Hernandez v. State

691 P.2d 287, 1984 Alas. App. LEXIS 319
CourtCourt of Appeals of Alaska
DecidedNovember 30, 1984
DocketA-186, A-193
StatusPublished
Cited by5 cases

This text of 691 P.2d 287 (Hernandez v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Alaska primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hernandez v. State, 691 P.2d 287, 1984 Alas. App. LEXIS 319 (Ala. Ct. App. 1984).

Opinions

OPINION

SINGLETON, Judge.

On November 4, 1980, Felipe Hernandez, Jr. was convicted of perjury, a class B felony. AS 11.56.200(a). He received a sentence of three years with two and one-half years suspended and was placed on probation until November ■ 4, 1983. This was case number A-193.

On October 1, 1983, Hernandez was convicted of one count of sale of alcohol and of one count of possession of alcohol for sale, class A misdemeanors. AS 4.11.010. For these two offenses he received concurrent sentences of 240 days with 120 days.suspended and in addition was given concurrent fines of $3,000 with $2,000 suspended. This was case number A-186. Thereafter, based upon these liquor violations, Hernandez’ probation for perjury in case number A-193 was revoked and he was required to serve the two and one-half years previously suspended consecutive to the sentences imposed for his liquor violations.

Hernandez appeals, raising three issues. First, he contends that the evidence was insufficient to convict him of the two liquor offenses in A-186 and that, therefore, his convictions in that case should not have been used as a basis to revoke his proba[289]*289tion in A-193. Second, he contends that he received ineffective assistance of counsel in A-186 and, as a result, was entitled to a new trial, precluding use of those convictions to revoke his probation in A-193. Finally, he contends that the sentences imposed for his liquor violations and the sentence in the perjury case on revocation of probation were excessive, both when viewed in isolation and when viewed as a composite consecutive sentence. We will address Hernandez’ contentions in order.

At the trial for the two liquor offenses, A-186, Greg Kilbuck testified that he purchased a bottle of Seagram’s 7 whiskey from Hernandez after entering Hernandez’ cab and driving with him to Hernandez’ residence. Kilbuck testified that only he and Hernandez were in the cab during this transaction. Officer Chris Liu corroborated Kilbuck’s testimony in part by testifying that he saw Kilbuck enter a cab driven by Hernandez without any other passengers and that he followed it to Hernandez’ residence. Kilbuck was working with Liu as an undercover agent. Additional evidence established that two cases of Seagram’s 7 were found hidden in Hernandez’ residence and that receipts found on the premises indicated that Hernandez had purchased the whiskey in Anchorage and paid for its transportation to Bethel.

Hernandez seems to concede that this evidence viewed in isolation would sustain his convictions. He argues, however, that because it was impeached in part by Kilbuck’s inconsistent testimony regarding the color of the cab in question and contradicted by Hernandez’ alibi witnesses, the total evidence was insufficient to convict him beyond a reasonable doubt. We disagree. On this record contradiction and impeachment created issues for resolution by the jury. The jury heard the evidence and convicted Hernandez. The trial court did not err in denying Hernandez’ motion for a directed verdict of acquittal. See Dorman v. State, 622 P.2d 448, 453 (Alaska 1981); Maloney v. State, 667 P.2d 1258, 1267 (Alaska App.1983). We are also convinced that any inferences of fact favorable to Hernandez from the state’s failure to wire Kilbuck for sound, failure to find the buy money on Hernandez, and failure to find Hernandez’ fingerprints on the bottle of contraband whiskey were for the jury to consider.

Next, Hernandez argues that he did not receive effective assistance of counsel at trial. See Risher v. State, 523 P.2d 421, 424 (Alaska 1974). He contends that counsel’s omissions fell into two categories. First, that she failed to call additional favorable witnesses, and second, that she failed to thoroughly examine the defendant’s witnesses to elicit all information helpful to defendant. This issue is governed by our recent decision in Barry v. State, 675 P.2d 1292 (Alaska App.1984). In Barry, we said:

[HJenceforth we will not entertain claims of ineffective assistance of counsel on appeal unless the defendant has first moved for a new trial or sought post-conviction relief, supporting the claim with affidavits alleging facts which would establish a basis for relief. If defendant’s affidavits establish a prima facie case of ineffective assistance of counsel, the state must then be given an opportunity to file counter affidavits; if material factual conflicts exist or the state requests an opportunity to cross-examine defendant’s witnesses then an evidentiary hearing should be held. To the extent that Alaska Criminal Rule 33 places unreasonable time limitations on the presentation of this issue, the trial court should exercise its discretion pursuant to Criminal Rule 53 to provide reasonable time.

Id. at 1296.

It does not appear that Hernandez moved for a new trial or sought post-conviction relief in the trial court. We therefore decline to consider his claim of ineffective assistance of counsel at this time. Further, we are satisfied that counsel’s actions could have been strategic and in no event could be characterized as “plain error.” See id. at 1295.

In Barry we concluded that in fairness to the parties, appeals filed prior to publica[290]*290tion of our decision would be handled by a remand to the trial court to permit defendants to raise their ineffective assistance of counsel claims. Id. at 1296. The Barry decision was published on February 3, 1984. While Hernandez’ opening briefs in A-186 were filed February 21, 1984, his appeal was filed on October 27, 1983. Under these circumstances, we will assume that appellate counsel did not have sufficient opportunity to learn of Barry and comply with its requirements. We will therefore remand this case to the district court to permit Hernandez to-litigate his claim of ineffective assistance of counsel. If the district court grants Hernandez a new trial, then he should move directly in the superior court for post-conviction relief. See Oksoktaruk v. State, 619 P.2d 480 (Alaska 1980) (where probation is revoked based upon a criminal conviction that is later set aside, order revoking probation should be set aside as well). See also McBeth v. State, 652 P.2d 120, 126 (Alaska App.1982).

Finally, Hernandez contends that the trial court imposed an excessive sentence for his liquor violations. We disagree. Judge Curda carefully considered the record in light of the standards established in State v. Chaney, 477 P.2d 441 (Alaska 1970). The only factor he did not mention was “isolation” which he apparently considered irrelevant in light of Hernandez’ record. Judge Curda stressed deterrence of self and others and affirmation of community norms.

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Hernandez v. State
691 P.2d 287 (Court of Appeals of Alaska, 1984)

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691 P.2d 287, 1984 Alas. App. LEXIS 319, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hernandez-v-state-alaskactapp-1984.