NOTICE: This opinion is subject to formal
correction before publication in the Pacific
Reporter. Readers are requested to bring
typographical or other formal errors to the
attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, in order
that corrections may be made prior to permanent
publication.
THE COURT OF APPEALS OF THE STATE OF ALASKA
GARY BROWN, )
) Court of Appeals No. A-5842
Appellant, ) Trial Court No. 4FA-94-132CI
) t/w 4FA-S85-2169CR
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1491 - October 11, 1996]
______________________________)
Appeal from the Superior Court, Fourth Judicial
District, Fairbanks, Jay Hodges, Judge.
Appearances: Marcia E. Holland, Assistant
Public Defender, Fairbanks, and John B. Salemi,
Public Defender, Anchorage, for Appellant.
Timothy W. Terrell, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats, Judge, and
Andrews, Superior Court Judge. [Mannheimer,
Judge, not participating.]
BRYNER, Chief Judge.
Gary Brown is an Alaska prisoner currently serving a
forty-year term of imprisonment for first-degree murder. He appeals
Superior Court Judge Jay Hodges' denial of an application for post-
conviction relief in which Brown claimed that, for purposes of
determining his date of eligibility for discretionary parole, he was
entitled to receive a deduction of good-time credit from the twenty-
year mandatory minimum sentence for first-degree murder. We affirm.
Brown was convicted of first-degree murder in 1985 under
AS 11.41.100(a)(1); upon conviction, he became subject to punishment
under AS 12.55.125(a), which required "a definite term of imprison-
ment of at least 20 years[.]" Brown ultimately received an
unsuspended term of forty years.
Former AS 33.15.080 specified that Brown would become
eligible for discretionary parole after serving "at least one-third
of the period of confinement to which the prisoner has been
sentenced." Under this provision, Brown might have become eligible
for discretionary parole after serving thirteen and one-third years:
one-third of his forty-year unsuspended term.
However, the Department of Corrections (DOC) notified
Brown that he could not be considered for discretionary parole until
he had served his full twenty-year minimum sentence. In taking this
position, DOC relied on the language of the mandatory minimum
sentencing statute, which expressly provides that a mandatory
minimum term cannot be suspended or "otherwise reduced." AS
12.55.125(f)(1), (3). DOC likewise relied on former AS 33.15.180
(b), which expressly restricted eligibility for discretionary parole
in cases involving mandatory minimum sentences:
A state prisoner who has been imprisoned
in accordance with AS 12.55.125(a) or (b) may
not be released on parole until the prisoner
has served at least the prescribed minimum term
of imprisonment.
Brown filed an application for post-conviction relief,
challenging DOC's interpretation of these statutes and arguing that
they should not be literally construed. Brown pointed out that
under AS 33.20.010(a), AS 33.20.030, and AS 33.20.040(a), a sentence
of imprisonment is automatically reduced by one-third for good
conduct, and a prisoner who does not forfeit good conduct credit
must be released on mandatory parole after serving two-thirds of the
originally-imposed sentence. Brown argued that these statutes
required a one-third reduction in his twenty-year minimum term for
purposes of determining his eligibility for discretionary parole,
thereby allowing the minimum term to be deemed served after thirteen
and two-thirds years.
Brown further argued that failure to deduct good time from
his mandatory minimum sentence for purposes of determining his
eligibility for discretionary parole would deprive him of his right
to equal protection of the law (EN1) by treating him differently
than offenders sentenced to enhanced or consecutive presumptive
terms.
Judge Hodges rejected these arguments and denied Brown's
application for post-conviction relief, and Brown appealed.
In his opening brief, Brown renewed the statutory
interpretation argument and the equal protection claim he raised
below. Shortly after Brown filed his opening brief, however, we
decided Hampel v. State, 911 P.2d 517 (Alaska App. 1996). In Hampel
we found "nothing in the legislative history of Alaska's parole
statutes indicating a legislative intent to extend good-time
deductions . . . to the calculation of whether a prisoner is
eligible for discretionary parole by virtue of having served a
mandatory minimum term of imprisonment[,]" and we concluded "that
deductions of good time . . . are inapplicable in calculating
whether a mandatory minimum term of imprisonment has been served for
purposes of determining discretionary parole eligibility[.]" Id.
at 523. Brown thereafter filed a reply brief, conceding that Hampel
disposes of his statutory interpretation argument but reasserting
his equal protection claim -- an issue we did not consider in
Hampel.
Brown's equal protection argument depends on a comparison
of his situation with that of a defendant who receives an enhanced
presumptive term or multiple consecutive presumptive terms. Like
an offender who receives a mandatory minimum sentence, a defendant
who is sentenced to a presumptive term is ordinarily not eligible
for discretionary parole. AS 33.16.090. And just as an offender
who is subject to a minimum sentence and receives a sentence
exceeding the minimum can become eligible for discretionary parole
after serving the minimum term, a defendant who is subject to
presumptive sentencing and receives an enhanced presumptive term or
consecutive presumptive terms for multiple offenses can become
eligible for discretionary parole upon serving the unenhanced
presumptive term or the initial presumptive sentence. AS
33.16.090(b); AS 33.16.100(c).
