MEMORANDUM OPINION
Star page 1*1 Allen Hiratsuka was convicted, following a jury trial, of one count of second-degree sexual assault for vaginally penetrating his step-granddaughter, C.N., while she was asleep and incapacitated.1
Hiratsuka now appeals his conviction and sentence, raising three claims. First, Hiratsuka claims the superior court erred in its consideration of his requests to represent himself. Second, he claims the superior court abused its discretion in admitting C.N.’s call to the 911 dispatcher. Finally, Hiratsuka claims his case should be remanded for clarification of how the superior court reached the sentence imposed.
For the reasons explained in this opinion, we reject Hiratsuka's challenges to both his conviction and sentence.
Background facts and proceedings
In March 2014, a twenty-one-year-old woman, C.N., was staying at a shelter in Dillingham. C.N.’s grandmother, Katherine Hiratsuka (“Katherine”), and step-grandfather, Allen Hiratsuka (“Hiratsuka”), also lived in Dillingham.
On the evening of March 12, C.N. went to her grandparents’ home with a bottle of whiskey, intending to spend time with them. After drinking with her grandparents for “an hour or two,” she became “really, really intoxicated.” During this time, Hiratsuka made sexual advances toward C.N., told her he “want[ed] to make love to [her],” and grabbed her arm. C.N. told Hiratsuka, “No,” and punched him in the stomach. At about midnight, C.N. and her grandparents went to sleep together in the home's only bed; Katherine slept in the middle between C.N. and Hiratsuka.
At some point, C.N. awoke and moved from the shared bed to a foam mattress on the floor nearby. While C.N. was asleep and incapacitated, Hiratsuka moved from the bed to the floor mattress and climbed on top of C.N. C.N. awoke to Hiratsuka on top of her and felt him penetrate her vagina with his penis. Due to her intoxication, C.N. could neither defend herself nor maintain consciousness.
When C.N. woke up the next morning, she realized that she was no longer wearing her own pants and that someone had dressed her in a pair of gray pants. She remembered being sexually assaulted by Hiratsuka and told her grandmother that she “was raped.” Katherine confronted Hiratsuka while C.N. called the police to report the sexual assault.
C.N. reported that she “was raped last night” and told police she was “over here at Katherine and Allen Hiratsuka's.” During the call, Hiratsuka grabbed the phone from C.N. and told the dispatcher there was “nothing wrong here” and that “baby's being dumb.” Hiratsuka told the dispatcher to speak to Katherine, who informed the dispatcher that she (Katherine) had been sleeping and had “no idea” what had happened. C.N. resumed speaking to the dispatcher and specifically identified Hiratsuka as the person who had raped her.
Police arrived at the Hiratsuka residence while C.N. was still on the phone with dispatch. C.N. set the phone down to speak with an officer but did not disconnect the call. As a result, while the officer was interviewing C.N., Hiratsuka was recorded attempting to persuade Katherine to tell the police that he did not do anything. Hiratsuka told Katherine, “you're on my fucking side,” and instructed her to tell officers that C.N. “came over drunk last night” and “tried to raise hell, that's all.”
Star page 2*2 C.N.’s Sexual Assault Response Team (SART) examination revealed three fresh genital injuries, which the nurse found to be consistent with C.N.’s description of the sexual assault. Hiratsuka's DNA was also found in a swab sample taken from C.N.’s external genitalia and inner thigh.
In August 2018, Hiratsuka was indicted on one count of second-degree sexual assault for sexually penetrating C.N. when he knew that she was incapacitated or otherwise unaware that a sexual act was being committed. The Public Defender Agency was appointed to represent Hiratsuka. Prior to trial, the superior court conducted multiple representation hearings related to Hiratsuka's dissatisfaction with his attorney. Hiratsuka ultimately chose to proceed to trial with an attorney.
A jury found Hiratsuka guilty of second-degree sexual assault, as charged. The superior court sentenced Hiratsuka to 16 years with 3 years suspended (13 years to serve).
