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Morrison v. State (9/8/00) ap-1684
Morrison v. State (9/8/00) ap-1684
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers are
encouraged to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
SCOTT M. MORRISON, )
) Court of Appeals No. A-7284
Appellant, ) Trial Court No. 4FA-97-1461 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1684 - September 8, 2000]
)
Appeal from the Superior Court, Fourth Judicial
District, Fairbanks, Three Judge Panel, Walter L. Carpeneti, Judge,
Presiding.
Appearances: Colleen A. Kosluchar, Niewohner
& Associates, Fairbanks, for Appellant.
Douglas H. Kossler, Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
COATS, Chief Judge.
A sentencing judge referred a presumptive sentencing case
to the three-judge sentencing panel so that the defendant might
receive earlier eligibility for parole than is normally allowed
under presumptive sentencing. The three-judge panel concluded that
the defendant should not be eligible for parole until he had served
4 years in prison. Even though the defendant would have faced a
similar parole restriction if he had been sentenced under the normal
presumptive sentencing rules, the three-judge panel retained the
defendant's case and proceeded to sentence the defendant. We hold
that this was error. Under these circumstances, the panel was
required by AS 12.55.175(b) to decline the case to send the case
back to the single judge for sentencing.
Facts of the case
Scott Morrison drove a motor vehicle while he was
intoxicated. He struck another car, killing the driver and injuring
two passengers. Morrison ultimately pleaded no contest to two class
A felonies: manslaughter [Fn. 1] and first degree assault. [Fn. 2]
As a first felony offender, Morrison faced a maximum sentence of 20
years' imprisonment and a 5-year presumptive term for each of these
crimes. [Fn. 3]
Morrison proposed two mitigating factors not listed in AS
12.55.155(d): uncommon potential for rehabilitation, and exemplary
post-offense behavior. Superior Court Judge Richard A. Savell
concluded that Morrison had proven both of these non-statutory
mitigators. He further concluded that it would be manifestly unfair
not to adjust Morrison's sentence on account of these non-statutory
factors. Accordingly, pursuant to AS 12.55.165, Judge Savell
referred Morrison's case to the three-judge sentencing panel.
The three-judge panel agreed that Morrison had proven the
two non-statutory mitigators. However, before imposing its final
sentence, the panel asked Judge Savell to indicate the type of
sentence he would have imposed if he had not been constrained by the
normal presumptive sentencing rules.
Responding to the three-judge panel's inquiry, Judge
Savell announced that he thought Morrison should receive a sentence
of 8 years with 2 or 3 years suspended that is, 5 or 6 years to
serve. Such a sentence would be within Judge Savell's normal
sentencing authority as a single judge. However, based on the two
non-statutory mitigating factors, Judge Savell concluded that this
sentence would be manifestly unjust unless Morrison was eligible for
discretionary parole after serving 2« years of a 5-year sentence or,
alternatively, after serving 2 years of a 6-year sentence. Under
the presumptive sentencing laws, Morrison would not be eligible for
discretionary parole until he had served 5 years in prison (the
minimum presumptive term that Judge Savell could impose), and Judge
Savell had no authority to alter Morrison's parole eligibility. [Fn.
4] This, Judge Savell explained, was the reason he had referred
Morrison's case to the three-judge panel.
Upon receiving Judge Savell's response, the three-judge
panel imposed its final sentence. By a vote of two to one, the
panel sentenced Morrison to 8 years with 1 year suspended that is,
7 years to serve. The panel ordered that Morrison be eligible for
parole after serving 4 years of this sentence.
The panel majority concluded that this sentence was
appropriate even though it exceeded the sentence envisioned by Judge
Savell. The majority believed that it could exceed Judge Savell's
recommendation because, once the panel agreed that non-statutory
mitigators existed, "the [defendant's] sentence is to be determined
by the panel alone." The minority member of the panel, Judge Walter
L. Carpeneti, argued that the panel's action violated the policy
embodied in Heathcock v. State. [Fn. 5] He pointed out that the
panel had imposed more time to serve than Judge Savell said he would
have imposed (7 years as opposed to 6) and, at the same time, the
panel had delayed Morrison's parole eligibility until he had served
4 years, not the 2 years suggested by Judge Savell. Judge Carpeneti
believed that most people would perceive the panel's sentence as
more severe than what Morrison would have received from Judge
Savell, and he feared that such sentences would deter defendants
from seeking referrals to the three-judge panel.
