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THE COURT OF APPEALS OF THE STATE OF ALASKA
JUAN K. ESPINOZA, )
) Court of Appeals No. A-5422
Appellant, ) Trial Court No. 1KE-S93-238CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1434 - September 8, 1995]
______________________________)
Appeal from the Superior Court, Third
Judicial District, Anchorage, Elaine M.
Andrews and First Judicial District,
Ketchikan, Michael A. Thompson, Judges.
Appearances: Michael Dieni, Assistant
Public Defender, and John B. Salemi, Public
Defender, Anchorage, for Appellant. Stephen
R. West, Assistant District Attorney,
Ketchikan, and Bruce M. Botelho, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
Juan K. Espinoza pled no contest to one count of third-
degree assault, AS 11.41.220(a)(1). In return for his plea, the
state agreed to recommend a sentencing cap of one year's
unsuspended incarceration and to dismiss the original charge of
attempted second-degree murder. Superior Court Judge Michael A.
Thompson sentenced Espinoza to three years' imprisonment with two
and one-half years suspended. As a result of a probation
revocation action stemming from Espinoza's involvement in a DWI
shortly after his assault conviction, Judge Thompson later
imposed six months of the originally suspended sentence and, as
an added condition of probation, ordered Espinoza to complete six
months of residential substance abuse treatment. Espinoza
subsequently enrolled in but failed to complete the Salvation
Army Clitheroe Center program, and the state petitioned to revoke
his probation. Espinoza admitted the probation violation and
appeared for disposition before Superior Court Judge Elaine M.
Andrews.
At the disposition hearing, Espinoza urged Judge
Andrews to impose only part of his suspended incarceration.
Espinoza pointed out that imposing all of the incarceration that
remained suspended would yield a total sentence of three years'
imprisonment. He reminded the court that he was a first felony
offender and had been convicted of a class C felony. Citing
Austin v. State, 627 P.2d 657, 657-58 (Alaska App. 1981),
Espinoza argued that, absent a formal finding of statutory
aggravating factors or extraordinary circumstances, he was
entitled to receive a more favorable sentence than the two-year
presumptive term specified for a second class C felony offender.
Noting that the state had failed to notify him of any proposed
aggravating factors prior to the disposition hearing and that no
aggravating factors had been alleged or found when he was
originally sentenced, Espinoza insisted that the Austin rule
barred the court from sentencing him to a total of more than two
years' unsuspended time for his assault. Espinoza requested
Judge Andrews to impose a sentence within the confines of the
Austin limit.1
In response to this request, Judge Andrews expressed
uncertainty as to whether the Austin rule applied in the context
of sentencing for a probation violation. Alternatively, the
judge concluded that the facts recited in the original
presentence report appeared to support the conclusion that
Espinoza's conduct was among the most serious included in the
definition of his offense.2 See AS 12.55.155(c)(10). The judge
ordered Espinoza to serve the entire suspended portion of his
sentence. Upon the imposition of this sentence, Espinoza stated
his disagreement with the court's interpretation of the facts and
took exception to the court's finding of an aggravating factor
without prior notice.3
Espinoza now appeals the sentence imposed upon
revocation of his probation. He argues that the superior court
erred in imposing a sentence above the Austin limit without
giving him prior notice of, and an opportunity to challenge, the
court's proposed reliance on an aggravating factor.
This court recently summarized the applicable ground
rules for sentencing in cases such as Espinoza's:
In Austin, we held that "[n]ormally a
first offender should receive a more
favorable sentence than the presumptive
sentence for a second offender." Id. at 657-
58. We indi-cated that this rule should be
deviated from only in exceptional cases. Id.
at 658. Sub-sequently, 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 signi-ficant 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.
More recently, we have held that,
before receiving an exceptional sentence
under the Austin rule, a first offender is
entitled to advance notice of the aggravating
factors or extraordinary circumstances to be
relied on by the sentencing court. Wylie v.
State, 797 P.2d 651, 662 & n.9 (Alaska App.
1990); see also Collins v. State, 816 P.2d
1383, 1384-85 (Alaska App. 1991).
Austin's fundamental policy of
protecting first offenders against harsher
treatment than similarly situated second
offenders continues to apply when a first
offender is sentenced for a probation
violation. See, e.g., Luepke v. State, 765
P.2d 988, 990-91 (Alaska App. 1988). In such
a case, however, the probation violation
itself may be indicative of the offender's
poor prospects for rehabilitation; this
factor, either alone or in conjunction with
other factors, may be deemed an extraordinary
circumstance justifying the imposition of a
sentence in excess of the Austin limits.
Witt v. State, 725 P.2d 723, 724 (Alaska App.
1986).
Bland v. State, 846 P.2d 815, 817-18 (Alaska App. 1993)(footnote
omitted).
The Austin rule was thus applicable to Espinoza's case
when he was sentenced for violating the conditions of his
probation. Espinoza could properly be ordered to serve the
balance of his originally suspended incarceration, but only if
significant aggravating factors or extraordinary circumstances
were found in his case. Bland, 846 P.2d at 817-18; Brezenoff,
658 P.2d at 1362. And before the existence of any aggravating
factors or extraordinary circumstances could properly be
determined, Espinoza was entitled to prior notice and an
opportunity to contest the issue. Wylie, 797 P.2d at 662 & n.9.
