James Clarke v. State of Alaska

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IN THE COURT OF APPEALS OF THE STATE OF ALASKA

JAMES CLARKE,
Court of Appeals No. A-14169
Appellant, Trial Court No. 3KN-10-00805 CR

v.
OPINION
STATE OF ALASKA,

Appellee. No. 2810 — July 25, 2025

Appeal from the Superior Court, Third Judicial District,
Palmer, Kristen C. Stohler, Judge.

Appearances: Nate Crowley, Attorney at Law, San Diego,
California, under contract with the Public Defender Agency,
and Terrence Haas, Public Defender, Anchorage, for the
Appellant. RuthAnne Beach, Assistant Attorney General,
Office of Criminal Appeals, Anchorage, and Treg R. Taylor,
Attorney General, Juneau, for the Appellee.

Before: Allard, Chief Judge, and Harbison and Terrell, Judges.

Judge ALLARD.
In 2011, James Clarke pleaded guilty to third-degree misconduct
involving a controlled substance and third-degree sexual abuse of a minor.1 At the
disposition hearing for his eighth petition to revoke probation (PTRP), Clarke admitted
that he failed to report to his probation officer. The superior court accepted his
admission. After listening to the parties’ sentencing arguments, the court stated that it
would issue a written disposition after reviewing the court file. Two days later and
outside of Clarke’s presence, the court issued a written order imposing the remainder
of Clarke’s suspended time.
Clarke now appeals, arguing that, by imposing his sentence outside his
presence, the superior court violated his right to be present at the pronouncement of
sentence as guaranteed by Alaska Criminal Rule 38(a) and the United States and Alaska
Constitutions. Clarke also contends that the sentence imposed was clearly mistaken.
We agree with Clarke that imposing his probation revocation sentence in
writing violated Criminal Rule 38(a), and that this error was not harmless beyond a
reasonable doubt. Accordingly, we remand this case to the superior court for a new
disposition hearing to reconsider Clarke’s sentence and to impose that sentence in his
presence. Because we remand for resentencing, we do not reach Clarke’s claim that his
sentence was clearly mistaken.

Background facts and proceedings
Clarke was initially charged with twenty-one counts stemming from
allegations that he sexually assaulted his fourteen-year-old step-granddaughter and
possessed methamphetamine, drug paraphernalia, and stolen guns.

1
Former AS 11.71.030(a)(1) (2010) and former AS 11.41.438(a) (2010),
respectively.

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Clarke pleaded guilty to one count each of third-degree misconduct
involving a controlled substance and third-degree sexual abuse of a minor,2 and the
State dismissed the remaining charges. The superior court sentenced Clarke to a
composite sentence of 10 years with 7 years and 9 months suspended (2 years and 3
months to serve) and 10 years of probation.
Between 2012 and 2020, the superior court revoked Clarke’s probation
seven times and collectively imposed 2 years and 190 days of Clarke’s suspended time.3
Clarke’s prior violations included numerous failures to report, multiple instances of
illegal drug use, and residing in a dwelling with a person under eighteen years old
without approval of his probation officer.
The State filed its eighth PTRP — the petition underlying the present
appeal — in July 2021. The petition alleged that Clarke failed to report to his probation
officer as directed and failed to maintain his sex offender registration. At the
adjudication hearing, Clarke admitted to the allegation that he failed to report and the
State withdrew the remaining allegation. The superior court proceeded at this same
hearing with open sentencing.
The State requested that the court terminate Clarke’s probation and
impose all remaining suspended time (approximately 5 years and 3 months). Clarke
also asked the court to terminate his probation, but to impose just 6 months of his
suspended time, noting that his violation was relatively minor and that his health was
declining. Clarke argued that he was no longer a threat to the public because he was in
poor health and no longer mobile; he used a wheelchair, had an inhaler and a
defibrillator, was missing most of the fingers on one hand, had only one lung, was

2
Former AS 11.71.030(a)(1) (2010) and former AS 11.41.438(a) (2010),
respectively.
3
After granting the first seven PTRPs, the court imposed the following sentences:
30 days, 90 days, 1 year, 30 days, 30 days, 1 year, and 10 days, respectively.

