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THE COURT OF APPEALS OF THE STATE OF ALASKA
RALPH LEE LEWIS, )
)
Appellant, ) Court of Appeals No. A-4580
) Trial
Court No. 3AN-S91-9311CR
v. )
) O P
I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1277 - January 22, 1993]
________________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Karen L. Hunt, Judge.
Appearances: Michael G. Karnavas, Assistant
Public Defender, and John B. Salemi, Public
Defender, Anchorage, for Appellant. Shannon
D. Hanley, Assistant District Attorney,
Edward E. McNally, District Attorney,
Anchorage, and Charles E. Cole, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
Ralph Lee Lewis entered a plea of no contest to a
charge of third-degree assault, in violation of AS
11.41.220(a)(2) (recklessly inflicting physical injury with a
dangerous instrument). The offense is a class C felony and is
punishable by a maximum term of five years in prison and by
presumptive terms of two and three years for second and
subsequent felony offenders.
As a first felony offender, Lewis was not subject to presumptive
sentencing. Superior Court Judge Karen L. Hunt sentenced Lewis
to a term of five years with three years suspended. Lewis
appeals, contending that the sentence was improperly imposed. We
remand for resentencing.
The sentencing court imposed Lewis' term of five years
with three years suspended without expressly finding any aggravat
ing factors or extraordinary circumstances applicable to the
case. In Austin v. State, 627 P.2d 657, 657-58 (Alaska App.
1981), we held that "[n]ormally a first offender should receive a
more favorable sentence than the presumptive sentence for a
second offender." We indicated that this rule should be deviated
from only in exceptional cases. Subsequently, in Brezenoff v.
State, 658 P.2d 1359, 1362 (Alaska App. 1983), we clarified that
an "exceptional case" for purposes of the Austin rule is one in
which there are significant aggravating factors as specified in
AS 12.55.155(c), or the kind of extraordinary circumstances that
would warrant referral to the three-judge panel, under AS
12.55.165 - .175, for enhancement of the presumptive term.
Here, the sentencing court acted on the premise that no
finding of aggravating factors or extraordinary circumstances was
necessary under the Austin rule unless the unsuspended portion of
Lewis' sentence exceeded the presumptive term for a second felony
offender convicted of a class C felony -- two years.
Accordingly, in sentencing Lewis to a term of five years with
three years suspended, the court believed that it was imposing a
sentence within the Austin limit for a non-exceptional case.
However, Austin does more than prohibit first-offense
sentences from exceeding the second-offense presumptive term:
the rule requires that a first offender ordinarily "should
receive a more favorable sentence than the presumptive sentence
for a second offender." Austin, 627 P.2d at 657-58 (emphasis
added). See also Andrew v. State, 835 P.2d 1251, 1256 (Alaska
App. 1992). The unsuspended portion of Lewis' sentence is
equivalent to the two-year presumptive term for a second felony
offender who is convicted of a class C felony; it is not more
favorable.
Moreover, although we have held that the primary focus
in determining whether a sentence violates Austin is on the
length of unsuspended imprisonment included in the sentence, see
Tazruk v. State, 655 P.2d 788, 789 (Alaska App. 1982), we have
never indicated that suspended time may be disregarded entirely
for purposes of applying the Austin rule. Cf. Leuch v. State,
633 P.2d 1006, 1010 (Alaska 1981) (although suspended time is not
the equivalent of unsuspended time, it cannot be ignored entirely
for purposes of determining whether a sentence is excessive).
Here, when Lewis' unsuspended two-year term is taken in
conjunction with his additional three years of suspended time,
his total sentence is unquestionably more severe than the
presumptive term for a second offender. See Buoy v. State, 818
P.2d 1165, 1166 (Alaska App. 1991). Under Austin, this sentence
could not properly be imposed without an express finding that it
was exceptional --that is, without a finding of aggravating
factors or extraordinary circumstances so substantial as to
warrant the conclusion that Lewis deserved to be punished even
more harshly than a typical second felony offender who is
convicted of a typical class C felony.
Because the sentencing court exceeded the normal Austin
limit without the requisite finding that Lewis' case was
exceptional, we must remand for resentencing. Upon remand, if
the state seeks or the court contemplates the imposition of a
sentence exceeding the applicable Austin limit, Lewis should be
given advance notice of that fact, as well as notice of the
proposed aggravating factors or extraordinary circumstances to be
relied on. Wylie v. State, 797 P.2d 651, 662 (Alaska App. 1990);
see also Collins v. State, 816 P.2d 1383, 1384-85 (Alaska App.
1991). Lewis should then be allowed the opportunity to dispute
the proposed aggravating factors, and, in the event they are
established by clear and convincing evidence,1 he should be
allowed the opportunity to argue their significance, for
sentencing purposes, in relation to other comparably aggravated
cases. See AS 12.55-.005(1).
This case is REMANDED for resentencing.
_______________________________
1. Although we have recognized that factual determinations
relating to sentencing decisions are generally governed by the
preponderance of the evidence standard, Brakes v. State, 796 P.2d
1368, 1372 n.5 (Alaska App. 1990), we have held that, for Austin
rule purposes, aggravating factors or extraordinary circumstances
must be proved by clear and convincing evidence, the same
standard that would apply under AS 12.55.155(f) to a presumptive
sentencing case. Buoy v. State, 818 P.2d 1165 (Alaska App.
1991).
