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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
HERBERT JAMES GILLEY, JR., )
) Court of Appeals No. A-6619
Appellant, ) Trial Court No. 3AN-96-7259 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1580 - March 27, 1998]
______________________________)
Appeal from the Superior Court, Third Judicial
District, Anchorage, William H. Fuld, Judge.
Appearances: Vennie E. Nemecek, Assistant
Public Defender, Palmer, and Barbara K. Brink, Public Defender,
Anchorage, for Appellant. Jayne L. Wallingford, Assistant District
Attorney, Susan A. Parkes, District Attorney, Anchorage, and Bruce
M. Botelho, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
In 1997, Herbert James Gilley, Jr., was convicted of
felony driving while intoxicated, AS 28.35.030(a), (n). Gilley had
two prior felony convictions, one from 1993 and the other from 1977.
The question in this case is whether the superior court was obliged
to treat Gilley as a third felony offender for purposes of
presumptive sentencing, or whether (as Gilley contends) the superior
court had the discretion to ignore the 1977 felony conviction and
to treat Gilley as a second felony offender. Gilley contends that
his sentence must be vacated because the superior court did not
realize that it had the discretion to sentence him as a second
felony offender. For the reasons explained here, we hold that the
superior court was obliged to treat Gilley as a third felony
offender, and we therefore affirm his sentence.
As this court recognized in Juneby v. State, 641 P.2d 823,
831 n.12 (Alaska App. 1982), modified on other grounds, 665 P.2d 30
(Alaska App. 1983), Gilley's status as a second or third felony
offender hinges on the relationship between, on the one hand, the
definitions of "second felony offender" and "third felony offender"
codified in AS 12.55.185 and, on the other, the provisions of
AS 12.55.145(a) and (f) that explain what constitutes a "prior
conviction" for presumptive sentencing purposes.
Under the presumptive sentencing laws, a defendant is
considered a "second felony offender" if "the defendant previously
has been convicted of a felony". AS 12.55.185(12). A defendant is
considered a "third felony offender" if "the defendant has been at
least twice previously convicted of a felony". AS 12.55.185(14).
Gilley was convicted of third-degree assault in 1993, and he was
convicted of assault with a dangerous weapon (under the former
criminal code) in 1977. Because Gilley "has been ... twice
previously convicted of a felony", he would ordinarily be classified
as a third felony offender.
AS 12.55.145(a)(1)(A) contains an exception to the
definitions of "second felony offender" and "third felony offender".
This exception applies if the defendant's current offense was
committed ten years or more after the defendant was discharged from
his or her last felony sentence (including any period of probation
or parole). The statute provides:
For purposes of considering prior
convictions in imposing sentence under [any of the presumptive
sentencing provisions of AS 12.55.125], ... a prior conviction may
not be considered if a period of 10 or more years has elapsed
between the date of the defendant's unconditional discharge on the
immediately preceding offense and [the defendant's] commission of
the present offense unless the prior conviction was for an
unclassified or class A felony[.]
Under this statute, if Gilley had committed his present felony ten
years or more after his unconditional discharge from his immediately
preceding felony conviction, he would be considered a first felony
offender for presumptive sentencing purposes even though he had
twice previously been convicted of a felony. See Griffith v. State,
653 P.2d 1057, 1058 (Alaska App. 1982). It is apparent, however,
that Gilley does not fall within this exception: his immediately
preceding felony conviction was entered in 1993. (In fact, Gilley
was still on probation from that felony conviction when he committed
his present offense.)
Gilley nevertheless asserts that, because his 1977 felony
conviction is more than ten years old, he is entitled to a limited
exception from AS 12.55.185(14), the statute that defines "third
felony offender". Gilley contends that AS 12.55.145(a) authorizes
a sentencing judge, in the judge's discretion, to ignore any felony
conviction that is more than 10 years old. Thus, Gilley argues, the
judge who sentenced him was authorized to disregard Gilley's 1977
felony conviction when the judge determined Gilley's status as
either a second or a third felony offender.
Gilley bases his argument on a passage from the legis-
lative commentary to AS 12.55.145:
By referring to the "immediately preceding
offense", [AS 12.55.145(a)] provides that convictions which occurred
more than [ten] years prior to the commission of the offense for
which the defendant is being sentenced may be considered if [ten]
years has not elapsed between an intervening conviction, plus
periods of disability arising under it, and the commission of the
offense for which the defendant is being sentenced.
1978 Senate Journal, Supp. No. 47 (June 12), pp. 156-59 (emphasis
added).
