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THE COURT OF APPEALS OF THE STATE OF ALASKA
ANTHONY J. MANCINI, )
) Court of Appeals No. A-4079/80
Appellant, ) Trial Court No. 1JU-S90-571/1486CR
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1250 - September 25, 1992]
________________________________)
Appeal from the Superior Court of the State
of Alaska, First Judicial District, Juneau,
Walter Carpeneti, Judge.
Appearances: Margaret W. Berck, Assistant
Public Defender, Juneau, and John B. Salemi,
Public Defender, Anchorage, for Appellant.
J. Ron Sutcliffe, Assistant District
Attorney, Richard A. Svobodny, District Attor
ney, and Charles E. Cole, Attorney General,
Juneau, for Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
Anthony J. Mancini entered pleas of no contest to, and
was convicted of, one count of theft in the second degree, a
class C felony, and one count of sexual abuse of a minor in the
second degree, a class B felony. AS 11.46.130(a)(1) and AS
11.41.436(a)(2). Superior Court Judge Walter L. Carpeneti
sentenced Mancini to consecutive terms totalling ten years with
one year suspended. Mancini appeals, arguing that the sentencing
court erred in imposing consecutive sentences. Mancini also
challenges the court's acceptance of one of the state's proposed
aggravating factors and its rejection of one of Mancini's
proposed mitigating factors. Finally, Mancini contends that the
court erroneously added a condition of probation to the written
judgment. We remand for resentencing.
Mancini was convicted of second-degree theft for
stealing watches, jewelry, coins, and other objects from the home
of a man who had befriended him. The total value of the stolen
property, for restitution purposes, was determined to have been
$1,815. Mancini was convicted of second-degree sexual abuse of a
minor for sexually abusing the seven-year-old daughter of a woman
with whom he lived. The sexual abuse charge was wholly unrelated
to the theft charge, but the two cases were consolidated for
sentencing after Mancini entered pleas of no contest.
At the time of these offenses, Mancini was thirty years
of age. He has an extensive criminal record and a history of
juvenile offenses dating back to 1974. As an adult, Mancini has
been convicted in California and Arizona of numerous crimes,
including at least four felonies: second-degree burglary, grand
theft, escape, and felony theft. Prior to his sentencing
hearing, Mancini conceded that he had at least two prior felony
convictions for presumptive sentencing purposes. By virtue of
these prior felonies, Mancini was subject to a presumptive term
of three years for second-degree theft, a class C felony. See AS
11.46.130(b); AS 12.55.125(e)(2). He was subject to a six-year
presumptive term for sexual abuse of a minor in the second
degree, a class B felony. See AS 11.41.436(b); AS
12.55.125(d)(2).
After finding no mitigating factors applicable to
either charge, three aggravating factors applicable to the theft
charge, and four aggravating factors applicable to the sexual
abuse charge, Judge Carpeneti imposed the three-year presumptive
term for theft and a consecutive term of seven years with one
year suspended for sexual abuse. The judge ordered Mancini to
complete three years' probation upon his release from prison.
On appeal, Mancini first contends that Judge Carpeneti
was mistaken in deciding to impose his sentences consecutively.
Relying on Lacquement v. State, 644 P.2d 856 (Alaska App. 1982),
and Jones v. State, 744 P.2d 410, 414-15 (Alaska App. 1987)
(Singleton, J., concurring), Mancini argues that the judge should
have used the six-year presumptive term for sexual abuse (the
more serious of Mancini's two offenses) as the starting point for
his sentencing analysis and should not have exceeded that
benchmark without good cause. Mancini faults Judge Carpeneti for
beginning his sentencing analysis by assuming that consecutive
sentences would be warranted -- an approach which, in Mancini's
view, was prompted by the judge's undue reliance on the statutory
preference for consecutive sentences expressed in AS 12.55.025(e)
and (g).1 In Lacquement v. State, 644 P.2d at 862,
this court held that an offender who is simultaneously convicted
for multiple offenses could be sentenced to consecutive terms
exceeding the presumptive term for the single most serious
offense only if the sentencing court made an express finding that
the total term was actually necessary for the protection of the
public. We subsequently modified the Lacquement rule, however,
abandoning the narrow requirement of a finding of public danger
and indicating that consecutive sentences exceeding the
presumptive term for the most serious offense may be imposed for
any reason that is sound. See Farmer v. State, 746 P.2d 1300,
1301-02 (Alaska App. 1987). In Farmer, we stated:
When an offender is convicted of
multiple crimes, the presumptive term for the
most serious crime remains an important
benchmark -- a benchmark that is not to be
exceeded without good reason. . . .