Why we conclude that Hiratsuka's right to self-representation was not violated
On appeal, Hiratsuka claims that the superior court violated his right to self-representation during two hearings held in March 2021 and September 2022. First, he argues that the superior court's March 2021 denial of his request followed an insufficient inquiry and was impermissibly based on Hiratsuka's lack of legal sophistication. Second, Hiratsuka argues that the superior court's September 2022 inquiry improperly coerced Hiratsuka to withdraw his request to represent himself.
A criminal defendant has a fundamental right to the assistance of counsel and an independent right to self-representation.2 However, the right to the assistance of counsel is considered paramount, and the right to self-representation is not absolute.3 In McCracken v. State, the Alaska Supreme Court set forth the requirements that must be met before a trial court may permit a defendant to represent themselves.4 The trial court must determine whether a defendant “is capable of presenting his allegations in a rational and coherent manner” and “is willing to conduct himself with at least a modicum of courtroom decorum.”5 The court must also be satisfied that the defendant “understands precisely what he is giving up by declining the assistance of counsel.”6 These two findings are evaluated under different standards of review.
Whether a defendant has the ability to represent themselves and observe basic courtroom decorum is reviewed for an abuse of discretion.7 We have previously explained that “the trial judge is ‘best able to make more fine-tuned mental capacity decisions, tailored to the individualized circumstances of a particular defendant.’ ”8 Therefore, we give deference to the trial court when determining whether a defendant is capable of meeting the standards outlined in McCracken.
Star page 3*3 Whether a defendant has waived the right to counsel is reviewed under a different standard. Once a defendant has clearly and unequivocally declared an intention to appear pro se,9 the trial court must conduct a thorough inquiry into the circumstances surrounding the assertion to ensure that the waiver of counsel is knowing and intelligent.10 Although a specific colloquy is not required,11 the court must advise the defendant of their right to counsel and the importance of having counsel, along with warning the defendant of the “dangers and disadvantages of self-representation.”12 Assessing a defendant's waiver of counsel requires the reviewing court to determine whether the defendant's request was clear and unequivocal and the trial court's advisement was legally sufficient, and to examine the surrounding facts of the waiver. Accordingly, the issue presents a mixed question of fact and law that is reviewed de novo.13 Therefore, on appeal, we independently review the record to determine if a waiver of counsel was knowing and intelligent.14
At the March 2021 representation hearing, the court asked Hiratsuka to clarify if he was looking to represent himself or if he was looking to “just have a different lawyer.”15 Hiratsuka replied, “Again objection, I'm not that person. I'm the authorized representative of that name, all rights reserved without due course. I want to clarify for the record that I am propria persona.” Hiratsuka then told the court that “on the record [he was] reaffirming [his] invocation of the Sixth Amendment right to ... self-representation with the reservation of the right to counsel.”
The superior court then conducted an inquiry into Hiratsuka's education and past criminal trial experience to determine his capability to proceed pro se. When questioned, Hiratsuka was unable to articulate the elements of his charge or the potential penalties he faced. The court found that Hiratsuka was unable “to even articulate what he's being charged with,” lacked sufficient understanding “to distinguish a good defense from a poor one,” and could not identify his possible sentencing exposure. The court ultimately denied Hiratsuka's request for self-representation, finding that he did not understand the advantages and disadvantages of counsel and was incapable of presenting his case in an “understandable way.”
Hiratsuka argues that the superior court's denial of his request violated his right to self-representation. We disagree. The superior court's on-the-record inquiry of Hiratsuka shows that, despite the court's attempt to explain and inquire into Hiratsuka's comprehension of the dangers and disadvantages of self-representation, Hiratsuka clearly did not understand even the most basic concepts of self-representation. The court did not abuse its discretion in finding that Hiratsuka was not capable of representing himself, and our independent review of the record shows that Hiratsuka's request for self-representation was not made knowingly.
Star page 4*4 Moreover, as the State points out, Hiratsuka's request to represent himself was not “clear and unequivocal.”16 At the start of the representation hearing, the court specifically asked Hiratsuka to clarify whether he wanted to represent himself or whether he was “looking to ... just have a different lawyer.” Hiratsuka did not directly answer this question. Instead, he equivocated, stating that he was “reaffirming [his] invocation of the Sixth Amendment right to ... self-representation with the reservation of the right to counsel.” We agree with the State that this was not a clear and unequivocal request to represent himself. Absent a clear and unequivocal request to proceed without counsel, the trial court has no obligation to provide a full advisement of the dangers of self-representation.17
In September 2022, during a pretrial conference, Hiratsuka again “invoke[d his] right to self-representation with the reservation of right to counsel.” The following day, a different superior court judge presided over the representation hearing. At the beginning of the hearing, Hiratsuka raised jurisdictional objections, claiming the court was an “administrative setting” and that the presiding judge was “accepting the full obligation as a trustee.”
