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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
MARTHA JO ROZKYDAL, )
) Court of Appeals No. A-6039
Appellant, ) Trial Court No. 3AN-94-6192 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1532 - May 30, 1997]
______________________________)
Appeal from the Superior Court, Third Judicial
District, Anchorage, Elaine M. Andrews, Judge.
Appearances: Cynthia L. Strout, Anchorage,
for Appellant. Leonard M. Linton, Jr.,
Assistant District Attorney, Kenneth J.
Goldman, District Attorney, Kenneth M.
Rosenstein, Assistant Attorney General, Office
of Special Prosecutions and Appeals,
Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
Martha Jo Rozkydal was convicted of first-degree theft,
AS 11.46.120(a), for embezzling over $125,000 from her employer.
She was sentenced to 4 years' imprisonment with 32 months
suspended ? that is, she received 16 months to serve. Rozkydal has
now filed a sentence appeal with this court. The question is
whether Rozkydal is entitled to appeal her sentence.
In 1995, the Alaska Legislature limited the right of
sentence appeal by amending the sentence appeal statute,
AS 12.55.120(a). See SLA 1995, ch. 79, ?? 7-8. Under the current
version of the statute, defendants convicted of felonies may appeal
their sentences only if they receive more than 2 years to serve.
The pertinent portion of the statute reads:
A sentence of imprisonment lawfully
imposed by the superior court for a term or
aggregate terms exceeding two years of
unsuspended incarceration for a felony offense
... may be appealed to the court of appeals by
the defendant on the ground that the sentence
is excessive[.]
At the same time, the legislature enacted a corresponding limit on
this court's jurisdiction to hear sentence appeals. See SLA 1995,
ch. 79, ?? 11-12.1
As explained above, Rozkydal received only 16 months to
serve. The State therefore asserts that Rozkydal has no right to
appeal her sentence. Rozkydal concedes that the legislature has
apparently eliminated her right to appeal her sentence. She
argues, however, that the legislature's action denies equal
protection of the law to felony defendants who receive 2 years or
less to serve. Rozkydal also contends that the legislature's
action denies due process of law to these defendants. Finally,
Rozkydal contends that, regardless of how the legislature may try
to restrict sentence appeals, the judiciary has an inherent power
to review criminal sentences.
For the reasons explained in this opinion, we conclude
that the legislative changes to AS 12.55.120(a) and AS 22.07.020(b)
are constitutional and that Rozkydal has no right to appeal her
sentence, either to this court or to the supreme court. However,
we also conclude that Rozkydal retains the right to petition the
Alaska Supreme Court to review her sentence. We therefore dismiss
Rozkydal's appeal, but without prejudice to Rozkydal's filing a
petition for review in the supreme court.
The effect of the amendment to AS 12.55.120(a)
Before addressing Rozkydal's constitutional
arguments, it is important to clarify what was
accomplished by the 1995 amendment to the sentence appeal
statute. Certain legal concepts are key to our
interpretation of the current statute: the definition of
a "sentence appeal", and the distinction between an
"appeal" and a "petition".
By its terms, AS 12.55.120 deals only with
"sentence[s] of imprisonment lawfully imposed by the
superior court" that are being appealed "on the ground
that the sentence is excessive[.]" In order to interpret
this language, we must look to a thirty-year-old decision
of the Alaska Supreme Court: Bear v. State, 439 P.2d 432
(Alaska 1968).
In Bear, the supreme court held that, absent
legislative authorization, it had no authority to review
a lawful sentence "for abuse of discretion" ? that is,
for excessive severity or leniency. Bear, 439 P.2d at
435. The supreme court did not question its authority to
decide cases in which the defendant claimed that the
sentence was illegal, or cases in which the defendant
claimed that the sentencing procedures were flawed. Id.
at 436, 438. The issue presented in Bear was something
different: whether the court had the authority to hear
an appeal in which the defendant failed to allege any
illegality in the sentence or the sentencing proceedings,
but argued simply that a concededly legal sentence
constituted an abuse of sentencing discretion. Id. at
434. The court ruled that it had no such authority.
The legislature responded to Bear the
following year by enacting AS 12.55.120, a statute that
explicitly granted the supreme court the authority to
entertain sentence appeals. As the House Judiciary
Committee explained in its report on the pending
legislation (House Bill No. 281):
The majority of the courts have held that
where a sentence imposed by a trial judge is
within the limits prescribed by statute and
otherwise lawful, an appellate court cannot
review the discretion the trial judge
exercised in determining the sentence, even
though it may appear in retrospect to have
been too severe or too lenient.