[H]owever, the appropriate focus is no longer
on the narrow issue of public danger, but
rather on whether a composite sentence
exceeding the presumptive term is warranted
under the totality of the circumstances.
Id.
In the present case, as Mancini correctly notes, Judge
Carpeneti took a somewhat different approach than the one we
suggested in Farmer. The judge started from the premise that
consecutive sentences would be appropriate and inquired whether
good reasons existed to impose concurrent, or partially
concurrent, terms. Finding none, Judge Carpeneti ordered Mancini
to serve his sentences consecutively. In context, however, this
departure from the Farmer approach seems inconsequential.
The fundamental concern of Farmer is not the point at
which the court begins its process of determining an appropriate
sentence, but rather the point at which the process concludes.
Under Farmer, the crucial inquiry is whether the composite term
actually imposed "is warranted under the totality of the
circumstances." Id. at 1302. Whatever starting point the court
might choose in a given case, the result it ultimately arrives at
should be the same, as long as the court is aware of its
discretion to impose concurrent sentences, gives consideration to
that alternative, and decides on the composite sentence for
reasons that are sound in light of the totality of the
circumstances. Here, Judge Carpeneti was
fully aware of his authority to impose Mancini's sentences
concurrently; the judge seriously considered this alternative in
light of the totality of the circumstances, but ultimately
rejected it. Although the judge recognized and gave deference to
the preference for consecutive sentencing expressed in AS
12.55.025(e) and (g), this was only one among many factors the
judge considered. In our view, Judge Carpeneti did not give this
factor undue prominence. Considering Mancini's extensive
criminal history, the wholly unrelated nature of the offenses for
which he was convicted, and the fact that the offenses involved
different victims, Judge Carpeneti was not clearly mistaken in
concluding that a composite term of ten years with one year
suspended was warranted under the totality of the circumstances.
We find no error in the court's decision to impose consecutive
sentences.
Mancini separately contends that Judge Carpeneti erred
in rejecting a proposed mitigating factor as to the theft
offense: that "the facts surrounding the commission of the
[theft] offense and any previous offenses by the defendant
establish that the harm caused by the defendant's conduct is
consistently minor and inconsistent with the imposition of a
substantial period of imprisonment." AS 12.55.155(d)(13).
As the proponent of the proposed mitigating factor,
Mancini bore the burden of proving it by clear and convincing
evidence. AS 12.55.155(f). With regard to Mancini's current
theft conviction, the value of the stolen property was $1,815.
While not particularly great, this is nevertheless considerably
above the $500 jurisdictional limit for second-degree theft. AS
11.46.130(1). The stolen property included jewelry and personal
effects, some of which apparently had considerable sentimental
value to their owner. The owner of the property was a man who
had befriended Mancini when Mancini and his family were homeless
and impoverished. Mancini stole the articles from the home of
the owner. Considering the totality of the circumstances, it is
far from clear that Mancini's conduct in the current case caused
harm that was "minor and inconsistent with the imposition of a
substantial period of imprisonment." AS 12.55.155(d)(13).
Moreover, at the sentencing hearing, for purposes of
establishing that his past crimes involved only minor harm,
Mancini relied primarily on information contained in the
presentence report and in various court records. This
information was sketchy at best. While the totality of the
information tended to indicate that Mancini's past crimes were
not particularly serious, Judge Carpeneti was not clearly
erroneous in concluding that it fell considerably short of clear
and convincing proof that Mancini's past crimes had caused harm
that was consistently minor. We find no error in the court's
rejection of this mitigating factor.
Mancini next contends that Judge Carpeneti erred in
finding an aggravating factor applicable to his cases. The state
alleged that Mancini was subject to the aggravating factor speci
fied in AS 12.55.155(c)(15), which applies when "the defendant
has three or more prior felony convictions." Although Mancini
acknow-ledged at the sentencing hearing that two of his out-of-
state felony convictions were for offenses with elements similar
to felonies under Alaska law, and that these convictions
subjected him to presumptive sentencing as a third offender, he
contended that his remaining out-of-state felonies did not
qualify as prior felony convictions under AS 12.55.145(a)(2).
Under AS 12.55.145(a)(2) a prior conviction triggers
presumptive sentencing when it is
a conviction in this or another jurisdiction
of an offense having elements similar to
those of a felony defined as such under
Alaska law at the time the offense was
committed is considered a prior felony
conviction[.]
