author: BRYNER, Justice.

text:
    Lois GILBERT, Appellant, v. NINA PLAZA CONDO ASSOCIATION, its officers past and present, Steven Simonka and his tenants Frances Lundy and John and Jane Does, Appellees. Lois Gilbert, Petitioner, v. Nina Plaza Condo Association, its officers past and present, Steven Simonka and his tenants Frances Lundy and John and Jane Does, Respondents.
    Nos. S-10000, S-10237.
    Supreme Court of Alaska.
    Feb. 14, 2003.

      Lois Gilbert, pro se, Anchorage.
    James J. Hanlon, Law Office of James J. Hanlon, Anchorage, for Appellees/Respon-dents (no brief filed).
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

BRYNER, Justice.

I. INTRODUCTION

Lois Gilbert appeals the dismissal of two cases that she filed against the Nina Plaza Condominium Association and condominium owner Steven Simonka. The superior court dismissed Gilbert’s first case for failing to comply with the pretrial scheduling order. The court dismissed her second case, and subsequently refused to reopen it, for failing to properly serve the defendants. Because the superior court made insufficient allowances for Gilbert’s pro se status in the first case and because Gilbert successfully served process on the defendants in the second case, we reverse.

II. FACTS AND PROCEEDINGS

Lois Gilbert lives in a condominium unit owned by her mother at the Nina Plaza Condominiums in Anchorage. Gilbert has been involved in an ongoing dispute with the Nina Plaza Condominium Association as well as various condominium owners and tenants, including Steven Simonka.

In July 1998 Gilbert filed a complaint against. Nina Plaza, Simonka, and other Nina Plaza tenants. The complaint alleged many ongoing grievances against the defendants, including wrongful exclusion “from ownership privileges and decision making,” discrimination “on the grounds of sex and disability,” violation of the condominium’s bylaws, assault, and vandalism. Gilbert sought to recover compensatory damages for “all injuries and vandalism sustained from harassment” as well as punitive damages. About seventeen months after Gilbert filed this complaint, Nina Plaza and Simonka filed a complaint against Gilbert and her mother, seeking a permanent injunction to prevent Gilbert from residing at Nina Plaza.

Superior Court Judge Eric T. Sanders consolidated Gilbert’s and Nina Plaza’s cases and scheduled trial for June 26, 2000. On the date set for trial, the judge dismissed the cases after learning that both parties had failed to comply with the pretrial scheduling order and were unprepared to proceed.

■ On June 9, 2000 — two years after she filed her first complaint and two weeks before the superior court dismissed it — Gilbert filed a second complaint against the same defendants. She intended the second complaint to cover incidents that occurred after the filing of her first complaint. Her complaint described and updated the same general acts of ongoing misconduct alleged in her first complaint but added a new claim for intentional infliction of emotional distress.

More than six months after filing the second complaint, Gilbert still had not served it on the defendants. On January 3, 2001, the superior court dismissed the second complaint, specifying that the dismissal was without prejudice and was “due to [Gilbert’s] failure to serve the defendant(s) with the summons and complaint or show good cause why service was not completed.”

On January 30 Gilbert moved to reopen the case, stating that she had “re-mailed the lawsuit and ha[d] attached proof of service.” Along with this motion, Gilbert filed proof of service by certified mail on James Hanlon, Nina Plaza’s attorney in her first case. Han-lon responded by filing a “conditional entry of appearance,” ostensibly for the “sole purpose” of arguing that Gilbert had failed to properly serve his clients with process. Hanlon contended that serving the new complaint on him was improper because on that date of service he had not yet been retained as counsel by the defendants and therefore lacked authority to accept service on their behalf. Apparently agreeing with Hanlon, the superior court denied Gilbert’s motion to reopen on March 6, 2001, finding “[n]o proof of service on the defendants.”

On April 23 Gilbert filed a second motion to reopen the case, claiming to have personally served the defendants. Along with this motion, Gilbert filed an audiotape recording of her personally serving process on Simonka and officers of Nina Plaza at a March 27 condominium association meeting. In opposition to Gilbert’s motion, Hanlon, again purporting to make only a “conditional entry of appearance,” argued that Gilbert had violated Alaska Civil Rule 4(c)(1) by serving the complaint herself, rather than through an authorized process server, and had violated Civil Rule 4(d) by failing to specify on her return of service that she had served the defendants with a summons as well as a complaint. Again accepting Hanlon’s argument, the superior court denied Gilbert’s second motion to reopen, ruling that Gilbert had failed to comply with Civil Rules 4(c) and (d). Hanlon then moved for an award of full attorney’s fees for expenses attributable to Gilbert’s attempts to reopen the case.

On June 1, two weeks after the court denied the second motion to reopen, Gilbert filed a third motion to reopen, this time specifying that she had “rectified any deficiencies in service, mailing by certified mail copies of the lawsuit, summons, cei’tificate of service, motion to reopen and opposition to fee request to Defendants and James Han-lon.” A week later, the superior court issued a sua sponte order, summarily denying Gilbert’s third motion to reopen. The court also issued an order finding that Gilbert’s repeated attempts to reopen her cases “constituted bad faith conduct.” On this basis, the order awarded Nina Plaza and Simonka nearly half their claimed attorney’s fees, warning that it would award the rest of the fees if Gilbert persisted in her attempts to reopen the case.

Gilbert appealed the dismissal of her first case. She petitioned for review in the second case; we granted the petition for review and consolidated the second case with her appeal for purposes of this decision.

III. DISCUSSION

A. Dismissal of Gilbert’s First Case

The superior court dismissed Gilbert’s first case because it found that both parties had “failed to comply with any part of the pretrial scheduling order.” On appeal Gilbert challenges this ruling, claiming that the superior court failed to take proper account of her pro se status. Gilbert contends that “[she] followed the rules to the best of her understanding and as far as she was physically able” and that her failure to fully comply with the scheduling order resulted in large part from her inability to receive the discovery she had requested from Nina Plaza. Gilbert claims that she informed the superior court on several occasions that the defendants were withholding discovery and that, until the court informed her at trial that she should have filed a motion to compel, she was “unaware of this legal procedure.” The record supports Gilbert’s assertions, revealing that the superior court failed to provide appropriate guidance to Gilbert in consideration of her pro se status.

It is well settled that in cases involving a pro se litigant the superior court must relax procedural requirements to a reasonable extent. We have indicated, for example, that courts should generally hold the pleadings of pro se litigants to less stringent standards than those of lawyers. This is particularly true when “lack of familiarity with the rules rather than gross neglect or lack of good faith underlies litigants’ errors.” We have further indicated that a court “should inform a pro se litigant of the proper procedure for the action he or she is obviously attempting to accomplish” and should also “inform pro se litigants of defects in their pleadings.” In return, we have stressed, the pro se litigant “is expected to make a good faith attempt to comply with judicial procedures and to acquire general familiarity with and attempt to comply with the rules of procedure — absent this effort, [the litigant] may be denied the leniency otherwise afforded pro se litigants.”

Here, Gilbert made several efforts to notify the court that she was having discovery problems and needed help. At the trial setting conference on January 6, 2000, Gilbert alerted the trial court that she needed additional time to prepare her case, in part because she had not yet received any of her requested discovery from Nina Plaza. The trial court set the ease for trial on June 26, 2000, but, despite Gilbert’s expressed concern, it did not attempt to explain the available procedures for compelling discovery. On June 23, three days before trial, Gilbert sought to postpone the trial, filing a motion to reschedule in which she stated that she needed extra time to prepare her case because Nina Plaza continued to deny her access to the condominium records and because her disabilities had made it difficult to prepare. On the day of trial, Gilbert again indicated that she had not received discovery. Although Gilbert said that she would be able to proceed with what she had, she emphasized that she would prefer a continuance.

The record confirms Gilbert’s claims that Nina Plaza failed to comply with discovery requirements, in spite of being represented by counsel. Yet the superior court found both parties equally blameworthy and dismissed both their cases. The only time the court explained Gilbert’s procedural options was when it dismissed the case, stating “if you didn’t get discovery on a certain date, you should have filed a motion to compel. So there’s nothing the court can do about that.”

Because Gilbert was a pro se litigant and made it clear early on that she was having trouble with discovery, we hold that it was an abuse of discretion to dismiss her case without explaining the basic steps she could take to comply with the pretrial order — including the option of filing a motion to compel discovery — and without then allowing her a reasonable opportunity to take those steps. We therefore reverse the order dismissing Gilbert’s first complaint.

B. Refusal To Reopen Gilbert’s Second Case

The superior court dismissed Gilbert’s second case seven months after it was filed, specifying that the dismissal was for failure to serve process and was without prejudice. But the court later denied Gilbert’s repeated efforts to reopen the case after she made further attempts to serve process. Gilbert challenges these rulings, arguing that she eventually rectified any errors in her original service. Gilbert further asserts that Nina Plaza’s attorney, James Hanlon, manipulated the rules of procedure to avoid service of process: “Hanlon claimed service to him was improper even though he filed an entry of appearance to represent [the defendants] and was representing them in [the earlier filed case] at the time he was served with [the second complaint].”

