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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
KYLE C. ISON, )
) Court of Appeals No. A-6298
Appellant, ) Trial Court No. 1JU-95-1854 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1538 - June 13, 1997]
______________________________)
Appeal from the Superior Court, First Judicial
District, Juneau, Walter L. Carpeneti, Judge.
Appearances: Robert F. Meachum, Assistant
Public Defender, Juneau, and Barbara K. Brink, Public Defender,
Anchorage, for Appellant. Thomas E. Wagner, Assistant District
Attorney, Richard A. Svobodny, District Attorney, and Bruce M.
Botelho, Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
COATS, Judge, dissenting.
Kyle C. Ison appeals the 2-year presumptive term he
received for felony driving while intoxicated, AS 28.35.030(a) and
030(n); AS 12.55.125(e)(1). He questions the superior court's
rulings on two of the mitigating factors listed in AS 12.55.155(d).
Specifically, Ison asks us to reverse the superior court's rejection
of mitigator (d)(9), to clarify the meaning of mitigating factor
(d)(13), and to address the relationship between mitigators (d)(9)
and (d)(13).
As a preliminary matter, the State questions Ison's right
to appeal. The State relies on Alaska Appellate Rule 215(a), which
declares that felony defendants can file a sentence appeal only if
they received more than 2 years to serve. See also AS 12.55.120(a).
Because Ison received exactly 2 years to serve, and not more, the
State argues that Ison can not appeal his sentence.
However, Ison's appeal is not a "sentence appeal" governed
by Appellate Rule 215(a) and AS 12.55.120(a). A sentence appeal is
premised on the assumption that the defendant's sentence was
lawfully imposed. In a sentence appeal, the defendant asserts that
a lawful sentence is excessive i.e., that it constitutes an abuse
of sentencing discretion. Ison, on the other hand, asserts that the
sentencing court committed legal error during the sentencing process
that the court erred in construing and applying mitigating
factors. As we recently explained in Rozkydal v. State, Opinion No.
1532 (Alaska App., May 30, 1997), slip opinion at 4-5 and 13, such
assertions of error are appealable regardless of the length of the
defendant's sentence. We therefore turn to Ison's arguments.
At his sentencing, Ison proposed the mitigating factor
codified in AS 12.55.155(d)(9) that "the conduct constituting
[his] offense was among the least serious conduct included in the
definition of the offense". The superior court rejected this
mitigator. We must affirm the sentencing court's ruling unless Ison
shows that it is clearly erroneous. Lepley v. State, 807 P.2d 1095,
1099 n.1 (Alaska App. 1991).
Ison's argument on this point consists of one paragraph
in which he views the evidence in the light most favorable to
himself. The State's evidence suggested that Ison's offense was
more serious than Ison construes it. Moreover, in his description
of his conduct, Ison fails to mention that he was driving with a
suspended license and that he physically resisted the officers when
they arrested him. We uphold the superior court's ruling that Ison
failed to prove mitigator (d)(9).
Ison next argues that, even if his offense was not among
the least serious, the superior court still should have found
mitigator (d)(13). Under AS 12.55.155(d)(13), a felony offense is
mitigated for purposes of presumptive sentencing if
the facts surrounding the commission of the
[present] offense and any previous offenses by the defendant
establish that the harm caused by the defendant's conduct is
consistently minor and inconsistent with the imposition of a
substantial period of imprisonment.
Ison argues that the superior court should have found this mitigator
because Ison has never seriously hurt any person or any property.
At age 27, Ison already has a lengthy criminal history.
He has three convictions for driving while intoxicated. He was
convicted of felony criminal mischief in 1990 for causing damage to
another's property. Ison served 18 months in prison for this prior
felony. In addition, Ison has ten convictions for driving without
a license, as well as convictions for speeding, reckless driving,
misdemeanor assault, disorderly conduct, failure to appear, and
contempt of court.
Ison asserts, however, that he has never caused
substantial injury to people or damage to property. For this
reason, Ison contends that his criminal history falls within the
category described by mitigator (d)(13) that "the harm caused by
[his] conduct [has been] consistently minor", and that whatever harm
he has caused is "inconsistent with the imposition of a substantial
period of imprisonment".
Ison recognizes that this court has construed mitigator
(d)(13) to encompass more than actual harm to persons or property.
In Jordan v. State, 895 P.2d 994, 1000 & n.8 (Alaska App. 1995), we
indicated that a sentencing court could properly reject mitigator
(d)(13) based on the relative seriousness of the defendant's conduct
(within the definition of the offense), as well as the risk of harm
posed by the defendant's conduct. Ison argues that, to the extent
Jordan allows a sentencing court to consider factors other than the
actual harm caused by a defendant's conduct, Jordan is inconsistent
with the language of mitigator (d)(13). He therefore asks us to
reconsider our construction of the mitigator.