At Mancini's sentencing hearing, the state did not dispute
Mancini's contention that only two of his out-of-state
convictions qualified as prior felony convictions under AS
12.55.145(a)(2). In the state's view, however, the definition of
a "prior felony conviction" for purposes of triggering
presumptive sentencing, as set out in AS 12.55.145(a)(2), was
inapplicable in determining whether Mancini had three or more
prior felony convictions for purposes of the proposed aggravating
factor. The state argued that, for purposes of aggravating
factor (c)(15), a "prior felony conviction" would include any out-
of-state conviction that was treated as a felony by the state in
which it was entered. Over Mancini's objection, Judge Carpeneti
adopted the state's argument and found the aggravating factor to
be applicable. Mancini challenges the court's ruling.
Our holding in Kuvaas v. State, 696 P.2d 684 (Alaska
App. 1985), is highly relevant on this issue. There, we found
that the definition of "prior felony conviction" in AS
12.55.145(a)(2) was applicable to aggravating factor AS
12.55.155(c)(20); this factor applies if the defendant commits a
crime while "on furlough . . . or on parole or probation for
another felony charge or conviction[.]" We said, in Kuvaas:
[I]f we do not apply the definition of felony
conviction in AS 12.55.145(a)(2), we must
either have no definition of what a prior
"felony charge or conviction" is under AS
12.55.155(c)(2) or we must make one out of
whole cloth. It seems to us to be preferable
to use the definition of felony conviction
which is set forth in AS 12.55.145(a)(2).
This construction . . . appears to be
consistent with the rule of statutory
construction that "ambiguities in penal
statutes must be narrowly read and construed
strictly against the government."
Kuvaas v. State, 696 P.2d at 685 (citation omitted). 2
The conclusion we reached with regard to aggravating
factor (c)(20) in Kuvaas seems particularly appropriate with
regard to aggravating factor (c)(15), given the purpose for which
factor (c)(15) was adopted:
[The statutory amendment enacting this
factor] treats the presence of three or more
prior felony convictions as an aggravating
factor. This amendment is required since the
Code recognized that two or more prior felony
convictions will place the defendant in the
most serious category for purposes of
presumptive sentencing. However, no
provision specifically allows the judge to
consider the fact that the defendant may
have, for example, six prior felonies as
opposed to only two. This amendment allows
the judge to consider prior felonies beyond
those necessary to place the defendant in the
most serious category of presumptive
sentencing as an aggravating factor.
Commentary and Sectional Analysis for the 1908 Amendments to
Alaska's Revised Criminal Code, 1980 Senate Journal Supp. No. 44
at 24-25, 1980 Senate Journal 1436.
This commentary establishes that aggravating factor
(c)(15) and the statutory provisions triggering presumptive
sentencing are integrally related -- a relationship strongly
suggesting that the definition of "prior felony conviction" set
forth in AS 12.55.145(a)(2) was meant to apply to aggravating
factor (c)(15). Accordingly, we conclude that the definition set
forth in AS 12.55.145(a)(2) must govern AS 12.55.155(c)(15).
Since it is undisputed here that no more than two of Mancini's
prior convictions qualified as prior felony convictions under
this definition, Judge Carpeneti erred in finding aggravating
factor (c)(20) applicable to Mancini's cases.
The state argues that any error was harmless, because
Judge Carpeneti found other aggravating factors applicable and
because Mancini's sentences reflect only minimal adjustments to
the applicable presumptive terms. However, Judge Carpeneti's
sentencing remarks establish that his decision to impose consecu
tive sentences was at least partially influenced by the existence
of aggravating factors. It is impossible for us to determine
whether the judge's mistaken reliance on factor (c)(15) had any
appreciable influence on Mancini's composite sentence. Under the
circumstances, we find it necessary to remand for resentencing
without reliance on aggravating factor (c)(15).3
Mancini's final claim involves a condition of
probation. In his oral sentencing remarks, Judge Carpeneti
specified that, as a condition of probation, Mancini would be
required to pay restitution of $1,815 and that, in addition, he
would be subject to "standard conditions of probation." The
court's subsequently issued written judgment included a probation
condition requiring Mancini to reside in a halfway house for the
first six months following his release from prison. Mancini
contends that this is not a "standard" condition of probation and
that its inclusion in the written judgment was therefore
improper. The state counters that the condition should be deemed
standard and upheld as such.
It is well settled that a sentence cannot be enhanced
once it has been validly imposed in open court. See, e.g., Love
v. State, 799 P.2d 1343 (Alaska App. 1990). Moreover, it is
settled that a sentence imposed by the court "must be framed with
clarity and accuracy in order to avoid the possibility of
injustice and confusion" and that "where a criminal sentence is
ambiguous it must be interpreted in favor of the individual who
has been deprived of his liberty." Chase v. State, 479 P.2d 337,
339-40 (Alaska 1971).