In response to these arguments, Nina Plaza does not deny that Gilbert eventually managed to make proper service. Instead, it argues that Gilbert’s second complaint was properly dismissed as an impermissible attempt to circumvent the superior court’s earlier dismissal of her first suit. Since Gilbert “refiled the same case,” Nina Plaza contends, “[d]enial of [her] motion to reopen was proper given the fact that [she] had already appealed Judge Sanders’ dismissal of her original ease.”

However, despite Nina Plaza’s suggestion to the contrary, the superior court did not view Gilbert’s second complaint as an impermissible reiteration of her first complaint. Instead, the court specified that it dismissed the second case on the ground of lack of service and that the dismissal was without prejudice. The superior court rebuffed Gilbert’s later efforts to reopen for the same reason solely because the court believed that Gilbert had still failed to make proper service.

Furthermore, the record refutes Nina Plaza’s portrayal of Gilbert’s second complaint as an effort to circumvent the superior court’s dismissal of her first complaint. Gilbert filed her second complaint on June 9, 2000, over two weeks before the superior court dismissed her first case on June 26. And although the basic claims in both cases were nearly identical, Gilbert apparently intended the second complaint to address conduct that allegedly continued to occur after she had filed the first complaint. At a pretrial conference in the first case, for example, Gilbert alerted the court that, to preserve her civil rights claims, she would be filing a second complaint to cover developments occurring since her first complaint was filed. Accordingly, Nina Plaza’s characterization of the second complaint finds no support in the record.

We thus turn to the merits of Gilbert’s contention that she cured her original failure to serve process and therefore should have been allowed to reopen her second case. The record indicates that by the time Gilbert filed her first motion to reopen the case, Nina Plaza and Steven Simonka had received actual notice of Gilbert’s complaint. Attached to Gilbert’s first motion to reopen was a certificate of service stating that Gilbert had delivered the complaint by certified mail to James Hanlon, the attorney for both Nina Plaza and Simonka. After receiving the complaint, Hanlon entered a “conditional appearance” on behalf of the defendants to contest Gilbert’s attempt to serve process. He claimed that serving the complaint on him had been improper because Nina Plaza and Simonka had not yet retained him as counsel in the second case. Although challenging Gilbert’s earlier service on him as premature, Hanlon undertook future representation of the defendants in the second case, asking that all subsequent pleadings concerning the case be mailed to him.

Thus, assuming that Gilbert’s initial service on Hanlon was improper, by the time Gilbert filed her third motion to reopen the case she had undisputedly succeeded in making proper service: by then she had sent by certified mail “copies of the lawsuit, summons, certificate of service, [and] motion to reopen” to both the defendants and James Hanlon. Hanlon acknowledged receiving these documents and represented Nina Plaza and Simonka in the second case when he received them.

Accordingly, the record establishes beyond doubt that Gilbert ultimately cured any defects in service of process. Because Gilbert’s motions to reopen the case were denied only because the court believed that service had not been properly made, we hold that it was error to deny reopening. And because of this error, we further hold that the superior court’s award of prevailing-party attorney’s fees to Nina Plaza and Simonka must be vacated.

IV. CONCLUSION

We REVERSE the dismissal of Gilbert’s first ease (3AN-98-7578 Cl), and we REMAND the second case (3AN-00-7808 Cl) with directions to reopen it; we also VACATE the award of attorney’s fees in that case.

      . We review procedural dismissals for abuse of discretion. See, e.g., Balough v. Fairbanks North Star Borough, 995 P.2d 245, 254 (Alaska 2000); Arbelovsky v. Ebasco Servs., Inc., 922 P.2d 225, 227 (Alaska 1996); Johnson v. Siegfried, 838 P.2d 1252, 1254 (Alaska 1992). "Under the abuse of discretion standard, the trial court’s decision will only be overturned if this court has ‘a definite and firm conviction that the judge made a mistake.' ” Arbelovsky, 922 P.2d at 227 (quoting City of Kenai v. Ferguson, 732 P.2d 184, 190 (Alaska 1987)).

      . See, e.g., Kaiser v. Sakata, 40 P.3d 800, 803 (Alaska 2002).

      . See, e.g., Wilkerson v. State, 993 P.2d 1018, 1022 (Alaska 1999); Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987).

      . Kaiser, 40 P.3d at 803 (internal quotations and citations omitted); see also Noey v. Bledsoe, 978 P.2d 1264, 1270 (Alaska 1999) ("We have frequently recognized that pro se litigants who make good faith efforts to comply with court rules should not be held to strict procedural requirements.”); Wright v. Shorten, 964 P.2d 441, 444 (Alaska 1998) ("Where a pro se litigant’s default results from lack of familiarity with the rules, ... and where the litigant is unversed in the rules of civil procedure, setting aside a default judgment may be warranted.”) (internal citations and quotations omitted).

      . Breck, 745 P.2d at 75.

      . Wright, 964 P.2d at 444; see also Collins v. Arctic Builders, 957 P.2d 980, 982 (Alaska 1998) (holding that a superior court’s failure to inform a pro se litigant of the specific defects in his notice of appeal and to give him an opportunity to remedy those defects is “manifestly unreasonable and thus constitutes an abuse of discretion”).

      . Kaiser, 40 P.3d at 803 (internal citations omitted).

      . Our decision makes it unnecessary to consider Gilbert’s remaining arguments in her first case.

      . We reject Hanlon's implicit assertion that Gilbert's mailing was defective because it included pleadings other than the summons and complaint. Alaska Civil Rule 4 does not prohibit serving a summons and complaint by mail along with other pleadings. See Anderson v. State, 584 P.2d 537, 541 (Alaska 1978) (reasoning that because the purpose of service of process is to provide "the defendant with notice of the proceeding against him,” the inclusion of unnecessary information in the process should not render service defective).


source: Caselaw Access Project

license: Public Domain

text:
    Robert SHAW and Marie Shaw, Petitioner(s), v. NANOOK, INC., an Alaskan Corporation, Respondent(s).
    Nos. S-10827.
    Supreme Court of Alaska.
    Feb. 14, 2003.
    C. R. Neil Kennelly, Stepovich, Kennelly & Stepovich PC, Anchorage.
    Jeffrey P. Stark, Delaney, Wiles, Hayes et al., Anchorage.
    Before: FABE, Chief Justice, MATTHEWS, BRYNER and CARPENETI, Justices.
   Order Petition for Hearing

On consideration of the Petition for Hearing filed 10/17/02, and the response filed 11/1/02,

IT IS ORDERED:

The petition for hearing is DENIED in PART and GRANTED in Part, as follows:

The petition for hearing is DENIED on the question whether disability access is an essential service under AS 34.03.180. As Nanook points out, many residential units do not have elevators for second story apartments and are not equipped with wheelchair accessible doorways or ramps. The Landlord-Tenant Act does not speak to a landlord’s obligation to provide disability access. And here, Nanook did nothing to prevent the Shaws from creating their own access ramp to the property. The result in this case might be different if Nanook had refused to permit the Shaws to make reasonable modifications at their own expense in order to afford Marie Shaw reasonable enjoyment of the premises. See, e.g., Bachman v. Swan Harbour Ass’n, 262 Mich.App. 400, 653 N.W.2d 415 (2002).

The petition for hearing is GRANTED on the question whether the district court lacks the authority to decline to evict, conditioned on immediate payment of all back rent owed, if it finds that the Shaws were reasonable in believing that they were justified in withholding the rent. The district court’s decision on this issue is REVERSED and the ease is REMANDED for further proceedings in the district court. Because the legislature has given the district court jurisdiction over forcible entry and de-tainer actions, the district court has the power to order all equitable remedies that a court of general jurisdiction could use in resolving the same cause of action. We have previously declined to limit the district courts’ jurisdiction in the absence of explicit statutory language. See Stephens v. Hammersley, 552 P.2d 652, 654 (Alaska 1976) (holding that without clear intent on part of the legislature, we would not exclude from the district court’s lien foreclosure jurisdiction liens dealing with real property, reasoning that in granting jurisdiction, the legislature clearly intended to expand the district court’s jurisdiction into a realm previously occupied exclusively by the superior court); accord Rea v. Helsley, 86 Ohio App. 114, 90 N.E.2d 168, 169-70 (1949) (affirming municipal court’s denial of eviction order against tenant who paid rent late because she sent the check to the wrong address).

Entered by direction of the court.

EASTAUGH, Justice, not participating.


author: MANNHEIMER, Judge.

text:
    Ishmael Lavaundus THOMPSON, Appellant, v. STATE of Alaska, Appellee.
    No. A-8162.
    Court of Appeals of Alaska.
    Jan. 31, 2003.

      Elizabeth D. Friedman, Anchorage, for Appellant.
    Stephen B. Wallace, Assistant District Attorney, Susan A. Parkes, District Attorney, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

MANNHEIMER, Judge.