Gilley notes that, in this passage, the legislature uses
the word "may" to describe the sentencing court's authority to
consider a defendant's remote felony convictions. [Fn. 1] Gilley
points out that the word "may" normally connotes permission rather
than obligation. United States v. Contreras, 895 F.2d 1241, 1243
(9th Cir. 1990); Koch Ref. Co. v. United States Dep't of Energy, 497
F.Supp. 879, 891 (D.Minn. 1980). From this, Gilley concludes that
a sentencing court is entitled to consider a defendant's remote
felony convictions (in Gilley's case, the 1977 assault conviction),
but the court is not obliged to do so. That is, Gilley argues that
the superior court had the discretion to treat him as a second
felony offender rather than a third felony offender. [Fn. 2]
The basic flaw in Gilley's argument is that he
concentrates on the commentary while ignoring the wording of the
statute itself. Legislative commentary can be (and often is) quite
helpful in elucidating the meaning of a statute. However, it is
essential to keep in mind that the sentencing court's powers and
duties are defined by the presumptive sentencing statutes, not the
commentaries to those statutes. See Champion v. State, 908 P.2d
454, 463-64 (Alaska App. 1995) (refusing to interpret a statute in
conformity with statements in the legislative commentary when those
statements clearly did not agree with the wording and structure of
the statute). [Fn. 3]
As explained above, the basic definitions of "second
felony offender" and "third felony offender" are given in
AS 12.55.185(12) and (14). These two provisions establish a
straightforward rule: a person is a "second felony offender" if
they have been convicted of a felony once before, and a person is
a "third felony offender" if they have been convicted of a felony
at least twice before.
The pertinent exception to this rule is specified in
AS 12.55.145(a)(1)(A): a defendant's prior felony convictions "may
not be considered if a period of 10 or more years has elapsed
between the date of the defendant's unconditional discharge on the
immediately preceding offense and [the defendant's] commission of
the present offense[,] unless the prior conviction was for an
unclassified or class A felony".
There are two significant differences between the wording
of this statute and the wording of the commentary that Gilley relies
on. Both of these differences undercut Gilley's argument that a
sentencing court has the authority to disregard felony convictions
that are more than 10 years old.
First, even though the commentary distinguishes between
felony convictions that are "more than 10 years old" and those that
are more recent, the statute draws no such distinction. According
to the wording of the statute, only two factors affect a sentencing
court's ability to consider a defendant's prior felony convictions:
the classification of the prior felony, and the amount of time (if
any) between the defendant's current offense and the defendant's
unconditional discharge from the immediately preceding conviction.
If that interval is less than 10 years, then all of the defendant's
prior felony convictions are counted toward determining the
defendant's status, regardless of how old those convictions are.
If that interval is 10 years or more, then the only prior
convictions that count are convictions for unclassified or class A
felonies again, regardless of how old those convictions are.
Simply put, AS 12.55.145(a)(1)(A) draws no line between
felony convictions less than 10 years old and felony convictions
more than 10 years old. There is no language in the statute to
support the distinction described in the commentary.
Second, the commentary is worded in terms of authoriza-
tion; that is, it speaks of situations in which a sentencing court
"may" consider a defendant's prior felony convictions. In contrast,
the statute is worded as a prohibition. It does not purport to
grant authority; rather, it limits authority by specifying those
situations in which a sentencing court "may not" consider a
defendant's prior felony convictions. Read together, the three
pertinent statutes AS 12.55.145(a)(1), AS 12.55.185(12), and
AS 12.55.185(14) establish a sentencing framework in which all
of a defendant's prior felony convictions will be counted toward
establishing the defendant's status as a second or third felony
offender unless one or more of the convictions is expressly exempted
by AS 12.55.145(a)(1)(A). These statutes neither declare nor
suggest that a sentencing court has the discretion to ignore one or
more of the defendant's prior felony convictions.
However, this is not necessarily the end of the
discussion. Alaska does not follow the "plain meaning" rule (the
rule that bars a court from considering legislative history as an
interpretive aid if a statute's meaning is facially "plain").
Gilley is entitled to argue that the commentary to AS 12.55.145(a)
shows that the legislature intended something different from what
the words of the statute appear to say. Nevertheless, "[w]here a
statute's meaning appears clear and unambiguous, ... the party
asserting a different meaning bears a correspondingly heavy burden
of demonstrating contrary legislative intent." University of Alaska
v. Tumeo, 933 P.2d 1147, 1152 (Alaska 1997); Lagos v. City and
Borough of Sitka, 823 P.2d 641, 643 (Alaska 1991).
Gilley's brief to this court contains no suggestion as to
why the legislature might have wished sentencing judges to have the
discretion to ignore a defendant's prior felony convictions. The
whole history of presumptive sentencing in Alaska suggests exactly
the opposite. In Juneby v. State, 641 P.2d 823, 829-833 (Alaska
App. 1982), this court reviewed the events leading up to the
enactment of presumptive sentencing and the details of Alaska's
presumptive sentencing laws. We concluded that the presumptive
sentencing statutes "reflect the legislature's intent to assure
predictability and uniformity in sentencing by the use of fixed and
relatively inflexible sentences, statutorily prescribed, for persons
convicted of second or subsequent felony offenses". Juneby, 641
P.2d at 830. Allowing sentencing judges to ignore a defendant's
prior felony convictions to treat a third felony offender as a
second felony offender at the judge's discretion appears to be
the antithesis of the legislature's intent.
