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             IN THE COURT OF APPEALS OF THE STATE OF ALASKA


JOHN L. SMITH JR.,
                                                      Court of Appeals No. A-12089
                            Appellant,               Trial Court No. 3KN-12-613 CR

                     v.                                        OPINION

STATE OF ALASKA,

                            Appellee.                  No. 2487 — January 29, 2016


              Appeal from the Superior Court, Third Judicial District, Kenai,
              Carl Bauman, Judge.

              Appearances: Elizabeth D. Friedman, Assistant Public
              Advocate, Appeals and Statewide Defense Section, and Richard
              Allen, Public Advocate, Anchorage, for the Appellant. Amanda
              L. Browning, Assistant District Attorney, Kenai, and Craig W.
              Richards, Attorney General, Juneau, for the Appellee.

              Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,
              Superior Court Judge. *

              Judge SUDDOCK, writing for the Court and concurring
              separately.




   *
       Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska
Constitution and Administrative Rule 24(d).
              John L. Smith Jr. pled guilty to failure to render assistance to an injured
person after an automobile accident.1 At sentencing, Smith argued that the traffic
accident was unavoidable because the child he struck had darted across the roadway
directly into the pathway of Smith’s oncoming car. He submitted a report by an expert
who concluded that Smith was not at fault. But the judge’s sentencing remarks were
ambiguous as to whether he in fact found Smith to be at fault, and whether he enhanced
Smith’s sentence because of this. This is problematic because the record does not
support a finding that Smith was at fault.
              Smith objected to several allegations contained in the presentence report.
The judge ruled that the challenged allegations were speculative and that he would not
rely on them. But he declined to strike them from the presentence report as required by
Criminal Rule 32.1(f)(5).
              Smith was sentenced to 7 years with 3 years suspended. He appeals his
sentence as excessive, arguing that the judge relied upon unproven assumptions about
Smith’s degree of fault. Because we perceive a substantial possibility that the judge
relied on such speculation in sentencing Smith, we remand for resentencing.


       Facts and proceedings
              Around 6:00 p.m. on April 17, 2012, Smith was driving his SUV along
Kalifornsky Beach (or K-Beach) Road in Kenai at approximately fifty-five miles per
hour, the posted speed limit. T.T., a seven-year-old child, was playing with other
children at a large puddle near the side of the road opposite to Smith’s lane of travel.
Christine Posey, a witness to the accident, testified to the grand jury that after she drove
by the children playing to her right, she looked in her rear-view mirror and saw a “little


   1
       AS 28.35.060.

                                             –2–                                       2487

girl on a bike,” followed by a “little one,” approaching the road. The girl on the bicycle
stopped at the roadside, but the smaller child appeared to hesitate, and then “she darted
out on the road.” Posey said she saw smoke from burnt rubber as Smith’s oncoming
SUV braked and veered to its right. She did not see the actual impact.
              Smith was on felony probation at the time and had been released on bail
following his arrest on a petition to revoke his probation. Because he had absconded
from his third-party custodian, a warrant for his arrest was outstanding at the time of the
accident. As nearby adults approached to render aid, Smith fled the scene; he was
arrested several days later.
              T.T.’s injuries were not life-threatening, but she suffered a partially
collapsed lung, abrasions, a black eye, a fractured upper jaw or palate, and a loose tooth.
She spent two days in a hospital.
              The grand jury indicted Smith not only for leaving the scene of an injury
accident but also for causing the accident: for first-degree assault (recklessly causing
serious physical injury by means of a dangerous instrument); second-degree assault
(recklessly causing serious physical injury); third-degree assault (recklessly causing
physical injury by means of a dangerous instrument); and third-degree assault (with
criminal negligence causing physical injury by means of a dangerous instrument).
              Pursuant to a Rule 11 agreement, the State dismissed the assault counts, and
Smith pled guilty to leaving the scene. In advance of sentencing, Smith filed a report by
an accident reconstruction expert who concluded that Smith was at most traveling fifty-
seven miles per hour. The expert noted that the children may not have been visible to
drivers, such as Smith, in the far lane. He concluded that Smith was unable to stop
despite his best efforts, and that he was not at fault for the accident.
              The presentence report author concluded that “[h]itting this girl with
[Smith’s] vehicle was an accident.” And the State in its sentencing remarks did not