Under AS 12.55.045(f), when a sentencing court intends to order a defendant to pay more than $5000 in restitution, and when the defendant is going to serve at least 90 days in prison, the defendant is entitled to ask the court to reduce the restitution obligation. The statute declares that it is the defendant’s burden to show, by clear and convincing evidence, that they are unable to pay the amount of restitution proposed. This appeal raises the question of how a sentencing court should assess a defendant’s ability to pay the proposed amount of restitution when the defendant is one of a group of wrongdoers who are being held jointly and severally responsible for the restitution.

In the present case, the superior court evaluated the defendant’s ability to pay under the assumption that the defendant would only have to pay a per capita share of the total restitution. We conclude that this was error. When a group is held jointly and severally liable for restitution, any individual defendant’s ability to pay must be assessed under the assumption that this defendant may ultimately have to pay the full amount— unless the sentencing court concurrently establishes a payment schedule that is consistent with the defendant’s ability to pay.

Underlying facts

Ishmael Lavaundus Thompson and three accomplices were convicted of jointly participating in a first-degree assault. The superi- or court found that the victim of this assault was entitled to restitution in the amount of $33,197. The court proposed to hold each of the four accomplices jointly and severally liable for this amount.

Thompson offered evidence that he would be unable to pay $33,000 in restitution after he served his prison term. Specifically, Thompson testified that he was effectively an orphan (his mother was dead and his father’s whereabouts were unknown); that his parents had not provided for him; that he had previously held only one job (a summer job for which he was paid the minimum wage); and that he had never completed high school (although he was working on a GED and was receiving training as a food-handler and custodian). Moreover, Thompson had been told that, because of his felony record, he would most likely be able to get only minimum-wage jobs until he had established a good reputation.

The superior court found, by clear and convincing evidence, that Thompson currently had no assets and that “his potential for future earnings [was] a big question mark” because of his lack of work experience. Nevertheless, the court found that Thompson had failed to prove, by clear and convincing evidence, that he would be unable to pay a one-fourth share of the restitution (approximately $8000) after he served his prison sentence. The court therefore refused to reduce Thompson’s restitution obligation. Thompson’s judgement states that he is jointly and severally liable for the whole amount— $33,197.

The meaning of AS 12.55.0^5 (f) token a sentencing court imposes joint and several restitution liability on two or more accomplices

Although Alaska law no longer imposes “joint and several” liability when two or more civil defendants are found to be joint tortfeasors, this Court has ruled that joint and several liability is still available in criminal cases when a sentencing court imposes restitution on two or more accomplices. In the present appeal, we must determine the relationship between joint and several liability for restitution and a defendant’s right to seek reduction of the restitution amount under AS 12.55.045(f) by proving inability to pay.

When a defendant is held jointly and severally liable for restitution, there is a chance that the defendant will ultimately be required to pay the whole amount. But the sentencing judge in Thompson’s case ruled that Thompson’s ability to pay the whole amount was irrelevant — that the real issue was whether Thompson could be expected to pay his per capita share (ie., a one-fourth share) of the restitution.

Thompson now challenges this ruling. He insists that, because he is potentially responsible for the entire amount of restitution (over $33,000), the superior court was obliged to decide whether he could reasonably be expected to pay the whole amount — and not just whether he could reasonably be expected to pay one-quarter of this amount.

In J.C.W. v. State, 880 P.2d 1067 (Alaska App.1994), we upheld an order of joint and several restitution liability against a similar challenge. The defendant in J.C.W. contested the sentencing judge’s decision to hold him jointly and severally liable for $10,164.56 in restitution. At sentencing, the defendant presented “uncontroverted evidence” that he could pay a maximum of approximately $7,000, and the State conceded that the full award of $10,164.56 exceeded the defendant’s earning capacity.

We agreed that, “if viewed in isolation”, the provision holding J.C.W. jointly and severally liable for the entire amount of restitution “might be construed as excessive”. But we held that certain other provisions of the restitution order saved it from illegality.

First, we pointed out the obvious: that J.C.W. would be obliged to pay the full amount only if his accomplice failed to pay anything. Second, we pointed out that the restitution order established “a specific payment schedule for J.C.W. to follow in making his restitution payments” — a schedule that was “geared to J.C.W.’s current earning capacity” and that “impose[d] no undue burden on him”. We then concluded:

Reading the ... restitution order as a whole and in a common sense manner, we interpret the provision holding J.C.W. jointly and severally liable for [the whole amount of restitution] to do little more than leave the door open for future modification of J.C.W.’s payment schedule if his earning capacity increases significantly [in the future].

J.C.W., 880 P.2d at 1073.

Although our holding in J.C.W. may, at first blush, support the superior court’s order in Thompson’s case, we conclude that the most significant aspect of the restitution order in J.C.W. was the fact that (1) the defendant’s restitution liability was tied to a payment schedule, and (2) this payment schedule was geared to the defendant’s ability to pay. Thus, even if J.C.W.’s accomplice failed to pay anything, J.C.W.’s individual liability would be limited by the payment schedule. True, the judgement stated that J.C.W. was potentially obligated to pay the whole amount, but this could happen only if the superior court later revised the payment schedule based on proof that “his earning capacity [had] increase[d] significantly”.

The judgement in Thompson’s ease contains no such limitation on his liability. The superior court did not establish a payment schedule for Thompson, but instead left this matter to the Parole Board. As matters stand now, Thompson is jointly and severally liable for the whole amount, and thus he could be ordered to pay more than $33,000 in restitution even though, based on the evidence presented at the sentencing hearing, there is a significant possibility that he is financially unable to meet this obligation. So far, the superior court has ruled only that Thompson has the ability to pay $8000. Under these circumstances, Thompson has not received the procedural right guaranteed by AS 12.55.045(f).

The State points out that if a defendant is later unable to satisfy a restitution obligation imposed at sentencing, the defendant is entitled to ask for a hearing under AS 12.55.051(c). This statute provides that, if the defendant “proves by a preponderance of the evidence that the defendant will be unable [despite] good faith efforts to satisfy the [restitution] order”, the sentencing court “shall modify the order so that the defendant can pay the ... restitution through good faith efforts”.

But the hearing specified in AS 12.55.051(c) is a remedy that allows a sentencing court to re-examine a previously entered restitution order. It does not supplant a defendant’s procedural right under AS 12.55.045(f) to plead financial inability when the sentencing judge is initially determining the amount of restitution.

For these reasons, we VACATE the superior court’s restitution order and we REMAND this case to the superior court for reexamination of the restitution issue.

On remand, the superior court may again make Thompson jointly and severally liable for the entire amount of restitution, but only if (1) the court sets a payment schedule that is based on Thompson’s foreseen ability to pay, or (2) the court finds, under AS 12.55.045(f), that Thompson has failed to prove by clear and convincing evidence that he is unable to pay the full amount of the restitution — $33,197.

      . See AS 9.17.080 (codifying a system of comparative fault in tort litigation).

      . See Noffsinger v. State, 850 P.2d 647, 650-51 (Alaska App.1993).

      . J.C.W., 880 P.2d at 1072.

      . Id.

      . Id.

      . Id. at 1072-73.

      . Id. at 1073.


text:
    STATE of Alaska, Appellant, v. Thomas Charles COMBS, Appellee.
    No. A-8115.
    Court of Appeals of Alaska.
    Feb. 14, 2003.

      John K. Bodick, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellant.
    Susan M. Carney, Assistant Public Advocate, Fairbanks, and Brant G. McGee, Public Advocate, Anchorage, for Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

MANNHEIMER, Judge.

Thomas Charles Combs pleaded no contest to attempted first-degree assault, and he was sentenced to a term of imprisonment. After his sentencing, Combs asked the superior court to issue a supplemental order barring the Department of Corrections from housing Combs in the same facility as Edwin Kent, another convicted prisoner who had assaulted Combs (by shooting him in the back) in 1996. The prosecuting attorney — an assistant district attorney, an employee of the Department of Law — told the court that the State did not object to the proposed order. The superior court then granted Combs’s motion, amending the criminal judgement by adding a provision that bars the Department of Corrections from housing Combs and Kent in the same correctional facility.

Approximately five weeks later, another office within the Department of Law (the Central Office of the Criminal Division) challenged this portion of the judgement on behalf of the Department of Corrections. Relying on AS 33.30.061(a) and Rust v. State , the Central Office argued that the superior court had no authority to restrict the discretion of the Department of Corrections concerning where (and with whom) Combs would be imprisoned.

The superior court declined to delete the challenged provision from the judgement, and this appeal followed.

We agree with the State that the sentencing court had no authority to order the Department of Corrections to hold Combs and Kent in separate facilities. In Rust, our supreme court said:

We think it clear that the matter of a prisoner’s classification, which encompasses designation of the prison facility to which the prisoner is to be confined, is committed to the administrative discretion of the [Department] of Corrections, and not to the sentencing courts of Alaska. We thus hold that the sentencing court does not have the authority to designate a particular prison facility in which a prisoner is to be confined.