When construing a statute, our goal is to "ascertain and
implement the intent of the legislature", Millman v. State, 841 P.2d
190, 194 (Alaska App. 1992), as that intent is reflected in the
statute's language, legislative history, and purpose. Muller v.
BP Exploration (Alaska) Inc., 923 P.2d 783, 787 (Alaska 1996). When
a question of statutory construction arises, our duty is to adopt
the construction that is "most persuasive in light of precedent,
reason, and policy". Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska
1979).
Mitigator (d)(13) was added by the legislature in 1980.
See 1980 SLA ch. 102, sec. 41. The legislature included a
commentary to mitigator (d)(13), but the commentary provides only
one example of what the legislature intended the mitigator to
achieve:
One situation where this mitigator might be
applicable is when the defendant has committed a number of felony
property offenses, such as check forgeries, but they all involve
relatively small amounts of money.
1980 Senate Journal, Supp. No. 44 (May 29), p. 26. At first blush,
the legislature's example might be viewed as supporting Ison's
argument. However, the legislature's example deals with an offense
that is normally graded according to how much property damage is
inflicted. This example leaves unanswered the question of how
mitigator (d)(13) applies to crimes that are normally thought to
justify substantial imprisonment even though they may involve no
injury at all.
Take, for example, a disgruntled employee who tries to set
fire to his employer's office building, but the accelerant fails to
ignite. He is convicted of attempted arson and imprisoned. Upon
his release, the employee procures a semi-automatic rifle, returns
to his employer's office building, and sprays bullets through the
cafeteria miraculously inflicting no wounds. If the employee is
now sentenced for assault, did the legislature intend for the
employee's sentence to be mitigated because neither of his two
crimes caused physical harm to persons or property?
Although Ison appears to argue that the answer is "yes",
we believe it highly unlikely that the legislature intended such a
result. Many crimes from attempted murder and robbery to bribery
and driving while intoxicated do not require proof of physical
injury or actual harm to property. These offenses are punished
because of the risks they create, and because of the serious
disruption of the social fabric they entail. Such risks and
disruptions are "harms" for purposes of the criminal law:
[The criminal law deals with the] harm which
results from human conduct social harm. With reference to this
term, it [should] be mentioned that it is socially harmful not only
to have a man murdered, a dwelling burglariously invaded, or
property stolen, but also to have a conspiracy formed in the
community, to have one member thereof challenge another to a duel,
or offer to bribe an officer. In these latter instances, let it be
emphasized, it is socially harmful to have such influences abroad
in the community even if the criminal purpose of the conspiracy is
not achieved, the challenge is refused, and the bribe rejected.
R. Perkins & R. Boyce, Criminal Law (3rd ed. 1982), p. 11.
For these reasons, we reject Ison's contention that
mitigator (d)(13) speaks only to physical harm to persons or
property. Instead, we reiterate the construction of (d)(13) that
we employed in Jordan. When a defendant proposes mitigator (d)(13)
that is, when a defendant asserts that his or her present and past
offenses all involve harm that is "consistently minor" and that is
"inconsistent with ... a substantial period of imprisonment" the
sentencing court can take into account not only the physical injury
and harm to property inflicted by the defendant, but also the
relative seriousness of the defendant's conduct and the risk of harm
posed by the defendant's conduct.
Ison questions another aspect of the Jordan decision. We
stated in Jordan that, because mitigator (d)(13) focuses on a
defendant's past and present offenses, mitigator (d)(13) can not be
proved unless the sentencing court finds that the defendant's
present offense is among the least serious in other words, unless
the court finds that the defendant has proved mitigator (d)(9).
Ison asks us to reconsider that holding. He argues that the harm
caused by a defendant's crimes can be "consistently minor" and
"inconsistent with ... a substantial period of imprisonment" even
if the defendant's conduct in committing the present offense does
not qualify as "among the least serious".
We conclude that it is unnecessary to resolve this issue.
Under the circumstances of Ison's case, his argument is moot.
Ison was convicted of a felony because he is a recidivist
drunk driver; he has been convicted three times within the past five
years of driving while intoxicated. This, in itself, does not
aggravate Ison's offense; it merely establishes it. However,
leaving the DWI convictions to one side, Ison has repeatedly
demonstrated that he will not obey society's rules governing
driving. He has been convicted ten times of driving without a valid
license, and he was driving with a suspended license on the present
occasion. In addition, Ison fought with the officers who arrested
him; he had to be subdued with pepper spray. These circumstances
do not suggest that Ison's present offense is either "minor" or
"inconsistent with ... a substantial period of imprisonment".