Enactment of [this legislation] would
provide ... jurisdiction ... for appellate
review of sentences in Alaska.
1969 House Journal 665.
We recognize that the term "sentence
appeal" is not always used this narrowly. For
instance, under current Alaska appellate
practice, the "sentence appeals" filed under
Appellate Rule 215 often include allegations
that the sentencing proceedings were irregular
or that the sentencing judge erred in making
various factual and legal determinations
affecting the range of authorized sentences.
As an administrative matter, there is
generally no problem with handling such
appeals under the expedited procedures
specified in Appellate Rule 215. In fact,
this court encouraged this practice in Juneby
v. State, 641 P.2d 823, 835 n.18 (Alaska App.
1982).
However, the issue in Rozkydal's
case is the scope of AS 12.55.120. In light
of the legislative history described above, it
is apparent that this statute was meant to
authorize and govern a particular kind of
appeal: appeals in which the defendant's sole
assertion of error is that the sentencing
judge abused his or her discretion by imposing
too severe a sentence.
Now that we have clarified the type
of appellate claim governed by AS 12.55.120,
it is also important to clarify the type of
restriction that this statute places on a
defendant's ability to obtain appellate review
of such claims. AS 12.55.120(a) declares that
sentences of more than 2 years' imprisonment
"may be appealed ... on the ground that the
sentence is excessive[.]" To interpret this
language, we must distinguish between an
"appeal" and a "petition".
The right of "appeal" means the
right to require an appellate court to review
a lower court's decision. The right of
"petition", on the other hand, means the right
to request an appellate court to review a
lower court's decision ? a request which the
appellate court may grant or deny as it sees
fit. See Kerttula v. Abood, 686 P.2d 1197,
1200-01 (Alaska 1984); Morgan v. State, 635
P.2d 472, 480-81 & n.16 (Alaska 1981); State
v. Browder, 486 P.2d 925, 929-931 (Alaska
1971).
In Browder, the supreme court dealt
with a legal question analogous to the one
presented in Rozkydal's case. The defendant
in Browder was being prosecuted for contempt
of court (for bringing a shotgun into a
courtroom). The district court ruled that
Browder was entitled to a jury trial, and the
State sought appellate review of this ruling
by filing a petition for review. One key
issue in Browder was whether the State could
employ a petition for review to seek appellate
review of the trial court's ruling.
Under former AS 22.05.010 (as it
existed in 1971), the legislature had placed
substantial restrictions on the State's right
of appeal in criminal cases: the State had no
right of appeal except "to test the
sufficiency of the indictment or [to assert]
that the sentence [was] too lenient". See
Browder, 486 P.2d at 929. Thus, under the
governing statute, the State had no right to
appeal the district court's jury trial order.
Nevertheless, the supreme court concluded
that the State could seek judicial review of
the lower court's order through a petition for
review:
[T]he limitation placed upon the state's right
to appeal in a criminal case, found in AS 22.-
05.010, was intended to apply only to
instances where our jurisdiction is ...
invoked by appeal. AS 22.05.010 clearly
distinguishes between appeals and other forms
of review. Appeals are specifically limited,
whereas the other forms of review authorized
under AS 22.05.010 ... have no limitations
placed on them.
Browder, 486 P.2d at 930. The supreme court
noted that if AS 22.05.010 were construed to
prohibit the court from reviewing any ruling
in a criminal case except those rulings
expressly made appealable, then the statute
would raise serious constitutional problems
under Article IV, Section 2 of the Alaska
Constitution (the provision which declares the
supreme court to be "the highest court of the
State, with final appellate jurisdiction").