582 P.2d at 137-38. In an accompanying footnote, the supreme court added:

This conclusion reflects the principles which govern the powers of Alaska’s judiciary in relation to those of the executive. In Public Defender Agency v. Superior Ct., Third Judicial District, 534 P.2d 947, 950 (Alaska 1975), we articulated these principles in the following manner:
When an act is committed to executive discretion, the exercise of that discretion within constitutional bounds is not subject to the control or review of the courts. To interfere with that discretion would be a violation of the doctrine of separation of powers.

Id. at 138 n. 11.

Combs argues that, because the superior court did not direct the Department of Corrections to hold Combs in a “particular prison facility”, the superior court’s order does not violate Rust. But this interpretation of Rust is too narrow. As can be seen from the excerpt quoted above, Rust stands for the broader proposition that a sentencing court can not interfere in any aspect of a prisoner’s classification.

Although prisoner classification “encompasses [the] designation of the prison facility to which the prisoner is to be confined”, this is but one aspect of the Department’s classification authority. The Department’s authority includes other matters as well. See, for instance, LaBarbera v. State, 598 P.2d 947 (Alaska 1979), where the supreme court held that a sentencing court infringed the authority of the Department of Corrections when the court ordered the Department to release a prisoner to a particular residential rehabilitative program. The supreme court stated that a sentencing court “has [no] authority to designate ... a particular program for [a defendant’s] rehabilitation.” And see State v. Hiser, 924 P.2d 1024 (Alaska App.1996), where this Court held that a sentencing court could not order the Department of Corrections to provide particular medical care to a defendant.

We thus conclude that the Department of Corrections has the sole discretion to decide whether Combs needs to be housed separately from another identified inmate. The superior court exceeded its authority when it ordered the Department to house Combs and Kent in separate correctional facilities.

The remaining question is whether the Department of Corrections had the right to seek correction of Combs’s judgement.

As explained above, when Combs asked the superior court to direct the Department to house him apart from Kent, the prosecuting attorney announced that the State had no opposition to Combs’s request. Combs argues that, under the principle of collateral estoppel, the Department of Corrections is now bound by the prosecuting attorney’s decision.

Initially, we are unsure whether Combs can invoke the doctrine of collateral estoppel to stop the Department of Corrections from attacking the challenged provision of the judgement. We have just ruled that the superior court (in its role as a sentencing court) had no authority — in other words, no “subject-matter jurisdiction” — to order the Department of Corrections to hold Combs and Kent in separate correctional facilities. Because the superior court exceeded its authority when it issued this provision of the judgement, this provision of the judgement was “void” for purposes of Alaska Civil Rule 60(b)(4), and the Department of Corrections could seek relief from the judgement under that rule. (We discussed this principle at some length in State v. Superior Court, 40 P.3d 1239,1241-43 (Alaska App.2002)).

Neither party to the present appeal has discussed the question of whether the doctrines of res judicata or collateral estoppel prevent a litigant from attacking a void judgement under Civil Rule 60(b)(4). Although we note this legal issue, we need not resolve it because, as we explain next, we conclude that the Department of Corrections is not collaterally estopped by the Department of Law’s failure to oppose the challenged provision of the judgement.

A party claiming the benefit of collateral estoppel must establish three elements: (1) that the issue decided in prior litigation was precisely the same as the issue currently litigated; (2) that the prior litigation resulted in a final judgement deciding the merits of this issue; and (3) that the parties to the current litigation are either the same as the parties to the prior litigation or are in privity with those prior parties. Here, the dispute centers on the third element. Combs asserts that the Department of Corrections must be deemed in “privity” with the Fairbanks district attorney’s office (a branch of the Department of Law), since both agencies are arms of the state government, both are charged with administration of components of the criminal justice system, and both are represented by attorneys employed by the Department of Law.

The Alaska Supreme Court has noted that the term “privity’ (as used in the context of the collateral estoppel doctrine) has no firm definition. Rather, “it is a shorthand way of expressing assurance that the non-party has had adequate notice and opportunity to be heard, and that its rights and interests have been protected.” Generally speaking, officials of the same government are in privity with each other. However, each ease must be examined on its own facts. The crucial question is whether, in the earlier litigation, the government’s representative had the authority to represent the government’s interests in a final adjudication of the issue in controversy.

For example, in Briggs v. Dept. of Public Safety, 732 P.2d 1078 (Alaska 1987), the supreme court held that, in an administrative license revocation proceeding, the Department of Public Safety was collaterally es-topped from relitigating the issue of whether law enforcement officers had taken adequate steps to preserve an arrested motorist’s breath sample. The Department of Law had already litigated (and lost) that same issue during suppression proceedings in a related criminal prosecution. The supreme court held that the Department of Public Safety was in privity with the Department of Law because the Department of Public Safety’s interests were adequately represented by the district attorney’s office that defended the suppression motion.

On the other hand, in Holmberg v. Division of Risk Management , the supreme court ruled that the State Division of Risk Management was not in privity with the State Division of Retirement and Benefits. This case arose when Holmberg, a former employee of the Division of Risk Management, applied to the Workers’ Compensation Board for occupational disability benefits. The Division of Risk Management disputed her claim, and the Workers’ Compensation Board ruled in Risk Management’s favor on Holmberg’s claim for permanent total disability benefits. Holmberg then appealed to the superior court.

While Holmberg’s appeal was pending, the Public Employee’s Retirement Board (in a separate administrative proceeding) awarded Holmberg occupational disability benefits based on its determination that Holmberg was, in fact, permanently and totally disabled as a result of injuries she sustained at work. After the Retirement Board issued this ruling, Holmberg apprised the superior court of the Retirement Board’s action, and she raised a claim of collateral estoppel. That is, Holmberg argued that the Division of Risk Management was now precluded from contesting her permanent occupational disability because another arm of state government (the Retirement Board) had decided this issue in her favor. After the superior court rejected Holmberg’s collateral estoppel claim, she appealed to the supreme court.

The supreme court concluded that the Workers’ Compensation Board was not bound by the Retirement Board’s decision because the two divisions of state government involved in the litigation — the Division of Risk Management and the Division of Retirement and Benefits — were not in privity. The court explained that, in the proceedings before the Retirement Board, the Division of Retirement and Benefits had not appeared as an adversary or an advocate representing the State against Holmberg, but rather as the arm of state government charged with administering the Public Employees Retirement System.

In Combs’s case, the asserted privity between the Department of Law and the Department of Corrections presents a close question. Both departments are agencies of the State of Alaska, and they each concern themselves with the functioning of the criminal justice system. Moreover, when the Department of Corrections (or any other agency of state government) goes to court, these agencies are typically-represented by an attorney employed by (or hired through) the Department of Law.

However, the Department of Law’s role as prosecutor (through the various district attorney’s offices around the state) differs from its role as legal representative of the various agencies of state government. It is not difficult to imagine circumstances in which the interests of the Department of Law would differ from the interests of the Department of Corrections. Indeed, these differences are occasionally aired at sentencing hearings, when the prosecutor (a Department of Law employee) recommends a different sentence from the one recommended by the probation officer who authored the pre-sentence report (a Department of Corrections employee). For instance, the prosecutor might feel that it was important to place a defendant on probation following a term of imprisonment, while the Department of Corrections might take the position that the defendant was unamenable to supervision and should receive “flat time” (i.e., a sentence that does not include suspended time and probation).

Combs’s case involves an infringement by the superior court on the Department of Corrections’ statutory authority and prerogatives regarding the custody of sentenced prisoners. This infringement took the form of a supplemental directive inserted into Combs’s judgement after sentence was imposed. This directive did not alter the terms of Combs’s sentence, but only affected the Department of Corrections’ administrative authority over Combs as a prisoner.

The prosecutors of the Department of Law’s criminal division frequently interact with agents of the Department of Corrections — both Corrections employees and the lawyers employed by the Department of Law to represent the civil interests of the Department of Corrections. But the primary duties of prosecutors are screening potential criminal cases, litigating criminal charges, and representing the interests of the State and the victim at sentencing. Prosecutors do not generally appear in court to advocate the administrative concerns of the Department of Corrections. In fact, as pointed out above, a prosecutor may advocate a position that runs counter to the Department of Corrections’ administrative concerns.

Here, the issue involves the Department of Corrections’ legal rights and authority as the custodian of imprisoned criminals vis-orvis the authority of the superior court in its role as the agency of state government that imposes sentence on convicted criminals. In this type of case, the assertion of the Department of Corrections’ rights is primarily a civil concern — not a concern that would inevitably be handled (or even considered) by the prosecutor assigned to the underlying criminal case.

As noted above, the supplemental directive issued by the superior court in this case does not alter the terms of Combs’s sentence. Instead, it restricts the places in which the Department of Corrections may house Combs to carry out that sentence. As the State notes in its brief, the superior court’s directive apparently forbids the Department from even temporarily housing Combs and Kent within the same facility for purposes of medical care or transportation to a court appearance. It forbids the Department from pursuing alternative strategies to protect Combs’s physical safety' — strategies such as placing Combs in a separate housing unit within the same correctional facility or using other methods of segregation.

