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Cofey v State (12/07/2001) ap-1775
Cofey v State (12/07/2001) ap-1775
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
STATE OF ALASKA, )
) Court of Appeals No. A-7752
Appellant, ) Trial Court No. 4FA-98-2877 Cr.
)
v. )
) O P I N I O N
CALVIN Z. COFEY, )
)
Appellee. ) [No. 1775 - December 7, 2001]
)
Appeal from the Superior Court, Fourth Judicial
District, Fairbanks, Raymond M. Funk, Judge.
Appearances: Eric A. Johnson, Assistant
Attorney General, Office of Special Prosecutions and Appeals,
Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for
Appellant. No appearance for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
When a defendant is convicted of a crime covered by
Alaska's presumptive sentencing laws, the defendant will
presumptively be sentenced to the term of imprisonment specified in
the applicable section of AS 12.55.125. And (with certain
exceptions not pertinent here), AS 33.16.090 declares that "a
prisoner is not eligible for discretionary parole during the term
of a presumptive sentence". But AS 12.55.155(a) authorizes a
sentencing judge to reduce the applicable presumptive term of
imprisonment if the defendant proves one or more of the mitigating
factors listed in AS 12.55.155(d). The question presented in this
appeal is whether, when a sentencing judge reduces the defendant's
term of imprisonment because of mitigating factors, the judge can
also order that the defendant be eligible for discretionary parole
release.
As we explain below, the Alaska statutes are ambiguous
concerning a prisoner's eligibility for discretionary parole when
the prisoner receives a reduced presumptive term. However, the
Parole Board has promulgated a series of regulations that clarify
parole eligibility for prisoners sentenced under the presumptive
sentencing laws. One of these regulations, 22 AAC 20.060, declares
that "[a] prisoner sentenced to a mitigated presumptive term under
AS 12.55.155(d) is not eligible for discretionary parole."
Technically, no one is "sentenced ... under AS
12.55.155(d)". Another section of the statute - AS 12.55.155(a) -
contains the sentencing provision that authorizes judges to reduce
a presumptive term when mitigating factors are proved. Section
155(d) merely lists the permissible mitigating factors.
Nevertheless, 22 AAC 20.060 is the answer to the question presented
in this appeal. A prisoner who receives a reduced presumptive term
is not eligible for discretionary parole.
Facts of this case
Calvin Z. Cofey pleaded no contest to third-degree
controlled substance misconduct, a class B felony. Because Cofey
was a second felony offender, he faced a presumptive term of 4
years' imprisonment. [Fn. 1] The State proved various aggravating
factors, and thus the superior court was authorized to increase
Cofey's sentence up to the statutory maximum of 10 years'
imprisonment. [Fn. 2] However, Cofey proved mitigating factors,
and thus the sentencing judge was also authorized to reduce Cofey's
sentence down to no imprisonment at all. [Fn. 3]
After considering the aggravators and mitigators, the
sentencing judge adjusted the presumptive term both upward and
downward: he imposed a sentence of 6 years with 3 years suspended -
i.e., 3 years to serve. The judge then declared that these 3 years
to serve were "non-presumptive". By this, the judge intended to make
Cofey eligible for discretionary parole release.
The State appeals this last aspect of the judge's
decision. The State contends that when a defendant is subject to
presumptive sentencing, the sentencing judge can not make the
defendant eligible for discretionary parole - even when, because of
mitigating factors, the judge is authorized to reduce the
presumptive term. For the reasons explained here, we agree.
The legislature's 1978 and 1985 revisions of the parole
statutes
The legislature enacted Alaska's presumptive sentencing
laws in 1978. [Fn. 4] At the same time, the legislature amended
our parole statutes to restrict the discretionary parole eligibility
of prisoners covered by presumptive sentencing. Specifically, the
legislature amended former AS 33.15.180 ("Persons Eligible for
Parole") so that discretionary parole was no longer available to
prisoners "imprisoned in accordance with AS 12.55.125(c), (d)(1),
(d)(2), (e)(1), or (e)(2)". [Fn. 5]
(In 1978, these listed statutes defined the presumptive
terms for all defendants subject to presumptive sentencing. AS
12.55.125(c) specified the presumptive terms for defendants
convicted of class A felonies; AS 12.55.125(d)(1)-(d)(2) specified
the presumptive terms for second and third felony offenders
convicted of class B felonies; and AS 12.55.125(e)(1)-(e)(2)
specified the presumptive terms for second and third felony
offenders convicted of class C felonies. Since then, the
legislature has created another class of presumptive sentences for
defendants convicted of first-degree sexual assault and first-degree
sexual abuse of a minor. These presumptive terms are specified in
AS 12.55.125(i).)
