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THE COURT OF APPEALS OF THE STATE OF ALASKA
JONATHAN L. ANDERSON, )
) Court of Appeals No. A-5614
Appellant, ) Trial Court No. 3AN-S93-9492CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
) [No. 1443 - October 6, 1995]
Appellee. )
______________________________)
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage, Elaine M. Andrews, Judge.
Appearances: James Wendt, Assistant
Public Defender, and John B. Salemi, Public
Defender, Anchorage, for Appellant. Nancy R.
Simel, Assistant Attorney General, Office of
Special Prosecutions and Appeals, Anchorage,
and Bruce M. Botelho, Attorney General,
Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
Jonathan L. Anderson pled no contest to one count of
misconduct involving weapons in the third degree, in violation of
AS 11.61.200(a)(1)(felon in possession). In return for the plea,
the state dismissed two misdemeanor charges. Misconduct
involving weapons in the third degree is a class C felony and is
punishable by a maximum term of five years; presumptive terms of
two and three years are specified for second and subsequent
felony offenders. AS 12.55.125(e). Superior Court Judge Elaine
M. Andrews determined that Anderson was a third felony offender.
Judge Andrews found one aggravating and one mitigating factor
applicable to Anderson's case and sentenced him to an adjusted
third-offense presumptive term of three and one-half years with
six months suspended. Anderson appeals, contending that the
superior court's decision to sentence him as a third felony
offender violated his right to equal protection.1
On November 22, 1993, an Anchorage police officer
attempted to stop Anderson, who was driving a pickup truck that
had been reported stolen. Instead of stopping, Anderson jumped
out of the moving truck and fled on foot into a nearby alley; the
truck drove out of control off the roadway and struck a tree.
The officer pursued Anderson and arrested him. Upon arrest,
Anderson was found to have a holster tucked inside his waistband.
The police later found a 9 mm. pistol between the driver's and
passenger's seats of the abandoned truck; the pistol had been
stolen in a recent burglary.
At the time of this incident, Anderson was on probation
for two class C felonies: fourth-degree misconduct involving a
controlled substance and felony failure to appear. The
controlled substance conviction arose from Anderson's possession
of cocaine on October 4, 1992. The failure to appear conviction
stemmed from Anderson's subsequent failure to attend a
preindictment hearing on the controlled substance charge.
Anderson had pled no contest and received a suspended imposition
of sentence on both charges less than seven months before
committing his current offense.
At the sentencing hearing in his current case, Anderson
argued that his two prior felonies should count as one previous
conviction for presumptive sentencing purposes, because his prior
offenses were related, his convictions for both had been
simultaneously entered, and he had received only one chance at
rehabilitation. Anderson maintained that it would be
fundamentally unfair, and a violation of his right to equal
protection, if he were sentenced comparably to a third felony
offender who had received two chances at rehabilitation -- an
offender whose two prior convictions had been entered seriatim,
with commission and conviction of the second following conviction
of the first. Judge Andrews rejected this argument and concluded
that, under AS 12.55.145(a)(3), Anderson's two prior convictions
rendered him a third felony offender for presumptive sentencing
purposes.2
On appeal, Anderson contends that Judge Andrews erred
in sentencing him as a third felony offender. However, Judge
Andrews' interpretation of AS 12.55.145(a)(3) was unquestionably
correct. This court's rulings in State v. Rastopsoff, 659 P.2d
630, 637 (Alaska App. 1983), and Linn v. State, 658 P.2d 150, 152
(Alaska App. 1983), interpreted AS 12.55.145(a)(3) to require
that, when an offender is simultaneously convicted of multiple
felonies arising out of separate criminal episodes and thereafter
commits a new felony, each prior felony must count as a previous
conviction for presumptive sentencing purposes.