Id. at 931.
We believe that the supreme court's
decision in Browder illuminates the proper
construction of AS 12.55.120(a). The statute
declares that felony sentences "may be
appealed" only if they exceed 2 years to
serve. The statute does not mention or
purport to limit a defendant's right to
petition a higher court for discretionary
review of a sentence. Given Browder's
interpretation of an analogous statute (the
statute limiting the State's right of appeal
in criminal cases), we conclude that AS
12.55.120(a) should be interpreted in the same
way. The statute eliminates certain felony
defendants' right to "appeal" their sentence
(that is, their right to require an appellate
court to review the sentence), but these
defendants retain the right to seek
discretionary appellate review of a sentence
by filing a petition for review. This right
is explicitly recognized in Appellate Rule
215(a)(2):
Right to Seek Discretionary Review. A
defendant may seek discretionary review of an
unsuspended sentence of imprisonment which is
not appealable ... by filing a petition for
review in the supreme court under Appellate
Rule 402.
To summarize: The sentence appeal
statute, AS 12.55.120, governs a particular
type of appellate claim ? instances in which
the defendant concedes the legality of his or
her sentence but contends that the severity of
the sentence constitutes an abuse of
discretion. The statute declares that a
felony defendant may raise such a claim on
appeal only if the challenged sentence exceeds
2 years to serve. However, because the
statute does not restrict a defendant's right
to petition for discretionary review of a
sentence, and because this right is explicitly
codified in Appellate Rules 215(a)(2) and
402(a)(1), we conclude that a felony defendant
who receives a lesser sentence retains the
right to seek discretionary review of that
sentence by filing a petition for review in
the supreme court.
Thus, under current Alaska statutes
and court rules, Rozkydal does not have the
right to appeal her 16-month sentence, but she
does have the right to petition the supreme
court to review it. Against this background,
we now assess Rozkydal's constitutional
challenges to AS 12.55.120(a).
The constitutionality of AS 12.55.120(a)
Rozkydal raises three constitutional
challenges to AS 12.55.120(a). One of Rozkydal's
arguments is that the judiciary has an inherent authority
to review sentences, an authority that the legislature
can not eliminate. However, as we explained in the
previous section of this opinion, even after the 1995
amendment to AS 12.55.120(a), Alaska law still allows
felony defendants who receive sentences of 2 years or
less to seek discretionary review of their sentences.
Given our construction of AS 12.55.120(a) and the supreme
court's enactment of Appellate Rule 215(a)(2), Rozkydal's
"inherent authority" argument is moot.
Rozkydal next argues that AS 12.55.120(a)
violates the equal protection clause of the Alaska
Constitution (Article I, Section 1) because, under the
statute, felony defendants sentenced to serve 2 years or
less are treated differently from felony offenders
sentenced to serve more than 2 years. However, not all
differences in treatment violate the equal protection
clause. As the supreme court stated in Gonzales v.
Safeway Stores, Inc., 882 P.2d 389, 396 (Alaska 1994),
the equal protection clause commands the legislature to
give the same treatment to "those who are similarly
situated":
The common question in equal protection cases
is whether two groups of people who are
treated differently are similarly situated and
thus entitled to equal treatment. Equal
protection jurisprudence concerns itself
largely with the reasons for treating one
group differently from another[,] ... asking
whether a legitimate reason for disparate
treatment exists, and, given a legitimate
reason, whether the enactment creating the
[different treatment] bears a fair and
substantial relationship to that reason.
State, Dep?t of Revenue v. Cosio, 858 P.2d 621,
629 (Alaska 1993).
Gonzales, 882 P.2d at 396 (footnote omitted).
