275 P3D 560 - Eberhardt v. State

¶1OPINION

BOLGER, Judge.

¶2In 2009, Robert Eberhardt was convicted of felony driving under the influence of alcohol. This offense required the State to prove that Eberhardt had two prior DUI convie-tions within the preceding ten years. In this appeal, Eberhardt argues that one of his prior convictions was too old to be counted.

¶3In 1994, Eberhardt was charged with driving under the influence in Cowlitz County, Washington. This charge remained unresolved for several years because Eberhardt was accepted into a deferred prosecution program. However, in 2004, after Eberhardt was charged with DUI in Oregon, Eber-hardt's deferred prosecution in Washington was terminated, and he was convicted and sentenced for the 1994 offense.

¶4The superior court ruled that Eberhardt's Washington deferred prosecution did not constitute a "conviction," and that his convietion occurred in 2004, within the ten years preceding his Alaska offense. Eberbardt contends that this ruling was wrong. He argues that, even though he was not found guilty and sentenced for the Washington offense until 2004, his conviction for this offense should be deemed to have occurred in 1994, when he was accepted into the deferred prosecution program.

¶5For the reasons explained in this opinion, we conclude that Eberhardt was not conviet-ed of the Washington offense until 2004, and thus his Washington offense was properly counted as one of the predicate prior offenses for his 2009 felony DUI conviction.

¶6Background

¶7Eberhardt was arrested in Juneau on January 2, 2009. He was charged with felony DUI under AS 28.35.0830(n) because his criminal history showed that he had a 2004 DUI conviction from Washington and a 2004 DUI conviction from Oregon.

¶8Eberhardt moved to dismiss the indict, ment prior to trial. He did not submit any documentation from the Washington proceedings, but he claimed that he had been accepted into a deferred prosecution program in 1994. He argued that the 1994 order accepting him into the deferred prosecution program qualified as a conviction, outside of the ten-year look-back period for felony DUI. The State opposed, arguing that Eberhardt's Washington conviction and sen*562tencing did not occur until August 11, 2004, after Eberhardt was removed from the deferred prosecution program. Superior Court Judge Philip M. Pallenberg denied the motion, concluding that Eberhardt's acceptance into the deferred prosecution program did not constitute a conviction.

¶9The trial jury found Eberhardt guilty of driving under the influence of aleohol. Then, in the second part of the bifurcated trial, the State presented documentary evidence of Eberhardt's prior convictions. The record from Washington showed that Eberhardt had been convicted and sentenced on August 11, 2004, to a term of 365 days imprisonment with 275 days suspended. Again, Eberhardt did not present any documentation that he had been admitted to the deferred prosecution program. But he testified that he entered the program in 1994 and that the 2004 entry in his criminal history indicated only that he had violated the terms of the program. He explained that the violation had not been enforced until 2004 because he had absconded from probation and moved to another state. The jury found that Eberhardt had two prior DUI convictions, and he was convicted of felony DUI. Eberhardt now appeals.

¶10Discussion

¶11A person who commits the crime of driving under the influence of alcohol is guilty of felony DUI if they have been "previously convicted" within ten years preceding the date of their present offense.1 A previous conviction includes a conviction "in this or another jurisdiction" for driving under the influence or a "violation of another law or ordinance with similar elements." 2

¶12The term "conviction" is not separate ly defined in the DUI statutes. In common usage, this term refers to the judicial act or judgment determining that a person is guilty of a crime.3 When a criminal statute requires a "prior conviction" or a "previous conviction" to elevate a criminal sentence, the mere commission of a prior offense is insufficient. When a statute requires a prior conviction, the State must establish that a formal conviction was entered before the current offense.4

¶13Of course, the legislature can define the effective date of a prior conviction by statute or allow the effective date to be established by regulation.5 But in the absence of a statute defining the effective date of a prior conviction, there is a "longstanding principle of Alaska law that, when a statute imposes enhanced punishment for repeat offenders, a defendant's status as a repeat offender hinges on the date of the defendant's sentencing rather than the date on which the jury found the defendant guilty or the court accepted the defendant's guilty plea." 6

¶14We applied this principle to the felony DUI statute in Bradley v. State.7 In Bradley, the defendant pleaded no contest to a prior DUI offense more than ten years before he committed his current offense.8 But the date Bradley was sentenced was within *563the ten-year look-back period.9 We explained the principle involved by quoting from prior similar cases:

[TJhe underlying rationale for imposing enhanced punishment on repeat offenders is the idea that a person is more blameworthy if they return to crime after being "judicially confronted with [their] prior misconduct and ... given an opportunity for reformation." The judicial confrontation and the opportunity for reformation oceur at (and following) the defendant's sentencing.10

¶15Based on this principle, we concluded that Bradley's liability for felony DUI should be based on the date of his sentencing hearing rather than the date of his no contest plea.