It soon become apparent that the 1978 amendment to the
parole statute was susceptible of varying interpretations. As
explained above, the statute denied parole eligibility to prisoners
"imprisoned in accordance with AS 12.55.125(c), (d)(1), (d)(2),
(e)(1), or (e)(2)". But some judges concluded that this language
did not apply to prisoners sentenced under AS 12.55.155(a) - the
statute that authorizes judges to increase or decrease the normal
presumptive term when aggravating and mitigating factors are proved.
These judges concluded that when a defendant's sentence
was increased above the normal presumptive term pursuant to AS
12.55.155(a) because of aggravating factors, the sentencing judge
could grant parole eligibility for the portion of the sentence in
excess of the presumptive term. Similarly, these judges concluded
that when a defendant's sentence was decreased below the normal
presumptive term pursuant to AS 12.55.155(a) because of mitigating
factors, the judge could grant parole eligibility for any portion
of the sentence that exceeded the absolute minimum sentence
specified by AS 12.55.155(a) - i.e., no minimum term of imprisonment
if the applicable presumptive term was 4 years or less, [Fn. 6] or
half the applicable presumptive term if that presumptive term was
greater than 4 years. [Fn. 7]
In 1985, the House Judiciary Committee drafted a bill -
CSHB 141 (Jud) - that rewrote Alaska's parole statutes. This bill
ultimately became law as SLA 1985, ch. 88. In their "Sectional
Analysis and Commentary" to section 2 of the bill, the Judiciary
Committee described the problems that had arisen under the pre-1985
law because of the ambiguous relationship between presumptive
sentencing and parole eligibility:
[There is a] major ambiguity ... in
current law. With the passage of the new criminal code in 1978 and
the enactment of Alaska's presumptive sentencing scheme, offenders
who were presumptively sentenced were decreed to be ineligible for
discretionary parole. However, within this scheme, no statutory
provision or legislative intent has defined "presumptive sentence"
for the purpose of discretionary parole eligibility. A few
sentencing courts have concluded that the law is ambiguous and have
declared that after an offender serves one presumptive term, he is
thereafter eligible for discretionary parole during subsequent
consecutive presumptive terms. In addition[,] some presumptively
sentenced offenders have been made eligible for discretionary parole
during the period of enhancement when the presumptive sentence was
increased because the crime was an aggravated one. The same
rationale employed by the courts in these instances can also be used
to make a presumptively sentenced prisoner eligible for parole if
the presumptive sentence was mitigated. The practice of granting
discretionary parole eligibility to subsequent presumptive terms in
a consecutive sentence, and to those portions of presumptive terms
which are sentence enhancements because the crime was aggravated,
is clearly allowed in ... section [2 of this new bill].
1985 House Journal, Vol. 2, Supp. No. 42 (April 4th), p. 3.
This commentary is striking because, although it
identifies three major problems in the former law, it only resolves
one of them. The three identified problems are: (1) the lack of
a firm definition of "presumptive sentence" for purposes of
describing parole eligibility; (2) the fact that some judges
believed that defendants subject to presumptive sentencing might be
eligible for parole during an enhanced or consecutive presumptive
term; and (3) the fact that some judges believed that defendants
subject to presumptive sentencing might be eligible for parole if
their presumptive term was reduced because of mitigating factors.
Having identified these three problems, the House Judiciary
Committee spoke to the second problem, declaring that their new bill
"[clearly allowed the] practice of granting discretionary parole
eligibility to subsequent presumptive terms in a consecutive
sentence, and to those portions of presumptive terms which are
sentence enhancements because the crime was aggravated". But the
Committee did not enact a definition of "presumptive sentence", nor
did the Committee state its position regarding the practice of
granting parole eligibility to defendants who received a mitigated
presumptive term.