Rozkydal argues that the recent
amendment to the sentence appeal statute has
created two groups of felony offenders: those
who can obtain appellate review of their
sentences, and those who can not. However,
as explained in the previous section,
AS 12.55.120 does not restrict a defendant's
ability to seek appellate review of
illegalities in either the sentence or the
sentencing process. Moreover, even when a
defendant's appellate claim deals solely with
the excessiveness of a legal sentence, the
combination of AS 12.55.120(a) and Appellate
Rule 215(a)(2) still gives all felony
offenders the right to seek judicial review.
The distinction drawn by AS 12.55.120(a)
involves the right of "appeal" ? the right to
demand appellate review of a sentence. Under
the statute, only felony offenders who receive
more than 2 years to serve are entitled to
demand appellate review of the sentencing
decision, but felony offenders who receive
lesser sentences are still entitled to seek
discretionary review of the sentencing
decision.
For purposes of equal protection
analysis, then, the question is whether the
legislature can give one group of felony
offenders the right of sentence review upon
demand, while at the same time requiring a
second group of felony offenders to convince
the appellate court that their sentence merits
review. We note that, from the time sentence
appeals were first authorized in Alaska, the
right of sentence appeal has always depended
on the length of a defendant's sentence. As
originally enacted in 1969, AS 12.55.120
limited the right of sentence appeal to
defendants who received sentences of 1 year or
more. Seven years later, when the supreme
court promulgated an appellate rule to govern
sentence appeals, the court continued the
practice of denying appeals to defendants who
received lesser sentences ? although the
supreme court's cut-off was 45 days'
imprisonment, considerably lower than the
legislature's dividing line. See Johnson v.
State, 816 P.2d 220, 221-22 (Alaska App.
1991). Now, both AS 12.55.120(a) and
Appellate Rule 215(a)(1) establish the cut-off
for felony sentence appeals at 2 years'
imprisonment.
We first must ask whether there is a
valid purpose behind the legislature's
decision to restrict the right of sentence
appeal based on the length of a defendant's
sentence. Gonzales, supra. The legislature's
apparent purpose was to reduce the workload of
the appellate courts and the workload of the
prosecutors and defense attorneys funded by
the state government. Rozkydal concedes that
the legislature may properly concern itself
with the cost and efficiency of state
government. However, she contends that such
concerns can not justify a statutory
classification that denies some felony
offenders the right to appellate review of
their sentences. The next question, then, is
whether the legislature's restriction of
sentence appeals bears the necessary "fair and
substantial relationship" to the legislature's
goals. Gonzales, supra.
The aim of sentence review is to
identify instances in which a judge has abused
his or her admittedly broad sentencing
discretion. State v. Wentz, 805 P.2d 962, 965
(Alaska 1991); State v. Chaney, 477 P.2d 441,
443 (Alaska 1970). In cases brought by
defendants, the aim is to identify sentences
that are excessive ? sentences that are too
severe as a matter of law.
The premise underlying any sentence
appeal dividing line (whether that line is
drawn at 45 days or at 2 years) is that lesser
sentences are less likely to be excessive. If
lesser sentences are less likely to constitute
an abuse of discretion, then there is arguably
less justification for conducting a full
appellate review of each of these sentences.
The legislative history of AS 12.55.120 shows
that the legislature relied on this reasoning
when it restricted felony sentence appeals to
defendants receiving more than 2 years to
serve.
Two years' imprisonment is the
presumptive term for a second felony offender
convicted of a class C felony ? the lowest
class of felony. See AS 12.55.125(e)(1).
When a court sentences a defendant for a C
felony, this 2-year presumptive term is the
dividing line under Austin v. State, 627 P.2d
657, 657-58 (Alaska App. 1981) ? the case in
which this court held that a first felony
offender's sentence should be more favorable
than the presumptive term established for
second felony offenders unless the State
proves aggravating factors under AS 12.-
55.155(c) or extraordinary circumstances under
AS 12.55.165. See also AS 12.55.125(k).