These concerns were not aired in court. Combs’s request was served on the prosecutor, not on a representative of the Department of Corrections, and the prosecutor filed a non-opposition to Combs’s request. That is, the prosecutor faded to question the sentencing court’s authority to restrict the Department of Corrections’ actions. We therefore conclude that Combs’s case is not like the situation presented in Briggs.

In Briggs, the supreme court found that the Department of Public Safety and the district attorney’s office shared an identical interest in winning the breath sample preservation issue, and that the prosecutor’s motive to advocate this interest at the suppression hearing was precisely the same as the Department of Public Safety’s motive to advocate that same interest at the license revocation proceeding. Based on these findings, the court ruled that the Department of Public Safety was in “privity” with the Department of Law — a shorthand way of saying that the Department of Public Safety was estopped from relitigating the breath sample preservation issue. But in Combs’s case, the prosecutor’s office failed to advocate — and had no particular motive to advocate — the Department of Corrections’ statutory rights and administrative concerns.

A footnote in the Briggs opinion shows that the supreme court was mindful that the interests of the prosecutor’s office might diverge from the interests of other criminal justice agencies, thus defeating a finding of privity:

[The situation in the present case] is distinguishable from situations where the differing interests of the prosecutor and the administrative agency might justify a refusal to apply collateral estoppel.... [Depending on the circumstances, a] prosecutor’s decision to dismiss or to stipulate might reflect interests not shared by the administrative agency and thus should not be used against the agency, which was not entitled to appear at the criminal proceeding.

Briggs, 732 P.2d at 1083 n. 9.

We conclude that Combs’s case presents the type of situation discussed in this footnote — a situation in which the Department of Corrections should not be deemed to be in privity with the prosecutor’s office. Accordingly, we hold that the prosecutor’s failure to oppose Combs’s request did not estop the Department of Corrections from asking the superior court to correct its illegal order.

The decision of the superior court is REVERSED. The superior court is directed to amend Combs’s judgement by striking the provision that forbids the Department of Corrections from housing Combs and Kent in the same correctional facility.

      . "The commissioner [of corrections] shall designate the correctional facility to which is a prisoner is to be committed to serve a term of imprisonment. ...”

      . 582 P.2d 134, 137-38 (Alaska 1978) (holding that "[a] sentencing court does not have the authority to designate a particular prison facility in which a prisoner is to be confined”).

      . LaBarbera, 598 P.2d at 949.

      . Briggs v. Dept. of Public Safety, 732 P.2d 1078, 1081 (Alaska 1987).

      . Holmberg v. Division of Risk Mattagement, 796 P.2d 823, 827 (Alaska 1990), quoting Alaska Foods, Inc. v. Nichiro Gyogyo Kaisha, Ltd., 768 P.2d 117, 121 (Alaska 1989).

        . Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 402-03, 60 S.Ct. 907, 916-17, 84 L.Ed. 1263 (1940); Holmberg, 796 P.2d at 825.

      . Holmberg, 796 P.2d at 825, quoting Adkins, 310 U.S. at 403, 60 S.Ct. at 917.

      . Briggs, 732 P.2d at 1082-83.

      . 796 P.2d 823 (Alaska 1990).

      . Id. at 828.

      . Id. at 828-29.


author: COATS, Chief Judge.

text:
    Frank A. ALTO, Appellant, v. STATE of Alaska, Appellee.
    No. A-7961.
    Court of Appeals of Alaska.
    Feb. 14, 2003.
    Quinlan Steiner, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellant.
    Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Bo-telho, Attorney General, Juneau, for Appel-lee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

COATS, Chief Judge.

This case raises the question of whether a person who is found not guilty by reason of ■insanity and committed to the custody of the Commissioner of Health and Social Services can be convicted of escape for removing himself from that custody. We conclude that the defendant can be convicted of escape under these circumstances.

Facts and proceedings

Frank A. Alto brutally beat and killed a woman in 1973. He was convicted of rape, grand larceny, and murder in the first degree in a court trial. On appeal, the Alaska Supreme Court reversed Alto’s convictions and ordered that a judgment of not guilty by reason of insanity under former AS 12.45.083 be entered against Alto because the court determined that the State had not proved beyond a reasonable doubt that Alto was sane. On remand, the trial court found that Alto was “suffering from a mental disease or defect that causes him to be a danger to the public peace and safety.” The court committed Alto to the custody of the Commissioner of Health and Social Services for a term not to exceed 30 years.

Alto was committed to the Alaska Psychiatric Institute. While he was returning from a field trip to Girdwood, Alaska, Alto managed to evade the person who was guarding him. He was later located and detained in New York State after which an Alaska State Trooper returned him to Alaska. The State charged Alto with escape in the second degree, a class B felony. In a trial conducted by Superior Court Judge Larry D. Card, a jury convicted Alto. Judge Card sentenced Alto to 6 years of imprisonment. Alto appeals his conviction and his sentence. We affirm.

Whether an individual who is adjudicated not guilty by reason of insanity may be convicted of escape

In order to convict a person of escape in the second degree, the State must prove that the person unlawfully “removed [himself] from official detention for a felony.” Alto contends that because he was found not guilty by reason of insanity of his felony offenses, he was not in official detention for a felony, and therefore he could not be convicted of felony escape. Alto was charged with violating AS 11.56.310(a)(1)(B), which provides that: “One commits the crime of escape in the second degree if, without lawful authority, one removes oneself from official detention for a felony or for extradition.” Alaska Statute 11.81.900(b)(39) defines “official detention” as: “custody, arrest, surrender in lieu of arrest, or actual or constructive restraint under an order of a court in a criminal or juvenile proceeding, other than an order of conditional bail release.”

Alto does not contest that he was in “official detention” as defined in this statute. Instead, he argues that his detention was not “for a felony.” He argues that the phrase “official detention for a felony” does not apply to individuals who are found not guilty by reason of insanity and subsequently committed because the commitment is not “in connection with or in reference to a felony.” Specifically, he contends that “[t]he felony charge for which an insanity acquittee is initially detained is merely an allegation which brings an individual to the attention of the court. The subsequent commitment is in reference to and in connection with the defendant’s mental status and its relationship to public safety.” Because the issue that Alto raises is one of statutory interpretation, this court must review it de novo.

This court addressed the definition of the phrase “for a felony,” as contained in AS 11.56.310(a)(1)(B), in State v. Stores. In Stores, a police officer arrested Stores on a felony warrant for a parole violation. Stores was on parole on a felony burglary conviction. Stores ran away after the officer began handcuffing him, but the officer apprehended him fifteen to twenty minutes later. The State charged Stores with escape in the second degree for removing himself from official detention “for a felony.” Stores moved to dismiss, arguing that he was in detention on a parole violation, not for a felony. The trial court agreed with Stores and dismissed the indictment. The State appealed, and we reversed the trial court.

In arguing for its interpretation of the statute criminalizing escape in the second degree, the State argued that if the phrase “for a felony” did not apply to a person who absconded from detention for a parole violation, then it would not be a crime for a parolee to remove himself from custody. The State argued that this would be an unreasonable interpretation. We agreed with the State’s reasoning. We then examined the language of the statute and concluded:

According to these sources, a fair definition of the term “for a felony” is “in reference to” a crime that is punishable by more than one years’ imprisonment. This is a broad definition, which suggests that the statute was intended to cover a wide variety of cases and situations, including detentions for both felony convictions and felony charges![]

We then examined the legislative history and concluded that the history was consistent with the plain meaning of the statute:

[The legislature] intended [the statute] to apply to those who abscond from detention for a felony. It is a felony, whether the person is detained for a felony that has not yet been charged, or a felony that has been formally charged or for a felony on which a conviction has been entered![]

We concluded that Stores could be convicted of escape in the second degree.

We also interpreted the phrase “for a felony” in LeFever v. State. LeFever was in official detention as a result of juvenile proceedings for offenses that would have been felonies if he had been an adult LeFever absconded from custody and was charged and convicted of unlawful evasion in the first degree for failing to return to official detention “while charged with or convicted of a felony.” LeFever argued that because juvenile delinquency proceedings are distinct from adult criminal proceedings under Alaska law, he had not been charged with or convicted of a crime but had been adjudicated a delinquent. He argued that therefore he had not been charged with or convicted of a felony for purposes of the statute.

We concluded that “the unlawful evasion statutes ... are together intended to cover all people who fail to return to official detention, and that the statutes’ introductory language [specifying a felony or misdemeanor conviction] is intended simply to classify unlawful evasion by seriousness of the evader’s conduct, not to exclude adjudicated defin-quents from the definition of unlawful evasion.”

Therefore, in Stores and LeFever we found that the critical element of the offense was whether the defendant removed himself from official detention. We concluded that the legislature divided official detention into two categories: “official detention for a felony” and “official detention for a misdemeanor.” If the underlying charge that placed the defendant in official detention was a felony, then he committed a more serious offense than if he had been in official detention for a misdemeanor.