Morrison now appeals. He asks us to hold, as a matter of
law, that the three-judge panel exceeded its authority when it
imposed a sentence greater than the sentence envisioned by Judge
Savell. The state, on the other hand, urges us to hold that, once
Judge Savell referred the case to the three-judge panel, and the
panel agreed that Morrison had proved non-statutory mitigators, the
panel had complete discretion regarding the sentence Morrison should
receive.
Based on AS 12.55.175(b), as construed in Heathcock
v. State, we reject the positions of both parties
Morrison argues that the three-judge panel cannot impose
a sentence more severe than the longest sentence envisioned by the
single sentencing judge in this case, 8 years with 2 years
suspended (6 years to serve), and parole eligibility after 2 years.
But in Heathcock v. State, we stated that once the three-judge panel
agrees with the single judge that a departure from the presumptive
sentencing scheme is necessary, "[t]he panel then decides the degree
of departure in imposing the sentence. This means that the
departure from the presumptive sentencing scheme will not turn on
the evaluation of one judge." [Fn. 6] Thus, in
Morrison's case, even if the three-judge panel had agreed with Judge
Savell that Morrison should receive early parole eligibility, the
panel still might properly disagree with Judge Savell concerning the
amount of parole leniency Morrison should receive. For instance,
we believe that, consistent with Heathcock, the panel might have
sentenced Morrison to serve 6 years with parole eligibility after
3 years.
On the other hand, we reject the state's contention that,
once the three-judge panel agrees with the single judge that it
would be manifestly unjust to fail to consider non-statutory
aggravators or mitigators, the panel has complete discretion to
impose any sentence within its authority. This contention is
likewise inconsistent with AS 12.55.175 as construed in Heathcock.
As we noted in Heathcock, the legislative commentary to
AS 12.55.175 directs the three-judge panel to take different
actions, depending on whether the panel concludes that justice
manifestly requires a sentence outside the normal presumptive
sentencing limits:
If the three-judge panel agrees with the
sentencing court and finds that manifest injustice would result from
imposition of the presumptive term, it may sentence the defendant
to any term of imprisonment, up to the maximum authorized for the
offense, or may impose any other sentence authorized in
sec. 12.55.005.
If the three-judge panel does not agree
with the sentencing court's finding [of manifest injustice], it is
required to remand the case to the sentencing court with a written
statement of its findings and conclusions for sentencing under sec.
12.55.125. [Fn. 7]
In other words, even though the three-judge panel in
Morrison's case agreed with Judge Savell that Morrison had
established two non-statutory mitigating factors, the three judges
had to collectively answer one more question before deciding whether
to sentence Morrison themselves or remand Morrison's case to Judge
Savell. After conducting the renewed sentencing proceedings
authorized by AS 12.55.175(b), the members of the panel had to
decide whether it would be manifestly unjust to impose a sentence
within the range allowed by the normal presumptive sentencing rules.
As explained more fully in the next section, if the three-
judge panel concludes that the proper sentence for a defendant is
a sentence that the single judge was authorized to impose, the panel
is obliged under AS 12.55.175(b) to remand the case to the single
judge for sentencing. The statute authorizes the three-judge panel
to keep the case and sentence the defendant only if the panel
concludes that a proper sentence lies outside the range of sentences
that the single judge was authorized to impose.
The three-judge panel violated AS 12.55.175(b) by
failing to remand Morrison's case to Judge Savell after the panel
concluded that Morrison should not be eligible for parole until he
had served 4 years because Judge Savell could have imposed such
a sentence as a single judge.
Under AS 12.55.165, a sentencing judge is directed to
refer a case to the three-judge panel if the judge finds by clear
and convincing evidence "that manifest injustice would result from
failure to consider relevant aggravating or mitigating factors not
included in AS 12.55.155". In Bossie v. State, [Fn. 8] we construed
this statutory language to mean that "a case should be referred to
the three-judge panel if (1) a non-statutory factor has been proved,
and (2) it would be manifestly unjust to fail to adjust the
presumptive term by some amount, no matter how small, on account of
this non-statutory factor." [Fn. 9]
When a single judge refers a case to the three-judge
panel, the panel's initial duty under AS 12.55.175(b) is to decide
whether they agree with the single judge's assessment of manifest
injustice. Section 175(b), in wording that echoes section 165,
directs the three-judge panel to re-assess whether "manifest
injustice would result from failure to consider relevant aggravating
or mitigating factors not included in AS 12.55.155". To do this,
the panel must undertake the two-part analysis explained in Bossie.
[Fn. 10]
The three-judge panel must first decide whether they agree
with the single judge that non-statutory factors have been proved.