This court declared in Juneby that it was "manifest" that
presumptive sentencing, through its "focus on eliminating disparity
and achieving uniformity in sentences[,] was calculated to
significantly restrict the trial court's traditionally broad
sentencing discretion." Id. at 830 n.11. In explaining why
sentencing judges should be cautious when adjusting presumptive
terms based on aggravating and mitigating factors, this court
reiterated the underlying philosophy of presumptive sentencing:
When viewed in the light of the
fundamental goals of the [presumptive] sentencing statutes, the
rationale for this relatively inflexible sentencing framework is
readily understood. If sentencing courts were permitted ... to
deviate routinely and substantially from the presumptive terms
imposed by law, the fundamental purposes of eliminating disparity
and establishing reasonable uniformity in sentencing would be
completely undermined.
Juneby, 641 P.2d at 833.
By enacting the presumptive sentencing statutes, the
legislature wished to create a set of sentencing rules and
expectations grounded on the objective facts of the defendant's
criminal history and the circumstances surrounding the defendant's
current offense. In our past decisions, this court has attempted
to implement this legislative purpose.
For instance, in Hartley v. State, 653 P.2d 1052 (Alaska
App. 1982), we rejected the contentions that a sentencing judge was
bound by the State's decision not to raise applicable aggravating
factors, or that the State could purposefully withhold evidence that
established aggravating factors. We declared:
Once [the State] has obtained a conviction, ...
the legislature has established specific guidelines governing
sentencing. These guidelines are particularly important in
determining presumptive sentences for those previously convicted of
felonies. The decision to circumscribe sentencing discretion was
in large part based upon a legislative belief that greater
uniformity in sentencing should be sought and unjustified disparity
eliminated. AS 12.55.005.
To allow the parties to ignore past
convictions or aggravating and mitigating factors suggested by the
evidence at trial or disclosed in a presentence report prepared by
a probation officer would be to encourage unjustified disparity in
sentencing. We therefore hold that the state has no discretion to
suppress evidence of past convictions or aggravating or mitigating
factors.
Hartley, 653 P.2d at 1056.
For the same reasons, we reject Gilley's suggested reading
of AS 12.55.145(a)(1)(A). Gilley's assertion that sentencing judges
have the discretion to ignore prior felony convictions and to treat
a third felony offender as a second felony offender is not only
unsupported by the wording of the statute, it is also fundamentally
at odds with the philosophy and goals of presumptive sentencing.
Therefore, even though the commentary to AS 12.55.145(a) might
suggest that sentencing judges have such authority, we reject this
suggestion and we adhere to the wording of the statute.
Given Gilley's prior felony convictions in 1993 and 1977,
the superior court was obliged to sentence Gilley as a third felony
offender. The judgement of the superior court is AFFIRMED.
FOOTNOTES
Footnote 1:
In 1982, the legislature amended AS 12.55.145(a)(1) to
abolish the time restriction on a sentencing court's consideration
of a defendant's prior unclassified and class A felonies. We note
that the legislature explained this amendment in a commentary that
employs similar permissive wording. In this commentary (found in
1982 House Journal, Supp. No. 64 (June 2), pp. 21-22), the
legislature declared that it amended the statute "to allow the
[sentencing] court to consider all prior unclassified felonies and
class A felonies". (Emphasis added.)
Footnote 2:
Gilley also supports his argument with a passage from this
court's decision in Griffith. The passage from Griffith reads:
We believe that [AS 12.55.145(a)(1)] ...
allows only one interpretation. Whe[n] a defendant has spent [ten]
years between the date of his unconditional discharge [from] his
most recent prior felony without committing another felony, he is
[treated as a first felony offender]. Whe[n,] however, less than
[ten] years separates his unconditional discharge [from] a prior
felony [and] the commission of his current offense[,] then all prior
offenses[,] however remote[,] may be considered for purposes of
presumptive sentencing.
Griffith, 653 P.2d at 1058 (emphasis added). Gilley notes that, in
this passage, this court also used the word "may" to describe the
sentencing court's authority to consider a defendant's prior felony
convictions.
Footnote 3:
For an insightful debate on this point of law, see Antonin
Scalia, A Matter of Interpretation: Federal Courts and the Law
(1997). This book contains an essay by Justice Scalia on the
question of statutory interpretation, as well as answering
commentary by several distinguished legal scholars and historians.
