Hutton v. State , 350 P.3d 793 ( 2015 )

Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
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THE SUPREME COURT OF THE STATE OF ALASKA
TRACY G. HUTTON, )
) Supreme Court No. S-15266
Petitioner, ) Court of Appeals No. A-10836
)
v. ) Superior Court No. 3AN-08-11797 CR
)
STATE OF ALASKA, ) OPINION
)
Respondent. ) No. 7014 – June 5, 2015
_______________________________ )
Petition for Hearing from the Court of Appeals of the State of
Alaska, on appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage, Patrick J. McKay
and Jack W. Smith, Judges.
Appearances: Renee McFarland, Assistant Public Defender,
and Quinlan Steiner, Public Defender, Anchorage, for
Petitioner. Kenneth M. Rosenstein, Assistant Attorney
General, Office of Special Prosecutions and Appeals,
Anchorage, and Michael C. Geraghty, Attorney General,
Juneau, for Respondent.
Before: Fabe, Chief Justice, Stowers, and Maassen, Justices.
[Winfree and Bolger, Justices, not participating.]
STOWERS, Justice.
I. INTRODUCTION
A man was arrested and charged with three counts of weapons misconduct.
After the first two counts were tried to a jury, he waived his right to a jury trial and the
third count was tried to the court. He was convicted and appealed, arguing that he had
not effectively waived his constitutional right to a jury trial. The court of appeals
affirmed his conviction, holding that substantial evidence supported his waiver. We
granted his petition for hearing to decide the appropriate standard of review for the
waiver of the right to a jury trial. We now conclude that an appellate court should review
the superior court’s factual findings for clear error and its ultimate conclusion regarding
the waiver’s constitutional validity de novo because whether a defendant made a
constitutionally valid waiver is a mixed question of law and fact.
At oral argument to this court, the State conceded the defendant was not
advised of an essential element of the third count and that he was misadvised of the
elements of his offense. Because the defendant was given incomplete and misleading
information about the charge for which he was being asked to waive his right to a jury
trial, we conclude that his waiver was constitutionally defective. The court of appeals’
decision is reversed, and the case is remanded to the superior court for a new trial.
II. FACTS AND PROCEEDINGS
On March 30, 2008, Tracy G. Hutton and Amanda Topkok were parked
near Tikishla Park. A truck pulled up beside them, and a shot was fired into their
vehicle, hitting Topkok in the shoulder. Hutton decided to follow the truck instead of
taking her directly to the emergency room. He followed the truck until it stopped at a red
light and fired three to four times at the truck with a handgun. Afterwards, Hutton took
Topkok to Alaska Regional Hospital and drove away.
The State charged Hutton with weapons misconduct in the first and second
degrees.1 Because he had a prior felony conviction, the State also charged him with
1
Under AS 11.61.190(a) a person commits first-degree weapons misconduct
if “the person . . . discharges a firearm from a propelled vehicle while the vehicle is being
(continued...)
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weapons misconduct in the third degree: “knowingly possess[ing] a firearm capable of
being concealed on one’s person after having been convicted of a felony . . . by a court
of this state, a court of the United States, or a court of another state or territory.”2
Recklessness is the applicable mental state for the circumstances of this offense.3
The three charges were tried in a bifurcated proceeding, with the first two
counts decided by a jury. A special interrogatory asked the jury if Hutton knowingly
possessed a concealable firearm. The jury returned a verdict of guilty on the charge of
weapons misconduct in the first degree but not guilty on the charge of weapons
misconduct in the second degree, and found that Hutton had knowingly possessed a
concealable firearm. After the jury returned the verdict, the parties and court discussed
whether Hutton would proceed to a jury trial on Count III — felon in possession — or
whether he would admit that count.
The superior court stated that “[w]ith regard to Count III, the [S]tate has
proved, beyond a reasonable doubt, according to the jury, the firearm portion of it. The
second portion of it of course is the fact that Mr. Hutton must have been found to be a
convicted felon. It’s my understanding that Mr. Hutton is willing to admit that; is that
correct?” Hutton’s attorney answered, “Yes,” but Hutton’s answer was indiscernible.
The court again explained the situation to Hutton, and this time he answered, “Yeah,”
1
(...continued)
operated and under circumstances manifesting substantial and unjustifiable risk of
physical injury to a person or damage to property.” As relevant, a person commits
second-degree weapons misconduct under AS 11.61.195(a)(3) if “the person
knowingly . . . discharges a firearm at or in the direction of (A) a building with reckless
disregard for a risk of physical injury to a person; or (B) a dwelling.”
