Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.

MEMORANDUM OPINION

MANNHEIMER, Judge.

Willis Hamilton Jr. appeals his conviction for perjury, claiming that he was denied a fair opportunity to attack his indictment for potential irregularities at the grand jury. Hamilton also asserts that, during the sentencing proceedings, the superior court applied the wrong legal test when the court rejected one of Hamilton's proposed mitigating factors — and that, for this reason, the superior court needs to re-examine its sentencing decision.

For the reasons explained in this opinion, we conclude that Hamilton had a fair opportunity to attack his indictment, and we therefore affirm his perjury conviction. However, there is an inconsistency in the superior court's rulings on Hamilton's proposed mitigating factors, and we therefore direct the superior court to re-assess those mitigators and re-sentence Hamilton.

Hamilton's claim that he was prejudiced by the short interval between his re-indictment on the perjury charges and the commencement of his trial on those charges

(a) Underlying facts

In April 2008, Willis Hamilton went to trial on a charge that he possessed marijuana with the intent to sell or distribute it. Hamilton took the stand at his trial and testified that the marijuana was merely for his personal use. Hamilton's trial on this marijuana charge ended in a mistrial when the jury was unable to reach a verdict.

The State elected to retry Hamilton on this drug charge. In addition, in June 2008, the State obtained an indictment against Hamilton on two counts of perjury, based on evidence that Hamilton knowingly testified falsely at his trial.

Hamilton's consolidated trial on these charges (i.e., the retrial of the drug charge and the trial of the new perjury charges) was calendared for November 5, 2008.

Three weeks before this scheduled trial, the superior court granted Hamilton's motion to dismiss the perjury indictment. The court found that "the district attorney exceeded his role as legal advisor [to the grand jury]" when, responding to a grand juror's question, the district attorney characterized the testimony that had been presented to the grand jury. More specifically, the superior court found that the district attorney did not merely summarize the testimony already presented; rather, the district attorney "bec[ame] essentially a witness".

A little over two weeks later, on October 30th, the State re-indicted Hamilton on the perjury charges, based on the testimony of the same three witnesses who had testified at the earlier grand jury hearing.

Six days later, when the parties assembled in court for Hamilton's scheduled trial, the prosecutor inquired whether Hamilton would be going to trial on all of the pending charges. The trial judge — Superior Court Judge Michael A. Thompson — replied that he assumed Hamilton would be going to trial on all of the pending charges, since those charges had earlier been consolidated for trial. But Hamilton's attorney objected to holding a trial on the perjury indictment; he argued that he had not yet had sufficient time to study the record of the latest grand jury proceedings. The defense attorney told Judge Thompson that he wanted to see "if there [was] something in those [grand jury] proceedings ..., any irregularity that [he] ha[d]n't reviewed ...."

Judge Thompson replied that all of the charges had been pending for a long time, and they should be tried together. He told the defense attorney, "If there's something wrong with [the new indictment], we'll [deal] with it after the fact." Judge Thompson then explained his reasoning:

The trial then proceeded. This time, Hamilton was acquitted of the marijuana charge. The jury found Hamilton guilty of one perjury count, but not the other.

(b) The post-trial litigation of this matter in the superior court

Following his trial, Hamilton filed a motion asking the superior court to grant him a new trial.

Hamilton's primary argument in favor of a new trial was that the jury's verdicts — finding Hamilton guilty of one count of perjury, but finding him not guilty of the other — were so inconsistent that they demonstrated that the jurors' analysis of the evidence was illogical or otherwise fundamentally flawed. Hamilton also asserted, in one conclusory sentence, that "[it] also was clear injustice to [require him] to proceed to trial on the same day that [he] was arraigned on the [renewed] perjury charges." But Hamilton offered no explanation of why he thought that this was "clear injustice".