When the legislature was considering
the current 2-year dividing line for felony
sentence appeals, the legislature relied on
statistical information indicating that ninety
percent of appeals from felony sentences of 2
years or less ended in affirmance. See 1995
House Journal 489-490 (reprinting the
Governor's transmittal letter accompanying
House Bill No. 201, the bill that contained
the proposed amendment to AS 12.55.120).
Thus, the legislature apparently concluded
that felony sentences of 2 years or less were
unlikely to constitute an abuse of sentencing
discretion.
Rozkydal asserts that, regardless of
the legislature's statistics, significant
legal errors have often occurred in felony
cases where defendants received 2 years or
less to serve. In her brief, she lists eleven
published opinions from the years 1981 to
1993, ten decided by this court and one
decided by the supreme court, in which felony
sentences of 2 years or less were reversed on
appeal. However, in each of these cases the
defendants' sentences were reversed because of
illegalities in the sentencing process.2 That
is, none of these eleven cases was the kind of
appeal governed by AS 12.55.120; all of these
cases would be appealable under current law.
Rozkydal also contends that, even it
could be shown that felony sentences of 2
years or less rarely involve an abuse of
sentencing discretion, there would still be
some instances of abuse, and it would still be
unjust to deny those defendants the
opportunity for sentence review. However, as
explained above, Alaska law does not deny
anyone the opportunity to seek sentence
review. Instead, under AS 12.55.120(a) and
Appellate Rule 215(a)(2), certain felony
defendants (those who have been sentenced to
2 years or less) must seek sentence review by
petition rather than by appeal. The effect of
this procedural distinction is to require
those defendants who receive lesser sentences
to convince the appellate court that there is
good reason to hear their case before the
criminal justice system devotes the time and
money required to pursue and decide a sentence
appeal.
The real issue, then, is whether the
government violates the equal protection
guarantee when it grants a right of sentence
appeal to defendants who receive severe
sentences, leaving all other defendants with
only the right to petition for review of their
sentences. Rozkydal cites no authority on
this issue. However, as we have already
noted, Alaska law governing sentence appeals
(both statutes and court rules) has
consistently distinguished among defendants on
this very basis ? the length of the
defendants' sentences ? since 1969, the year
that sentence appeals were first authorized.
Authority on this issue from other
jurisdictions is sparse. However, the cases
indicate that a state government may properly
create procedural distinctions based on a
defendant's sentence.
In Massie v. Hennessey, 875 F.2d
1386, 1389 (9th Cir. 1989), the petitioner
asserted that California denied him equal
protection of the law by providing different
appellate procedures for those defendants
sentenced to death. The Ninth Circuit upheld
California's appellate procedures. In State
v. Delgado, 290 A.2d 338, 344-45 (Conn. 1971),
the Connecticut Supreme Court rejected an
equal protection challenge to a statute which
authorized sentence appeals for all defendants
who received a prison term of at least one
year, but which denied sentence appeals to
murder defendants sentenced to death or life
imprisonment under a special sentencing
procedure.
More pertinent to the issue raised
in Rozkydal's case, the New Jersey Supreme
Court has upheld an expedited appeal process
for sentence appeals ? a streamlined procedure
in which sentence appeals are decided without
briefs, based solely on the record and on oral
argument. State v. Bianco, 511 A.2d 600 (N.J.
1986). The Texas Court of Appeals has
rejected an equal protection attack on a
statute which denies any right of appeal to
defendants who receive deferred adjudications
(a variant of the same idea as Alaska's
suspended imposition of sentence). Buchanan
v. State, 881 S.W.2d 376, 380 (Tex. App.
1994). And the Washington Court of Appeals
has rejected an equal protection challenge to
a Washington statute that precludes defendants
from appealing their sentence if they receive
a sentence within a pre-defined standard range
for their offense. State v. Rousseau, 898
P.2d 870 (Wash. App. 1995), review denied, 910
P.2d 482 (Wash. 1996).