2
AS 11.61.200.
3
See Afcan v. State, 711 P.2d 1198, 1199 (Alaska App. 1986).
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when asked if he was willing to admit that he had previously committed a felony. The
court asked Hutton if anyone had threatened or coerced him in regards to the admission,
to which Hutton responded, “No.” The court stated, “And there’s been no promises
made for you to do this, correct? I have to make a finding that you know what you’re
doing and that you’re doing this voluntarily. Do you know what you’re doing? Have
you had enough time to talk with your lawyer about it?” Hutton responded, “Yeah.”
Then the court rephrased the issue, explaining that “basically what you’re doing is you’re
admitting one element of the charge against you.” At this point Hutton interrupted the
judge and said, “Oh, no, no, no, no. I don’t want to admit that.”
After an off-the-record discussion with his attorney, Hutton told the judge
to “[g]o ahead” and find that he was voluntarily giving up his right to a jury trial, but
then moments later said, “You know, it’s not making much sense to me.” The court
again tried to explain the situation to Hutton. This time Hutton seemed to understand
and answered, “Yes,” to the court’s routine questions concerning voluntariness.4
4
Here is the court’s and Hutton’s colloquy:
The Court: And understanding that that basically means that,
with what the jury found, the – there will be a conviction of
record. Do you understand that?
Mr. Hutton: Uh-huh (affirmative).
The Court: And your answer – you’re nodding your head
yes? Okay.
Mr. Hutton: Yeah.
The Court: And you’re doing this knowingly, and you’re
giving up . . . .
Mr. Hutton: Yeah.
The Court: . . . your right to a jury trial . . . .
(continued...)
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Ultimately, the court asked: “You’re waiving your right to a jury trial on the fact — on
the issue of whether or not you’re a convicted felon. Do you understand that?” Hutton
answered, “Yes.” The court accepted this waiver and admission.
Hutton was sentenced to three years’ imprisonment for Count III and
appealed, arguing that he had not knowingly waived his right to a jury trial.5 The court
of appeals affirmed, holding that there was substantial evidence that Hutton had waived
his right to a jury trial on Count III.6
Hutton petitioned for hearing, and we granted review in order to decide the
standard of review for waiver of the right to a jury trial.
III. STANDARD OF REVIEW
Determining the appropriate standard of review is a question of law that we
review de novo.7 When we review an issue de novo, we “adopt the rule that is most
persuasive in light of precedent, reason, and policy.”8
4
(...continued)
Mr. Hutton: Yeah.
5
Hutton v. State, 305 P.3d 364, 370 (Alaska App. 2013).
6
Id. at 371.
7
In re Life Ins. Co. of Alaska, 76 P.3d 366, 368 (Alaska 2003) (“The
question whether the superior court applied the proper standard of review in denying
[the] claim is a question of law to which we apply our independent judgment.”); see also
VECO Alaska, Inc. v. State, Dep’t of Labor, Div. of Workers’ Comp., Second Injury
Fund, 189 P.3d 983, 987 (Alaska 2008) (deciding the standard of review as a matter of
law).
8
State v. Gonzales, 156 P.3d 407, 411 (Alaska 2007) (quoting Guin v. Ha,
591 P.2d 1281, 1284 n.6 (Alaska 1979)) (internal quotation marks omitted).
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IV. DISCUSSION
The State argues that an earlier case, Walunga v. State,9 already decided the
standard of review for a jury-trial waiver and that, even if it did not decide the issue,
substantial evidence is the correct standard. Hutton argues that the mixed question of
law and fact standard is correct because the ultimate issue is a question of law.
A. Walunga v. State Did Not Decide The Standard Of Review For
Jury-Trial Waivers.
In 1973, Allen Walunga was charged with first-degree murder and assault
with intent to kill.10 Walunga filed a written waiver of his right to a jury trial, and his
counsel later submitted an affidavit stating that Walunga was competent to make a valid
waiver.11 The superior court did not independently inquire of Walunga whether he was
competent to make a valid waiver but engaged in its standard colloquy on
voluntariness.12 Walunga was tried without a jury, convicted, and sentenced to life in
prison.13 He moved for post-conviction relief, arguing that his jury-trial waiver was
deficient.14 The superior court concluded that the waiver passed constitutional muster
because the evidence showed that Walunga was competent.15 Walunga appealed,
9
630 P.2d 527 (Alaska 1980) (per curiam).
10
See id. at 527.