The House Judiciary Committee's draft - which ultimately
became SLA 1985, ch. 88, sec. 2 - repealed former AS 33.15 and
replaced
it with our current chapter on parole, AS 33.16. In this new
chapter, AS 33.16.090 is the main provision defining prisoners'
eligibility for discretionary parole:
(a) A prisoner who is serving a term of
at least 181 days, and who is not otherwise ineligible under (b) of
this section, may ... be released on discretionary parole subject
to AS 12.55.086(d), [AS] 12.55.115, and AS 33.16.100 (c) and (d).
(b) Except as provided in (e) of this
section, a prisoner is not eligible for discretionary parole during
the term of a presumptive sentence; however, a prisoner is eligible
for discretionary parole during a term of sentence enhancement
imposed under AS 12.55.155(a) or during the term of a consecutive
or partially consecutive presumptive sentence imposed under
AS 12.55.025(e) or (g). ...
(c) Except as provided in (e) of this
section, a prisoner eligible for discretionary parole during a
period of sentence enhancement imposed under AS 12.55.155(a) or
during a consecutive or partially consecutive presumptive sentence
imposed under AS 12.55.025(e) or (g) shall serve the unenhanced
portion of the sentence or the initial presumptive sentence before
being otherwise eligible for discretionary parole under AS
33.16.100(c) or (d). For purposes of this subsection, the sentence
for the most serious offense in the case of consecutive or partially
consecutive presumptive sentences shall be considered the initial
presumptive sentence. The unenhanced or the initial presumptive
sentence is considered served for purposes of discretionary parole
on the date the unenhanced or initial presumptive sentence is due
to expire less good time earned under AS 33.20.010.
In its sectional analysis and commentary, the House
Judiciary Committee devoted special attention to AS 33.16.090,
declaring that it "resolve[d] [the] major ambiguity present in [the
former] law." [Fn. 8] But, as explained above, there were three
major ambiguities in the pre-1985 law, and the new law resolved only
one of them.
AS 33.16.090 resolved the issue of whether prisoners were
eligible for parole if they were sentenced to more than the
presumptive term because of aggravating factors or consecutive
terms. In fact, the new statute mandates parole eligibility for
these prisoners; a sentencing judge has no discretion in this
matter. [Fn. 9] But the new law did not supply a definition of
"presumptive sentence", and it was silent on the parole eligibility
of prisoners who received less than the presumptive term because of
mitigating factors. In fact, with regard to the ambiguity
surrounding mitigated presumptive sentences, the new law arguably
only made things worse.
The former law, AS 33.15.180, had been ambiguous because
it listed various presumptive sentencing statutes but omitted any
express mention of sentences imposed under AS 12.55.155(a). The new
law, AS 33.16.090, dropped the list of specific sentencing statutes
and simply declared that prisoners were not eligible for parole
"during the term of a presumptive sentence". But this begged the
question. If a judge, pursuant to AS 12.55.155(a), reduced a
defendant's sentence below the applicable presumptive term because
of mitigating factors, was the resulting sentence a "presumptive
sentence"? As the House Judiciary Committee acknowledged in their
commentary, one of the major problems with the former law was that
it contained no explicit definition of "presumptive sentence". The
new law perpetuated this problem: it, too, contained no definition
of "presumptive sentence".
The Parole Board's enactment of new parole regulations in
1991
In 1991, the Parole Board acted to clarify the
relationship between discretionary parole and presumptive sentencing
by promulgating a series of regulations governing the parole
eligibility of prisoners who are sentenced under the presumptive
sentencing laws. [Fn. 10] With certain exceptions for prisoners
whose crimes were committed before September 13, 1987, these rules
are as follows:
(1) 22 AAC 20.055 - aggravated presumptive terms: A
prisoner who "is sentenced to an aggravated presumptive term under
AS 12.55.155(c) [sic: technically, the reference should be to AS
12.55.155(a)] is eligible for discretionary parole after serving the
unaggravated portion of the sentence (the time equal to the
presumptive term less good time credited under AS 33.20.010) [,
plus] one-third [of the aggravated portion of the term of
imprisonment if the prisoner was convicted of a class A felony,
first-degree sexual assault, or first-degree sexual abuse of a
minor,] or one-fourth of the aggravated portion of the term of
imprisonment [if the prisoner was convicted of a class B or class
C felony]." [Fn. 11]
(2) 22 AAC 20.070(c) - consecutive presumptive terms:
"If a prisoner is sentenced to consecutive presumptive terms or
partially consecutive presumptive terms, [the prisoner becomes
eligible for] discretionary parole ... [after] serv[ing] the initial
presumptive term (the time equal to the presumptive term less good
time credited under AS 33.20.010) [, plus] one-third or one-fourth
of the second or subsequent presumptive sentences [under the same
rules governing aggravated presumptive terms]."