After the court ensured that Hiratsuka had completed his statements and questions, the court acknowledged Hiratsuka's desire to proceed without counsel and explained the need for a hearing to ensure his waiver of counsel was “knowing and intelligent.” The court then engaged in a dialogue with Hiratsuka about his educational and professional background. The court emphasized the specialized training of lawyers and explained the responsibilities of self-representation, including understanding the rules of evidence and cross-examination. Hiratsuka complained that his current attorney refused to file the motions that Hiratsuka wanted him to file (later clarified to include motions to suppress or “dismiss” evidence). When the court questioned Hiratsuka about the evidentiary motion, Hiratsuka said he could not “say that over the phone. It's — this is some stuff that just can't be said.”
During the colloquy with Hiratsuka, the court used several analogies to explain to Hiratsuka the disadvantages he would face by not being represented by counsel. The court analogized the danger of self-representation to (1) a neighbor performing surgery on Hiratsuka's wife, instead of a trained surgeon; (2) an “average Joe” fighting against a professional fighter; and (3) the judge working on Hiratsuka's diesel engine, as opposed to a trained diesel mechanic.
The court explained that Hiratsuka would need to understand the rules of evidence, to which Hiratsuka replied, “Yes, Your Honor. And that's what I want to file. That's what — that's what I have my problem with.” When the court asked whether Hiratsuka knew anything about the rules, Hiratsuka replied, “Yes, I know quite a bit of it. I've got boxes of it.” When the court asked whether Hiratsuka could identify two or three rules of evidence, Hiratsuka responded, “What are you pertaining to there?” When the court explained that there is a set of rules of evidence and asked Hiratsuka whether he knew any of those rules, Hiratsuka responded:
Star page 5*5 Let's see. Well, I know that the evidence that I have is not being put forward in this courtroom to be sufficient for me to defend myself. And that's just ... this is why I'm ... objecting to all of this is because I have a lot of evidence that needs to be put on the record which [my attorney is] not ... doing but I have to defend myself.
The court then informed Hiratsuka that if he went to trial without counsel, he would not have the benefit of the Public Defender Agency's resources, including payment for expert witnesses. The court asked Hiratsuka if he wanted to represent himself, “understanding that [the decision was] probably putting [him] at great disadvantage and [would] probably increase the possibility of [his] being convicted.” Hiratsuka then indicated that he was having “second thoughts” about proceeding without counsel and asked for time to speak with his attorney about the decision. After a twenty-minute recess, Hiratsuka informed the court that he was withdrawing his request to represent himself, choosing instead to proceed to trial with his appointed attorney.
On appeal, Hiratsuka argues that the superior court's September 2022 inquiry improperly coerced Hiratsuka into withdrawing his request to represent himself. Specifically, Hiratsuka claims that, because his withdrawal of the request to represent himself came “after the court presented him with an improper inquiry and repeatedly reprimanded him for making the ‘poor choice’ of representing himself, the withdrawal was not the product of his free choice.” Hiratsuka also challenges the court's doctor analogy as going “beyond the neutral and objective advisement of rights” that Hiratsuka claims is “necessary to ensure a knowing and intelligent waiver of the right to counsel.”
Neither Alaska nor federal law “requires any particular colloquy as a precondition to waiving appointed counsel.”18 However, the “degree of inquiry necessary should be tailored to the particular characteristics of the accused” and must be sufficient to allow the trial court to “determine that the accused fully understands the right he is relinquishing.”19 The trial court is required to “explain in some detail the advantages of proceeding with counsel and the disadvantages of self-representation.”20 We see no reason that a trial court could not attempt to accomplish this through an appropriate analogy.