If the three-judge panel agrees that non-statutory factors are
present, the panel must next decide whether it would be manifestly
unjust for a court to sentence the defendant without deviating by
some amount, no matter how small, from the normal constraints of the
presumptive sentencing laws. If the answer to both of these
questions is "yes", then AS 12.55.175(b) directs the three-judge
panel to sentence the defendant in accordance with the rules
contained in AS 12.55.175(c) (e). But if the answer to either of
these questions is "no", then the statute directs the three-judge
panel to "remand the case to the sentencing court ... for sentencing
under AS 12.55.125". That is, the statute requires the three-judge
panel to decline the case and to order the single judge to sentence
the defendant under the normal presumptive sentencing rules.
In Morrison's case, the three-judge panel agreed with
Judge Savell that Morrison had proved two non-statutory mitigating
factors. However, the panel then concluded that Morrison should
receive a sentence of 8 years with 1 year suspended (7 years to
serve), with parole eligibility after 4 years. By imposing this
sentence, the three-judge panel implicitly demonstrated their belief
that Morrison could receive a fair sentence within the normal
constraints of the presumptive sentencing rules.
Even though presumptive sentencing defendants have only
limited eligibility for discretionary parole, they retain normal
eligibility for mandatory parole the parole release that occurs
by operation of law if a defendant observes good behavior during
two-thirds of their prison sentence. [Fn. 11] Thus, if Judge Savell
had not referred Morrison's case to the three-judge panel if Judge
Savell had simply sentenced Morrison to serve 6 years (8 years with
2 years suspended) Morrison would have been eligible for parole
after serving 4 years of this sentence, assuming he maintained good
behavior. Morrison's eligibility for parole after 4 years would not
require any deviation from the normal rules of presumptive
sentencing.
As explained above, Judge Savell believed that Morrison
should be eligible for an earlier parole, after he had served 2 or
2« years. But the three-judge panel rejected Judge Savell's
suggestion; they concluded that Morrison should not be eligible for
parole until he had served 4 years in prison. [Fn. 12]
By deciding that Morrison should serve 4 years in prison
before becoming eligible for parole, the three-judge panel
implicitly concluded that there would be no manifest injustice in
allowing Morrison's parole eligibility to be set under the normal
rules governing presumptive sentencing no manifest injustice in
remanding the case to Judge Savell and directing him to sentence
Morrison under the constraints that apply to a single judge. This
being so, the panel was obliged under AS 12.55.175(b) to return
Morrison's case to Judge Savell.
Conclusion
The three-judge panel exceeded its authority when it
sentenced Morrison rather than remanding Morrison's case to Judge
Savell. The sentence imposed by the three-judge panel is therefore
VACATED. This case is remanded to Judge Savell with directions to
sentence Morrison within the normal rules governing presumptive
sentencing.
FOOTNOTES
Footnote 1:
AS 11.41.120(a).
Footnote 2:
AS 11.41.200(a).
Footnote 3:
AS 12.55.125(c)(1).
Footnote 4:
A defendant who is sentenced under the normal presumptive
sentencing laws has only limited eligibility for discretionary
parole. See AS 12.55.125(g)(3), AS 33.16.090(b) (c), and AS
33.16.100(c) (d). In Morrison's case, Judge Savell intended to
impose partially consecutive presumptive terms. Because of this,
Morrison would not be eligible for discretionary parole until after
he served his initial 5-year presumptive term. See AS 33.16.090(b);
see also Hampel v. State, 911 P.2d 517, 520-23 (Alaska App. 1996)
(construing the predecessor to AS 33.16.100(d) and holding that, for
purposes of calculating a prisoner's eligibility for discretionary
parole, a mandatory minimum term of imprisonment is not reduced by
good time credit).
Footnote 5:
670 P.2d 1155 (Alaska App. 1983).
Footnote 6:
Id. at 1157-58 (citation omitted).
Footnote 7:
Id. at 1157 (original emphasis deleted; new emphasis added).
Footnote 8:
835 P.2d 1257 (Alaska App. 1992).
Footnote 9:
Id. at 1259.
Footnote 10:
See Lowe v. State, 866 P.2d 1320, 1322 (Alaska App. 1994)
(holding that AS 12.55.175(b) requires the three-judge panel to
engage in the same Bossie analysis that a single judge must engage
in when the single judge decides whether to refer a case to the
three-judge panel under AS 12.55.165).
Footnote 11:
See AS 33.16.010(c) and AS 33.20.010 060.
Footnote 12:
The panel apparently believed that Morrison would not be
eligible for parole release until he had served 5 years in prison,
and that they were extending a benefit to Morrison when they made
him eligible for parole after 4 years.