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experiencing heart failure and blood clots, and had one leg that might need to be
amputated. Clarke admitted that he was “difficult to supervise,” but argued that the
court needed to focus on reaffirming societal norms and achieving “some level of
deterrence” when imposing his sentence, which did not require imposing all of his
remaining suspended time.
After hearing these sentencing arguments, the court informed the parties
that it needed more time to review Clarke’s case and that a written order would follow.
Neither party objected to the court’s planned course of action.
Two days later, the court issued a written disposition revoking Clarke’s
probation and imposing the remainder of his suspended time. In its order, the court
found that Clarke was not amenable to probation and that the primary sentencing goals
in Clarke’s case were isolation, deterrence, and community condemnation based on his
current and past misconduct.
Clarke now appeals.

Why we conclude that Alaska Criminal Rule 38(a) guarantees Clarke’s
right to be present at the imposition of sentence in a probation revocation
proceeding
Clarke argues that his right to be present during the pronouncement of his
sentence was violated when the court announced his sentence in a written order outside
his presence. He asserts that this right is guaranteed by the due process4 and
confrontation5 clauses of the United States and Alaska Constitutions and by Alaska
Criminal Rule 38(a). We find it unnecessary to address Clarke’s constitutional claims
because this matter is squarely controlled by the terms of Criminal Rule 38(a).

4
U.S. Const. amend. XIV, § 1; Alaska Const. art. I, § 7.
5
U.S. Const. amend. VI; Alaska Const. art. I, § 11.

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We begin by noting that this Court has previously addressed this issue in
two unpublished decisions, Welty v. State6 and Davis v. State.7 In both decisions, we
found that Criminal Rule 38(a) requires a judge presiding over a probation disposition
hearing to orally pronounce the sentence on the record and in the defendant’s presence.8
We reach the same conclusion in the present matter, and we publish this decision to
provide binding guidance for trial court judges.9
In Welty, the court went on record without Welty or his attorney present,
revoked Welty’s probation, and imposed 1 year and 6 months of suspended time.10 We
reversed, concluding that “Criminal Rules 32(a) and 38(a) require the defendant’s
presence at sentencing.”11 In Davis, the court held a disposition hearing with Davis
present, but delayed pronouncing the sentence until after the hearing, issuing a written
order instead.12 We concluded that “by sentencing Davis in a written disposition order,

6
Welty v. State, 1991 WL 11650704 (Alaska App. Apr. 17, 1997) (unpublished).
7
Davis v. State, 2018 WL 6119900 (Alaska App. Nov. 21, 2018) (unpublished).
8
Welty, 1991 WL 11650704, at *1; Davis, 2018 WL 6119900, at *2.
9
As the State points out, Clarke did not object to the court’s decision to issue a written
order outside his presence. We therefore resolve this case as a matter of plain error. See
Adams v. State, 261 P.3d 758, 764 (Alaska 2011). “Plain error is an error that (1) was not
the result of intelligent waiver or a tactical decision not to object; (2) was obvious;
(3) affected substantial rights; and (4) was prejudicial.” Id. “A constitutional violation will
always affect substantial rights and will be prejudicial unless the State proves that it was
harmless beyond a reasonable doubt.” Id. at 773. We have reviewed the record and
conclude that the error was obvious and Clarke’s failure to object was not a tactical
decision. Accordingly, our analysis will focus on whether the State has met its burden of
showing the error was harmless beyond a reasonable doubt.
10
Welty, 1991 WL 11650704, at *1.
11
Id.
12
Davis, 2018 WL 6119900, at *2.