Moreover, to prove mitigator (d)(13), Ison must also show
that the circumstances surrounding his past offenses are
inconsistent with imposition of a substantial prison term. Ison
served 18 months in prison for his first felony offense. The judge
who sentenced Ison for that crime obviously did not believe that
Ison's conduct on that prior occasion was "inconsistent with
imposition of a substantial period of imprisonment", and Ison has
not argued that that prior sentence was unduly harsh.
On this record, we conclude that the superior court would
have been clearly erroneous to find mitigator (d)(13). Thus, even
if there might be cases in which mitigator (d)(13) should apply even
though the defendant's present offense is not among the least
serious, Ison's case does not raise this issue.
The sentencing decision of the superior court is AFFIRMED.
COATS, Judge, dissenting.
Judge Carpeneti rejected Ison's proposed mitigating factor
that "the facts surrounding the commission of the offense and any
previous offenses by the defendant establish that the harm caused
by the defendant's conduct is consistently minor and inconsistent
with the imposition of a substantial period of imprisonment." This
mitigating factor is set forth in AS 12.55.155(d)(13). In rejecting
this proposed mitigating factor, Judge Carpeneti relied on our
decision in Jordan v. State, 895 P.2d 994, 1000 (Alaska App. 1995).
In Jordan we stated:
Alaska Statute 12.55.155(d)(13) calls for a
two-prong determination: first, the court must
determine on a case-by-case basis that the defendant's present and
prior crimes are consistently minor; second, the court must find
that the past and present crimes, taken as a whole, are inconsistent
with a sub-stantial term of imprisonment. Because the first prong
of factor (d)(13) focuses on the seriousness of [the defendant's]
current and past crimes, requiring a finding of minor harm for each
offense, our conclusion that his current offense is not among the
least serious in its class precludes finding that the mitigating
factor has been established.
(Citations omitted.) Judge Carpeneti concluded that because he had
rejected the "least serious conduct" mitigating factor, he was also
required to reject the "consistently minor harm" mitigating factor
under Jordan. Judge Carpeneti stated that, in the absence of the
authority of Jordan, there was some possibility that he might have
been able to find the existence of the "consistently minor harm"
mitigating factor and might have concluded that it was appropriate
to impose less than the presumptive term. He stated that he thought
Jordan was not correctly decided but that he was obligated to follow
the decision of a higher court.
It seems clear to me, to the extent that Jordan requires
the trial court to find that the defendant's present offense "was
among the least serious conduct included in the definition of the
offense" in order to find the "consistently minor harm" mitigator,
that Jordan is too rigid. In most cases where a defendant's current
offense is a serious felony offense, the facts of the present
offense would preclude finding "the harm caused by the defendant's
conduct is consistently minor." However, where the defendant's
present offense is not egregious it would be possible for a court
to find that "the harm caused by the defendant's conduct is
consistently minor" without having to find that his present offense
"was among the least serious conduct included in the definition of
the offense." For instance, a defendant might not have engaged in
the least serious conduct in committing a class C felony, yet, in
evaluating the offender's overall record, the judge could properly
conclude that "the harm caused by the defendant's conduct is
consistently minor and inconsistent with the imposition of a
substantial period of imprisonment."
To rule that a defendant must establish that his present
offense "was among the least serious conduct included in the
definition of the offense" before he can prove the "consistently
minor harm" mitigator tends to read that mitigator out of existence.
It becomes a "make weight" mitigator which can exist only if the
court finds a prior mitigating factor. It seems clear to me that
this is not what the legislature intended. The "consistently minor
harm" mitigator asks the court to focus on the defendant's overall
conduct rather than merely his conduct in his current offense. The
focus of the court's attention is different and the court should be
able to find that "the harm caused by the defendant's conduct is
consistently minor" without having to find that his present offense
"was among the least serious conduct included in the definition of
the offense." In my view we should explicitly say this to clarify
the overbroad language.
After clarifying the Jordan decision, I would then remand
the case to Judge Carpeneti to redetermine the application of the
mitigating factor. Sentencing is primarily a trial court function.
Trial judges are generally in a much better position than we are to
evaluate offenders, current and prior offenses, and prospects for
rehabilitation. In my view, as an appellate court, we should defer
to the trial court's primary role in sentencing and remand the case
to Judge Carpeneti to reevaluate the sentence.