Here, the record as a whole indicates that Hiratsuka did not appreciate what the court's general advisements and warnings meant in the context of his case. Even after the court used several analogies to try to help Hiratsuka better understand the choice he was making and asked targeted follow-up questions to better evaluate Hiratsuka's understanding of the legal concepts, Hiratsuka appeared confused and unable to appreciate what would be required of him if he waived his right to counsel or the disadvantages of representing himself. Hiratsuka then requested, and was granted, a private meeting with counsel to discuss the issue, after which Hiratsuka withdrew his request for self-representation.
Star page 6*6 Hiratsuka could have been persuaded by the court's inquiry, but he just as likely could have reconsidered his decision upon further discussion with his attorney. After reviewing the self-representation hearing, we cannot conclude that there was any error in the court's colloquy nor that Hiratsuka's withdrawal of his request to self-represent was involuntary.
For these reasons, we reject Hiratsuka's self-representation claims.
Any error in admitting the audio recording of C.N.’s statement to the 911 dispatcher was harmless
Prior to trial, the State filed a motion in limine seeking to admit C.N.’s “first reporter” evidence under Greenway v. State — an evidentiary rule that allows evidence (that would otherwise be inadmissible hearsay) of a sexual assault victim's first report of the assault.21 The State intended to call Officer Wahl, the officer who initially responded to Hiratsuka's residence, to testify about C.N.’s report of sexual assault. Hiratsuka did not file an opposition, and the court granted the request.
However, on the first day of trial, the State noted that it was not able to get Officer Wahl to come to court and testify. The prosecutor stated that she wanted to amend the State's request in limine to instead admit the testimony of the dispatcher who had taken C.N.’s call and that the report to the dispatcher was actually an earlier report of the assault than the one to the officer. Defense counsel stated that he would object to “first reporter” evidence, but noted that “the first reporter's testimony [was] largely going to come in through impeachment and through admissions of Mr. Hiratsuka.” The parties agreed to deal with this later, after C.N.’s testimony.
C.N. testified at trial but, by that time, she had no memory of whether Hiratsuka had penetrated her. After C.N.’s testimony, the parties returned to the issue of the admissibility of the 911 call.
Defense counsel argued that C.N.’s true first report was to Katherine and that her statements to the dispatcher should therefore be inadmissible, as they were not the “first report.” But defense counsel did not object to evidence that was otherwise admissible “for impeachment purposes or [as] admissions of Mr. Hiratsuka.” Later during argument on this issue, defense counsel again conceded that portions of the call contained “admissions of the party opponent ... and I think there's also information for impeachment.”
The prosecutor argued, “Regardless, [I think] the entirety of the 911 call comes in because throughout that call, Mr. Hiratsuka is heard responding to things that [C.N.] is saying[.]” The prosecutor explained that there were two half-hour segments of the 911 call: first, C.N.’s dialogue with the dispatcher explaining what happened (Exhibit 1), and second, the phone passively recording Hiratsuka's conversation with Katherine (Exhibit 2). The prosecutor stated, “I believe both of those come in because they're admissions of a party opponent.”
The court noted that any of Hiratsuka's own statements heard in the call would be admissible as admissions of a party opponent, which defense counsel conceded. The court ruled that the 911 call was admissible to the extent that it included Hiratsuka's own statements and the surrounding context of his statements (under the rule of admissions of a party opponent22 and the rule of completeness23), and that the rest of it was admissible as a “first report” because C.N.’s report to the dispatcher was so close in time to the report to her grandmother.
Star page 7*7 The State called the 911 dispatcher to testify, and during her testimony it offered and the court admitted State's Exhibit 1 (the portion of the call that included C.N.’s statement) and certain portions of State's Exhibit 2 (the portion of the call where Hiratsuka could be heard speaking to his wife in the background).
On appeal, Hiratsuka claims that none of the 911 call was admissible as a “first report” because C.N.’s actual first report was to her grandmother, not to the dispatcher.24 He further argues that, although some of the 911 call was properly admitted as Hiratsuka's own statements and relevant context to understand his statements, not all of the call was admissible; some of it consisted of a dialogue between C.N. and the dispatcher that was not necessary to understand Hiratsuka's statements.