If we apply a similar analysis to Alto’s escape conviction, we come to the conclusion that Alto was properly convicted of escape. We first turn to the analysis by the Alaska Supreme Court in State v. Alto (Alto II ), a case in which the Supreme Court determined that Alto had the burden of proving his sanity in order to be released from detention. Alto was originally charged and convicted of murder, rape, and grand larceny. He was only found not guilty by reason of insanity after the supreme court concluded that the State had not established his sanity beyond a reasonable doubt. After the case was remanded to the superior court, both Alto and the State petitioned the supreme court to decide who had the burden of establishing whether Alto was or was not suffering from a mental disease or defect that caused him to be a danger to the public peace and safety. The supreme court concluded that Alto had the burden to establish by a preponderance of the evidence that he was not presently suffering from a mental disease or defect that caused him to be a danger.

In reaching this decision, the supreme court made several pertinent observations about a verdict of not guilty by reason of insanity. The court concluded that “[a] verdict of not guilty by reason of insanity contains within it the finding that, beyond a reasonable doubt, the defendant committed the act charged.” The court observed that in the criminal case in order to convict Alto of a criminal offense, the State had the burden of establishing Alto’s sanity beyond a reasonable doubt. The court reasoned that requiring the State to prove Alto’s sanity in order to hold him could create a dangerous loophole. The State might be unable to prove Ato sane beyond a reasonable doubt and might also be unable to prove that he was insane and must be committed. The court observed that placing such a burden on the State would allow dangerous offenders to evade both conviction and commitment to a mental hospital. Consequently, the court concluded that Ato had the burden of proving, by a preponderance of the evidence, that he was not suffering from a mental disease or defect that caused him to be a danger to the public.

The supreme court’s analysis supports the conclusion that Ato was in official detention “for a felony.” As the supreme court noted, Ato had been found, beyond a reasonable doubt, to have committed the serious felony offenses that resulted in his detention. He was found not guilty by reason of insanity because the State did not establish his sanity beyond a reasonable doubt. But Ato remained in official detention because he was unable to establish that he was not suffering from a mental disease or defect that caused him to be dangerous. Ato’s detention is clearly connected with his commission of a felony offense and seems similar to the connection that we found in Stores and LeFever.

Alto tries to compare criminal commitments after a finding of not guilty by reason of insanity to involuntary civil commitments, arguing that the original felony charge is “merely an allegation which brings an individual to the attention of the court.” But many courts, including the United States Supreme Court, treat these two classes of commitments differently. These courts have reasoned that the differential treatment was justified because insanity acquittees have already demonstrated their dangerousness through violent antisocial behavior. As the Alaska Supreme Court explained in Alto II, “[the acquittee by reason of insanity] differs from the civil committee who is confined because of his potential to commit dangerous acts, not because he has committed them.”

Alto’s conclusion about the similarities between civil and criminal commitments also ignores many of the important differences between the two statutory schemes that the legislature has provided for in Alaska. For instance, the maximum term that a judge may impose after an insanity acquittal under our current statutory scheme is limited only by the maximum term of imprisonment for the crime from which the defendant was acquitted. Only upon completing a term of commitment equal to the maximum term of imprisonment for the crime for which the defendant was acquitted is the acquittee governed by the same civil procedures as other civil committees. In contrast, the maximum term that a civil court may commit an individual involuntarily is 180 days. Once the original 180-day period expires, a court may recommit the individual only upon a properly filed petition for an additional maximum term of 180 days. Thus on its face, the Alaska legislature has linked the insanity acquittee’s commitment term to the underlying crime. This link provides additional support that the commitment is “in reference to” the felony charge, as we outlined in Stores.

Furthermore, similarly to Stores and Le-Fever, if we were to conclude that the escape statute did not apply to Alto, this would mean that the legislature did not establish an offense for a person who removed himself from official detention when committed for an offense for which he has been found not guilty by reason of insanity. Such an interpretation of the statute is unreasonable. In contrast to Alto’s argument that criminal and civil commitments are similar, the relevant enabling statutes differ on this point as well.

The civil statutory scheme provides a procedure for returning civil committees who escape. Alaska Statute 47.30.790 provides procedures for using a peace officer or other responsible party to return a civilly committed individual to their treatment facility when they are absent without authorization; this statute does not provide for criminal sanctions. The criminal code, on the other hand, provides no analogous procedure for returning individuals whose commitments are a result of an insanity acquittal, nor does it refer to the civil procedure to handle such situations.

For all the above reasons, we accordingly conclude that the State could properly charge and the jury could properly convict Alto for escape in the second degree.

Whether Judge Card properly instructed the jury on the escape charge

Alto argues that Judge Card did not properly instruct the jury on escape. Alto’s arguments are colored by his original contention, which we have rejected, that he could not be properly convicted of escape because he had been found not guilty by reason of insanity. Judge Card rejected Alto’s premise, and we have upheld this ruling. But the record shows that Judge Card was also aware that, in spite of the fact that Alto could be properly convicted of escape, ultimately the jury had the responsibility to determine whether Alto had committed the elements of the offense.

After considerable discussion, the parties entered into a stipulation that the court read to the jury:

The parties have stipulated that the offense charged in case 3AN-S73-433 CR [the 1973 homicide] was a felony offense. The offense carried a possible term of imprisonment in excess of one year. You may accept this ... fact as true and as having been proven.
For a felony means in reference to or in connection with a felony offense. A felony means a crime for which a sentence of imprisonment for a term of more than one year is authorized. The outcome of the case which resulted in Frank Alto’s official detention at API is not relevant to your decision in this case.

Although Alto attempts to attack this stipulation on appeal, Alto entered into the stipulation on his own accord at trial. He therefore has waived any basis to object to the stipulation. The stipulation appears to be reasonable and designed to avoid prejudicing the jury by acquainting the jury with the facts underlying the 1973 homicide.

Judge Card gave the jury the following instruction on the elements of escape in the second degree:

First, that the event in question occurred at or near Anchorage, Alaska, and on or about November 5,1998;
Second, that FRANK AUGIE ALTO knowingly removed himself from official detention;
Third, that he was in official detention for a felony;
Fourth, that he recklessly disregarded whether he was without lawful authority to remove himself.

This instruction properly sets out the elements of the offense of escape.

In a related argument, Alto argues that the instruction is flawed because it did not require the State to prove that he recklessly disregarded whether he was in official detention for a felony. Alto essentially argues that the State had to prove that Alto was aware of the degree of the offense that he committed. We have previously rejected similar contentions.

In Hoople v. State, the defendant argued that, for the State to convict her of felony driving while intoxicated, the State had to prove that she had some awareness of her previous convictions for driving while intoxicated. We rejected this contention. We held that “when the defendant’s basic underlying conduct is criminal, no culpable mental state need to be proved with respect to an aggravating circumstance that raises the degree of the crime.”

In Ortberg v. State, the defendant was convicted of criminal mischief in the second degree for causing properly damage in an amount of $500 or more. Ortberg argued that the court erred in failing to instruct the jury that he knew or had reason to believe that the damage he caused would ultimately exceed $500. This court held that, in order to convict Ortberg, the jury had to find that he intentionally damaged the property of another without reason to believe that his act was authorized. But we concluded that the statute did not require the State to prove that Ortberg knew of and had reason to know that the damage that he caused would exceed $500.

Alto’s situation is similar. The primary difference between second-degree and fourth-degree escape is the classification of the underlying offense that led to the “official detention” — a felony for second-degree escape and a misdemeanor for fourth-degree escape. This classification helps mete out the appropriate punishment upon a violation of the escape statutes. The Stores court pointed out the purpose of this classification under the former escape statutes, explaining that:

[T]he apparent purpose of the classification is simply to establish the appropriate degree of escape to be charged and the period of incarceration to be imposed.
Clearly, the term “for a felony” is a qualifying term which gauges the appropriate degree of the offense to be charged and the appropriate punishment.

As in Ortberg and Hoople, whether Alto was “reckless” regarding the degree of the offense that led to his “official detention” is irrelevant. The classification simply provides a framework within which a court can provide an appropriate degree of punishment.

Alto attempts to distinguish Hoople and Ortberg by arguing that, unlike those defendants, his actions in removing himself from official detention were not “inherently criminal.” We do not find this distinction persuasive. In order to convict Alto, the State had to prove that (1) Alto knowingly removed himself from official detention and (2) he recklessly disregarded whether he was without lawful authority to remove himself. This is how the court instructed the jury. The State did not have to prove that Alto was aware that he was “in official detention for a felony,” a difficult legal issue that we have just resolved. We conclude that Judge Card did not err in the instructions that he gave the jury.

