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
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
ADASSA ZAIRE AMIN, )
) Court of Appeals No. A-6071
Appellant, ) Trial Court No. 3AN-94-7662 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1536 -June 6, 1997]
______________________________)
Appeal from the Superior Court, Third Judicial
District, Anchorage, Karen L. Hunt, Judge.
Appearances: Leslie A. Hiebert, Assistant
Public Advocate, and Brant G. McGee, Public Advocate, Anchorage, for
Appellant. Cynthia L. Herren, Assistant Attorney General, Office
of Special Prosecutions and Appeals, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, Mannheimer, Judge,
and Joannides, District Court Judge.
MANNHEIMER, Judge.
In 1995, the Alaska Legislature amended the sentence
appeal statute, AS 12.55.120, to place certain restrictions on
criminal defendants' right to appeal sentences of imprisonment. See
1995 SLA, ch. 79,  7-8. These restrictions became effective on
July 1, 1995. See id.,  45. However, the legislature specifically
provided that the new sentence appeal restrictions "appl[y] to
offenses committed before, on, or after the effective date of this
Act". See id.,  41.
This case requires us to decide whether the ex post facto
clauses of the federal and state constitutions bar the legislature
from applying these sentence appeal restrictions to defendants whose
crimes were committed before July 1, 1995. We hold that the new
sentence appeal statute can lawfully be applied to defendants whose
crimes pre-date the effective date of the statute.
Adassa Zaire Amin [Fn. 1] was indicted on eleven counts
(ten felonies and one misdemeanor) based on allegations that she
engaged in various acts of welfare fraud between the years 1989 and
1994. Amin ultimately reached a plea agreement with the State;
under this agreement, she pleaded no contest to three counts
scheme to defraud, AS 11.46.600(a)(2), second-degree forgery,
AS 11.46.505(a)(1), and unsworn falsification, AS 11.56.210(a). The
State agreed that Amin would receive no more than 3 years to serve
for these crimes. (The court could impose additional jail time, but
it would be suspended.)
In accordance with this sentencing agreement, the superior
court sentenced Amin to a composite term of 6 years' imprisonment
with 3 years suspended (3 years to serve). Amin now appeals this
sentence, contending that it is excessive.
The State responds that Amin does not have the right to
file a sentence appeal. The sentence appeal statute, AS 12.-
55.120(a), states that a defendant can not appeal a sentence of
imprisonment if the sentence "was imposed in accordance with a plea
agreement ... [that] provided for imposition of a specific sentence
or a sentence equal to or less than a specified maximum sentence".
As explained above, Amin bargained for no more than 3 years to
serve, and she received a sentence that conformed to this agreement.
The State therefore concludes that Amin has no right to appeal her
sentence.
Amin concedes that AS 12.55.120(a) precludes her sentence
appeal. She argues, however, that application of this statute to
her case will violate the ex post facto clauses of the United States
Constitution and the Alaska Constitution. See United States Consti-
tution, Art. I, Sec. 10; Alaska Constitution, Art. I, Sec. 15. [Fn.
2]
As noted above, the current version of AS 12.55.120(a)
became effective on July 1, 1995. Amin's crimes were committed
between 1989 and 1994. Under the former version of AS 12.55.120(a)
that was in effect during those years, Amin would have been able to
pursue a sentence appeal. Amin argues that, because her crimes were
committed before the new sentence appeal statute became effective,
and because the new statute puts her in a worse position, the ex
post facto clause bars application of that statute to her case.
Amin relies on language from Miller v. Florida, 482 U.S.
423, 430; 107 S.Ct. 2446, 2451; 96 L.Ed.2d 351 (1987), where the
Supreme Court stated that the ex post facto clause forbids
application of any retrospective law that "disadvantage[s] the
offender affected by it". (Quoting Weaver v. State, 450 U.S. 24,
29; 101 S.Ct. 960, 964; 67 L.Ed.2d 17 (1981).) The new version of
AS 12.55.120(a) is undoubtedly retrospective; the legislature
declared that it was intended to apply to all defendants, regardless
of whether their crimes were committed before or after the effective
date of the session law. And Amin points out that the new version
of AS 12.55.120(a) puts her in a worse position because she now
must petition for review of her sentence rather than demanding
appellate review through appeal. Amin therefore asserts that
application of the new statute to her case violates the ex post
facto clause.
