McCoy v. State

59 P.3d 747, 2002 WL 1998080
Court of Appeals of Alaska·Decided November 22, 2002·No. A-7789·Published·Cited by 4 cases

Opinions

OPINION

STEWART, Judge.

After reaching a plea bargain with the State, Christopher J. McCoy, Sr., pleaded no contest to one count of third-degree assault.1 Superior Court Judge Harold M. Brown imposed 4 years' imprisonment with all but 18 months suspended. In this appeal, McCoy does not challenge his sentence. Instead, he argues that Judge Brown erred when he denied McCoy's motion to strike certain portions of the presentence report. Because we reject McCoy's arguments, we affirm the superior court.

The challenged hearsay statements

Before sentencing, McCoy moved to strike certain paragraphs from the "collateral contacts" section of the presentence report and two paragraphs from an addendum to the presentence report that contained informa[749] tion about other assaultive conduct by McCoy. McCoy argued the purportedly objectionable paragraphs contained unverified hearsay statements.

Judge Brown ruled that the hearsay statements in the presentence report were sufficiently trustworthy for him to rely on them unless McCoy presented a challenge to their accuracy. He reasoned that the information in the addendum came from police reports in which the victim of the assaults, Michelle McCoy, reported her observations to the police. Judge Brown also noted that the addendum contained "confirming information as to what [the police] did in response." Judge Brown concluded that the other statements in the presentence report, "even though they might be so-called third-hand information, [are] the type of information that the court can consider verified for the purpose of ... this sentencing process."

In Nukapigak v. State,2 the Alaska Supreme Court held that hearsay statements can be considered during sentencing if they are "sufficiently verified to appear trustworthy and the defendant was given the opportunity to deny [the truth of the statements] or present contrary evidence of his own."3 The court defined "verified" as "corroborated or substantiated by supporting data or information." 4

In that case, the presentence investigator spoke with several residents of Nukapigak's village. The presentence report included the villagers' descriptions of Nukapigak's misconduct.5 Even though the villagers' reports were not based on first-hand knowledge, the supreme court ruled that this information was verified. The villagers were identified in the presentence report, and Nukapigak, who was supplied a copy of the report, was entitled to challenge the accuracy of the reports or offer contrary evidence.6

Here, the probation officer reported that McCoy's father-in-law described a history of domestic violence in the MeCoy home. Included in the report were the father-in-law's description of the difficulties his grandchildren had when in McCoy's home, the grand-childrens' complaints to him, and his description of the domestic violence against his daughter caused by McCoy. The probation officer's source, the father-in-law, is identified and whatever data the father-in-law provided that was not based on his first-hand knowledge was attributed to either his grandchildren or his daughter. Under the rationale of Nukapigak, this constitutes verified information. Therefore, Judge Brown was not required to strike this material from the presentence report.

Whether a presentence imvestigator may review and use the information in a defendant's juvemile probation file without first obtaining special permission from the superior court

McCoy objected to the portion of the presentence report that discussed his contacts with the juvenile justice system (contacts that did not lead to formal adjudications of delinquency). He argued that a presen-tence investigator is not authorized to examine a defendant's juvenile records without first obtaining the superior court's permission.

We first address a subsidiary question of law. When McCoy's attorney argued that the presentence investigator had no authority to use information from MceCoy's juvenile file, the attorney asked Judge Brown to consider one of this Court's memorandum opinions, State v. Westerlin,7 because Chief Judge Bryner's concurring opinion in Wester-lin discusses (but reaches no conclusion regarding) this issue. The State responded by asking Judge Brown to strike McCoy's pleading; the State asserted that the defense attorney had violated Alaska Appellate Rule 214(d), which declares that memorandum de[750] cisions of this court are "without precedential effect and may not be cited in the courts of this state."

Black's Law Dictionary defines "cite" "refer to or adduce as precedent or authority."8 MceCoy's attorney did not claim that our memorandum opinion in Westeriin was precedent. It is arguable that the defense attorney adduced Judge Bryner's concurrence as "authority" in the broadest sense of that term-that is, as a record of what another judge thought about a legal issue, for whatever persuasive power it might have. But we do not read Appellate Rule 214(d) to preclude this. Rather, the rule forbids reliance on a memorandum opinion as "authority" in a narrower sense-what Black's Law Dictionary calls "imperative authority": "[a]) legal writing taken as definitive or decisive; esplecially], a judicial ... decision cited as precedent." 9

McCoy's attorney did not claim or imply that our unpublished decision in Westeriin resolved the issue of statutory interpretation presented in McCoy's case or that it restricted the seope of Judge Brown's decision-making authority on this issue. Thus, the defense attorney did not violate Appellate Rule 214(d) by bringing Westerlin to Judge Brown's attention.

We now turn to the merits of McCoy's argument. McCoy concedes that Alaska Criminal Rule 32.1(b)(1) specifically requires presentence reports to include "any finding of delinquency." But MceCoy contends that prior judicial approval is needed before a presentence Investlgator can refer to any other aspect of a defendant's juvenile history-i.e., contacts that did not lead to a formal delinquency adjudication. To support this contention, McCoy relies on a statute, AS 47.12.300, and a. court rule, Alaska Delinquency Rule 27(a)(1).

Alaska Statute 47.12.300(d) states that the superior court is required to seal "all the court's official yecords pertaining to [a] minor" within 30 days of the time the court relinquishes juvenile jurisdiction over the minor (normally, at the time of the minor's 18th birthday). The statute then declares that, once these official court records are sealed, "[no] person may ... use these ... records for any purpose except that the court may order their use for good cause shown or may order their use by an officer of the court in making a presentenc[e] report."

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McCoy v. State, 59 P.3d 747, 2002 WL 1998080 (Ala. Ct. App. 2002).

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Related

Hart v. State
75 P.3d 1073 (Court of Appeals of Alaska, 2003)
McCoy v. State
59 P.3d 747 (Court of Appeals of Alaska, 2002)