Espinoza's original sentence fell well below the Austin
threshold and provided no occasion for determining the existence
of aggravating or mitigating factors. The state alleged no
aggravat-ing factors prior to the original sentencing hearing and
Judge Thompson found none.4
The state likewise alleged no aggravating factors in
advance of Espinoza's sentencing hearing before Judge Andrews.
Although the judge was entitled to make an independent determina-
tion as to aggravating factors or extraordinary circumstances,
such a determination could not properly be made without providing
Espinoza advance notice of the court's intent to do so. Hartley
v. State, 653 P.2d 1052, 1056 (Alaska App. 1982). Here, Espinoza
was given no advance notice of the court's proposed reliance on
factor (c)(10).5 In light of the sentencing court's failure to
give Espinoza advance notice of its intent to find factor (c)(10)
applicable, we must vacate the sentence and remand for
resentencing.
The sentence is VACATED, and this case is REMANDED for
resentencing. On remand, Espinoza must be given advance notice
of any aggravating factors or extraordinary circumstances alleged
by the state or relied on by the sentencing court.
_______________________________
1. In relevant part, Espinoza's counsel argued:
The court may be inclined to
consider terminating probation here and just
put Mr. Espinoza in for the remainder of --
of the original sentence. Just a few
comments. If your thinking is along those
lines I really want to make it very clear
that we feel that a three-year sentence in
this case would be illegal. It's a year in
excess of Austin limits. There have been no
Wylie aggravators filed, and I believe there
are none that would actually be appropriate
to the case. He doesn't have a prior felony
record so he's entitled by case law under
Austin to a sentence substantially more
favorable than what would [sic] a second-time
felony offender would get, which is two years
on a C felony.
These matters are seldom discussed
at the original sentencing when the actual
time imposed is only six months, which is
what his original sentence was, three years
with all suspended but six months. Routinely
the Court of Appeals, if you try to appeal at
that stage of the game will look at it and
go, well, he only got six months and that's
really what we're concerned about, is the
actual incarceration, not -- not suspended
and unimposed time. But we are talking about
imposing time, now we are talking about
appeals because -- because I read the offense
and -- and potential aggravators, although
none have been noticed and none have been
filed. Two years should be the cap here[.]
2. Judge Andrews stated, in relevant part:
Well, I'm not exactly certain who
has the obligation to justify the original
sentence but my thinking is that if you feel
that a sentence is in violation of an Austin
limit or an illegal sentence the obligation
is to appeal that sentence initially, but in
order to avoid the possibility that that
analysis is wrong -- in reviewing the
original presentence report it appears to me
that what happened in this case is that Mr.
Espinoza was charged with a -- initially
charged with attempted murder, significant
reduction in the charge resulted, which then
brought him into class C felony range, and so
although I only know what I know about that
case from the presentence report, just taking
simply the facts from the presentence report
it certainly would end up having aggravators
such as the worst possible conduct within the
definition of the offense for which he was
ultimately charged and it's hard to imagine a
more mitigated sentence than what he
received.
3. Espinoza's counsel stated:
I don't think the facts support it, I
don't think the procedure followed here meets
due process from the standpoint of notice and
opportunity to be heard. The State has never
noticed the aggravator in writing or verbally
from what I've seen.
Judge Andrews' response again indicated uncertainty as
to the role of the Austin rule in probation revocation
proceedings:
And -- and that comment [concerning
the most serious conduct aggravating factor]
is meant to be to the original sentence. If
I were required to pass on that as the
sentencing judge on the probation revocation.
I don't mean to suggest that this is a worst
possible aggravator type of probation
revocation situation. I'm just making the
record in case the Court of Appeals thinks
that I'm the one that has somehow verified
the original sentence, which I don't think I
am, but in order to -- in the interest of
judicial economy I make the comments.
4. The state's argument that Judge Thompson effectively
found aggravating factor (c)(10) is meritless. At the original
sentencing hearing the parties argued their respective inter-
pretations of the seriousness of the case. In imposing sentence,
Judge Thompson commented, "It looks like a very strong third-
degree assault case. It's a little weak the way it was
originally charged." This comment is hardly tantamount to a
formal finding, after advance notice to Espinoza, that factor
(c)(10) had been established by clear and convincing evidence.
5. The state maintains that, after Judge Andrews found
factor (c)(10) applicable and imposed sentence, Espinoza should
have requested a hearing to allow him an opportunity to contest
the finding; in the state's view, counsel's failure to do so
amounts to a waiver. This argument is meritless. We have
previously held that, to preserve for appeal the issue of lack of
advance notice of an aggravating factor, a defendant must raise
the issue at the sentencing hearing and object on that ground.
See Collins v. State, 816 P.2d 1383, 1385 (Alaska App. 1991).
But we have never suggested that a defendant who makes a timely
objection based on lack of notice but is nevertheless improperly
sentenced based on an impromptu aggravating factor bears the
added burden of requesting a hearing to litigate the improperly
found factor. Espinoza's counsel expressly stated his
disagreement with the court's characterization of the seriousness
of his conduct and specifically objected to the court's unnoticed
reliance on factor (c)(10). Counsel fully complied with the
requirements of Collins and thereby preserved the issue for
appeal.