                                           –3–                                        2487

accuse Smith of bad driving. But the judge nonetheless appeared to blame Smith for
causing the accident:
             [O]ther drivers appeared to note children playing ... in a mud
             puddle near the highway. So other people were cautious. ...
             So one could speculate that if the defendant were impaired by
             any consumption of drugs, maybe his reaction was just a
             titch, a small amount, slower[.]
                     ....
                     This is a little different than a child darting out from
             behind a tree or an obstruction along a highway. These
             children were visible from a distance and observed by other
             drivers to be visible from a [distance].
                     ....
                     Missing probation officer appointments, having had at
             least one or two hot UAs, these things happened prior to the
             accident. The degree to which they may have contributed is
             speculation. Possible that he was impaired[.]
                     ....
                     The conduct in question here was offensive. It’s not
             what the community expects a driver to do, even if the driver
             is not high or is not speeding. The conduct here suggests the
             driver knew that what he did was wrong and was trying to get
             away with it. ... I think it is offensive for drivers not to slow
             down when children are playing near a roadway.
             Leaving the scene of an injury accident is a non-classified felony with a
sentencing range of 0 to 10 years.2 As noted, the court sentenced Smith to 7 years with
3 years suspended. This sentence appeal followed.




   2
       AS 28.35.060(a) & (c).

                                          –4–                                     2487

       Why we remand for resentencing
              The judge’s sentencing remarks strongly suggest that he found that Smith
had not driven prudently, that Smith may have been impaired by drugs at the time, and
that Smith fled the scene because he knew he was at fault for causing the accident. The
judge expressed his displeasure with drivers who fail to slow for children, implying that
Smith was among this group.
              Smith had earlier moved to dismiss the assault counts in the indictment,
arguing that they were not supported by the grand jury testimony. But the judge denied
the motion, mistakenly interpreting the testimony as tending to prove that other drivers
had been more careful than Smith. He stated, “Witness Karl Ferlen testified that he had
heard other drivers, shortly before this incident, slow down and honk at the kids playing
near the road with a couple of dogs.” (emphasis added) However, Ferlen did not testify
that he heard vehicles slowing for the children. He testified that he saw cars slow down
to avoid several roaming dogs that were apparently with the children — but he never
testified that cars otherwise slowed due to the proximity of children to the road.
              It is unclear whether the judge persisted in this mistaken reading of the
evidence at the time of sentencing. But the judge’s sentencing remarks suggest that he
considered Smith to be at fault for causing the accident and that he believed that Smith
may have been high on drugs. The judge did not explain how he derived these
conclusions from the evidence, or how he squared this with the contrary conclusion of
Smith’s expert characterizing the accident as unavoidable. And the judge’s remark that
Smith’s flight “suggests” a consciousness of guilt for causing the accident adds to our
unease that the judge may have increased Smith’s sentence without a firm evidentiary
basis; the judge did not discuss plausible alternative explanations for Smith’s flight, such
as the outstanding arrest warrant, or even simple panic.



                                           –5–                                         2487

              Given the ambiguity of the judge’s remarks, which approach but stop just
short of an actual finding of fault, we are unable to discern whether he was merely
speculating that Smith might be at fault, or whether he reached a firm conclusion to that
effect. If the judge was merely speculating, he erred by injecting speculation into the
sentencing.3 If, in contrast, he arrived at a firm conclusion that Smith was at fault, we
find that conclusion to be clearly erroneous. We find no support in the record for a
conclusion that Smith’s speed, driving, attentiveness, or state of sobriety rendered him
at fault for the accident. Since we perceive a substantial possibility that the judge
penalized Smith based on an unsupported finding of fault, we must vacate the sentence
and remand for resentencing.


       Why we remand for the sentencing judge to strike speculative allegations
       from the presentence report
              Smith filed written objections to several allegations lodged against him in
the presentence report. At the sentencing hearing, the judge acknowledged that these
allegations were unproven and speculative, or not germane to sentencing, but he
repeatedly refused to strike them from the report. Smith appeals the court’s refusal to
redact the speculative allegations. We agree that the court erred.
              For example, Smith objected to allegations in the presentence report that
he flushed drugs down the toilet at a motel before he and two others were arrested. The
judge ruled that he did not intend to rely on the allegation. The report also alleged that
Smith “consistently” failed urinalysis tests (he argued that he had failed only two tests).
The judge concluded he did not need to resolve the conflict.