Having considered this matter, we
conclude that the Alaska legislature's
decision to restrict the right of sentence
appeal to felony offenders receiving more than
2 years to serve bears a fair and substantial
relationship to a legitimate government
purpose. Under the Austin rule, sentences of
less than 2 years need not be supported by
aggravating factors or extraordinary
circumstances. The information in front of
the legislature was that the great majority of
these sentences are affirmed on appeal. The
legislature could validly conclude that the
resources of the appellate courts, the
Department of Law, the Public Defender Agency,
and the Office of Public Advocacy would be
better spent if appellate review of these
lesser sentences were discretionary.
For these same reasons, we reject
Rozkydal's contention that the legislature's
action violated her right to procedural due
process. The essence of due process is a
"meaningful opportunity to be heard". Boddie
v. Connecticut, 401 U.S. 371, 377; 91 S.Ct.
780, 785; 28 L.Ed.2d 113, 118 (1971).
Rozkydal has not shown that a petition for
review to the supreme court would deny her a
meaningful opportunity for sentence review.
We likewise reject Rozkydal's
argument that the legislature's action
violated substantive due process (that is, her
argument that there was no legitimate
government purpose to support the
legislature's action). See Gonzales, 862 P.2d
at 397-98.
We emphasize that our decision is
influenced in large measure by our conclusion
that defendants receiving lesser felony
sentences retain the right to petition for
review under Appellate Rule 215(a)(2). We
express no opinion regarding the legislature's
authority to preclude all forms of sentence
review for specific sentencing ranges or
groups of criminal defendants.
Conclusion
Because Rozkydal received only 16 months to
serve, she has no right to appeal her sentence.
Accordingly, this appeal is DISMISSED. Rozkydal is
entitled, however, to petition the supreme court to
review her sentence under Appellate Rule 215(a)(2).
Given the circumstances, we exercise our
authority under Appellate Rule 521 to relax Appellate
Rule 403(h)(1), the rule that sets the time limits for
petitioning for review of a non-appealable sentence. If
Rozkydal wishes to petition the supreme court to review
the superior court's sentencing decision, the time limits
specified in Appellate Rule 403(h)(1) shall be
calculated, not from the distribution date of the
superior court's judgement, but rather from the date our
decision takes effect. See Appellate Rule 512(a)(2).
1 The current version of AS 22.07.020(b) provides:
Except as limited in AS 12.55.120, the court of
appeals has jurisdiction to hear appeals of unsuspended
sentences of imprisonment exceeding two years for a
felony offense ... on the grounds that the sentence is
excessive, or a sentence of any length on the grounds
that it is too lenient.
2 In eight of these cases ? Lewis v. State, 845 P.2d 447
(Alaska App. 1993), Reynolds v. State, 736 P.2d 1154 (Alaska App.
1987), Tate v. State, 711 P.2d 536, 538-540 (Alaska App. 1985),
Shaisnikoff v. State, 690 P.2d 25, 27-28 (Alaska App. 1984),
Fleener v. State, 686 P.2d 730, 736-37 (Alaska App. 1984), Poggas
v. State, 658 P.2d 796, 798 (Alaska App. 1983), Sears v. State, 653
P.2d 349, 350 (Alaska App. 1982), and McManners v. State, 650 P.2d
414, 416 (Alaska App. 1982) ? the defendants' sentences were
reversed for violation of the Austin rule (the rule that a first
felony offender must receive a sentence more favorable than the
presumptive term for second felony offenders unless the sentencing
judge finds aggravating factors or extraordinary circumstances).
In Harlow v. State, 820 P.2d 307 (Alaska App. 1991), the
sentencing judge mistakenly treated the defendant as a second
felony offender, when the defendant's prior conviction from another
state did not qualify under AS 12.55.145(a) as a prior felony
conviction for purposes of Alaska sentencing law. In DeHart v.
State, 781 P.2d 989, 990-92 (Alaska App. 1989), the sentencing
judge mistakenly ruled that the defendant was subject to a
presumptive term. And in Morris v. State, 630 P.2d 13, 17-18
(Alaska 1981), the court upheld the length of the defendant's
sentence but reversed because the sentencing judge utilized an
improper legal standard in imposing sentence.
?23? 1532
