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Beasley v. State (10/17/2002) ap-1833
Beasley v. State (10/17/2002) ap-1833
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
LOTTIE R. BEASLEY, )
) Court of Appeals No. A-
8289
Appellant, ) Trial Court No.
4FA-S01-1725 CR
)
v. ) O P I N I O
N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1833 October
17, 2002]
)
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Mary E. Greene,
Judge.
Appearances: Lori M. Bodwell, Law Office of
Lori Bodwell, Fairbanks, for Appellant.
Teresa L. Foster, District Attorney,
Fairbanks, and Bruce M. Botelho, Attorney
General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
MANNHEIMER, Judge, concurring.
Lottie R. Beasley, a first felony offender, pleaded no
contest to third-degree assault, a class C felony.1 The superior
court found that several statutory aggravating factors from AS
12.55.155(c) applied by analogy2 and imposed a 3 1/2 year term
with 1 year suspended, a sentence in excess of the Austin limit.3
Beasley argues that AS 12.55.125(k) bars the superior court from
imposing a sentence of imprisonment, whether suspended or
unsuspended, that exceeds the presumptive sentence for a third
felony offender.4 We reject Beasleys interpretation of the
statute and conclude that AS 12.55.125(k) contains no such
restriction. Therefore, we affirm Beasleys sentence.
On June 1, 2001, the Alaska State Troopers were
contacted because two of Beasleys boys, G.B. and K.D., ran away
from home and complained to a neighbor that Beasley was
assaulting them. The boys complaints led to an investigation by
the Troopers that culminated in a grand jury indictment. The
grand jury charged Beasley with one count of second-degree
assault, and seven counts of third-degree assault. The State
also filed an information charging Beasley with six counts of
fourth-degree assault. These allegations charged Beasley with
assaulting the two boys who ran away and H.G., another sibling.
Ultimately, the State filed an information supplanting the
indictment and the first information. This information charged
Beasley with one consolidated count of third-degree assault
against all three victims occurring over the course of three
months. Beasley pleaded no contest to this consolidated count.
Superior Court Judge Mary E. Greene found that several
aggravating factors from AS 12.55.155(c) applied by analogy to
Beasleys sentencing:5 (c)(5) (Beasley knew or reasonably should
have known that her victims were particularly vulnerable); (c)(9)
(Beasley knew that her offense involved more than one victim);
(c)(10) (Beasleys conduct was among the most serious within the
definition of the offense); (c)(18)(A) (Beasley and her victims
were living together in one social unit); and (c)(18)(C)
(Beasleys assault was a domestic violence assault committed in
the presence of a child under 16 who was living in the residence
where the crime occurred). Judge Greene imposed 3 1/2 years
imprisonment with 1 year suspended.
Beasley claims that under AS 12.55.125(k) her sentence
is illegal. Beasley argues that under this statute, the superior
court could impose no more than a 3-year term whether the term is
suspended in whole or in part. This claim presents a question of
statutory interpretation.
The guiding principle of statutory construction is to
ascertain and implement the intent of the legislature or agency
that promulgated the statute or regulation.6 Alaska courts apply
a sliding scale approach to statutory interpretation: to
determine the meaning of a statute we look to its legislative
history, even if its language is plain on its face.7 But the
plainer the meaning of the language of the statute, the more
convincing any contrary legislative history must be.8 When a
statutes meaning appears clear and unambiguous, the party urging
another meaning bears a correspondingly heavy burden of
demonstrating contrary legislative intent.9
AS 12.55.125(k) was first enacted by chapter 79, 25,
SLA 1992. The genesis of this law was 1992 House Bill 396. In
part, this bill was a response to this courts decision in Buoy v.
State.10 In Buoy, we held that before a sentencing judge can
exceed the Austin limit, the State must prove statutory
aggravating factors by clear and convincing evidence.11 In
hearings before the House Judiciary Committee, representatives
from both the Department of Law and the Department of Public
Safety told the committee that the intent of the bill was to
overturn Buoy and require that aggravating factors be proved by a
preponderance of the evidence.12
But the House Judiciary Committee amended the bill and
proposed the enactment of a new subsection to AS 12.55.125,
subsection (k), that provided:
(k) A first felony offender convicted of
an offense for which a presumptive term of
imprisonment is not specified under this
section may not be sentenced to a term of
unsuspended imprisonment that exceeds the
presumptive term for a second felony offender
convicted of the same crime unless the court
finds by clear and convincing evidence that
an aggravating factor under AS 12.55.155(c)
is present, or that circumstances exist that
would warrant a referral to the three-judge
panel under AS 12.55.165.
Thus, in its amended form, Committee Substitute for HB 396 (Jud),
the bill expressly adopted the Buoy decision.
The Senate Judiciary Committee later amended and re-
organized CSHB 396. The final version of the bill, Senate
Committee Substitute for CSHB 396, preserved the House Judiciary
Committees amendment adopting subsection (k). This section
passed the legislature as chapter 79, 25, SLA 1992.
AS 12.55.125(k) was amended in 1999. The source of the
amendment was 1999 Senate Bill 3. The entire bill as proposed
enacted several changes to increase penalties for the homicide of
a child.13 The final form of the bill was contained in the House
Committee Substitute for CSSB 3(FIN). In a hearing before the
House Finance Committee, a staff member of the bills prime
sponsor, Senator Halford, provided a sectional analysis of the
bill and testified that the section of the bill amending AS
12.55.125(k) allowed a sentencing court to sentence an offender
convicted of criminally negligent homicide of a child under 16 to
a longer sentence than the presumptive sentence for a second or
third felony offender convicted of the same crime.14 The bill
passed and the section amending AS 12.55.125(k) into its present
form was included as chapter 54, 11, SLA 1999.
