attended by findings of “fraud, malice, or willful and wanton conduct,” as was the verdict against Farmer Bros. Under these circumstances, the trial court concluded, “As between [Archer] and Farmer [Bros.] neither party was the prevailing party, but ... as between [Archer] and [Henshaw and Rawson], the individual Defendants were the prevailing party.”

The defendants appealed the outrageous conduct findings to the court of appeals, and Archer cross-appealed on the issue of costs.

The court of appeals affirmed the judgments, which are not at issue in this appeal, and affirmed the trial court’s award of costs. On the issue of costs, the court agreed with the trial court’s analysis, and held that under the circumstances of the case, the trial court did not abuse its discretion when it concluded that Henshaw and Rawson were “prevailing parties”, and entitled to costs. See Archer, 70 P.3d at 501.

We granted certiorari to determine whether the trial court erred when it found that Henshaw and Rawson were “prevailing parties” for the purpose of awarding costs. We now affirm.

Analysis

Archer argues that the trial court abused its discretion when it concluded that Henshaw and Rawson were “prevailing parties” and therefore entitled to costs. In particular, Archer contends the trial court applied the wrong standard when it made its determination and urges us to apply a presumption in favor of taxing costs to a plaintiff who succeeds on any significant issue in the case.

In response, the defendants argue that the trial court correctly determined that Hen-shaw and Rawson were the prevailing parties for purposes of awarding costs and asks that we affirm that court’s “reasonable exercise of [its] broad discretion” in this case.

We hold that the trial court’s determination that Henshaw and Rawson were “prevailing parties” for purposes of awarding costs was not an abuse of discretion. Accordingly, we affirm the judgment of the court of appeals.

When deciding whether to award costs, a trial court must be guided by C.R.C.P. 54(d). In re Water Rights ofBd. of County Comm’rs, 891 P.2d 981, 983 (Colo. 1995). This rule provides in relevant part that “except when express provision therefor is made ... in a statute of this state or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs.” We have interpreted this rule to mean that trial courts “may exercise their discretion to award costs to a prevailing party.” In re Water Rights, 891 P.2d at 984 (quoting Rossmiller v. Romero, 625 P.2d 1029, 1030 (Colo.1981)); cf. Serna v. Manzano, 616 F.2d 1165, 1167 (10th Cir.1980) (taxing of costs under the nearly identically-worded Federal Rule of Civil Procedure 54(b) “rests largely in the sound discretion of the trial court”). Accordingly, we review an award of costs for an abuse of discretion and will only disturb the award if it is manifestly arbitrary, unreasonable, or unfair. Fort Morgan v. GASP, 85 P.3d 536, 541 (Colo.2004)

A “prevailing party” is one who prevails on a significant issue in the litigation and derives some of the benefits sought by the litigation. Id. The number of claims upon which a party prevails or the amount awarded for those claims is not determinative. Grynberg v. Agri Tech, Inc., 985 P.2d 59, 64 (Colo.App.1999), aff'd, 10 P.3d 1267 (Colo.2000).

When a ease involves many claims, some of which are successful and some of which are not, it is left to the sole discretion of the trial court to determine which party, if any, is the prevailing party and whether costs should be awarded. See §§ 13-16-108 and -109; GASP, 85 P.3d at 541; Lobato v. Taylor, 13 P.3d 821, 835 (Colo.App.2000), rev’d on other grounds, 71 P.3d 938 (Colo.2002); Husband v. Colo. Mountain Cellars, Inc., 867 P.2d 57, 62 (Colo.App.1993).

Archer contends that this principle applies only in cases where a defendant brings counterclaims, and both the plaintiff and the defendant prevail on some of their claims. Although the eases that rely on this principle do involve counterclaims, neither this Court nor the court of appeals has ever limited a trial court’s discretion in this way. See, e.g., Wheeler v. T.L. Roofing, Inc., 74 P.3d 499, 504 (Colo.App.2003) (“An award of costs to a single prevailing party is justified where both parties prevail on some aspect of the issues in dispute.”) (emphasis added); Lobato, 13 P.3d at 835; Husband, 867 P.2d at 62; Woolley v. Bear Creek Manors, 735 P.2d 910, 912 (Colo.App.1986).