However, the language from Miller is an over-
simplification of the ex post facto test. In California Dept. of
Corrections v. Morales, 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d
588 (1995), the Supreme Court disavowed Miller's phrasing of the
test, as well as similar phrasing the Court had used in Weaver v.
Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981), and
Lindsey v. Washington, 301 U.S. 397, 57 S.Ct. 797, 81 L.Ed. 1182
(1937).
Morales involved a change in California's rules governing
parole. Morales was convicted of second-degree murder for killing
his wife in 1980. At the time of Morales's crime, California's
parole rules allowed all prisoners to make annual applications for
parole. However, under legislation passed in 1981, the parole board
no longer was obliged to hear annual applications from prisoners
convicted of more than one criminal homicide; having once determined
that such a prisoner was unsuitable for parole, the board could
delay the prisoner's subsequent applications by as much as three
years. Morales, 115 S.Ct. at 1600.
Morales asserted that the ex post facto clause barred
application of the new parole rules to him. He pointed out that the
new rules were promulgated after he committed his crime and that the
new rules operated to his disadvantage, potentially lengthening the
amount of time he would serve in prison before he was paroled. Id.
The Supreme Court rejected this argument:
Both before and after the 1981 amendment,
California punished the offense of second-degree murder with an
indeterminate sentence of "confinement in the state prison for a
term of 15 years to life." ... The 1981 amendment made only one
change: it introduced the possibility that[,] after the initial
parole hearing, the Board would not have to hold another hearing the
very next year, or the year after that, if it found no reasonable
probability that [the prisoner] would be deemed suitable for parole
in the interim period. ... [T]he laws at issue in Lindsey, Weaver,
and Miller ... had the purpose and effect of [increasing] the range
of available prison terms[.] ... Rather than changing the
sentencing range applicable to [the] covered crimes, the 1981
amendment [to the parole rules] simply "alters the method to be
followed" in fixing a parole release date [using] identical
substantive standards.
Morales, 115 S.Ct. at 1602 (citations omitted).
The Court also disavowed the description of the ex post
facto test in Lindsey, Weaver, and Miller:
Our opinions in Lindsey, Weaver, and
Miller suggested that enhancements to the
measure of criminal punishment fall within the ex post facto
prohibition [if] they operate to the "disadvantage" of covered
offenders. See Lindsey, 301 U.S. at 401, 57 S.Ct. at 799; Weaver,
450 U.S. at 29, 101 S.Ct. at 964; Miller, 482 U.S. at 433, 107 S.Ct.
at 2452-53. ... [T]hat language was unnecessary to the results in
those cases and is inconsistent with the framework developed in
Collins v. Youngblood, 497 U.S. 37, 41, 110 S.Ct. 2715, 2718, 111
L.Ed.2d 30 (1990). After Collins, the focus of the ex post facto
inquiry is not on whether a legislative change produces some
ambiguous sort of "disadvantage," nor ... on whether the amendment
affects a prisoner's "opportunity to take advantage of provisions
for early release," see [the dissent,] post at 1607[.] [Rather, the
test is] whether any [new law] alters the definition of criminal
conduct or increases the penalty by which a crime is punishable.
Morales, 115 S.Ct. at 1602 n.3.
Under Collins v. Youngblood (cited in the just-quoted
passage from Morales), the ex post facto clause prohibits the
retrospective application of laws that "alter the definition of
crimes or increase the punishment for criminal acts". 497 U.S. at
43, 110 S.Ct. at 2719. Alaska's new sentence appeal statute does
neither.
As we explained in Rozkydal v. State (see footnote 2), the
effect of the new statute is to require certain defendants to seek
discretionary review of their sentences rather than allowing such
defendants a sentence appeal of right. However, this change in the
procedure for seeking sentence review did not alter the substantive
standard governing that review. That substantive standard remains
the same: a sentence is to be reversed or disapproved if it is
"clearly mistaken" as defined in McClain v. State, 519 P.2d 811,
813-14 (Alaska 1974). Thus, under Collins and Morales, application
of Alaska's new sentence appeal statute to Amin (and other
defendants whose crimes pre-date the change in the law) does not
violate the ex post facto clause of the United States Constitution.
This result is supported by various court decisions
dealing with similar issues. For instance, a statute granting the
government an expanded right to appeal in criminal cases can be
applied to proceedings against defendants whose crimes were
committed before the statute was passed. Mallett v. North Carolina,
181 U.S. 589, 597; 21 S.Ct. 730, 733; 45 L.Ed. 1015 (1901); Nilson
Van & Storage Co. v. Marsh, 755 F.2d 362, 365-66 (4th Cir. 1985).