Whether Judge Card abused his discretion in making several evidentiary rulings

Alto raises several arguments about various evidentiary rulings that Judge Card made during the trial. There are two key problems with Alto’s argument. First, he has completely failed to develop any theory, under legal precedent or otherwise, that would justify his claims. He cites no authority, statutes, or cases that support his claims. Instead, he includes a laundry list of items that he claims would have exonerated him at trial by showing that he was not aware he was under official detention for a felony. He does not show why these evidentiary items themselves are admissible or why the trial court’s reasoning was faulty. In fact, he does not discuss the trial court’s rulings at all, other than to state they were wrong. His discussion is limited to a sentence or phrase describing the evidence he wanted admitted, followed by his conclusion that the trial court erred. Other than these coneluso-ry statements of error, he provides no reason why this court should find that the trial court abused its discretion in excluding the evidence at trial. “[W]here a point is given only a cursory statement in the argument portion of a brief, the point will not be considered on appeal.”

To the extent that Alto has not waived these arguments, the arguments appear to have no merit. Alto’s arguments are based on his assumption, which we have previously rejected, that he could not be convicted of escape where he was in official detention for an offense for which he had been found not guilty by reason of insanity or that he was not aware of the fact that he was in official detention for a felony. We have previously rejected Alto’s arguments that were based on these assumptions. We accordingly conclude, not only did Alto waive these arguments by failing to properly brief them, but to the extent that we can ascertain the nature of Alto’s arguments, they have no merit.

Whether Alto’s sentence is excessive

Escape in the second degree is a class B felony. The maximum penalty for a class B felony is 10 years of imprisonment; the presumptive term for a second-felony offender is 4 years of imprisonment and the presumptive term for a third-felony offender is 6 years of imprisonment. As we have previously stated, Judge Card sentenced Alto to 6 years of imprisonment.

In sentencing Alto, Judge Card found the aggravating factor that Alto’s prior criminal history included conduct involving aggravated or repeated instances of assaultive behavior. Alto points out that Judge Card relied on the 1973 homicide to find this aggravating factor. Alto again argues that, because he was found not guilty by reason of insanity, he was never convicted of a criminal offense. He argues that therefore Judge Card erred in relying on the homicide in finding the aggravating factor. We disagree.

As we have formerly pointed out, in order to find Alto not guilty by reason of insanity, the court initially had to find, beyond a reasonable doubt, that Alto committed the murder with which he was charged. Furthermore, a finding that a defendant has a prior criminal history of aggravated assaultive conduct does not require proof that the defendant was prosecuted or convicted. We conclude that Judge Card did not err in considering Alto’s prior murder in determining whether the aggravating factor applied to Alto’s conduct. We also conclude that Judge Card did not err in finding the aggravating factor that Alto had a criminal history of repeated instances of similar criminal conduct. He based this finding on Alto’s admission that he had several prior escapes from the Alaska Psychiatric Institute. Alto does not apparently contest this aggravating factor.

In sentencing Alto, Judge Card pointed out that in some ways Alto’s escape offense was not extremely serious because Alto did not use any weapons or assault anyone. Although Alto fled to New York and was gone for a substantial period of time (two weeks), there was no evidence that he committed any other cidmes during this time. But Judge Card found the case exceptionally aggravated because of the extraordinary circumstances of Alto’s prior homicide. He also pointed out that the record showed that Alto had apparently not changed his anti-social behavior or shown that he could be successfully treated. He pointed out that when a person with Alto’s background escapes, people in society are placed in great fear. He stated that he imposed his sentence in part to express that community condemnation.

Except for the finding that Alto was not guilty by reason of insanity, his prior criminal conduct would have qualified him as a third-felony offender facing a presumptive sentence of 6 years of imprisonment. Alto’s prior history of criminal offenses and the fact that he had been found not guilty by reason of insanity create a rational conclusion that his escape placed a dangerous person at large in society. Judge Card could properly weigh that fear and the danger to the public in concluding that Alto’s escape was an aggravated offense. We conclude that the sentence is not clearly mistaken.

Conclusion

Alto’s conviction and sentence are AFFIRMED.

      . Alto v. State, 565 P.2d 492, 493 (Alaska 1977) (Alto I). The Alaska Supreme Court's decision contains a discussion of the facts surrounding this crime.

      . Id.

      . Id. at 502-03. The rape charge was overturned because the court held that Alto had never actually been charged with the crime. Id. at 495.

      . AS 11.56.310(a)(1)(B).

      . AS 11.56.310(a)(1)(B) (emphasis added).

      . Conner v. State, 696 P.2d 680, 682 (Alaska App.1985).

      . 816 P.2d 206 (Alaska App.1991).

      . Id. at 207.

      . Id.

      . Id. at 208.

      . Id.

      . Id.

      . Id.

      . Id.

      . Id.

      . Mat210-011.

      . Id. at 211.

      . 877 P.2d 1298 (Alaska App.1994).

      . Id. at 1298.

      . Id. at 1299 (quoting AS 11.56.340(a)).

      . Id.

      . Id.

      . Id. at 1301-02. The current unlawful evasion statute combines the former first-degree and second-degree unlawful evasion statutes, creating one statute that no longer has separate degrees. The former statute created separate first-degree and second-degree charges for unlawful evasion by distinguishing between whether the defendant was charged with a felony or with a misdemean- or when he escaped. AS 11.56.340, as amended by ch. 51 § 3, SLA 1995.

      . 589 P.2d 402 (Alaska 1979).

      . Alto I, 565 P.2d at 493.

      . Id. at 502-03.

      . Alto II, 589 P.2d at 403.

      . Id.

      . Id. at 404.

      . Id.

      . Id. at 404-05.

      . Id.

      . Id. at 405.

      . See, e.g., Jones v. United States, 463 U.S. 354, 367, 103 S.Ct. 3043, 3051, 77 L.Ed.2d 694 (1983); People v. Giles, 662 P.2d 1073, 1077 (Colo.1983) (citing People v. Chavez, 629 P.2d 1040, 1053 (Colo.1981)); People ex rel. Henig v. Comm’r of Mental Hygiene, 43 N.Y.2d 334, 401 N.Y.S.2d 462, 372 N.E.2d 304, 306 (1977).

      . See Jones, 463 U.S. at 367, 103 S.Ct. at 3051; Giles, 662 P.2d at 1077; Henig, 401 N.Y.S.2d 462, 372 N.E.2d at 306.

      . Alto II, 589 P.2d at 406.

      . Compare AS 12.47.090 and AS 47.30.700-47.30.815.

      . AS 12.47.090(d).

      . AS 12.47.090(f).

      . AS 47.30.745(b); 47.30.755(a).

      . AS 47.30.770(c) ("Successive 180-day commitments are permissible on the same ground and under the same procedures as the original 180-day commitment.”).

      . See Ross v. State, 950 P.2d 587, 591 (Alaska App.1997) (holding that argument on appeal was not properly preserved where the defendant had entered into a stipulation at trial and only later attacked the stipulation’s wording).

      . 985 P.2d 1004 (Alaska App.1999).

      . Id. at 1005.

      . Id. at 1006.

      . 751 P.2d 1368 (Alaska App.1988).

      . Id. at 1374.

      . Id.

      . Id.

      . Id.

      . Compare AS 11.56.310 and 11.56.330.

      . Stores, 816 P.2d at 212 n. 5 (emphasis added).

        . Adamson v. Univ. of Alaska, 819 P.2d 886, 889 n. 3 (Alaska 1991); see also Petersen v. Mut. Life Ins. Co. of N.Y., 803 P.2d 406, 411 n. 8 (Alaska 1990) (mentioning that trial court refused to allow testimony is insufficient without "any legal argument as to why the court erred”).

      . AS 11.56.310(b).

      . AS 12.55.125(d).

      . AS 12.55.155(c)(8).

      . Alto II, 589 P.2d at 404.

      . Russell v. State, 934 P.2d 1335, 1347 (Alaska App.1997); Fagan v. State, 779 P.2d 1258, 1260 (Alaska App.1989).

      . AS 12.55.155(c)(21).


text:
    Shane Daniel COLES, Appellant, v. STATE of Alaska, Appellee.
    No. A-8195.
    Court of Appeals of Alaska.
    Feb. 14, 2003.
    Jane M. Banaszak, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellant.
    Erin E. White, Assistant District Attorney, Susan A. Parkes, District Attorney, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

MANNHEIMER, Judge.

Shane Daniel Coles appeals the 5-year sentence he received for felony driving while intoxicated. A 5-year term is the maximum term for this offense. Under Alaska law, before a sentencing judge can impose a maximum sentence, the judge must find that the defendant is a “worst offender” as that term is defined in State v. Wortham, 537 P.2d 1117, 1120 (Alaska 1975) and Napayonak v. State, 793 P.2d 1059, 1062 (Alaska App.1990). Coles asserts that his sentencing judge erred in finding him to be a worst offender. We conclude that the record supports the sentencing judge’s finding, and we therefore affirm Coles’s sentence.

On December 2, 2000, at one of this city’s busiest intersections — the corner of Lake Otis Parkway and Tudor Road — an Anchorage police officer observed a black truck speed through the intersection against the red light. The truck almost hit the car that was in front of the officer’s patrol vehicle. The truck then made a wide turn onto Tudor, forcing another vehicle to stop suddenly to avoid a collision. After this, the truck changed lanes and ran up on the curb. When the officer initiated a traffic stop, the driver of the truck pulled completely onto the sidewalk with all four tires rather than turning into one of three nearby driveways.