Here, the record provides no insight into precisely
what Judge Carpeneti meant when he stated that Mancini would be
subject to the "standard conditions of probation." We have seen
the term used by sentencing judges to refer to conditions of
probation that are invariably included in judgments, without
regard to the specific circumstances of a given case. Conditions
of this type might include the requirement of reporting regularly
to a probation officer, or the duty of refraining from any
violations of the law. We have no basis for determining the
conditions of probation that Judge Carpeneti regularly imposes.
It seems questionable, however, whether the condition disputed in
this case falls into the "standard condition" category. In our
experience, conditions of probation requiring six months'
residency in a halfway house are imposed relatively infrequently.
It is conceivable that this condition may have been
included in Mancini's written judgment by oversight or
inadvertence. The issue has evidently never been presented to or
considered by Judge Carpeneti. Since we must remand this case
for resentencing in any event, we believe it best to refer the
issue to the sentencing court on remand. If the court determines
that the disputed condition is not "standard" the court should
strike it from the amended judgment on remand. On the other
hand, if the court concludes that the condition is one that
Mancini should readily have understood to be standard, the court
should make specific findings in support of this conclusion.
This case is REMANDED for resentencing.
_______________________________
1. AS 12.55.025(e) and (g) provide:
(e) Except as provided in (g) and (h)
of this section, if the defendant has been
convicted of two or more crimes, sentences of
imprisonment shall run consecutively. If the
defendant is imprisoned upon a previous judg
ment of conviction for a crime, the judgment
shall provide that the imprisonment commences
at the expiration of the term imposed by the
previous judgment.
(g) If the defendant has been convicted
of two or more crimes before the judgment on
either has been entered, any sentences of
imprisonment may run concurrently if
(1) the crimes violate similar societal
interests;
(2) the crimes are part of a single,
continuous criminal episode;
(3) there was not a substantial change
in the objective of the criminal episode,
including a change in the parties to the
crime, the property or type of property right
offended, or the persons offended;
(4) the crimes were not committed while
the defendant attempted to escape or avoid
detection or apprehension after the
commission of another crime;
(5) the sentence is not for a violation
of AS 11.41.100 - 11.41.470; or
(6) the sentence is not for a violation
of AS 11.41.500 - 11.41.530 that results in
physical injury or serious physical injury as
those terms are defined in AS 11.81.900.
In State v. Andrews, 707 P.2d 900 (Alaska App. 1985),
aff'd, 723 P.2d 85 (Alaska 1986), we construed this statutory
language to express a preference for consecutive sentencing,
while leaving judges with discretion to impose concurrent
sentences.
2. In finding the definition set forth in AS
12.55.145(a)(2) inapplicable for purposes of applying aggravating
factor (c)(15), Judge Carpeneti found Kuvaas readily
distinguishable. This was because he believed the wording of
aggravating factor (c)(20), which we construed in Kuvaas, to
differ significantly from the wording of factor (c)(15). It
appears, however, that Judge Carpeneti mistakenly relied on the
current wording of factor (c)(20), not the wording that was in
effect when we decided Kuvaas. In its current form, AS
12.55.155(c)(20) applies if the defendant commits a crime while
on furlough, probation or parole "for another felony charge or
conviction that would be considered a prior felony conviction
under AS 12.55.145(a)(2)." However, this wording was adopted by
the legislature in 1986, shortly after we decided Kuvaas. See
ch. 37, 19, SLA 1986. The 1986 amendment added the phrase
"that would be considered a prior felony under AS 12.55.145
(a)(2)" to the preexisting version of factor (c)(20), thus making
the factor conform to our holding in Kuvaas. Prior to the 1986
amendment, the wording of factor (c)(20) was, for purposes of the
present case, functionally identical to the current wording of
factor (c)(15). On appeal, the state attempts to find
significance in the fact that the 1986 amendment altered the
language of factor (c)(20), without also changing factor (c)(15).
Given the lack of any legislative history concerning the 1986
amendment, as well as the amendment's apparently narrow purpose
of addressing the issue decided in Kuvaas, we find the state's
argument unpersuasive.
3. We note an additional matter that should be addressed
on remand. With regard to the theft charge, the state initially
proposed, but later withdrew, the aggravating factor stated in AS
12.55.155(c)(18)(A): that the offense was committed against a
member of the social unit living together with the defendant.
The state also proposed aggravating factor (c)(21): that the
defendant had a criminal history of similar offenses. Mancini
did not dispute this latter factor. At the conclusion of the
hearing on aggravating and mitigating factors, Judge Carpeneti
found factor (c)(21) to be established, but did not find factor
(c)(18)(A), since the state had withdrawn it as to the theft
charge. Mancini's written judgment, however, mistakenly
indicates that the court found factor (c)(18)(A) applicable as to
the theft charge, but makes no reference to factor (c)(21), which
the court did find applicable.