Later, however, Hamilton filed a reply memorandum in which he identified one specific way in which he claimed to have been disadvantaged by having to go to trial so soon after he was re-indicted on the perjury charges: Hamilton contended that this short interval between re-indictment and trial deprived him of the opportunity to attack the renewed indictment on the ground that it was multiplicitous — i.e., on the ground that the State had improperly charged Hamilton with two counts of perjury when, as a legal matter, Hamilton's conduct would only support one count. Hamilton asserted that his lack of time to review the latest grand jury proceedings "precluded [him] from requesting the [superior] court to find [that] the indictment was multiplicitous and [to] require the State to proceed to trial on [only] one perjury count [covering both of Hamilton's allegedly false statements]."

(In Hamilton's reply memorandum, this quoted passage is preceded by the phrase, "Among other things, ..." — a phrasing which suggests that Hamilton's attorney might have had other objections to the timing of the re-indictment and the trial. However, Hamilton's attorney never identified any other type of prejudice that Hamilton might have suffered on account of the short interval between his re-indictment and his trial.)

Judge Thompson denied Hamilton's motion for a new trial in a single-page order. In his order, Judge Thompson addressed — and rejected — Hamilton's contention that the jury's analysis of the evidence was illogical or flawed. The judge also concluded that the two perjury counts were distinct, and that the jury's rejection of one count was reconcilable with its decision that Hamilton was guilty of the other count.

(c) Why we uphold the superior court's decision

In his briefs to this Court, Hamilton asserts that felony defendants must be given a fair opportunity to review the grand jury proceedings leading to their indictment, and must be given a concomitant opportunity to pursue procedural attacks against their indictment, based on that review. We agree.

But Judge Thompson did not tell Hamilton that he had no right to review the most recent grand jury proceedings (i.e., the proceedings that led to Hamilton's renewed indictment on the two perjury counts), nor did Judge Thompson tell Hamilton that he would have no opportunity to pursue procedural attacks on the renewed perjury indictment. Instead, Judge Thompson concluded that, given the circumstances, it was better to proceed with the scheduled trial and to give Hamilton a later opportunity to raise procedural attacks on the indictment in post-trial litigation.

To resolve Hamilton's appeal, we need not decide whether Judge Thompson's handling of this issue was proper. Rather, the narrower question before us is whether Hamilton has shown that he was prejudiced by Judge Thompson's handling of this issue.

In his opening brief to this Court, Hamilton argues that, because of his lack of time to review the latest grand jury proceeding, he was unable to determine whether any of the State's trial witnesses gave testimony to the grand jury that was inconsistent with their trial testimony, or that otherwise might have been used to impeach their trial testimony, or that might have opened new avenues of defense investigation.

But even now, Hamilton does not identify any portion of the latest grand jury record that provided new impeachment material or new investigative leads.

Moreover, this claim was not presented to the superior court. Instead (as we have explained), Hamilton's argument to the superior court — the argument contained in his post-verdict motion for a new trial — was that his lack of time to review the grand jury proceedings prevented him from attacking the perjury indictment as multiplicitous. The superior court rejected this contention because the court concluded that the two perjury counts were legally distinct.

Hamilton does not directly challenge this ruling on appeal. However, in his reply brief, Hamilton suggests that Judge Thompson's ruling on the multiplicity issue might have been different if the issue had been raised before trial — because, according to Hamilton, Judge Thompson applied a "plain error" standard when he ruled on this claim, since it was raised in a post-verdict motion.

There is nothing in the record to support Hamilton's assertion that Judge Thompson held him to a higher-than-normal standard because the multiplicity argument was raised in a post-verdict motion. Judge Thompson expressly told Hamilton's attorney that he could raise attacks on the grand jury indictment after the trial was over. Presumably, Judge Thompson would not penalize Hamilton's attorney for following the procedure that the judge himself had set.