11
Id. at 527-28.
12
Id. at 528 & n.6.
13
Id. at 527-28.
14
Id. at 527.
15
State v. Walunga, No. 72-00206 CR, at 4-5 (Alaska Super. 4th Dist,
Fairbanks, Jan. 26, 1979).
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arguing that he was incapable of effectively waiving his right to a jury trial and that the
superior court erred by not independently inquiring of him whether he was competent.16
We affirmed, holding that Walunga was competent to make a valid waiver
and that the superior court did not need to independently inquire of Walunga regarding
his competency.17 In the section of our opinion discussing competency, we noted that
“[n]either party explicitly discusses the standard of review for trial court findings
regarding waiver of this constitutional right,” and held that the proper standard was
“substantial evidence.”18 We concluded that there was substantial evidence in the record
demonstrating that Walunga was competent to waive his rights, and that “sufficient
evidence of Walunga’s capacity . . . obviate[d] the need to inquire of Walunga himself.”19
In Walunga we did not frame the issue as waiver of the right to a jury trial;
we framed the issue as one of competency: Walunga “claim[ed] that he was incapable
of effectively waiving his constitutional right to trial by jury because of mental illness,
and that the superior court erred in failing to inquire into [his] capacity.”20 And we held
that the “superior court’s holding [regarding competency] is supported by substantial
evidence.”21 We explained that “Walunga contend[ed] that [the] inquiry was insufficient,
16
Walunga, 630 P.2d at 527.
17
Id. at 528-29.
18
Id. at 528 n.4.
19
Id. at 529.
20
Id. at 527 (footnote omitted).
21
Id. at 528.
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because it did not delve into his mental state,”22 but “[g]iven the psychiatric
testimony before the superior court . . . and Walunga’s attorney’s belief in his client’s
competency . . . [,] there was sufficient evidence of Walunga’s capacity to obviate the
need to inquire of Walunga himself.”23 Moreover, the cases we cited for the substantial
evidence standard — Hampton v. State24 and Naples v. United States25 — only discuss
competency, not waiver generally.26 And two years after we decided Walunga, we
explained, “As we noted in Walunga v. State, . . . ‘the proper standard of review is
whether the superior court’s finding of [competence to make the] waiver is supported by
substantial evidence.’ ”27 Thus, Walunga did not decide the standard of review for a
waiver of jury trial.
B. Whether A Defendant Made A Constitutionally Valid Waiver Is A
Mixed Question Of Law And Fact.
Hutton argues that a majority of jurisdictions use the mixed question of law
and fact standard of review and that this standard best reflects the legal nature of the
ultimate decision: whether a defendant made a constitutionally valid waiver of his right
to a jury trial. The State argues that unlike waivers of Miranda rights28 and voluntariness
22
Id.
23
Id. at 528-29.
24
569 P.2d 138 (Alaska 1977).
25
307 F.2d 618 (D.C. Cir. 1962).
26
See Naples, 307 F.2d at 626; Hampton, 569 P.2d at 143.
27
Dolchok v. State, 639 P.2d 277, 294 (Alaska 1982) (second alteration in
original) (quoting Walunga, 630 P.2d at 528 n.4).
28
Miranda v. Arizona, 384 U.S. 436, 444 (1966) (“Prior to any questioning,
(continued...)
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of confessions,29 because a jury-trial waiver is made in the presence of the trial court, the
trial court is in the best position to determine the validity of the waiver, and the trial
court’s decision should be reviewed under the substantial evidence standard.
While courts do not all agree, a majority of jurisdictions treat the ultimate issue
as one of law. Eight of the ten federal circuits that have made a clear pronouncement on
the topic have applied the mixed question of law and fact standard.30 And a definitive
majority of states that have clearly addressed the topic have also applied the mixed
28
(...continued)
the person must be warned that he has a right to remain silent, that any statement he does
make may be used as evidence against him, and that he has a right to the presence of an
attorney, either retained or appointed. The defendant may waive effectuation of these
rights, provided the waiver is made voluntarily, knowingly[,] and intelligently.”).
