Jones v. State

BOLGER, J.,

dissenting.

I disagree with the decision to address the issue identified in the lead opinion, because Jones failed to preserve this issue for appellate review. At the time Jones made his motion for a transport order, he did not make any showing that he had material testimony to offer on the issue he now relies upon.

Jones's amended application for post-conviction relief alleged that his trial attorney committed several acts of malpractice, including negligent handling of Jones's mental health issues, failure to notify Jones that he could appeal a motion to withdraw his plea of no contest, and failure to file a motion to suppress Jones's confession. These were the only claims that were at issue when Jones filed his one-page motion for a transport order. The application did not include any claim that Jones should be allowed to withdraw his plea because he did not understand the sentencing agreement. On the contrary, the application affirmatively alleged that Jones's sentencing agreement "capped the time to be served at twenty-five years." (Emphasis added).

Under AS 33.30.081(f), a prisoner is not entitled to be transported for a post-conviction hearing unless he establishes that his "personal appearance is essential to the just disposition of the action." To satisfy this burden, a prisoner must "demonstrate to the court what specific information he intend[s] to convey through his testimony that w{[ill] depend on his credibility" and the "basis on which to believe that the outcome of the case w{illl depend upon his presence."1 The court must weigh a variety of factors to determine whether to grant such a request:

In making its determination the trial court may take into account the costs and incon-, venience of transporting a prisoner from his place of incarceration to the courtroom, any potential danger or security risk which the presence of a particular inmate would pose to the court, the substantiality of the matter at issue, the need for an early determination of the matter, the possibility of delaying trial until the prisoner is released, the probability of success on the merits, the integrity of the correctional system, and the interests of the inmate in presenting his testimony in person rather than by deposition.2

A prisoner is not entitled to transportation unless he shows that he has testimony to offer on a material issue.3

*861The statute also requires the requesting party to pay for the costs of transportation before the prisoner is transported.4 If the requesting party is the prisoner, and the court concludes that he is indigent, then he may be required to advance only a portion of those costs.5

Jones did not make any offer of the testimony he intended to present at the post-conviction hearing,. Jones's one-page motion did not mention AS 38.80.081(f) or discuss any of the factors the court was required to consider. In particular, Jones's motion did not notify the court that Jones wanted to testify to support a claim that he did not understand his sentencing agreement. The superior court judge had no reason to identify this issue as a material issue because Jones did not raise this claim in his amended application. In my opinion, Jones has failed to preserve this issue for appellate review.

The lead opinion forgives Jones's waiver because Jones chose to give telephonic testimony on this sentence-bargain issue at the post-conviction hearing, the issue was contested by the State, and it was decided by the judge. The lead opinion thus shifts the burden to the trial judge to renew Jones's pretrial motion for transportation sua sponte. This shift is contrary to the rule this court has followed on many prior cceasions. If cireumstances change during the trial, it is the movant's burden to renew any unsuccessful pretrial motions.

For example, in Pease v. State, the defendant made an unsuccessful pretrial motion for severance.6 On appeal, the defendant relied on the trial evidence to support his claim that he had been prejudiced.7 This court held that "if cireumstances arise during trial that undermine the judge's earlier decision" the defendant has a duty to renew the motion during trial "to allow the trial judge to consider the actual cireumstances as they arise at trial."8 Because the defendant did not renew his motion at trial, this court limited its appellate review to the information presented with the defendant's original pretrial motion.9

Likewise, in Waters v. State, the defendant made an unsuccessful pretrial motion to suppress his confession.10 This court explained why the defendant was not entitled to take advantage of trial evidence to support his pretrial motion:

Although we have indicated that evidence developed at trial can be used to support the lower court's ruling on a pre-trial motion, ... such evidence can not be used to attack a pre-trial ruling unless the proponent of the motion affirmatively asks the trial judge to re-examine the pre-trial ruling in light of the newly-developed evidence.... Therefore, if a party believes that later-developed evidence has shown that the trial court's pre-trial findings are erroneous, it is that party's duty to apprise the trial court of the situation and affirmatively seek a re-determination of the pretrial issue.11

This explanation thus supports the general rule of waiver: "The normal rule is that, absent plain error, a party challenging a trial court's ruling may not rely on an argument or on evidence that was not brought to the trial court's attention at the time the trial court made its ruling." 12

*862In this case, the lead opinion concludes that it would have been pointless for Jones to renew his pretrial motion for transportation because of the wording of the pretrial order. But I expect that the superior court judge would have worded his pretrial decision differently if Jones had made an adequate motion with a citation to the procedures required under AS 33.30.081(f), a discussion of the factors listed in Richard B.,13 and an offer of proof of the testimony for which his transportation was requested.

Moreover, if Jones had renewed his request for a transportation order during the post-conviction hearing, then the judge could have made a decision on the motion based on a full review of the circumstances at that time, including the nature of Jones's testimony, the timing of the request, and the expense of the requested transportation. In my opinion, it is inappropriate to address the issue at this point, because these cireum-stances have never been presented to the superior court for review.

. Richard B. v. State, Dep't of Health and Soc. Servs., 71 P.3d 811, 828 (Alaska 2003).

. Id. at 827 (quoting B.H. v. W.S. (In re F.H.), 283 N.W.2d 202, 209 (N.D.1979)).

. Id. at 832; see also McCracken v. State, 518 P.2d 85, 92 (Alaska 1974) (noting that "federal courts have always possessed the power to refuse to compel the production of a prisoner at an evidentiary hearing on the prisoner's petition for *861post-conviction relief when his physical presence was not necessary").

. AS 33.30.081(g).

. AS 33.30.081(b).

. 54 P.3d 316, 322 (Alaska App.2002).

. Id.

. Id.

. Id.

. 64 P.3d 169, 170-71 (Alaska App.2003).

. Id. at 171 (emphasis in original).

. Id.; see also Khan v. State, 204 P.3d 1036, 1039 (Alaska App.2009) (holding that the defendant waived the right to appeal his pretrial motion for a change of venue by his failure to renew the motion after jury selection), rev'd on other grounds, 278 P.3d 893 (Alaska 2012); Beuter v. State, 796 P.2d 1378, 1384 (Alaska App.1990) (holding that a defendant waived his appeal regarding an unsuccessful motion to compel discovery when he failed to renew his request when the discovery became relevant).

. 71 P.3d at 827.