In addition, we note that Hamilton's initial perjury indictment charged him with the same two acts of perjury. Thus, if the renewed perjury indictment was indeed multiplicitous, the initial perjury indictment suffered from the same defect. Because this supposed multiplicity problem was presented by the first perjury indictment, Hamilton can not show that his lack of time to review the later grand jury proceedings somehow hampered his ability to raise this multiplicity attack.

In sum, Hamilton has failed to show that he was prejudiced by the manner in which Judge Thompson handled this issue. Accordingly, we uphold the judge's decision.

Hamilton's claim that the superior court employed a legally mistaken analysis when the court rejected mitigator (d)(9)

By the time of Hamilton's sentencing, Judge Michael Thompson had retired, and pro tempore Superior Court Judge Ethan L. Windahl presided over Hamilton's sentencing proceedings.

Hamilton's offense, perjury, is a class B felony.1 As a first felony offender, Hamilton faced a presumptive sentencing range of 1 to 3 years.2

In order to give the superior court the authority under AS 12.55.155(a) to impose a sentence of less than 1 year's imprisonment, Hamilton proposed three mitigating factors under AS 12.55.155(d): (d)(5) — that he was an aged defendant, and that his conduct was substantially a product of physical or mental infirmities resulting from his age; (d)(9) — that his conduct was among the least serious within the definition of perjury; and (d)(12) — that the facts surrounding the commission of the perjury, as well as the facts surrounding any previous offenses, established that the harm caused by Hamilton's conduct was consistently minor and inconsistent with the imposition of a substantial period of imprisonment.

Judge Windahl concluded that Hamilton had proved two of these three mitigators — (d)(5) and (d)(12) — but that Hamilton had failed to prove mitigator (d)(9) (conduct among the least serious).

Based on the mitigators that Hamilton did prove, Judge Windahl imposed a sentence below the presumptive range: he sentenced Hamilton to 3 years' imprisonment with 2 years, 6 months suspended — in other words, 6 months to serve.

On appeal, Hamilton contends that Judge Windahl used the wrong legal analysis when he rejected mitigator (d)(9). Hamilton points to the following portion of Judge Windahl's ruling:

Based on these just-quoted remarks, Hamilton argues that Judge Windahl committed legal error — by essentially taking the position that no act of perjury could be "among the least serious" for purposes of mitigator (d)(9).

It is unclear to us whether Judge Windahl was truly rejecting the notion that an act of perjury could ever be mitigated under AS 12.55.155(d)(9). But this issue is moot under the circumstances of Hamilton's case — because there is another problem with Judge Windahl's ruling which requires us to remand Hamilton's case to the superior court.

As we have explained, Judge Windahl ruled that Hamilton had proved mitigator (d)(12) but had not proved mitigator (d)(9). In Jordan v. State, 895 P.2d 994 (Alaska App. 1995), this Court addressed the relationship between mitigator (d)(9) and mitigator (d)(12) — which, at that time, was numbered "(d)(13)". We stated that mitigator (d)(12) "calls for a two-pronged determination: first, the court must determine on a case-by-case basis that the defendant's present and prior crimes are consistently minor; second, the court must find that the past and present crimes, taken as a whole, are inconsistent with a substantial term of imprisonment." Id. at 1000. We then ruled that if a defendant fails to prove mitigator (d)(9), the defendant necessarily has also failed to prove mitigator (d)(12):

Jordan, 895 P.2d at 1000.

Although there might be grounds for questioning this aspect of Jordan (since it apparently renders mitigator (d)(12) superfluous), neither party to this appeal has questioned Jordan, and Jordan is the controlling authority on this point of law.

Under Jordan, Judge Windahl could not reject mitigator (d)(9) and still rule in Hamilton's favor on mitigator (d)(12). For this reason, we direct the superior court to reconsider its rulings on mitigators (d)(9) and (d)(12).

Conclusion

We AFFIRM Hamilton's perjury conviction, but we direct the superior court to reconsider its rulings on mitigating factors (d)(9) and (d)(12).