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THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Court of Appeals No. A-3932
Petitioner, ) Trial Court No. 4FA-S90-222CR
)
v. )
) O P
I N I O N
WILLIAM WAGNER, )
)
Respondent. ) [No. 1229 - June 19, 1992]
________________________________)
Petition for Review from the Superior Court
of the State of Alaska, Fourth Judicial
District, Fairbanks, Beverly W. Cutler, Karen
W. Hunt, and Mark C. Rowland, Judges.
Appearances: Kenneth M. Rosenstein,
Assistant Attorney General, Office of Special
Prosecu-tions and Appeals, Anchorage, and
Charles E. Cole, Attorney General, Juneau,
for Peti- tioner. James H. Cannon, Assistant
Public Defender, Fairbanks, and John B.
Salemi, Public Defender, Anchorage, for Respo
ndent.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
In this case, we must decide whether the mandatory
consecutive sentencing provisions of AS 12.55.025(h) apply to
cases in which the three-judge panel exercises the broad
sentencing powers conferred to it under AS 12.55.165 - 12.55.175.
After pleading no contest, William Wagner was convicted
of two counts of first-degree sexual abuse of a minor, in
violation of AS 11.41.434(a)(1); each count related to a
different victim. Under AS 12.55.125(i), Wagner, a first felony
offender, was subject to a presumptive term of eight years for
each count. Moreover, Wagner was subject to the mandatory
consecutive sentencing provisions of AS 12.55.025(h):
If the defendant has been convicted of
two or more crimes under . . . AS 11.41.410
-- 11.41.455 in which the victim or victims
of the crimes were minors . . . , the court
shall impose some consecutive period of
imprisonment for each conviction.
Prior to sentencing, Wagner alleged that his potential
for rehabilitation was exceptionally good and that this amounted
to a non-statutory mitigating factor warranting referral of his
case to the three-judge panel. See Smith v. State, 711 P.2d 561
(Alaska App. 1985).1 Superior Court Judge Jay Hodges found that
Wagner had established the alleged mitigating factor and sent the
case to the three-judge panel for imposition of a non-presumptive
term.
Upon referral, the three-judge panel, with one judge
dissenting,2 concurred in Judge Hodges' finding of a non-
statutory mitigating factor. The panel proceeded to sentence
Wagner to concurrent terms of eight years with three years
suspended on each count. The state then requested the panel to
amend the sentence, contending that it was illegal as imposed.
Relying on AS 12.55.025(h), the state argued that the panel was
obligated to impose at least some portion of Wagner's sentences
on the two counts for which he was convicted consecutively. With
one member dissenting,3 the panel denied the state's request,
concluding that the mandatory consecutive sentencing provisions
of AS 12.55.025(h) applied only to sentences imposed by
individual judges and did not restrict the sentencing powers of
the three-judge panel.
The state subsequently petitioned this court for review
of the three-judge panel's decision to impose concurrent
sentences. Finding the case to present an important legal issue
of first impression,4 we granted the state's petition and ordered
briefing on the merits. The sole issue presented on review is
whether AS 12.55.025(h) applies to sentencing decisions made by
the three- judge panel. We conclude that the statute does apply.
The sentencing powers of the three-judge panel are set
out in AS 12.55.175.5 Subsection (c) of this provision vests the
panel with broad authority to depart from the strictures of the
presumptive sentencing statutes that would otherwise limit the
authority of an individual sentencing judge:
(c) The three-judge panel may in the
interest of justice sentence the defendant to
any definite term of imprisonment up to the
maximum term provided for the offense or to
any sentence authorized under AS 12.55.015.6
We have previously characterized the three-judge
panel's broad sentencing powers as a "safety valve" for avoiding
manifest injustice in presumptive sentencing cases. Griffith v.
State, 653 P.2d 1057, 1058 (Alaska App. 1982). We have thus
recognized that the panel's sentencing authority is not
restricted by statutory provisions governing the imposition of
presumptive sentences by individual judges. See State v. Price,
730 P.2d 159, 160-61 (Alaska App. 1986).
We have never held, however, that the three-judge panel
is exempt from sentencing restrictions contained in statutes that
are unrelated to Alaska's presumptive sentencing law. The three-
judge panel is uniquely a creature of presumptive sentencing. An
individual sentencing judge may refer a case to the three-judge
panel only when "manifest injustice would result from failure to
consider relevant aggravating or mitigating factors not specifi-
cally included in AS 12.55.155 or from imposition of the
presumptive term." AS 12.55.165. Likewise, the panel may accept
jurisdiction over a case referred to it only if it finds manifest
injustice resulting from application of the presumptive
sentencing provision. AS 12.55.175(b). Because the legislature
has restricted the three-judge panel's "safety valve" function to
presumptive sentencing cases, we see no basis for construing AS
12.55.175(c) to exempt the panel from sentencing requirements
enacted outside the context of presumptive sentencing
legislation.