Coles was the driver of this truck. The officer had to ask Coles for identification four times. Coles eyes were half-closed, and he had a strong odor of alcoholic beverages. Despite Coles’s claim that he had drunk only one beer, he failed several field sobriety tests, and a subsequent Intoximeter test showed that his blood alcohol level was .137 percent.

Based on this incident, and based on his prior convictions for driving while intoxicated, Coles was charged with felony driving while intoxicated. He ultimately pleaded no contest to this charge.

Felony DWI is a class C felony. Because Coles had one prior felony conviction, he faced a 2-year presumptive term. (Coles’s felony conviction was a 1998 Utah conviction for criminal mischief. Coles broke into a truck, vandalized it, and stole property from the vehicle.) And, because Coles had four or more prior DWI convictions, he was subject to a mandatory minimum sentence of 360 days’ imprisonment.

Coles was 32 years old at the time of his current offense. He had eight prior convictions for driving while intoxicated during the preceding ten years (seven convictions from the State of Utah and one from the State of Idaho). His driver’s license had been suspended or revoked numerous times.

Based on his prior DWI convictions, Coles conceded aggravating factor AS 12.55.155(c)(21) — a history of similar offenses. Because of this aggravating factor, the sentencing judge — Superior Court Judge pro tempore Sigurd E. Murphy — was authorized to consider a sentence up to the 5-year maximum term of imprisonment for a class C felony.

At the sentencing hearing, the prosecutor asked Judge Murphy to find that Coles was a “worst offender” based on Coles’s lengthy record of DWI convictions, his long-term abuse of alcohol, and his failure to benefit from past counseling and treatment efforts. The prosecutor argued that Coles could not be rehabilitated or deterred, that Coles needed to be isolated to protect the public, and that Coles should therefore be sentenced to the 5-year maximum term.

Coles’s attorney responded that Coles had made strides toward rehabilitation since being jailed. Coles had performed approximately 640 hours of community service while awaiting sentencing, he had completed classes on anger management, chemical dependency, and denial, and he had tried (apparently unsuccessfully) to initiate an Alcoholics Anonymous group in jail.

The defense attorney conceded that Coles had not completed the rehabilitative programs that were imposed as components of his past DWI sentences. But she asserted that Coles was discharged from these programs, not because of lack of interest or effort, but because, in Utah, a person is disqualified from participating in these treatment programs if the person falls behind in making any court-ordered payments. (By the time of Coles’s most recent out-of-state DWI conviction, Coles had amassed over $32,000 in debt in the form of unpaid child support and court fines.)

Judge Murphy concluded that the State’s position was supported by the record. The judge noted that Coles’s pre-sentence reports from Utah contained “comments from all sorts of people ... that [Coles was] ordered to do things [that he] didn’t do”:

The Court: You were ordered to participate in drug and alcohol counseling, to find and maintain regular employment, to pay your fines, [and] not to have any new violations of law. [But] you had new violations of the law, you failed to pay your fines, you failed to pay restitution, and [failed] to abide by the conditions of probation.

In particular, Judge Murphy noted, the Utah courts had repeatedly tried to provide Coles with rehabilitative treatment, but with no resulting change in his behavior. Instead, Coles had “repeatedly] fail[ed] to abide by court orders ... to participate in substance abuse counseling”. Judge Murphy rejected Coles’s argument that financial problems had prevented him from completing the court-ordered treatment programs. The judge stated:

While ... Coles argue[s] that his deep financial problems ... prevented him from engaging in meaningful alcohol rehabilitation programs, the court ... find[s][no] credible evidence to support [this assertion,] and ... find[s] that Coles has on numerous occasions denied that he had an alcohol problem and has repeatedly failed to address [this problem, despite] having been given many opportunities.

Judge Murphy acknowledged that Coles had done well during the months that he spent in custody awaiting sentencing, but the judge nevertheless concluded that Coles remained “a danger to society”. Judge Murphy declared that the two most important sentencing goals in Coles’s case were deterrence and isolation because Coles had failed to benefit from “chance after chance after chance of rehabilitation”. Coles’s “lengthy history” of DWI offenses and failed treatment convinced Judge Murphy that Coles had no ability to stop himself from driving while intoxicated, and that placing Coles on probation would not protect the public. The judge declared that Coles “poses an extremely high risk to the community [and] has very little chance, if any, for rehabilitation”.

Based on all this, Judge Murphy concluded that Coles was indeed a “worst offender” for sentencing purposes, and he sentenced Coles to the maximum term of imprisonment: 5 years, all to serve.

On appeal, Coles asserts that Judge Murphy erred when he found Coles to be a worst offender. Coles argues that Judge Murphy erroneously equated Coles’s “failure to successfully recover from alcohol addiction with an inability to be rehabilitated”.

Coles renews his argument that financial problems prevented him from participating in past court-ordered treatment. But, as explained above, Judge Murphy expressly rejected this argument because Coles presented no evidence to support it. Judge Murphy also noted that Coles has a history of ignoring his responsibilities: documents from Coles’s most recent DWI conviction in Utah indicated that Coles owed a total of $32,000 in child support to three women.

Coles also renews his argument that his conduct while jailed for his current offense shows that he has good rehabilitative potential. But, as explained above, Judge Murphy discounted Coles’s good behavior in jail. Although he acknowledged that Coles had done well in jail, he concluded that Coles’s past history of repeated DWI offenses and failed treatment while on probation was a better indicator of Coles’s level of dangerousness.

Finally, Coles argues that he committed the majority of his prior DWI offenses “when he was a young man”. Coles is referring to the fact that six of his prior convictions occurred in the years 1991 through 1995, when Coles was between the ages of 23 and 27. But Coles committed his seventh DWI in July 1998 and his eighth DWI several months later, in November 1998, when he was 30. Coles moved to Alaska in October 2000, and within two months he had committed the present offense, his ninth DWI, at the age of 32. Based on this chronology, Judge Murphy could reasonably conclude that Coles was a continuing danger to the public.

A defendant can be classified as a “worst offender” based either on the circumstances surrounding the defendant’s present offense, or on the defendant’s criminal history, or both. Here, Coles has a decade-long history of nine DWI convictions, and his present offense was arguably more serious than the typical DWI. Coles sped through a red light and almost struck a car, then turned wide into the cross-street and almost struck another car. It is true that, fortuitously, Coles did not injure anyone, but this does not mitigate his offense. The offense of DWI does not require proof of injury; thus, if Coles had caused injury, his offense would have been aggravated under AS 12.55.155(c)(l)-assuming that he was not separately prosecuted for assault or homicide.

In Foley v. State, 9 P.3d 1038 (Alaska App.2000), we upheld a sentencing judge’s finding of “worst offender” under similar circumstances: the defendant’s current DWI offense involved dangerous driving but no resulting injuries, and the defendant had a history of seven prior DWI convictions over the preceding fourteen years. The sentencing judge concluded, based on the defendant’s history of prior convictions and failed rehabilitative efforts, that the defendant’s rehabilitation was “just not going to happen”, and that isolation was the primary sentencing criterion. We concluded that this record supported the sentencing judge’s finding of “worst offender”, and accordingly we affirmed the defendant’s sentence of 5 years’ imprisonment.

Here, based on similar facts and, arguably, a more egregious record of past offenses, Judge Murphy found that Coles’s potential for rehabilitation was very low, that Coles could not be deterred by methods short of imprisonment, and that he had to be isolated to protect the public. The record supports these findings. We therefore uphold Judge Murphy’s finding that Coles was a worst offender for sentencing purposes.

Based on this “worst offender” finding, Judge Murphy was authorized to sentence Coles to the maximum penalty provided for felony DWI- — 5 years’ imprisonment. Accordingly, we conclude that Coles’s 5-year sentence is not clearly mistaken.

The sentencing decision of the superior court is AFFIRMED.

      . AS 28.35.030(a) & (n).

      . AS 28.35.030(n).

      . AS 12.55.125(e)(2).

      . AS 28.35.030(n)(l)(C).

      . See AS 12.55.155(a)(1) and AS 12.55.125(e).

      . See State v. Wortham, 537 P.2d 1117, 1120 (Alaska 1975); Napayonak v. State, 793 P.2d 1059, 1062 (Alaska App.1990) (defining "worst offender" for sentencing purposes).

      . See State v. Wortham, 537 P.2d 1117, 1120 (Alaska 1975); Napayonak v. State, 793 P.2d 1059, 1062 (Alaska App.1990).

      . See Woods v. State, 667 P.2d 184, 187-88 (Alaska 1983) (holding that, because the definition of sexual assault does not require proof that the victim suffered injury, the defendant’s infliction of injury is an aggravating factor).

      . Foley, 9 P.3d at 1039-1040.

      . Id. at 1040.

      . Id. at 1042.

      . See Foley, 9 P.3d at 1041-42.

      . See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (holding that an appellate court is to affirm a sentencing decision unless the decision is clearly mistaken).