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Hunt v. State (2/9/01) ap-1722
Hunt v. State (2/9/01) ap-1722
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
JOSEPH J. HUNT, )
) Court of Appeals No. A-7706
Appellant, ) Trial Court No. 2NO-99-487 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1722 February 9, 2001]
)
Appeal from the Superior Court, Second Judicial
District, Nome, Ben Esch, Judge.
Appearances: Kirsten Bey, Assistant Public
Defender, Nome, and Barbara K. Brink, Public Defender, Anchorage,
for Appellant. John R. Vacek, District Attorney, Nome, and Bruce
M. Botelho, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
Joseph J. Hunt pleaded no contest to fourth-degree
controlled substance misconduct (possession of one ounce or more of
marijuana for purposes of sale). [Fn. 1] This offense is a class
C felony. [Fn. 2] Because Hunt had a prior felony conviction, he
faced a presumptive term of 2 years' imprisonment. [Fn. 3]
Superior Court Judge Ben Esch found that Hunt had proved
one mitigating factor: AS 12.55.155(d)(14) that Hunt's offense
involved a small quantity of the controlled substance. However,
Judge Esch declined to reduce Hunt's term of imprisonment on account
of this mitigator. Instead, he imposed the 2-year presumptive term.
Hunt now appeals this sentence, contending that Judge Esch should
have adjusted his sentence downward because of the mitigating
factor.
Whether, or how much, a presumptive term should be
adjusted on account of aggravating and mitigating factors is a
matter of sentencing discretion. That discretion is governed by the
Chaney [Fn. 4] sentencing factors now codified in AS 12.55.005. [Fn.
5] For this reason, the sentencing judge's decision is reviewed
under the "clearly mistaken" standard. [Fn. 6] But in Hunt's case,
this court does not have jurisdiction to reach the issue of whether
Judge Esch's decision is clearly mistaken.
In 1995, the legislature limited felony offenders' right
of sentence appeal by amending AS 12.55.120(a). [Fn. 7] Under the
current version of AS 12.55.120(a), felony offenders may appeal
their sentences only if they received "a term or ... aggregate terms
exceeding two years of unsuspended incarceration". (Emphasis added)
In the same session, the legislature also enacted a corresponding
limit on this court's jurisdiction to hear sentence appeals. [Fn.
8]
In Rozkydal v. State [Fn. 9], we clarified that AS 12.55.-
120(a) does not restrict defendants from appealing procedural
irregularities in their sentencing proceedings. [Fn. 10] Likewise,
the statute does not restrict defendants from appealing a sentencing
judge's factual findings or legal rulings that affect the range of
authorized sentences. [Fn. 11]
But Hunt does not claim that Judge Esch committed any
legal error or made unsupported factual findings. Indeed, Judge
Esch ruled in Hunt's favor on the contested mitigating factor.
Instead, Hunt argues that when all the circumstances of his case are
considered in light of the Chaney criteria, his sentence of 2 years
to serve is excessive "clearly mistaken". That is, Hunt's "sole
assertion of error is that the sentencing judge abused his ...
discretion by imposing too severe a sentence." [Fn. 12] Hunt's
appeal is therefore a "sentence appeal" within the meaning of AS
12.55.120(a), as interpreted in Rozkydal. And because Hunt did not
receive a sentence of more than 2 years to serve, he has no right
to appeal.
Accordingly, Hunt's appeal is DISMISSED.
However, Hunt is entitled to petition the supreme court
to review his sentence. Given the circumstances of this case, we
exercise our authority under Appellate Rule 521 to relax Appellate
Rule 403(h)(1), the rule that sets time limits for petitioning for
review of a non-appealable sentence. If Hunt 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 from the effective date of our decision in this case.
(For that effective date, see Appellate Rule 512(a)(2).)
FOOTNOTES
Footnote 1:
AS 11.71.040(a)(2).
Footnote 2:
AS 11.71.040(d).
Footnote 3:
AS 12.55.125(e)(1).
Footnote 4:
State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970).
Footnote 5:
See Juneby v. State, 641 P.2d 823, 835 & n.21, 838 (Alaska App.
1982) (the amount of sentence adjustment for aggravating and miti-
gating factors should be assessed in light of the Chaney criteria);
this principle was reiterated on rehearing, 665 P.2d 30, 32-33
(Alaska App. 1983).
Footnote 6:
See Lepley v. State, 807 P.2d 1095, 1099 n.1 (Alaska App.
1991).
Footnote 7:
See SLA 1995, ch. 79, sec.sec. 7-8.
Footnote 8:
See SLA 1995, ch. 79, sec.sec. 11-12.
Footnote 9:
938 P.2d 1091 (Alaska App. 1997).
Footnote 10:
See id. at 1094.
Footnote 11:
See id.
Footnote 12:
Rozkydal, 938 P.2d at 1094.