(3) 22 AAC 20.060 - mitigated presumptive terms: "A
prisoner sentenced to a mitigated presumptive term under AS
12.55.155(d) [sic: again, the reference should be to AS
12.55.155(a)] is not eligible for discretionary parole."
In the first two of these regulations, the Parole Board
closely tracked the provisions of AS 33.16.090 100. But the third
regulation - 22 AAC 20.060, which denies discretionary parole to
prisoners who receive mitigated presumptive terms - arguably exceeds
the provisions of AS 33.16.090 100 because it resolves an
ambiguity in these statutes.
This fact does not mean that the regulation is invalid.
Both the supreme court and this court have upheld administrative
regulations that interpret and clarify governing statutes, even when
those regulations arguably expand the scope of the statutes. [Fn.
12] This same rule of law applies here. The legislature has
directed the Parole Board to "adopt regulations ... establishing
standards under which the suitability of a prisoner for special
medical or discretionary parole shall be determined". [Fn. 13] By
promulgating 22 AAC 20.060, the Parole Board resolved the statutory
ambiguity surrounding the discretionary parole eligibility of
prisoners who receive a mitigated presumptive term. This action
appears to be within the Board's lawful authority.
Conclusion
22 AAC 20.060 declares that a prisoner who receives a
mitigated presumptive term under AS 12.55.155(a) is not eligible for
discretionary parole. Accordingly, a sentencing court has no
authority to grant discretionary parole eligibility when imposing
a mitigated presumptive term.
In Cofey's case, the superior court erred when it
designated Cofey's sentence "non-presumptive" in an attempt to ensure
that Cofey would be eligible for discretionary parole. That portion
of the superior court's sentencing order is REVERSED. The superior
court shall amend its judgement by deleting the sentence that reads,
"The court having found that mitigating factors apply, the resulting
jail service is non-presumptive."
However, now that we have clarified this aspect of Alaska
sentencing law, we believe that the superior court should be given
the opportunity to reconsider Cofey's sentence. Accordingly, when
jurisdiction over this case returns to the superior court under
Appellate Rule 507(b), the court is authorized - but is not obliged
- to reconsider Cofey's sentence of imprisonment. We express no
opinion as to whether the superior court should adjust Cofey's
sentence in any manner.
FOOTNOTES
Footnote 1:
AS 12.55.125(d)(1).
Footnote 2:
AS 12.55.155(a)(1); AS 12.55.125(d).
Footnote 3:
AS 12.55.155(a)(1).
Footnote 4:
See SLA 1978, ch. 166.
Footnote 5:
SLA 1978, ch. 66, sec. 15.
Footnote 6:
AS 12.55.155(a)(1).
Footnote 7:
AS 12.55.155(a)(2).
Footnote 8:
1985 House Journal, Vol. 2, Supp. No. 42 (April 4th), p. 3.
Footnote 9:
See Reyes v. State, 978 P.2d 635, 642-43 (Alaska App. 1999)
(holding that the parole statutes specify a prisoner's eligibility
for discretionary parole when the prisoner has received an enhanced
presumptive term or consecutive prison terms; a sentencing judge's
decision to label the defendant's sentence "presumptive" or "non-
presumptive" is irrelevant because the judge has no discretion to
alter the parole eligibility specified by the statutes).
Footnote 10:
See Administrative Code Register 117 (effective January 30,
1991).
Footnote 11:
See 22 AAC 20.040(6) (specifying the offenses that require the
prisoner to serve one-third of the aggravated portion of the term,
and the offenses that require the prisoner to serve one-fourth of
the aggravated portion of the term).
Footnote 12:
See Church v. Alaska Department of Revenue, 973 P.2d 1125,
1127-29 (Alaska 1999); Alaska Department of Revenue v. Cosio, 858
P.2d 621, 625 (Alaska 1993); State v. Otness, 986 P.2d 890, 893-94
(Alaska App. 1999) (Mannheimer, J., concurring).
Footnote 13:
AS 33.16.060(b)(1).