Likewise, a statute which prohibits bail pending appeal to certain
offenders, or which expands the authority of a trial court to deny
bail pending appeal, can be applied against defendants whose crimes
pre-date the change in the law. Petition of Hamel, 629 A.2d 802,
805-06 (N.H. 1993); United States v. Affleck, 765 F.2d 944, 948-951
(10th Cir. 1985); United States v. Molt, 758 F.2d 1198, 1200-01 (7th
Cir. 1985). The court in Molt observed:
It would be odd to think that by committing a
crime, a person acquired an indefeasible right to be tried for it
in a particular way, or that in deciding whether to commit a crime
the prospective criminal will have regard to the particulars of the
procedures for the trial and appeal of criminal cases.
Molt, 758 F.2d at 1200.
In Ex Parte Allen, 699 S.W.2d 886, 894-96 (Tex. App.
1985), the Texas legislature passed a law that barred petitions for
rehearing after an appeals court had affirmed an extradition order.
The Texas court rejected an ex post facto challenge to retrospective
application of this new statute. In State ex rel. Collins v.
Bedell, 460 S.E.2d 636, 646-48 (W.Va. 1995), the legislature
repealed the statute that gave defendants the right to a trial de
novo by jury in circuit court if they appealed a conviction entered
in magistrate court. The West Virginia court held that the new
appeals procedure (in which defendants did not receive a trial de
novo) could lawfully be applied to defendants whose crimes pre-dated
the new law. And in State v. Metoyer, 427 So.2d 93, 94-96 (La. App.
1983), the legislature shortened the time limit for filing a notice
of criminal appeal; the court held that the shortened time period
could be applied to defendants who committed their crimes before the
change in the law.
One court decision favorable to Amin's position is Booker
v. State, 514 So.2d 1079, 1082-84 (Fla. 1987). In Booker, the
Florida Legislature passed a statute that prohibited any appellate
review of a sentencing judge's decision to depart from the
legislatively established guideline sentence for the defendant's
crime. The Florida Supreme Court ruled that the ex post facto
clause barred application of this statute to defendants whose crimes
pre-dated the statute.
We find Booker distinguishable. When the Alaska
Legislature amended AS 12.55.120(a), the legislature did not
eliminate any defendant's right to seek appellate review of a
sentence. Instead, the legislature altered the procedure by which
appellate review can be obtained (requiring some defendants to file
a petition for review rather than an appeal). Retrospective
application of this procedural amendment is not barred by the
federal ex post facto clause.
Amin also asserts that retrospective application of
AS 12.55.120(a) is barred by the ex post facto clause of the Alaska
Constitution. However, as Amin herself notes, the Alaska Supreme
Court has indicated that the Alaska ex post facto clause is to be
construed in the same manner as its federal counterpart. State v.
Creekpaum, 753 P.2d 1139, 1143 (Alaska 1988). Amin makes no
argument that Alaska's ex post facto clause gives her greater
protection than the federal ex post facto clause.
In sum, we hold that the current version of
AS 12.55.120(a) can be applied to Amin even though her crimes pre-
date the effective date of the statute. Because Amin agreed to a
sentence "cap" of 3 years to serve, and because her sentence of
6 years' imprisonment with 3 years suspended conforms to this
sentence cap, Amin is not entitled to appeal her sentence on the
ground of excessiveness. AS 12.55.120(a); Rozkydal v. State, supra.
Accordingly, this appeal is DISMISSED.
Amin is, however, entitled 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
Amin wishes to petition for review of her sentence, 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).
FOOTNOTES
Footnote 1:
Ms. Amin also apparently is or has been known as Brenda Amin,
Brenda Gage, Brenda Gambell, Brenda Jean Jones, Brenda Richey, Paula
Jones, and Paula BJ Jones.
Footnote 2:
As we recently explained in Rozkydal v. State, Opinion No.
1532 (Alaska App., May 30, 1997), the amendment to AS 12.55.120(a)
does not mean that Amin is powerless to seek appellate review of her
sentence. Even when AS 12.55.120(a) restricts a defendant's right
to "appeal" a sentence (that is, the right to demand appellate
review of the sentence by this court), the defendant retains the
right to file a petition for sentence review with the supreme court
under Alaska Appellate Rule 215(a). That is, Amin can petition the
supreme court to exercise its discretionary power to review her
sentence. Rozkydal, slip opinion at 7-8.