Anderson nevertheless maintains that the interpretation
of AS 12.55.145(a)(3) adopted by this court in Rastopsoff and
Linn violates his right to equal protection under the Alaska
Constitution. This argument lacks merit. Under Alaska's three-
part, sliding scale equal protection analysis, the relevant
factors to be balanced are the significance of the individual
right purportedly infringed, the importance of the regulatory
interest asserted by the state, and the closeness of the fit
between the challenged statute and the state's asserted
regulatory interest. See, e.g., State v. Enserch Alaska Constr.,
Inc., 787 P.2d 624, 631 (Alaska 1989).
Here, Anderson asserts the infringement of his right to
liberty. But as a convicted felon challenging the validity of a
sentencing provision, Anderson can rightfully complain of no more
than an infringement of "the relatively narrow interest of a
convicted offender in minimizing the punishment for an offense."
Maeckle v. State, 792 P.2d 686, 689 (Alaska App. 1990). By
contrast, the state has a strong and direct interest in
establishing penalties for criminal offenders and in determining
how those penalties should be applied to various classes of
convicted felons. In this arena, the legislature has
traditionally been accorded broad authority. Dancer v. State,
715 P.2d 1174, 1180-81 (Alaska App. 1986).
Turning to the "closeness of the fit" factor -- the
third part of Alaska's sliding scale equal protection test -- we
find no marked deficiency in the challenged statute's approach to
fulfilling the state's legitimate interest in punishing criminal
offenders. Under the interpretation of AS 12.55.145(a)(3)
adopted in Rastopsoff and Linn, Anderson was accorded presumptive
treatment identical to that prescribed for all other offenders
who, having been convicted of two or more previous felonies,
commit and are convicted of additional class C felonies. The
only disparity Anderson asserts is that, unlike some offenders
who have previously been convicted of multiple felonies, Anderson
has only received a single opportunity for rehabilitation. In
effect, then, Anderson complains not so much of unequal
protection as of protection that is too equal. He would require
us to conclude that the legislature is constitutionally bound to
divide the set of third offenders into discrete subsets: that it
must distinguish among convicted multiple offenders based not
only on the number of their prior convictions but also on the
number of their prior opportunities for reform.
Anderson's proposed approach to sentencing might have
much to recommend it as a matter of sentencing policy in some
contexts. Cf. State v. Carlson, 560 P.2d 26 (Alaska
1977)(dealing with a habitual offender statute); Skrepich v.
State, 740 P.2d 950, 955 (Alaska App. 1987). But the
legislature, not this court, is primarily responsible for
adopting sentencing policies. Particularly in the context of a
sentencing scheme that draws only presumptive distinctions among
previously convicted felons and that builds in ample room for
adjustment to accommodate the sentencing needs of individual
offenders, we find no basis for concluding that the constitution
compels the legislature to distinguish among convicted felons
based on the number of their prior opportunities for
rehabilitation.
The sentence is AFFIRMED.
_______________________________
1. Anderson also argues that the superior court erred in failing to reduce his
sentence in light of the mitigating factor it found applicable to his case:
that the harm caused by his current and past crimes has been consistently
minor and is inconsistent with a substantial term of imprisonment. See AS
12.55.155(d)(13). But after stating what mitigating factor the superior
court found applicable and conceding that the finding of a mitigating
factor does not necessarily require a sentencing court to adjust the
presumptive term downward, see, Machado v. State, 797 P.2d 677, 689 (Alaska
App. 1990), Anderson simply asserts, without further discussion: "There was
no reduction to his sentence in spite of the finding that a substantial
term of imprisonment was not justified. The defendant contends that when
there is a finding that a substantial term of imprisonment is not justified
there should be some downward adjustment to a presumptive term." This
conclusory statement does not provide a meaningful basis for appellate
review and amounts to an abandonment of the issue. Cf. Weidner v. State,
Dep't of Transp., 860 P.2d 1205, 1213 n.9 (Alaska 1993); Hitt v. J.B.
Coghill, Inc., 641 P.2d 211, 213 n.4 (Alaska 1982).
2. AS 12.55.145(a)(3) requires that one or more felony convictions be
separately counted for presumptive sentencing purposes unless the
convictions arose out of a single criminal episode and did not result in
consecutive sentences.
