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Stoneking v. State (01/11/2002) ap-1783
Stoneking v. State (01/11/2002) ap-1783
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:
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E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JAMES S. STONEKING, )
) Court of Appeals No. A-7822
Appellant, ) Trial Court No. 4FA-S99-2989 CI
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1783 January 11, 2002]
)
Appeal from the Superior Court, Fourth
Judicial District, Fairbanks, Charles R. Pengilly, Judge.
Appearances: James M. Hackett, Law Office of
James M. Hackett, Fairbanks, for Appellant. Kim S. Stone,
Assistant Attorney General, Office of Special Prosecutions and
Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau,
for Appellee.
Before: Coats, Chief Judge, Stewart, Judge,
and Andrews, Superior Court Judge.
[Mannheimer, Judge, not participating.]
STEWART, Judge.
James S. Stoneking was sentenced on January 14, 1988, for
first-degree murder, [Fn. 1] attempted first-degree murder, [Fn. 2]
first-degree burglary, [Fn. 3] and first-degree assault. [Fn. 4]
We affirmed Stoneking's convictions in Stoneking v. State. [Fn. 5]
On December 30, 1999, Stoneking filed an application to modify his
sentence under Criminal Rule 35(b). Superior Court Judge Charles
R. Pengilly dismissed the application as untimely. Stoneking now
appeals the dismissal, challenging on several grounds the 1995
amendment to AS 12.55.088 and alleging an independent right to file
his application based on a statement by Superior Court Judge Jay
Hodges. We affirm.
Discussion
Stoneking first claims the original language of AS
12.55.088(a) applies to his case because he was sentenced before
the 1995 amendment went into effect. Former AS 12.55.088(a),
enacted in 1978, stated that "[t]he court may modify or reduce a
sentence at any time during a term of imprisonment if it finds that
conditions or circumstances have changed since the original
sentencing hearing such that the purpose of the original sentence
is not being fulfilled." However, in 1995, the Alaska Legislature
revised this section, and AS 12.55.088(a) now provides that "[t]he
court may modify or reduce a sentence by entering a written order
under a motion made within 180 days of the original sentencing." [Fn. 6]
Stoneking argues that the 1995 amendment did not
expressly extinguish his right to file an application for
modification of sentence at any time during his imprisonment. He
notes that AS 01.10.100(a) provides that "[t]he repeal or amendment
of a law does not ... extinguish any ... right accruing or accrued
under that law, unless the repealing or amending act so provides
expressly." However, AS 01.10.100(a), by its own language, only
applies if the amending act is not expressly retroactive. In this
case, the legislature expressly provided in chapter 79, sec. 41,
SLA
1995 that the 1995 amendments to both AS 12.55.088(a) and Alaska
Criminal Rule 35(b) apply to "offenses committed before, on, or
after [July 1, 1995]." [Fn. 7] Because the 1995 amendments were
expressly retroactive, AS 01.10.100(a) is inapplicable. Judge
Pengilly properly applied the current version of the rule and
dismissed Stoneking's application as untimely.
Stoneking next claims the current version of AS
12.55.088(a) is ambiguous when read with AS 12.55.088(b). Alaska
Statute 12.55.088(b) states, "The sentencing court may not be
required to entertain a second or successive motion for similar
relief brought under (a) of this section on behalf of the same
prisoner." Stoneking claims this section implicitly gives
defendants the right to file at least one motion to modify or
reduce their sentences.
However, Stoneking misinterprets the intent of AS
12.55.088. Alaska Statute 12.55.088(a) and AS 12.55.088(b) place
independent procedural restrictions on the filing of an application
for sentence reduction or modification. When read together, the
two sections state that a defendant can only file one motion, and
the one motion must be filed within 180 days of the defendant's
original sentencing. [Fn. 8] The legislative intent is not
ambiguous. In this case, Stoneking had more than 180 days to file
an initial motion because he was sentenced on January 14, 1988, and
the amendments to Criminal Rule 35(b) and AS 12.55.088(a) went into
effect July 1, 1995. [Fn. 9]
Stoneking next claims Judge Hodges guaranteed him the
right to file the current application when, on January 13, 1995, he
observed that Stoneking could file a motion under Criminal Rule
35(b). However, Judge Hodges's observation preceded the
legislature's amendments to Criminal Rule 35(b) and AS
12.55.088(a). [Fn. 10] The judge's observation did not create a
procedural right; it merely reflected the current state of the law.
Finally, Stoneking argues that the 1995 amendment to AS
12.55.088(a) violates the prohibition against ex post facto laws
contained in article I, section 15 of the Alaska Constitution and
article I, section 10 of the United States Constitution. A law
violates the ex post facto clause if it "alters the definition of
criminal conduct or increases the penalty by which a crime is
punishable." [Fn. 11] Stoneking claims the 1995 amendment to AS
12.55.088(a) increased his punishment by eliminating his
opportunity to have his sentence modified in the future.
However, the ex post facto clause does not bar
retrospective application of procedural amendments. [Fn. 12]
Procedural amendments are distinguishable from substantive
amendments because "substantive law creates, defines and regulates
rights, while procedural law prescribes the method of enforcing the
rights." [Fn. 13] In this case, the legislature's requirement that
applications for sentence modification be filed within 180 days of
sentencing "prescribes the method of enforcing rights" because it
designates the requisite time period within which to file an
application. [Fn. 14] Although Stoneking may have had expectations
based on the prior statute, a statute is not illegally
retrospective merely because it upsets expectations or operates to
the disadvantage of individual defendants. [Fn. 15] Because the
1995 amendment did not alter the definition of criminal conduct or
increase the penalty by which a crime is punishable, it is not
barred by the ex post facto clause. [Fn. 16]
Conclusion
The judgment of the superior court is AFFIRMED.
FOOTNOTES
Footnote 1:
AS 11.41.100(a)(1).
Footnote 2:
AS 11.41.100(a)(1); AS 11.31.100(a).
Footnote 3:
AS 11.46.300(a)(1).
Footnote 4:
AS 11.41.200(a)(1).
Footnote 5:
800 P.2d 949 (Alaska App. 1990).
Footnote 6:
Ch. 79, sec. 6, SLA 1995.
Footnote 7:
See ch. 79, sec.sec. 6, 30, 41, SLA 1995.
Footnote 8:
See AS 12.55.088(a), (b).
Footnote 9:
See ch. 79, sec.sec. 6, 30, 41, SLA 1995.
Footnote 10:
See id.
Footnote 11:
Amin v. State, 939 P.2d 413, 416 (Alaska App. 1997) (quoting
California Dept. of Corrections v. Morales, 514 U.S. 499, 506-07
n.3, 115 S.Ct. 1597, 1602 n.3, 131 L.Ed.2d 588 (1995)).
Footnote 12:
See Amin, 939 P.2d at 416-17; Allen v. State, 945 P.2d 1233,
1237 (Alaska App. 1997).
Footnote 13:
Nolan v. Sea Airmotive, Inc., 627 P.2d 1035, 1042 (Alaska
1981) (quoting Ware v. Anchorage, 439 P.2d 793, 794 (Alaska 1968)).
Footnote 14:
See Nolan, 627 P.2d at 1042.
Footnote 15:
See Allen, 945 P.2d at 1236-37.
Footnote 16:
See Amin, 939 P.2d at 416-17.