The mandatory consecutive sentencing provisions of AS
12.55.025(h) have no integral relation to Alaska's presumptive
sentencing scheme, AS 12.55.125 -- 12.55.175. The legislature
enacted the consecutive sentencing statute independently of the
presumptive sentencing statutes, and application of the provision
does not turn on the applicability of presumptive sentencing.7
Moreover, the policies reflected in the consecutive sentencing
provision are fundamentally different from the policies
underlying presumptive sentencing. Unlike the presumptive
sentencing statutes, AS 12.55.025(h) does not purport to deal
with the appropriate length or form of a sentence for any
particular crime. Rather, the provision addresses the
relationship of sentences when offenders are convicted of
multiple crimes. The provision was not enacted to subject
multiple offenders to any particular term or type of sentence but
rather to assure that, for certain categories of cases, community
condemnation be expressed separately for each conviction. See
House Judiciary Committee letter of intent for C.S.H.B. 237, 15th
Leg., 2nd Sess., 1988 House Journal 2331.8
In short, we find no basis for concluding that the
three-judge panel should be exempted from following the
requirements of AS 12.55.025(h). For this reason, we hold that
the three-judge panel erred in its decision to impose Wagner's
sentences concurrently.
Because Wagner's sentences were not lawfully imposed,
we must remand this case for entry of an amended judgment
imposing sentences that are at least partially consecutive.
State v. LaPorte, 672 P.2d 466, 46-68 (Alaska App. 1983).
Nevertheless, the illegality in the present case relates only to
the manner in which Wagner's sentences were imposed, and not to
the length of the sentences, either individually or collectively.
Compliance with AS 12.55.025(h) would not have precluded the
three-judge panel from imposing a composite sentence that was in
substance identical to the sentence it imposed by use of
concurrent terms. For this reason, no increase in the original
composite sentence of eight years with three years suspended will
be permissible on remand. See Joseph v. State, 712 P.2d 904, 906
(Alaska App. 1986).
This case is REMANDED to the three-judge panel for
entry of an amended judgment.
_______________________________
1. The authority of the three-judge panel to take
sentencing jurisdiction over presumptive sentencing cases
involving non-statutory aggravating or mitigating factors is set
out in AS 12.55.165, which provides:
Extraordinary circumstances. If the
defendant is subject to sentencing under AS
12.55.125(c), (d), (e), or (i) and the court
finds by clear and convincing evidence that
manifest injustice would result from failure
to consider relevant aggravating or
mitigating factors not specifically included
in AS 12.-55.155 or from imposition of the
presumptive term, whether or not adjusted for
aggravating or mitigating factors, the court
shall enter findings and conclusions and
cause a record of the proceedings to be
transmitted to a three-judge panel for
sentencing under AS 12.55.175.
2. Superior Court Judge Beverly W. Cutler dissented from
the finding.
3. Judge Cutler was again the dissenting member of the
panel.
4. See Alaska R. App. P. 402(b)(2).
5. AS 12.55.175 provides:
Three-judge sentencing panel. (a)
There is created within the superior court a
panel of five superior court judges to be
appointed by the chief justice in accordance
with rules and for terms as may be prescribed
by the supreme court. Three judges of the
panel shall be designated by the chief
justice as members. The remaining two judges
shall be designated by the chief justice as
first and second alternates to sit as members
in the event of disqualification or
disability in accordance with rules as may be
prescribed by the supreme court.
(b) Upon receipt of a record of proceed
ings under AS 12.55.165, the three-judge
panel shall consider all pertinent files,
records, and transcripts, including the
findings and conclusions of the judge who
originally heard the matter. The panel may
hear oral testimony to supplement the record
before it. If the panel finds that manifest
injustice would result from failure to
consider relevant aggravating or mitigating
factors not speci-fically included in AS
12.55.155 or from imposition of the
presumptive term, whether or not adjusted for
aggravating or mitigating factors, it shall
sentence the defendant in accordance with
this section. If the panel does not find
that manifest injustice would result, it
shall remand the case to the sentencing
court, with a written statement of its
findings and conclusions, for sentencing
under AS 12.55.125.
