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THE COURT OF APPEALS OF THE STATE OF ALASKA
SHANE DWAYNE BUOY, )
) Court of Appeals No. A-3656
Appellant, ) Trial Court No. 1JU-S90-407CR
)
v. ) O P I N I
O N
)
STATE OF ALASKA, )
) [No. 1169 - October 25, 1991]
Appellee. )
______________________________)
Appeal from the Superior Court of the State
of Alaska, First Judicial District, Juneau,
Rodger Pegues, Judge.
Appearances: Tricia Collins, Juneau, for
Appellant. Richard Svobodny, District
Attorney, and Charles E. Cole, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats, Judge,
and Andrews, Superior Court Judge.*
[Mannheimer, Judge, not participating.]
BRYNER, Chief Judge.
This sentence appeal requires us to determine what
standard of proof applies to the resolution of factual issues
arising under the rule in Austin v. State, 627 P.2d 657, 657-58
(Alaska App. 1981).
Shane Dwayne Buoy entered a plea of no contest to one
count of criminally negligent homicide, a class C felony. The
conviction was based on Buoy's having supplied another person
with information that facilitated the commission of a burglary
and robbery at the home of Buoy's grandfather, who was killed in
the course of the crimes.
Criminally negligent homicide is a class C felony,
punishable by a maximum term of five years. AS 11.41.130(b); AS
12.55.125(e). Presumptive terms of two and three years are
specified for second and subsequent felony offenders convicted of
class C felonies; no presumptive term is prescribed for first
felony offenders. Id.
As a first felony offender, Buoy was not subject to
presumptive sentencing. However, his case was governed by Austin
v. State, in which this court held that first felony offenders
convicted of offenses for which no presumptive term is specified
should normally receive more favorable sentences than the
presumptive term for second felony offenders convicted of like
crimes. 627 P.2d at 657-58. We indicated in Austin that this
rule should be deviated from only in exceptional cases. Id.
Subsequently, in Brezenoff v. State, 658 P.2d 1359, 1362 (Alaska
App. 1983), we decided that, for purposes of the Austin rule, an
exceptional case is one in which there are significant
aggravating factors as specified in AS 12.55.155(c), or the kind
of exceptional circumstances that would warrant referral to the
three-judge panel for enhancement of the presumptive term
pursuant to AS 12.55.165-.175.
In the present case, the total sentence of five years
with three years suspended imposed by Judge Pegues exceeded the
two-year presumptive term for a second felony offender convicted
of a class C felony. Thus, under the Austin rule, the sentence
could be justified only by an express finding of significant
aggravating factors or extraordinary circumstances. In imposing
Buoy's sentence, Judge Pegues did specifically find that the case
was exceptionally aggravated. Judge Pegues indicated that,
although Buoy had been convicted only of criminally negligent
homicide, his conduct had actually amounted to manslaughter, a
more serious class of crime. Given this finding, Buoy's case was
subject to AS 12.55.155(c)(10), which provides that an
aggravating factor may be found when "the conduct constituting
the offense was among the most serious conduct included in the
definition of the offense[.]"
In concluding that Buoy's conduct amounted to
manslaughter, however, Judge Pegues relied on the preponderance
of the evidence standard:
So quite frankly I think that it is an
extraordinary crime. I think that when we
say its the worst of its class it's because
it [was] probably manslaughter. If [I] were
certain it were manslaughter and this were
like the difference between first-degree and
second-degree sexual assault, if . . . we
knew there was sexual penetration and there
had been a plea to a lesser crime, if I had
that kind of evidence that there were
manslaughter I'd give him five years. It
would be the only appropriate sentence. I
think the sentence that's been recommended
under these circumstances is lenient. . . .
. . . .
. . . But we're talking about the disposition
phase, we're talking about what type of crime
this was and what is the character of the
offender. And that's--it's enough there to
be more likely than not, and I think it's
more likely than not that this was
manslaughter.