We conclude that any error in the admission of C.N.’s recorded 911 statements was harmless. Although the court overruled Hiratsuka's “first report” objection, it also separately found that C.N.’s statements to the 911 dispatcher were independently admissible to provide the context for Hiratsuka's admissions during the call. The State, too, asserted in the trial court that, “regardless” of whether C.N.’s statements were admissible under Greenway, the entirety of C.N.’s statements in the recording were admissible because Hiratsuka could be heard speaking throughout and C.N.’s statements were necessary context to understanding them.
Before ruling on the admissibility of the evidence, the court explicitly asked Hiratsuka's attorney whether he agreed that C.N.’s statements were admissible for this purpose. In response, the defense attorney gave no indication that he disagreed.
The record in this case establishes that C.N. made the statements to the dispatcher while Hiratsuka was close enough to her that his own statements were easily captured by the recording and while Hiratsuka was actively listening to, attempting to influence, and regularly responding to C.N.’s conversation with the dispatcher. Resultantly, the statements were part of the necessary context the jury was entitled to consider in evaluating Hiratsuka's surrounding admissions.
We note that C.N.’s statements that Hiratsuka had assaulted her were also admissible as prior inconsistent statements with her lack of memory of penetration at trial. The parties did not argue this issue at trial because Hiratsuka's only objection to Exhibit 1 was under the first report doctrine; but, at the close of evidence, Hiratsuka moved for a judgment of acquittal, arguing (among other things) that there was insufficient evidence of penetration. During the argument that followed, the State pointed to C.N.’s statements that Hiratsuka penetrated her to the 911 dispatcher and argued that these were admissible for the truth of the matter asserted as prior inconsistent statements with her lack of memory of penetration at trial.25 The defense attorney gave no indication that he disagreed.
Star page 8*8 In sum, Hiratsuka's statements were admissible as admissions of a party opponent and C.N.’s statements were admissible for context under the rule of completeness, and separately, as prior inconsistent statements.26 Any errors in the admission of C.N.’s recorded statement were necessarily harmless.
The superior court adequately explained Hiratsuka's sentence
Hiratsuka next challenges his sentence.
As a first felony offender convicted of second-degree sexual assault, Hiratsuka was subject to a presumptive range of 5 to 15 years. Because the court found three aggravating factors, it was permitted to impose a sentence above the presumptive range, up to the maximum of 99 years. The court ultimately imposed a sentence of 16 years with 3 years suspended (13 years to serve) and 10 years of probation.
Hiratsuka had several prior misdemeanor assaults and one misdemeanor attempted sexual assault; the State provided notice that it intended to use these prior convictions to prove three aggravating factors. The State requested a sentence of 25 years with 10 years suspended (15 years to serve). During the sentencing hearing, the court asked the State why it requested 15 years to serve, and the following dialogue ensued:
Court: So, you'd double the presumptive because he has three misdemeanors?
Prosecutor: Well, no, I don't think — so, I think there —
Court: I'm sorry, you double the lowest presumptive.
Prosecutor: The mini — the mandatory minimum —
Prosecutor: — versus — because that would still be within the presumptive range.
Prosecutor: And I don't think that — I don't think those by themselves justify doubling it. I think the facts of this case don't make it a minimum. I think you don't start at 5 [years] given the facts.
Court: Okay. Well, that's fair enough. So, no priors, no prior misdemeanors, what's the —
Prosecutor: So, zero prior convictions —
Court: — what's the presumptive range — what do you think within the presumptive range is the appropriate thing for this standalone offense?
Prosecutor: I think with no prior criminal history whatsoever, 8 [years] to serve on just this offense. I think you add in the prior assaults, maybe you get up to 10 [years]. I think you add very specifically a prior sexual assault of the victim's mother, of his step-daughter two years before he committed this one —
Court: I'm just trying to figure out —
Prosecutor: — you get to 15 [years].
Court: — the marginal value of the various prior criminal acts. And you're telling me essentially a baseline of 8 [years] for the standalone conviction of the B felony, an aggravation of 2 more years to serve for the three misdemeanors, and additional 5 [years] for the attempted sex assault.
Star page 9*9 Prosecutor: Correct[.]