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the judge violated Alaska Criminal Rule 38(a). Under this rule, a felony defendant must
be present when the court imposes sentence for a violation of probation.”13
The State acknowledges our decision in Davis, but argues that it is not
persuasive because the case involved a prior version of Criminal Rule 38(a), which
contained different language.
Prior to its amendment in 2017, Alaska Criminal Rule 38(a) provided:
(a) Presence: Required. The defendant shall be present at
the arraignment, at the preliminary hearing, at the time of
plea, at the omnibus hearing, and at every stage of the trial,
including the impaneling of the jury and return of the verdict,
and at the imposition of sentence, except as otherwise
provided in this rule.[14]
In 2017, Criminal Rule 38(a) was amended, removing “imposition of sentence” and
adding language referencing both “sentencing hearing[s]” in general as well as hearings
“on an adjudication or disposition for a [PTRP]” in particular. The current rule provides:
(a) Presence Required. A defendant charged with a felony
offense shall be present at a felony first appearance, an
arraignment, any hearing where evidence will be presented,
a change of plea hearing, at every stage of trial, including the
impaneling of the jury and return of the verdict, at a
sentencing hearing, and at a hearing on an adjudication or
disposition for a petition to revoke probation.
(1) The defendant shall be physically present for every
hearing at which evidence will be presented and all stages of
the trial including the impaneling of the jury and return of
the verdict; but
(2) The defendant may elect to be present by telephone or by
videoconference at any other proceeding, subject to the
approval of the court.[15]

13
Id.
14
SCO 157 (effective Feb. 15, 1973).
15
SCO 1914 (effective Oct. 16, 2017).

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The proper interpretation of a court rule is a question of law that we decide
de novo.16 We interpret court rules using the same interpretative principles and canons
of construction that we use to interpret statutes.17 That is, we start with the text and its
plain meaning, but we also consider the rule’s purpose and legislative history so as to
“give effect to the legislature’s intent, with due regard for the meaning the . . . language
conveys to others.”18 “We apply a ‘sliding-scale approach’ to interpreting the language
and resolving any ambiguities: ‘[T]he plainer the . . . language is, the more convincing
the evidence of contrary legislative purpose or intent must be.’”19
Here, the plain language of the rule supports our conclusion that the
supreme court intended to ensure that the defendant is present when a sentence is
imposed at a “disposition” hearing in a probation revocation proceeding. Although the
word “disposition” is not defined in the criminal rules, it generally refers to proceedings
that are not deemed strictly criminal, but which involve restrictions on liberty, such as

16
State v. Estate of Powell, 563 P.3d 50, 56 (Alaska 2025) (citing Cora G. v. State,
Dep’t of Health & Soc. Servs., 461 P.3d 1265, 1276 (Alaska 2020)).
17
Id. at 57.
18
Id. (quoting State v. Planned Parenthood of the Great Nw., 436 P.3d 984, 992
(Alaska 2019)). We note that the references to “legislative history” and “legislative intent”
refer to situations where the Alaska Legislature is exercising its authority to amend court
rules pursuant to Article IV, Section 15 of the Alaska Constitution. When the court rule at
issue is instead promulgated by the Alaska Supreme Court, we construe the court rule in a
manner designed to effectuate the supreme court’s intent, and we look to “legislative
history” materials such as commentary prepared by the court rules committee that initially
promulgated the rule and memoranda and committee minutes available in the court rules
attorney’s file for the supreme court order that enacted the language at issue. See, e.g., State
v. Sears, 553 P.2d 907, 910-11 (Alaska 1976); Jackson v. State, 926 P.2d 1180, 1187
(Alaska App. 1996) (noting that Jackson’s interpretation of an appellate rule was
“problematic” because it was contrary to the intent of the Alaska Supreme Court, “the
promulgators of the rule”).
19
Estate of Powell, 563 P.3d at 57 (quoting Planned Parenthood of the Great Nw.,
436 P.3d at 992).