On appeal, Buoy argues that the sentencing court erred
in relying on the preponderance of the evidence standard for
purposes of finding an exception to the Austin rule. This is an
issue that we expressly reserved in Brakes v. State, 796 P.2d
1368, 1372 n.5 (Alaska App. 1990). In Brakes, we noted that AS
12.55.155(f) requires proof of aggravating and mitigating factors
by clear and convincing evidence. We nevertheless adopted
preponderance of the evidence as the standard of proof generally
applicable to factual determinations in nonpresumptive sentencing
proceedings. Id. We then discussed the question of whether to
apply the clear and convincing evidence standard in the context
of Austin rule issues:
We stress, however, that our holding
[adopting the preponderance of the evidence
standard] is limited to verified facts
offered in cases of non-presumptive
sentencing. In Austin v. State, 627 P.2d 657
(Alaska App. 1981), we held that a first
felony offender convicted of an offense
should normally receive a more favorable
sentence than the presumptive sentence for a
second offender. In only exceptional cases
would a sentence equal to or greater than a
second offender's presumptive term be
sustained on appeal. Id. at 658. In later
cases we have indicated that "exceptional
cases" involve statutory aggravating factors,
AS 12.55.155, or extraordinary circumstances
permitting referral to the three-judge panel,
AS 12.55.165-.175, which would warrant an
enhanced sentence for someone presumptively
sentenced. Where the state relies on factual
determinations to enhance a sentence in
conformity with the Austin rule, we may
require clear and convincing evidence in
order to insure that Austin is not
undermined. Cf. III Standards for Criminal
Justice 18-6.5(b)(ii) (2d ed. 1980)
(requiring findings of fact by clear and
convincing evidence where used to impose an
enhanced penalty). We reserve this question
for decision in an appropriate case.
Id. (citations omitted).
Although we did not decide the issue in Brakes, our
discussion in that case clearly foreshadows the correct
resolution. As we suggested in Brakes, application of the
preponderance of the evidence standard to Austin rule
determinations would undermine the rule, for it would inevitably
allow some first offenders to receive sentences more severe than
would have been permissible had they been subject to presumptive
sentencing by virtue of a prior felony conviction. It is
precisely this anomaly that the Austin rule was meant to avoid.
The appropriateness of extending the clear and
convincing evidence standard to the Austin rule context is also
indicated in Wylie v. State, 797 P.2d 651, 662 (Alaska App.
1990), which we decided at approximately the same time as Brakes.
In Wylie, we reviewed the procedural safeguards associated with
the determination of aggravating and mitigating factors in
presumptive sentencing cases and concluded that similar
safeguards were warranted in cases involving Austin rule
determinations:
Before a second or third felony offender can
receive a sentence in excess of the
appropriate presumptive term, the state must
give notice of aggravating factors and
present clear and convincing evidence to
establish them. AS 12.55.155(f).
In evaluating the Austin rule in the
past, we have not been as strict in reviewing
aggravating factors as in cases where
presumptive sentencing applies. On
reflection, we are satisfied that unless a
first felony offender is given advance notice
of proposed aggravating factors, there is a
substantial risk that the Austin rule will be
undermined. In such a case, a first felony
offender may in fact receive a more serious
sentence than the same person with the same
background committing the same offense would
receive as a second felony offender.
Henceforth, we will require prior notice to
the defendant before approving deviations
from the Austin rule.
Id. (footnote omitted).
As with Brakes, although our holding in Wylie stopped
short of explicitly extending the clear and convincing evidence
standard to Austin rule determinations, it clearly foreshadowed
such an extension.
In the present case, the state has advanced no reasons
to favor adoption of the preponderance of the evidence standard
to the determination of aggravating factors or extraordinary
circumstances in cases involving the Austin rule. Given Brakes
and Wylie, we conclude that such determinations should be made by
clear and convincing evidence.
Here, we cannot say whether the sentencing court would
have reached the same conclusion under the clear and convincing
evidence standard that it reached under the preponderance of the
evidence standard. For this reason, we find it necessary to
vacate Buoy's sentence and to remand this case for further
consideration under the clear and convincing evidence standard.1
The sentence is VACATED; this case is REMANDED for
further proceedings in conformity herewith.
_______________________________
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1. Buoy has separately argued that the sentencing court
erred in failing to order a suspended imposition of sentence in
his case. Because the merits of this claim turn in part on the
validity of the court's conclusion that Buoy's case is
exceptionally aggravated, we do not resolve the issue at this
time.