29
Beavers v. State, 998 P.2d 1040, 1044 (Alaska 2000) (“A confession is not
admissible into evidence unless it is voluntary.” (quoting Sovalik v. State, 612 P.2d
1003, 1006 (Alaska 1980)) (internal quotation mark omitted)).
30
United States v. Reynolds, 646 F.3d 63, 75 (1st Cir. 2011) (“For preserved
claims, ‘[w]e review factual findings by the district court for clear error and the
determination of whether a waiver of rights was voluntary de novo.’ ” (quoting
United States v. Frechette, 456 F.3d 1, 11 (1st Cir. 2004))); United States v. Griffin,
394 F. App’x 349, 351 (8th Cir. 2010) (per curiam) (reviewing the jury waiver new
novo); United States v. Carmenate, 544 F.3d 105, 107 (2d Cir. 2008) (holding that
“whether a defendant has effectively waived his federal constitutional rights in a
proceeding is ultimately [a] legal question” (quoting Oyague v. Artuz, 393 F.3d 99, 104
(2d Cir. 2004)) (alteration and internal quotation marks omitted)); United States v. Diaz,
540 F.3d 1316, 1321 (11th Cir. 2008) (applying de novo review); United States v. Khan,
461 F.3d 477, 491 (4th Cir. 2006) (reviewing whether jury-trial waiver was effective
de novo); United States v. Watts, 45 F. App’x 323, 2 (5th Cir. 2002) (per curiam)
(applying de novo review); Lott v. Coyle, 261 F.3d 594, 610 (6th Cir. 2001) (applying
de novo review); United States v. Duarte-Higareda, 113 F.3d 1000, 1002 (9th Cir. 1997)
(applying de novo review).
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standard,31 but for differing reasons. A handful of these states have applied de novo
review because the issue was constitutional,32 but the majority have reviewed the
31
See, e.g., State v. Vann, 2010 WL 2602000, at *2 (Ariz. App.
June 29, 2010) (“Consequently, we review de novo whether the superior court obtained
a valid waiver of Vann’s right to a jury trial, but we defer to the court’s factual findings.”
(citing State v. Winegar, 711 P.2d 579, 584 (Ariz. 1985))); Brown v. State, 721 A.2d
1263, 1266 (Del. 1998) (applying de novo review); State v. Gomez-Lobato, 312 P.3d
897, 900-01 (Haw. 2013) (applying de novo review); State v. Stallings, 658 N.W.2d
106, 108 (Iowa 2003) (“The adequacy of a jury-trial waiver is a mixed question of fact
and law, which an appellate court decides de novo.”) overruled on other grounds by
State v. Feregrino, 756 N.W.2d 700, 708 (Iowa 2008); State v. Duncan, 243 P.3d
338, 340-41 (Kan. 2010) (“When the facts are undisputed, whether a defendant
knowingly and voluntarily waived his right to a jury trial is a question of law subject to
unlimited review.”); State v. Poole, 46 A.3d 1129, 1131 (Me. 2012) (“When reviewing
whether a defendant has effectively waived the jury trial right, we review the court’s
factual findings for clear error and its legal conclusions de novo.”); State v. Kuhlmann,
806 N.W.2d 844, 848-49 (Minn. 2011) (applying de novo review); State v. Thompson,
83 A.3d 388, 393 (N.H. 2013) (“Whether the facts support a valid waiver is a question
of law which we review de novo.” (quoting State v. Foote, 821 A.2d 1072, 1074
(N.H. 2003)) (internal quotation marks omitted)); Gallimort v. State, 997 P.2d 796, 798
(Nev. 2000) (applying de novo review); State v. Redden, 487 S.E.2d 318, 323-24
(W.Va. 1997) (applying de novo review); State v. Anderson, 638 N.W.2d 301, 306
(Wis. 2002) (applying de novo review).
32
See State v. Gomez-Lobato, 312 P.3d 897, 900-01 (Haw. 2013) (“The
validity of a criminal defendant’s waiver of his or her right to a jury trial presents
a question of state and federal constitutional law. . . . We answer questions of
constitutional law by exercising our own independent constitutional judgment based on
the facts of the case.” (alteration in original)); State v. Kuhlmann, 806 N.W.2d 844,
848-49 (Minn. 2011) (“Whether a criminal defendant has been denied the right to a jury
trial is a constitutional question that we review de novo.”); State v. Vasquez, 34 P.3d
1255, 1260 (Wash. App. 2001) (“Because it implicates the waiver of an important
constitutional right, our review is de novo.”); State v. Anderson, 638 N.W.2d 301, 306
(Wis. 2002) (“Whether an individual is denied a constitutional right is a question of
constitutional fact that this court reviews independently as a question of law.” (quoting
State v. Klessig, 564 N.W.2d 716, 721 (Wis. 1997)) (internal quotation marks omitted)).
