June 5, 2015
TRACY G. HUTTON, Petitioner,
STATE OF ALASKA, Respondent Court of Appeals Nos. A-10836, 7014
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. Superior Court No. 3AN-08-11797 CR.
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.].
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. Because he had a prior felony conviction, the State also charged him with 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."  Recklessness is the applicable mental state for the circumstances of this offense.
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," 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. 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. The court of appeals affirmed, holding that there was substantial evidence that Hutton had waived his right to a jury trial on Count III.
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. When we review an issue de novo, we " adopt the rule that is most persuasive in light of precedent, reason, and policy." 
The State argues that an earlier case, Walunga v. State, 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. 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. 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. Walunga was tried without a jury, convicted, and sentenced to life in prison. He moved for post-conviction relief, arguing that his jury-trial waiver was deficient. The superior
court concluded that the waiver passed constitutional muster because the evidence showed that Walunga was competent. Walunga appealed, 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.
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. 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."  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." 
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."  And we held that the " superior court's holding [regarding competency] is supported by substantial evidence."  We explained that " Walunga contend[ed] that [the] inquiry was insufficient, because it did not delve into his mental state,"  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."  Moreover, the cases we cited for the substantial evidence standard -- Hampton v. State  and Naples v. United States  -- only discuss competency, not waiver generally. 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.'"  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 rights and voluntariness of confessions, 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. And a definitive majority of states that have clearly addressed the topic have also applied the mixed standard, but for differing reasons. A handful of these states have applied de novo review because the issue was constitutional, but the majority have reviewed the 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.
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. In State v. Ridgely, we held that " [w]hen an appellate court reviews a trial judge's determination of voluntariness, its standard of review reflects the mixed factual and legal nature of the voluntariness inquiry."  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 weapon charge. Alaska Statute 11.61.200(a)(1) sets out four of these elements: "  knowingly  possess[ing] a firearm  capable of being concealed on one's person  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."  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."  The State's 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.
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.