However, AS 33.16.090(c) specifically provides that, for
purposes of determining the expiration date of the unenhanced or
initial presumptive term in such situations, the defendant is
entitled to receive credit for good conduct: "The unenhanced
sentence or the initial presumptive sentence is considered served
for purposes of discretionary parole on the date the unenhanced or
initial presumptive sentence is due to expire less good time
earned[.]" In contrast, as we recently held in Hampel, no credit
for good time is given in calculating the expiration of a mandatory
minimum sentence for purposes of determining eligibility for
discretionary parole. Hampel, 911 P.2d at 523.
Arguing that prisoners who receive presumptive and minimum
terms should be deemed similarly situated with regard to eligibility
for discretionary parole, Brown contends that the disparate
treatment of these two classes of prisoners is irrational and
violates equal protection.
Brown's argument lacks merit. Minimum and presumptive
sentencing provisions deal with differing classes of offenders (EN2)
and serve differing purposes. (EN3) For these reasons, offenders
who are subject to minimum sentencing provisions and those who are
subject to presumptive sentencing cannot be deemed similarly
situated for purposes of considering an equal protection claim based
on disparate sentencing. Cf. Maeckle v. State, 792 P.2d 686, 689
(Alaska App. 1990) (holding that offenders subjected to different
penalties for different offenses are not similarly situated for
equal protection purposes); Martin v. State, 664 P.2d 612, 619-20
(Alaska App. 1983) (rejecting an equal protection claim based on
disparate treatment of offenders subject to minimum and presumptive
sentencing).
Alternatively viewed, disparate treatment of these two
classes of offenders easily passes equal protection muster -- for
precisely the same reasons -- even if the two classes are deemed
similarly situated.
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).
As a convicted felon challenging the validity of a
sentencing provision, Brown
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).
Anderson v. State, 904 P.2d 433, 436 (Alaska App. 1995).
And in Brown's case, as in Anderson, "[t]urning 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." Id.
As we have already noted, mandatory minimum sentences are
intended as a base line for punishment of offenders convicted of the
most serious types of unclassified felonies -- felonies punishable
by the most severe maximum sentence allowed under Alaska law. Just
as the legislature could reasonably conclude that offenders within
this select class deserve to receive a mandatory minimum sentence
and deserve to be subjected to the possibility of a particularly
severe maximum sentence, so the legislature could also reasonably
conclude that these offenders deserve uniquely restrictive treatment
in qualifying for release on discretionary parole.
A sentencing system that specifies progressively harsher
penalties for progressively more serious classes of offenses is
neither novel nor impermissible. This is a form of classification
that has traditionally been recognized and upheld as rational.
There is nothing else involved here. (EN4)
We AFFIRM the superior court's order denying Brown's
application for post-conviction relief.
ENDNOTES:
1. See U.S. Const. amend. XIV, sec. 1; Alaska Const. art. I, sec.
1.
2. The provisions of the Alaska revised criminal code that deal
with felony sentencing specify mandatory minimum sentences for only
a limited number of unclassified felonies (the most serious class
of Alaska felonies): those unclassified felonies punishable by a
maximum term of ninety-nine years' imprisonment. AS 12.55.125(a),
(b). This group of unclassified felonies consists of murder in the
first degree, AS 11.41.100(b); murder in the second degree, AS
11.41.110(b); attempted murder in the first degree, AS
11.31.100(d)(1); conspiracy to commit murder in the first degree,
AS 11.31.120(h)(1); kidnapping, AS 11.41.300(c); and misconduct
involving a controlled substance in the first degree, AS
11.71.010(c). Of these offenses, first-degree murder is the only
one with a mandatory minimum sentence of twenty years, AS
12.55.125(a); the rest are subject to mandatory minimum sentences
of five years, AS 12.55.125(b). No minimum terms are specified for
the two remaining unclassified felonies, first-degree sexual assault
and first-degree sexual abuse of a minor, each of which carries a
lower maximum term of thirty years' imprisonment. AS 11.41.410(b);
AS 11.41.434(b); AS 12.55.125(i). Nor are any minimum terms
specified for class A, B, or C felonies -- the lesser classes of
felony offenses. AS 12.55.125(c), (d), (e).
3. "While a minimum sentence is appropriate for the offender whose
conduct is the least serious contemplated by the definition of the
offense, a presumptive sentence is aimed at the typical offender."
Middleton v. Anchorage, 673 P.2d 283, 284 (Alaska App. 1983).
4. Griffith v. State, 641 P.2d 228, 232-33 (Alaska App. 1982),
which Brown cites to support his equal protection argument, is
inapposite, since it presents the converse situation: in Griffith
we found irrational a bail statute that subjected a less serious
class of offenders -- offenders convicted of first-degree robbery -
- to harsher treatment than an equally situated or more serious
class of offenders -- other class A felons and some unclassified
felons.