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ultimate conclusion de novo because the issue is a mixed question of law and fact. There
are only a few states that after fully considering the issue have applied a deferential
standard of review.33
The mixed question of law and fact standard of review correctly reflects the
reality that whether a defendant made a constitutionally valid waiver of his right to a jury
trial is a legal question. As both parties agree, the superior court’s underlying factual
findings should be reviewed for clear error. But the ultimate conclusion drawn from
those facts — whether a defendant’s waiver is constitutionally sufficient — is a question
of law the appellate court reviews de novo.
The State argues that because the jury-trial waiver happens in the presence
of the trial court, we should review it deferentially. The State contends that we review
Miranda waivers and confessions de novo because these happen outside of the
courtroom. But in Miranda and confession cases our application of de novo review is
not premised on the fact that the crucial exchanges happened outside the presence of the
court.34 In State v. Ridgely, we held that “[w]hen an appellate court reviews a trial
33
See State v. Hall, 582 A.2d 507, 509 (Md. 1990) (“Considering the totality
of the circumstances in the present case, we think that the trial judge could fairly find that
Hall intentionally relinquished his known right to a jury trial by his voluntary act in
waiving that right.” (citation omitted)); Commonwealth v. Schofield, 463 N.E.2d 1181,
1184 (Mass. 1984) (“In the instant case there is adequate support for the judge’s
decision.”); Defrancisco v. State, 656 S.E.2d 238, 241 (Ga. App. 2008) (“A trial court’s
ruling as to whether a defendant knowingly, intelligently, and voluntarily waived his
right to a jury trial is also reviewed under a clearly erroneous standard.”).
34
State v. Ridgely, 732 P.2d 550, 554 (Alaska 1987) (explaining that
voluntariness is a mixed question without making any reference to the inquiry happening
out of the presence of the court); Giacomazzi v. State, 633 P.2d 218, 222 (Alaska 1981)
(explaining that waiver is a mixed question without making any reference to the inquiry
happening out of the presence of the court); Troyer v. State, 614 P.2d 313, 318
(continued...)
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judge’s determination of voluntariness, its standard of review reflects the mixed factual
and legal nature of the voluntariness inquiry.”35 It is the voluntariness inquiry itself —
not when or where that inquiry happened — that mandates the mixed standard. The
issue is whether a certain set of facts legally amounts to a valid constitutional waiver, and
the trial court is in no better position to answer that legal question than is an appellate
court. A question of law does not require credibility determinations that merit deferential
review of the trial court’s decision. We conclude that when an appellate court reviews
whether a defendant made a constitutionally valid waiver of his right to a jury trial, the
court should apply the standard for mixed questions of law and fact.
C. Hutton’s Waiver Was Invalid.
In its briefing, the State argues that even were we to review the superior
court’s waiver conclusion de novo, we should affirm because (1) Hutton had just
participated in a jury trial on Counts I and II and knew what a jury trial would entail; (2)
the judge had explained the process to him; (3) he had enough time to discuss the matter
with his attorney; and (4) he twice said that he was voluntarily waiving his right.
But there is a fundamental flaw in the State’s argument. In order to convict
Hutton of weapons misconduct in the third degree, the State was required to prove
beyond a reasonable doubt all of the elements of the applicable felon in possession of a
34
(...continued)
(Alaska 1980) (explaining the standard at length, including giving deference to the
superior court for the historical facts recited in its presence, but not making any reference
to the importance of the confession happening out of the view of the court).
35
732 P.2d at 554; see id. (“The voluntariness inquiry involves three steps.
First, the trial judge must find the external, phenomenological facts surrounding the
confession. Second, from these external facts, the judge must infer an internal,
psychological fact: the mental state of the accused. Finally, the judge must assess the
legal significance of this inferred mental state.”).