The court heard the remaining arguments from the State and Hiratsuka, C.N.’s victim statement, and Hiratsuka's allocution. It then went through the Chaney factors and announced a sentence. The court agreed with the State that the standalone offense, absent the aggravators, warranted a term of 8 years of imprisonment; the court stated, “Had [the offense] been standalone with no prior record, it — you know, a midrange between 5 and 15 of 8 [years] ... is appropriate.” Then, taking into account the aggravating factors (based on Hiratsuka's prior misdemeanor assaults and his prior attempted sexual assault), the court added 5 years, for a total of 13 years to serve.27
Hiratsuka now claims that under Martinez v. State, the court failed to adequately explain why his standalone offense (absent the aggravating factors) warranted a sentence of 8 years, which is above the minimum term of 5 years.28
In Martinez, the defendant was subject to a presumptive range of 5 to 15 years for his conviction.29 The court imposed a sentence, directly in the middle of that range, of 15 years with 5 years suspended (10 years to serve).30 During Martinez's sentencing hearing, the court made statements indicating that it believed that it was required to begin its analysis in the middle of the presumptive range for the typical offender committing a typical offense that is neither aggravated nor mitigated, including the statement, “[S]tatutes say that ‘presumptive’ generally means the middle of the presumptive range which means 10 years. That is exactly what the State is seeking.”31 On appeal, Martinez argued that this was a misunderstanding of the law.
We agreed. Based on legislative history, we concluded that “the legislature intended the former presumptive term (i.e., the low end of the presumptive range) to remain as ‘the starting point’ for the court's sentencing analysis with regard to the active term of imprisonment.”32 We further affirmed that this practice promoted the principle of parsimony, and reiterated that judges should “[s]tart[ ] the active time to serve at the bottom end of a presumptive range and mov[e] upwards only if an upwards departure is justified by one of the Chaney criteria.”33
(A footnote in Martinez clarified that judges do not have to state explicitly on the record that they started at the bottom end of the range and why or how they worked their way up.34 Only with “direct evidence” that they mistakenly failed to begin their analysis at the bottom end of the range would we remand or reverse; otherwise, we assume that judges know and apply the law correctly and that they have correctly applied the Chaney factors.35)
Star page 10*10 To the extent that Hiratsuka claims that the court began its consideration of his sentence in the middle of the presumptive range, we disagree. Unlike in Martinez, there was no indication during the sentencing hearing that the court was under the misapprehension that it was required to begin its analysis of Hiratsuka's sentence in the middle of the presumptive range. To the contrary, the court's dialogue with the prosecutor, specifically inquiring what justified an upward adjustment from the “lowest presumptive” or “minimum” sentence, suggested that the court was aware that it must begin its consideration at the low end of the presumptive range. The State answered that the facts of Hiratsuka's case “don't make it a minimum. I think you don't start at 5 [years] given the facts.”
The court appeared to agree with the State on this point when it later stated that Hiratsuka's standalone offense warranted a sentence of 8 years. The court stated that somewhere in the “midrange between 5 and 15” years was appropriate. Although this language somewhat mirrors the incorrect belief of the trial court in Martinez that it must begin its analysis in the middle of the presumptive range, context makes clear that the court in this case began its consideration at the bottom of the range, as required by law.
Further, we conclude that the court's finding that Hiratsuka's standalone offense warranted more than the minimum term, or, to borrow language from Martinez, that he was not “the typical offender committing a typical offense,” is adequately supported in the record.36 Although, as Hiratsuka points out, the court did not make explicit findings about the facts of Hiratsuka's offense when it considered the Chaney factors, the State had pointed out that his victim was his particularly vulnerable step-granddaughter37 and that he and the victim were under the influence of alcohol. The State also argued that Hiratsuka had attempted to prevent C.N. from making a report to authorities and had tried to tell his wife what to say to the police. The court appeared to adopt this argument in its sentencing decision. Moreover, the court was also justified in relying on other Chaney factors, like Hiratsuka's slim prospects for rehabilitation and the need for his isolation, in adjusting his sentence upwards from the minimum term.38
For these reasons, we find that Martinez does not warrant a remand of Hiratsuka's sentence.
Conclusion
For the reasons explained above, we AFFIRM the judgment of the superior court.