We decline to adopt such a rule now because to do so would unnecessarily restrict a trial court’s ability to make a determination that properly lies within its purview. A trial court is given broad discretion to determine who is a prevailing party in multiple claim eases because of its unique opportunity to observe the course of the litigation. See Wheeler, 74 P.3d at 504 (holding that trial court is the in best position to determine which party ultimately prevailed for purposes of awarding attorney’s fees); cf. Phetosomphone v. Allison Reed Group, Inc., 984 F.2d 4, 9-10 (1st Cir.1993) (deferring to trial court’s determination of attorney’s fees and costs because of court’s intimate familiarity with the litigation). In multiple claim cases, where either party could arguably be considered the “prevailing party,” the trial court is in the best position to evaluate the relative strengths and weaknesses of each party’s claims, the significance of each party’s successes in the context of the overall litigation, and the time devoted to each claim.

We see no reason to limit this discretion now, and accordingly we conclude that when a case involves multiple claims, some of which are successful and some of which are not, a trial court has sole discretion to determine who is a “prevailing party,” even if the claims are filed by only one party.

Application

In this case, the trial court explained that it considered Henshaw and Rawson “prevailing parties” because the jury awarded Archer substantially more damages from Farmer Bros, than from the individual defendants, and because the jury did not award any exemplary damages against either Henshaw or Rawson:

The jury awarded Plaintiff $30,500.00 in actual damages against Farmers, but only $2500.00 against Henshaw and only $2499.00 against Rawson. Moreover, the jury awarded Plaintiff $30,500.00 in exemplary damages against Farmers, but no exemplary damages against either Hen-shaw or Rawson. In the end, with both sets of Defendants facing significant exposure, ... the individual Defendants escaped with verdicts of approximately l/24th the amount of the verdict against Farmers and no award of exemplary damages.

Archer contends that the trial judge misapplied the law when it made this determination because it based its conclusion on the amount awarded Archer from these defendants. Had the trial court applied the correct standard, Archer argues, Archer would have presumptively been the prevailing party because he prevailed on a significant issue and achieved some of the benefits sought by the litigation.

Archer misconstrues the nature of a trial court’s discretion under C.R.C.P. 54(d) to determine which party is a “prevailing party.” While we have observed that the number of claims upon which a party prevails and the amount of a party’s recovery are not determinative of whether a party is the “prevailing party,” a trial court may consider these factors.

In this ease, the trial court noted that all defendants prevailed on the ADA, ADEA, and CADA claims. It also acknowledged that all defendants suffered adverse verdicts on the outrageous conduct claim. However, despite the “significant exposure” Henshaw and Rawson faced in this litigation, they both escaped not only comparatively large awards but also exemplary damages attended by findings of “fraud, malice, or willful and wanton conduct.” Further, while the jury found against Henshaw and Rawson on the outrageous conduct claim, the vast majority of the time and resources of the litigation were devoted to the ADEA claim, which was far more complicated and time-consuming.

Under these circumstances, we cannot say the trial court abused its discretion when it determined that Henshaw and Rawson were prevailing parties in the litigation. The factors mentioned by the trial court are all within its discretion to consider, and we see no basis to disturb its conclusion.

Conclusion

For the reasons given above, we hold that the trial court did not abuse its discretion when it concluded that the individual defendants in this case were “prevailing parties” for purposes of awarding costs. Accordingly, we affirm the judgment of the court of appeals.

      . We granted certiorari to consider the following question:
      Whether the court of appeals erred in affirming the trial court’s rulings refusing to tax costs in favor of the plaintiff as the prevailing party, and to tax costs in favor of the individual defendants.

      . Archer cites a number of federal cases that interpret Federal Rule of Civil Procedure 54(d), which is nearly identical to C.R.C.P. 54(d). Under federal law, rule 54(d) creates a presumption that a prevailing party will recover costs, and the party opposing costs must overcome that presumption. See, e.g., Cantrell v. Int’l Brotherhood of Electrical Workers, 69 F.3d 456, 458-59 (10th Cir.1995); Serna v. Manzano, 616 F.2d 1165, 1167-68 (10th Cir.1980).
      In an appropriate case, we might consider these cases as persuasive authority, but in this case, Archer’s reliance on these authorities is misplaced. See Benton v. Adams, 56 P.3d 81, 86 (Colo.2002) ("When a Colorado Rule is similar to a Federal Rule of Civil Procedure, we may look to federal authority for guidance in construing the Colorado rule.”). The issue in this case is not whether there is a presumption under C.R.C.P. 54(d) in favor of awarding costs to a prevailing party. Rather, the issue we consider is whether a trial court abuses its discretion when it concludes that one of the parties is a prevailing party for purposes of awarding costs. As we explain below, this issue is controlled by Colorado law. Accordingly, we do not reach the issue of whether C.R.C.P. 54(d) creates a presumption in favor of awarding costs to a prevailing party.