¶16In this case, both the wording of the Washington deferred prosecution statute and the court decisions interpreting that statute establish that a deferred prosecution is not considered to be a conviction. Under the 1994 version of the deferred prosecution statute, a judge could accept a defendant for deferred prosecution if the defendant agreed to comply with a plan for alcohol, drug, or mental health treatment.11 The docket entry would be noted in the defendant's driving record.12 But the statute made it fairly clear that this entry would not be treated the same as a criminal judgment: "The entry is not a conviction." 13 And if the defendant successfully completed the treatment program, then the court was required to dismiss the pending charges.14

¶17The Washington courts have addressed the legal effect of a deferred prosecution on numerous occasions and have held that the "record of a DUI charge and deferred prosecution is not analogous to a prior convietion." 15 Instead, a deferred prosecution referral gives an offender "an opportunity to avoid conviction if they successfully complete treatment." 16 In other words, "(tlo accept deferred prosecution is, by definition, to leave adjudication by plea or trial to a later time," 17

¶18Since a deferred prosecution is not a conviction, an order placing a defendant on deferred prosecution does not require the same procedural protections as a guilty plea.18 Therefore, a deferred prosecution is not the equivalent of a guilty plea.19 Likewise, the treatment program required as part of a deferred prosecution is not equivalent to criminal punishment.20 Through successful completion of the program, a defendant "has the opportunity to avoid eriminal prosecution entirely [and is confronted with the] consequences of his or her wrongful conduct" only upon failure to complete the treatment program.21 "In short, both the purposes and *564effects of deferred prosecutions differ from convictions." 22

¶19Despite these authorities, Eberhardt argues that his prior conviction occurred in 1994, when he was accepted for deferred prosecution, rather than in 2004, when he was convicted and sentenced. He points out that, as a condition of the deferred prosecution program, he was required to stipulate to the admissibility of the facts stated in the written police report.23 He was also required to swear that his wrongful conduct was the result of alcoholism, drug addiction, or mental problems for which he needed treatment.24 Eberhardt relies on language from Bradley and contends that, as a result of these requirements, he was "judicially confronted" with his misconduct and "given an opportunity for reformation."

¶20But Eberhardt's argument takes this quotation from Bradley out of context. In Bradley (and the cases we relied on), we used this language to explain why a prior conviction was effective on one of two alternative dates-the date of the sentencing hearing or the date when the defendant's guilt was first established by a jury verdict or no contest plea. Under either alternative, however, the court had performed the basic requirement of a criminal conviction-a formal finding of the defendant's guilt. We used this quotation to explain why we chose to make the conviction effective 'on the date of sentencing, even though the initial finding of guilt occurred on an earlier date.

¶21Eberhardt also points out that the Washington DUI statute includes both prior convictions and deferred prosecutions as "prior offenses" that may elevate a defendant's sentence for DUI.25 But the fact that Washington law gives similar treatment to prior convictions and prior deferred prosecutions does not control the effect of a deferred prosecution in this case. The effect of a prior court order on the sentencing of an Alaska offender is an issue governed by Alaska law.26 And Alaska law requires a convietion and sentence before a DUI offense will qualify as a prior conviction.27

¶22Eberhardt also argues that the Washington deferred prosecution program is the same as the Alaska statute allowing a suspended imposition of sentence. He notes that a suspended imposition of sentence will count as a prior conviction, unless the prior conviction has been set aside.28 But the Alaska statutes authorizing a judge to suspend the imposition of sentence require that guilt must be established by a verdict or plea. The statutes permit a judge to suspend the imposition of sentence only "upon entering a judgment of conviction of a crime." 29 And if the defendant successfully completes his term of probation "the court may set aside the conviction." 30

¶23Washington does have another statutory procedure that is similar to the Alaska suspended imposition of sentence. Under Washington Revised Code section 3.66.067, a trial court may defer the imposition of sentence and place the defendant on probation for up to two years. But the Washington courts have recognized that this procedure is fundamentally different than a deferred prosecution: "A deferred prosecution treatment program, unlike a deferred sentence or probation, occurs prior to an adjudication of guilt." 31 It is this requirement of a convietion-a formal finding of guilt-that distinguishes the suspended imposition of sentence procedure from a deferred prosecution.