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weapon charge. Alaska Statute 11.61.200(a)(1) sets out four of these elements:
“[1] knowingly [2] possess[ing] a firearm [3] capable of being concealed on one’s person
[4] after having been convicted of a felony.” But there is an additional, necessary
element that the State was required to prove: Hutton’s culpable mental state with respect
to the circumstances of his offense. As the court of appeals explained in Afcan v. State,
“AS 11.81.610(b)(2) makes recklessness the applicable, culpable mental state,” and “[a]s
an aspect of the mens rea requirement in this case, it was necessary for the [S]tate to
establish that [the defendant] was aware of or recklessly disregarded the fact that he had
been convicted of a felony.”36 In the trial judge’s colloquy with Hutton, Hutton was
advised that the State only needed to prove the four elements set out in
AS 11.61.200(a)(1) to prove its case. Hutton was not advised that the State would also
have to prove beyond a reasonable doubt that at the time Hutton possessed the handgun
he was aware of or recklessly disregarded the fact that he was a felon.
At oral argument to this court, the State candidly conceded that “the
omission of an element of the offense and the proof that would be required is a
significant problem.” When asked if the case would need to “go back on that element,”
the State’s attorney acknowledged that “in all honesty, [he] would have to say yes. . . .
It’s an essential element of the offense [and] he wasn’t advised of it.”37 The State’s
36
711 P.2d 1198, 1199 (Alaska App. 1986) (emphasis added).
37
Here is the full exchange between the court and the State’s attorney at oral
argument:
Justice Stowers: This is essentially the very beginning of the
process and this is where the trial judge at this point is trying
to get the defendant to admit the prior felonies. And so the
court says, basically there are two elements to that crime:
one is you’re carrying a concealed firearm knowingly, which
(continued...)
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37
(...continued)
the jury has already found, and the second one is that you
have been convicted of a felony either as an adult or as a
juvenile; are you willing to admit that? And then a little bit
later . . . the trial judge talks a little about we can bring the
jury back in and let the jury decide whether you’re a prior
felon.
But as has been pointed out here . . . to actually . . . have been
convicted of the third-degree weapons misconduct the jury
must find the defendant knowingly possesses a firearm
capable of being concealed on the person after having been
convicted of a felony, and that the defendant was reckless
with respect to the fact that he had been previously been
convicted of the felony. And the trial judge at no point
discussed the recklessness element, and there is an argument
that’s being made that this recklessness element is
quintessentially a factual question that Mr. Hutton was
entitled to have a jury decide — not just did he possess
knowingly a firearm that could be concealed, and not just did
he have a prior felony conviction, but also that he recklessly
disregarded the knowledge of this prior felony conviction.
My question is, in all of this colloquy, looking at this from a
totality of the circumstances standard, how can I conclude
reasonably that Mr. Hutton waived his right to a jury trial on
this recklessly disregard element when it was never discussed
with him; how could that be an intelligent waiver, how could
it be a knowing waiver, and ultimately how could it be a
constitutionally effective waiver? Or, to put it another way,
and I’m not trying to prolong this, where is the substantial
evidence, even if we were to accept your view, that his was
knowing, and intelligent, and voluntary.
Mr. Rosenstein: That’s a problem. I mean, the omission of an
element of the offense and the proof that would be required
is a significant problem.
(continued...)
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forthright concession is commendable and well-taken. Hutton could not have made a
knowing, intelligent, and voluntary waiver of his right to a jury trial when he was not
advised of a necessary element of the charged offense and the State’s burden to prove
that element beyond a reasonable doubt. Hutton’s conviction on Count III must be
reversed and the case remanded for a new trial on that count.
V. CONCLUSION
We hold that when an appellate court reviews whether a defendant’s waiver
of the right to a jury trial was constitutionally effective, the applicable standard of review
is the mixed question of law and fact standard. Because Hutton was not advised of an
essential element of the charged offense in the trial court’s colloquy regarding Hutton’s
purported waiver of his right to jury trial, we conclude Hutton’s waiver was invalid and
constitutionally ineffective. We therefore REVERSE the court of appeals’ decision as
to Count III and REMAND the case to the superior court for further proceedings
consistent with this opinion.
37
(...continued)
Justice Stowers: Does it have to go back on that element —
that issue alone? Isn’t that enough under either standard —
the substantial evidence or the mixed question?
Mr. Rosenstein: I . . . you know, in all honesty, I would have
to say yes. I can’t make a silk purse out of that. It’s an
essential element of the offense . . . he wasn’t advised of it.
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