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
CRAIG A. SORENSON, )
) Court of Appeals No. A-6217
Appellant, ) Trial Court No. 3AN-S95-2377
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
) [No. 1529 - May 9, 1997]
Appellee. )
______________________________)
Appeal from the Superior Court, Third Judicial District, Anchorage, Milton M.
Souter, Judge.
Appearances: Craig Howard, Assistant Public Defender, and Barbara K. Brink, Public
Defender, Anchorage, for Appellant. David R. Wallace, Assistant District Attorney, Kenneth J.
Goldman, District Attorney, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and Mannheimer, Judges.
BRYNER, Chief Judge.
Craig A. Sorenson pled no contest to a charge of criminally negligent homicide and
a charge of driving while intoxicated. AS 11.41.130; AS 28.35.030(a)(1)&(2). Criminally negligent
homicide is a class C felony. AS 11.41.130(b). As such, it is punishable by a maximum term of five
years and by a second- offense presumptive term of two years. AS 12.55.125(e). DWI is a class A
misdemeanor punishable by a maximum term of one year. AS 28.35.030(b); AS 12.55.135(a).
Sorenson is a first felony offender. The state alleged no aggravating factors, AS
12.55.155(c), or extraordinary circum stances, AS 12.55.165, applicable to Sorenson's case. At the
sentencing hearing, Sorenson cited the Austin rule. [Fn. 1] Sorenson argued that, in the absence of
aggravating factors or extraordinary circumstances, Austin barred the sentencing court from
exceeding the two-year second offender presumptive term for his criminally negligent homicide charge.
Sorenson maintained that it would therefore be improper for the court to impose a two-year
unsuspended term with additional suspended incarceration.
In response, however, the prosecutor argued that the Austin rule addressed only
unsuspended incarceration. Thus, the prosecutor maintained that, even without aggravating factors,
the court was free to impose suspended incarceration in addition to a two-year unsuspended term.
Superior Court Judge Milton M. Souter was evidently persuaded by the state's argument: without making
any formal finding of aggravating factors or extraordinary circumstances, the judge sentenced
Sorenson to a term of five years with three years suspended for criminally negligent homicide. [Fn.
2]
Sorenson appeals, contending that his sentence for criminally negligent homicide
violated the Austin rule and was therefore improperly imposed. The state concedes error. We find
the concession to be well founded.
Austin requires that a first offender ordinarily "should receive a more favorable
sentence than the presumptive term for a second offender." 627 P.2d at 657-58; see also Andrew v.
State, 835 P.2d 1251, 1252-53 (Alaska App. 1992). We have construed Austin to require formal notice
and findings of statutory aggravating factors or non-statutory extraordinary circumstances before a
first offense term exceeding the Austin limit could be imposed. 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).
Here, the sentence of five years with three years suspended that Sorenson received
as a first felony offender for criminally negligent homicide is plainly more serious than the two-
year presumptive term that would have applied had he been a second felony offender. See Lewis v.
State, 845 P.2d 447, 448 (Alaska App. 1993). The imposition of this sentence was therefore improper
absent prior notice and a finding of a substantial aggravating factor or extraordinary circumstances
warranting harsher treatment of Sorenson than he would have been subject to as a second felony
offender. Id. Although Judge Souter's sentencing remarks indicate that he viewed Sorenson's case to
be relatively serious, the state alleged no aggravating factors or extraordinary circumstances and
Judge Souter found none.
If Sorenson had previously been convicted of a felony, the sentencing court could
not have sentenced him to a term of five years with three years suspended unless it formally found
the existence of aggravating factors or extraordinary circumstances. If the sentence Sorenson
received as a first felony offender were permissible without a comparable finding, then he would in
effect be penalized for not having previously been convicted of another felony.
Because the challenged sentence violates the Austin rule, we must remand for
resentencing. Upon remand, if the state seeks or the court contemplates imposing a sentence
exceeding the Austinlimit, Sorenson must receive advance notice of proposed aggravating factors or
extraordinary circumstances, and he must be given an opportunity to respond. Lewis, 845 P.2d at 448-
49. The sentencing court's findings on these issues will be governed by the clear and convincing
evidence standard. Id.
We REMAND this case for resentencing.
FOOTNOTES
Footnote 1:
Austin v. State, 627 P.2d 657, 657-58 (Alaska App. 1981) (first felony offender should
ordinarily receive a more favorable sentence than the presumptive term for a second felony offender
convicted of the same class of crime).
Footnote 2:
Judge Souter imposed a concurrent term of six months for DWI.