   3
       See Donlun v. State, 550 P.2d 369, 371 (Alaska 1976); Galaktionoff v. State, 486 P.2d
919, 924 (Alaska 1971).

                                           –6–                                         2487

              Smith further objected to an allegation that he had a reputation as a drug
dealer. But the court overruled the objection because the implicit assertion that Smith
was in fact a drug dealer could possibly be true:
              I mean, the statement may well be true, that may be his
              reputation within local law enforcement. I take it that you are
              denying that he’s a drug dealer. Your denial is noted, but no
              change to the PSR.
Similarly, the report included an allegation that a drug user claimed that he could only
stay clean if his dealer, Smith, was incarcerated; the judge discounted the allegation as
self-serving and not worthy of belief.
              The report’s author opined that Smith fled the scene because he was high
on drugs, or because he was transporting them. The court ruled:
              I’m not going to strike it. I don’t give particular credence to
              it. The reason I’m not going to strike it is, if I understand
              correctly, [the author] was the defendant’s assigned probation
              officer, so he’s got some basis more than Joe Blow on the
              street to have an opinion. But his opinion is speculation,
              bottom line. I’m not going to strike it from the evaluation
              portion of the PSR.
Likewise, the report’s author opined that “[i]f no one else was around to help and to
notify the proper authorities then there would have been a good chance that the
Defendant’s actions [in leaving the scene] could have cost this little girl her life.” The
judge stated, “I see this just as speculation by the author,” but “I’m not going to require
that the PSR be changed.”
              Smith also objected to an allegation implicating him in a high-speed vehicle
chase by the Anchorage police. The State had agreed to withdraw the allegation from
a pending petition to revoke Smith’s probation. But the judge both refused to rule on the




                                           –7–                                        2487

defense objection to inclusion of the allegation in the presentence report and to redact the
allegation.
              In each of the above instances, the judge either acknowledged the unproven
and speculative nature of the allegation, or he declined to make a factual finding because
he considered the matter to be irrelevant to sentencing. Nonetheless, he repeatedly
refused to redact the challenged assertions from the presentence report. Because
Criminal Rule 32.1(f)(5) requires a court to redact material that a judge finds to be
unproven or irrelevant, this was error:
              The court shall enter findings regarding any disputed
              assertion in the presentence report. Any assertion that has not
              been proved shall be deleted from the report ... .
              Alternatively, if the court determines that the disputed
              assertion is not relevant to its sentencing decision so that
              resolution of the dispute is not warranted, the court shall
              delete the assertion from the report without making any
              finding.
              While a presentence report is an important document to a sentencing judge,
it has an enduring impact on a defendant. The report may affect a defendant’s life for the
duration of his incarceration and during his later probation or parole.4 It is critical that
the report be free of speculative allegations that unfairly characterize a defendant or that
are groundlessly inflammatory. Here, the sentencing judge failed to redact just this sort
of material from Smith’s presentence report. Accordingly, we direct the judge to redact
those allegations.
              And although it is not a contested issue in this appeal, we note that by
structuring the sentencing hearing as he did, the judge failed to follow Rule 32.1 in a
different way. Even though the prosecutor pointed out that the defense objections would


   4
       See Davison v. State, 307 P.3d 1, 3 (Alaska App. 2013).

                                           –8–                                         2487

take considerable time to resolve and would require active participation by the State, the
judge directed Smith’s attorney to litigate his objections during the time allotted for
defense counsel’s sentencing argument, just prior to the court’s imposition of sentence.
But Rule 32.1 implicitly requires that objections to the presentence report be resolved
before the parties present their sentencing arguments. The parties are entitled to know
the facts that the judge will consider prior to their arguments. Here the State had already
completed its sentencing argument before these matters were litigated. They should have
been resolved at the outset of the sentencing hearing.


       Conclusion
              We VACATE Smith’s sentence and REMAND this case to the superior
court for redactions from the presentence report and for resentencing. The superior court
shall resolve these matters within sixty days from the date of this opinion. If at that point
Smith has objections to the presentence report or to the sentence imposed, he may file
a supplemental brief within thirty days thereafter. The State shall then have thirty days
to file responsive briefing. We retain jurisdiction.




                                            –9–                                         2487

Judge SUDDOCK, concurring.
              In the course of researching this opinion, I learned that I as a superior court
judge have labored under a significant misconception about how challenges to
allegations in a presentence report are to be resolved. And my misconception extended
beyond allegations in a presentence report to oral allegations made by probation officers,
guardians ad litem, police officers, or victims. I understood that such allegations could
be taken as proved unless a defendant successfully controverted them via a testimonial
denial under oath. I now realize that this view significantly over- simplifies the
applicable law. Accordingly, I write to share my recently acquired understandings, that
they may perhaps aid judges or lawyers in dealing with these issues.


       A defendant’s objection to allegations at sentencing
              Alaska Criminal Rule 32.1(d)(5) requires that a defendant’s objections to
allegations in a presentence report, or to other factual allegations that will foreseeably be
raised at sentencing, be filed in advance of the sentencing hearing. A defendant who
objects to the accuracy of a factual allegation must disclose “any information upon which
the defendant intends to rely to refute the objected-to information.” Rule 32.1(f) then
provides for a hearing (which can take place prior to the sentencing hearing or at its
outset). Under Rule 32.1(f)(5), the court may make findings regarding each disputed
assertion. The applicable standard is proof by a preponderance of the evidence.1
Alternatively, a judge may decide that it is not necessary to resolve a factual conflict
because the outcome would not affect the sentence, and so it is irrelevant.2 The judge
must then redact or reject any allegation that is unproven or irrelevant. The court must