(c) The three-judge panel may in the
interest of justice sentence the defendant to
any definite term of imprisonment up to the
maximum term provided for the offense or to
any sentence authorized under AS 12.55.015.
(d) Sentencing of a defendant or remand
ing of a case under the section shall be by a
majority of the three-judge panel.
6. AS 12.55.015, in turn, gives courts a broad range of
sentencing alternatives, subject to restrictions applicable under
mandatory minimum sentencing provisions or presumptive sentencing
statutes:
Authorized sentences. (a) Except as
limited by AS 12.55.125 -- 12.55.175, the
court, in imposing sentence on a defendant
convicted of an offense, may singly or in
combination
(1) impose a fine when authorized by
law and as provided in AS 12.55.035;
(2) order the defendant to be placed on
probation under conditions specified by the
court that may include provision for active
supervision;
(3) impose a definite term of periodic
imprisonment;
(4) impose a definite term of
continuous imprisonment;
(5) order the defendant to make resti-
tution under AS 12.55.045;
(6) order the defendant to carry out a
continuous or periodic program of community
work under AS 12.55.055;
(7) suspend execution of all or a por
tion of the sentence imposed under AS
12.55.080;
(8) suspend imposition of sentence
under AS 12.55.085;
(9) order the forfeiture to the commis
sioner of public safety of a deadly weapon
that was in the actual possession of or used
by the defendant during the commission of an
offense described in AS 11.41, AS 11.46, AS
11.56, or AS 11.61;
(10) order the defendant, while incarcer
ated, to participate in or comply with the
treatment plan of a rehabilitation program
that is related to the defendant's offense or
to the defendant's rehabilitation, if the
program is made available to the defendant by
the Department of Corrections.
(b) The court, in exercising sentencing
discretion as provided in this chapter, shall
impose a sentence involving imprisonment when
(1) the defendant deserves to be impris
oned, considering the seriousness of the
present offense and the defendant's prior
criminal history, and imprisonment is equita
ble considering sentences imposed for other
offenses and other defendants under similar
circumstances;
(2) imprisonment is necessary to
protect the public from further harm by the
defendant; or
(3) sentences of lesser severity have
been repeatedly imposed for substantially
similar offenses in the past and have proven
ineffective in deterring the defendant from
further criminal conduct.
(c) In addition to the penalties autho
rized by this section, the court may invoke
any authority conferred by law to order a
forfeiture of property, suspend or revoke a
license, remove a person from office, or
impose any other civil penalty.
(d) [Repealed, 1 ch 188 SLA 1990.]
(e) If the defendant is ordered to
serve a definite term of imprisonment, the
court may recommend that the defendant serve
all or part of the term in a correctional
restitution center.
(f) In this section "deadly weapon" has
the meaning given in AS 11.81.900.
7. Wagner relies on the consecutive sentencing provision's
use of "court" rather than "three-judge panel" as indicative of
the legislature's intent to exempt the three-judge panel from the
rigors of AS 12.55.025(h). In support of this contention, Wagner
cites State v. Price, 730 P.2d 159, 160-61 (Alaska App. 1986).
This argument is unpersuasive. In Price, we found that the three-
judge panel was exempt from the restrictions that AS
12.55.155(a)(2) places on individual sentencing judges who must
adjust presumptive terms for mitigating factors. In reaching our
conclusion, we relied in part on the legislative commentary to AS
12.55.155(a)(2), finding significance in its use of the terms
"court" and "three-judge panel" in opposition to each other. Id.
In the present case, no similar significance can be gleaned from
the statutory reference to "court." AS 12.55.025(h) was not
enacted in pari materia with the presumptive sentencing statutes,
and neither the statute nor the commentary incorporate any
reference to the three-judge panel suggesting that "court," as
used in AS 12.55.025(h), was meant to exclude the three-judge
panel.
8. We further note that, because of the separate concerns
addressed by AS 12.55.025(h), on the one hand, and AS
12.55.175(c), on the other, there is little realistic likelihood
that the mandatory consecutive sentencing provision could ever
substantially conflict with the broad sentencing authority of the
three-judge panel. The mandatory consecutive sentencing
provision requires only that some portion of the sentences for
multiple convictions be imposed consecutively. Under AS
12.55.175(c), the three-judge panel has broad discretion to
determine the sentence appropriate for multiple offenses over
which it has jurisdiction and to determine what portion of each
sentence should be consecutively imposed. The scope of this
discretion is not affected by AS 12.55.025(h). Thus, as a
practical matter, the panel will always be capable of achieving
the same overall sentence, regardless of whether it relies on
concurrent or consecutive sentences to do so.