¶24Unlike the requirements of a suspended imposition of sentence, Eberhardt *565was not required to be convicted before he could be accepted for deferred prosecution in 1994. And no judgment of conviction would have been entered if he had followed the terms of the program. His conviction was not entered until 2004, after the court made a formal finding of his guilt and imposed a sentence. We conclude that this latter date is the effective date of his Washington conviction.

¶25Conclusion

¶26We AFFIRM the judgment of the superior court.

¶27COATS, Judge, dissenting.

¶28. AS 28.35.030(n).

¶29. AS 28.35.030(u)(4).

¶30. See Black's Law Dictionary 358 (8th ed.2004); see also Kelly v. State, 663 P.2d 967, 971 (Alaska App.1983) (noting that the term "conviction" can be used to denote the finding of guilt prior to the entry of judgment).

¶31. See Gonzales v. State, 582 P.2d 630, 636 (Alaska 1978); State v. Carlson, 560 P.2d 26, 30 (Alaska 1977). Gonzales and Carlson were superseded on other grounds by ch. 143, §§ 32-34, SLA 1982. See Linn v. State, 658 P.2d 150, 152 (Alaska App.1983).

¶32. See AS 12.55.145(F); State v. Otness, 986 P.2d 890, 891-92 (Alaska App.1999) (applying a regulation that defined "conviction" for purposes of sex offender registration as the entry of a guilty or no contest plea or a guilty finding by a court or jury).

¶33. Wooley v. State (Wooley I), 157 P.3d 1064, 1065 (Alaska App.2007) (citing Smith v. State, 83 P.3d 12, 15-16 (Alaska App.2004); Sawyer v. State, 663 P.2d 230, 232 (Alaska App.1983); State v. Rastopsoff, 659 P.2d 630, 640-41 (Alaska App.1983), superseded on other grounds as recognized in Wooley v. State (Wooley II), 221 P.3d 12, 16-17 (Alaska App.2009); Gonzales, 582 P.2d at 636; Carlson, 560 P.2d at 30).

¶34. 197 P.3d 209 (Alaska App.2008).

¶35. Id. at 217.

¶36. Id.

¶37. Id. at 218 (alteration in original) (quoting Wooley I, 157 P.3d at 1066 and Smith, 83 P.3d at 16).

¶38. Former Wash. Rev.Code § 10.05.060 (1994).

¶39. Id.

¶40. Id.

¶41. Id. § 10.05.120.

¶42. City of Kent v. Jenkins, 99 Wash.App. 287, 992 P.2d 1045, 1046 (2000); see also City of Richland v. Michel, 89 Wash.App. 764, 950 P.2d 10, 13 (1998).

¶43. Jenkins, 992 P.2d at 1046-47.

¶44. State v. Higley, 78 Wash.App. 172, 902 P.2d 659, 668 (1995).

¶45. State v. Preuett, 116 Wash.App. 746, 67 P.3d 1105, 1107 (2003) ("Unlike guilty pleas, ... due process does not require written notice of all the consequences of deferred prosecutions."); Hig-ley, 902 P.2d at 664, 667-68 (holding that a deferred prosecution order does not trigger the due process protections that apply to a guilty plea).

¶46. See Jenkins, 992 P.2d at 1047 ("Deferred prosecution is not equivalent to a guilty plea...."); Abad v. Cozza, 128 Wash.2d 575, 911 P.2d 376, 378 (1996) ("A deferred prosecution is not tantamount to a guilty plea."); Higley, 902 P.2d at 667-68 ("To accept deferred prosecution is not the same as to plead guilty.").

¶47. Abad, 911 P.2d at 378-79; see also Jenkins, 992 P.2d at 1046 ("Deferred prosecution is designed to encourage treatment of culpable people whose conduct is caused by a treatable condition, like alcoholism.").

¶48. Abad, 911 P.2d at 381 n. 2.

¶49. Jenkins, 992 P.2d at 1047.

¶50. See former Wash. Rev.Code § 10.05.020(2) (1994).

¶51. See id. § 10.05.020(1).

¶52. See Wash. Rev.Code § 46.61.5055(14)(a).

¶53. See Mancini v. State, 904 P.2d 430, 432-33 (Alaska App.1995).

¶54. See Bradley, 197 P.3d at 218.

¶55. See Shaw v. State, 673 P.2d 781, 786 (Alaska App.1983).

¶56. AS 12.55.080.

¶57. AS 12.55.085(e).

¶58. State v. Vinge, 59 Wash.App. 134, 795 P.2d 1199, 1201 (1990).