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probation revocations and juvenile sentencings.20 Moreover, the term “disposition” is
generally described as including the imposition of a sentence.21 Indeed, it would be an
unusual use of the word “disposition” if the term “disposition hearing” was construed
to mean a hearing that does not require the court to actually reach, on record, a
disposition of the matter before it.
The State argues that the replacement of the term, “at the imposition of
sentence,” with the new term, “at a sentencing hearing,” was intended to clarify that the
defendant must be present at the “sentencing hearing” but does not necessarily have to
be present during the actual imposition of sentence. But the State points to nothing in
the rule history to support its theory that the amendment was made to limit the
circumstances when a defendant must be present during their sentencing. Nor would
interpreting the rule in this manner be consistent with its underlying purpose. Criminal
Rule 38(a) is intended, in large part, to codify a defendant’s constitutional right to be
present at all critical stages of a criminal prosecution.22 If the intent of the amendment

20
See Alaska Delinq. R. 2(g) (defining “disposition hearing” as “a proceeding,
analogous to a sentencing hearing in a criminal case, in which the court determines the
appropriate disposition of a juvenile who has been adjudicated a delinquent”).
21
See, e.g., Shaw v. State, 673 P.2d 781, 786 (Alaska App. 1983) (“When we used the
terms ‘sentence’ and ‘sentencing’ in Sawyer [v. State, 663 P.2d 230 (Alaska App. 1983)],
we were obviously referring to a disposition hearing during which the trial court reviews
the crime and the defendant’s participation in it, evaluates the presentence report and
selects an appropriate disposition.”); Commonwealth v. Hill, 950 N.E.2d 458, 461 n.5
(Mass. App. 2011) (“We note that a ‘disposition’ made by the court necessarily includes
any sentence imposed, as well as any suspended sentence, term of probation, or
combination of the three.”); see also “Disposition,” Black’s Law Dictionary (12th ed.
2024) (“a final settlement or determination”).
22
See Taylor v. State, 977 P.2d 123, 126 (Alaska App. 1999) (“With certain exceptions
not pertinent here, Criminal Rule 38(a) requires a defendant’s presence ‘at every stage of
the trial.’”).

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was to eliminate a defendant’s right to be present at the imposition of sentence, one
would expect clear rule history to that effect.
We have reviewed the court rules attorney’s history file for Supreme Court
Order No. 1914, and nothing in it supports the State’s contention that the 2017
amendment to Criminal Rule 38(a) permits judges to impose a probation revocation
sentence outside a defendant’s presence. Indeed, the available materials support the
conclusion that the rule requires the probationer’s presence at imposition of any
sentence, including a sentence in a disposition hearing on a petition to revoke probation.
The rule history indicates that a defendant’s presence at probation hearings was
discussed in the committee meetings and that the Alaska Supreme Court ultimately
added the words, “at a hearing on an adjudication or disposition for a petition to revoke
probation,” to the final rule.23
For these reasons, we conclude that Criminal Rule 38(a) required the
superior court to impose Clarke’s sentence in his presence, and that it erred in doing so
through a written order outside his presence.

Why we conclude that the superior court’s violation of Alaska Criminal
Rule 38(a) was not harmless beyond a reasonable doubt
Because Alaska Criminal Rule 38(a) “protects a right of ‘constitutional
dimension,’” violations are assessed using the “harmless beyond a reasonable doubt”
standard, under which the State bears the burden of showing that the error was

23
Minutes of Criminal Rules Committee, at 10 (Jan. 12, 2015); Minutes of Criminal
Rules Committee, at 15 (Nov. 20, 2015); see also Alternative to Revised PJ Comprehensive
Appearance Proposal, at 1 (May 2016) (for consideration at the June 10, 2016 Criminal
Rules Committee meeting) (“A defendant charged with a felony or with violating the
defendant’s probation on a felony conviction shall be present for all court proceedings in
the case.”); Consent-Based Comprehensive Appearance Proposal with Waiver, at 2-3 (for
consideration at the June 10, 2016 Criminal Rules Committee meeting) (listing “the
adjudication or disposition hearing on a petition to revoke” as among the proceedings for
which a felony defendant may not waive their presence).