   1
       Brakes v. State, 796 P.2d 1368, 1373 n.5 (Alaska App. 1990).

   2
       Alaska R. Crim. P. 32.1(f)(5).


                                           – 10 –                                       2487

designate a redacted presentence report as the “approved version,” and serve it on the
Department of Corrections within seven days of the sentencing hearing.3


       The use of hearsay at sentencing
              Alaska case law also imposes an additional procedural safeguard regarding
the use of hearsay at sentencing hearings, that of initial “verification.” As we explained
in our recent unpublished decision in Nickoli v. State,4 this term connotes at least a
minimal confirmation of the reliability of the hearsay statement.
              Nickoli was charged with sexual abuse of a minor.5 At sentencing, the
child’s guardian ad litem alleged previously undisclosed abuse by “men in [the child’s]
home on an ongoing basis.”6 The judge overruled defense counsel’s hearsay objection
to this allegation and subsequently enhanced Nickoli’s sentence because “it appears
[sexual abuse by Nickoli] has happened before.”7
              We reversed Nickoli’s sentence, noting that hearsay allegations at
sentencing must rise to a minimal threshold level of corroboration or substantiation:
              In Nukapigak v. State, our Supreme Court held that a
              sentencing judge is entitled to consider hearsay allegations of
              past bad behavior provided that the information is verified
              and the defendant is given the opportunity to deny it or
              present contrary evidence of his own. The court defined
              “verified” to mean “corroborated or substantiated by


   3
       Id.
   4
       2014 WL 7005579 (Alaska App. Dec. 10, 2014) (unpublished).
   5
       Id. at *1.
   6
       Id. at *2.
   7
       Id. at **2-3.

                                          – 11 –                                     2487

              supporting data of information.” The court further noted that
              “a bare accusation or the mere fact of an arrest is not
              sufficient to support a conclusion that a defendant has
              previously engaged in criminal conduct.” However, the
              threshold for verification remains low, and the “supporting
              data or information” may be contained in the hearsay account
              itself, provided the account “appears minimally
              trustworthy.”8
Since the guardian ad litem in Nickoli had offered no credible source of her allegation,
and since she had but vaguely referred to “the men” in the child’s home, her bare
allegation stood unverified. Because the State also offered no corroborating evidence,
the judge could not rely on the allegation, even though the defense presented no rebuttal
evidence, and certainly no testimonial denial under oath.


       Integration of hearsay challenge procedures and the requirements of
       Criminal Rule 32.1
              Thus Criminal Rule 32.1 should, as a practical matter, be read in light of the
case law regarding “verification.” The first procedural step is a defense notice of
objection to allegedly unverified hearsay. Such an objection puts the State to its burden
of corroboration or substantiation. As explained in Nukapigak v. State, “verification” is
a term of art connoting a modest burden on the State to minimally corroborate or
substantiate the allegation.9 Verification demonstrates that the allegation is neither
unsupported speculation nor mere fiction. Hearsay can be verified by its own internal
content, as in the case of a detailed police investigative report.



   8
      Id. at *3 (citing Nukapigak v. State, 562 P.2d 697, 701 (Alaska 1977)) (citations
omitted).
   9
       Nukapigak, 562 P.2d at 701 n.2.

                                          – 12 –                                       2487

              If a hearsay allegation is sufficiently corroborated or substantiated but the
defendant wishes to challenge the allegation, the defense bears the burden of producing
evidence, which the State may controvert. The defense may challenge the allegation via
a testimonial denial under oath by the defendant, but that is not the only avenue of
challenge. The defense may also produce other equivalent evidence, including testimony
of other witnesses, testimony at the trial, or expert reports offered at sentencing.10
              Thus, under Rule 32.1(f)(5), read together with the holding of Nukapigak,
the court must redact or reject any challenged allegation if 1) the court finds that it rests
on unverified hearsay, 2) the court finds the allegation, hearsay or non-hearsay, to be
unproven after the defense has met its burden of providing testimonial evidence or its
equivalent, or 3) the judge determines that the allegation is not relevant to sentencing or
otherwise elects not to rely upon it.11
              During my pro tempore assignment to the Court of Appeals, I have seen
these issues arise with surprising frequency. Trial courts are busy institutions, and
resolution of challenged allegations can take substantial time. And the rules themselves
are not particularly intuitive, especially in light of the treatment afforded hearsay
allegations under the holding of Nukapigak. But these rules go to the heart of due
process fairness at sentencing, and so the effort required to learn them and to apply them
routinely, both on the part of judges and of attorneys, seems to me well worth the trouble.




   10
       Cleveland v. State, 258 P.3d 878, 886 (Alaska App. 2011); see also Davison, 307 P.3d
1, 4 (Alaska App. 2013).
   11
        Alaska R. Crim. P. 32.1(f)(5).

                                           – 13 –                                        2487