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harmless.24 This remains true even in those situations where Criminal Rule 38(a) has
expanded a defendant’s right to be present beyond what is required by the federal or
state constitutions.25
The State argues that any error in imposing sentence outside Clarke’s
presence was harmless beyond a reasonable doubt because Clarke was present during
the substantive part of the sentencing hearing and he was able to make his allocution in
person. We agree that reversal would clearly be required if Clarke had been denied his
right to an in-person allocution, but we are not convinced that, because Clarke was able
to allocute in person, he was not prejudiced by what occurred here.26
As we have previously explained, a defendant’s right to be present at
sentencing is intended to promote “the perception and reality of fairness in the trial
process.”27 In Henry v. State, we emphasized the importance of face-to-face interaction
between the criminal defendant and the sentencing judge.28 We also recognized that it

24
See Henry v. State, 861 P.2d 582, 593 n.7 (Alaska App. 1993) (citing and quoting
Dolchok v. State, 639 P.2d 277, 285-86 & n.19 (Alaska 1982)); see also Meyer v. State,
627 P.2d 636, 639 (Alaska 1981) (applying the harmless beyond a reasonable doubt
standard to violations of Criminal Rule 38); State v. Hannagan, 559 P.2d 1059, 1065
(Alaska 1977) (same).
25
See Dolchok, 639 P.2d at 285 & n.19 (declining to find that defendant’s absence
from in-chambers conference rose to the level of constitutional violation, but still applying
the stricter constitutional standard for harmlessness); Raphael v. State, 994 P.2d 1004, 1011
n.30, 1013 (Alaska 2000) (declining to address whether violation of Rule 38(a) also
violated federal constitutional right, but applying harmless beyond a reasonable doubt
standard).
26
See Henry, 861 P.2d at 594 (holding that a defendant allocuting telephonically,
rather than in person, violated Rule 38(a) and that this error was not harmless beyond a
reasonable doubt).
27
Dixon v. State, 553 P.3d 1273, 1277 (Alaska App. 2024) (quoting Raphael, 994 P.2d
at 1012).
28
Henry, 861 P.2d at 594.

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“may be advantageous to the defendant if the judge faces him while meting out
punishment.”29
On appeal, Clarke argues that trial judges should have to look the
defendant in the eye when they impose the sentence. According to Clarke, judges might
impose harsher sentences if they could impose sentences in absentia, and there is
therefore an intangible but appreciable effect on a judge’s sentencing decision when it
has to be imposed in person. Clarke argues that the in-person contact was particularly
important in his case because the superior court was able to sentence him to a lengthy
term of imprisonment without having to directly confront Clarke’s physical disabilities
and the reasons why his defense attorney argued for a much shorter sentence.
Clarke also argues that there were errors in the superior court’s sentencing
remarks that could have been corrected if Clarke or his attorney had been present. For
example, the superior court appears to have been under the impression that Clarke’s
sixth petition to revoke probation involved a conviction for a new crime (theft), but the
record suggests that those charges were dismissed. Clarke also claims that the
sentencing court misunderstood one of his attorney’s sentencing arguments, and he
asserts that any confusion regarding that argument could have been clarified if Clarke
and his attorney had been present.
As a general matter, a violation of a defendant’s right to be present is not
harmless beyond a reasonable doubt if the defendant’s presence might have made a
difference to the outcome.30 Because we cannot say on the record before us that Clarke’s
presence would have had no impact on the superior court’s sentence, we conclude that
the sentence must be vacated and the case remanded for a resentencing.

29
Id. (quoting Tookak v. State, 680 P.2d 509, 511 (Alaska App. 1984)).
30
Raphael, 994 P.2d at 1013.

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Conclusion
Clarke’s sentence is VACATED and this case is REMANDED to the
superior court to conduct a new disposition hearing and to sentence Clarke in person.

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