AS 12.55.125 (k) now provides:
(k) A first felony offender convicted of
an offense for which a presumptive term of
imprisonment is not specified under this
section
(1) may be sentenced to a term of
unsuspended imprisonment that exceeds the
presumptive term for a second or third felony
offender convicted of the same crime if the
offender is convicted of criminally negligent
homicide and the victim is a child under the
age of 16;
(2) except as provided in (1) of this
subsection, may not be sentenced to a term of
unsuspended imprisonment that exceeds the
presumptive term for a second felony offender
convicted of the same crime unless the court
finds by clear and convincing evidence that
an aggravating factor under AS 12.55.155(c)
is present, or that circumstances exist that
would warrant a referral to the three-judge
panel under AS 12.55.165.
Beasley argues that when subsections (1) and (2) are
read together, one must conclude that the only circumstance when
a court sentencing a first felony offender is authorized to
exceed the presumptive term for a third felony offender is
contained in (k)(1). Beasley claims that sole circumstance
occurs when a court is sentencing an offender for the criminally
negligent homicide of a child under 16. But on its face,
subsection (k)(2) contains the general rule that requires a
sentencing judge to find a statutory aggravating factor or an
extraordinary circumstance warranting a referral to a three-judge
sentencing panel before exceeding the presumptive term for a
second felony offender. The 1999 amendment did not alter this
general rule and the legislative history of the 1999 amendment
does not contain an indication that the legislature intended to
further limit the authority of a sentencing judge in the normal
case. Subsection (k)(1) enacted an exception to this general
rule for the criminally negligent homicide of a child under 16 by
authorizing a court sentencing a first felony offender convicted
of this crime to exceed the presumptive term for a second or a
third felony offender without requiring the sentencing judge to
find a statutory aggravating factor or extraordinary
circumstances.
As the proponent of an interpretation different than
what appears on the face of the statute, Beasley bears a
correspondingly heavy burden of demonstrating contrary
legislative intent.15 But Beasley has not pointed to any
legislative history showing that the purpose of the amendment to
subsection (k) that was contained in chapter 54, 11, SLA 1999
was to cap the sentencing range for a first felony offender at
the presumptive term for a third felony offender. Instead, the
overall underlying purpose of S.B. 3 appears to be the
establishment and authorization of greater penalties for the
homicide of children under the age of 16.16
When sentencing a first felony offender in the normal
case, subsection (k) does require a sentencing judge to find
statutory aggravating factors or extraordinary circumstances
before imposing an unsuspended term of imprisonment exceeding the
presumptive term for a second felony offender. But we conclude
that subsection (k) does not constrain a sentencing judge to
impose less than the presumptive term for a third felony offender
when the judge finds that the State has proven that a statutory
aggravating factor or factors apply.
Beasleys sentence is AFFIRMED.
MANNHEIMER, Judge, concurring.
This case requires us to construe what the legislature
intended when they added subsection (1) to AS 12.55.125(k) in
1999. This statute reads:
(k) A first felony offender convicted of
an offense for which a presumptive term of
imprisonment is not specified under this
section
(1) may be sentenced to a term of
unsuspended imprisonment that exceeds the
presumptive term for a second or third
felony offender convicted of the same
crime if the offender is convicted of
criminally negligent homicide and the
victim is a child under the age of 16;
(2) except as provided in (1) of this
subsection, may not be sentenced to a term
of unsuspended imprisonment that exceeds
the presumptive term for a second felony
offender convicted of the same crime
unless the court finds by clear and
convincing evidence that an aggravating
factor under AS 12.55.155(c) is present,
or that circumstances exist that would
warrant a referral to the three-judge
panel under AS 12.55.165.
Beasley argues that when the
legislature enacted subsection (1) in 1999,
the legislature intended to alter the meaning
of the pre-existing portion of the statute
the part that is now subsection (2). Beasley
contends that, under the current version of
the statute, when a first felony offender is
convicted of any felony governed by
presumptive sentencing other than criminally
negligent homicide involving a child, the
offenders unsuspended term of imprisonment
can not exceed the presumptive term that
applies to third felony offenders.
This claim is moot in Beasleys
case. Both AS 12.55.125(k)(1) and (k)(2)
limit a defendants unsuspended term of
imprisonment. Beasleys unsuspended term of
imprisonment is 2 years less than the 3-year
presumptive term that applies to third felony
offenders convicted of the same offense.
Thus, even under Beasleys construction of the
statute, her sentence would be proper.
Even though Beasleys claim is moot,
my colleagues have decided to address the
merits of that claim. I concur in their
conclusion that Beasleys interpretation of
the statute is mistaken.
In 19921, the Alaska legislature
enacted AS 12.55.125(k) the portion of the
statute that is now AS 12.55.125(k)(2). This
portion of the statute declares that, in
cases not governed by presumptive sentencing,
a first felony offender [can] not be
sentenced to a term of unsuspended
imprisonment that exceeds the presumptive
term for a second felony offender convicted
of the same crime unless the court finds by
clear and convincing evidence that an
aggravating factor under AS 12.55.155(c) is
present, or that circumstances exist that
would warrant a referral to the three-judge
panel under AS 12.55.165.
Both the wording of this provision
and the minutes of the House Judiciary
Committee from 19922 indicate that the
legislature enacted this law because they
wished to codify the sentencing rule that
this Court first announced in Austin v.
State3 and that we later clarified in Tazruk
v. State4 and Brezenoff v. State5. The
Austin / Tazruk / Brezenoff rule states that,
when an offense that is subject to
presumptive sentencing does not specify a
presumptive term for a first felony offender,
the unsuspended portion of a first felony
offenders term of imprisonment should be more
favorable than the presumptive term that
applies to second felony offenders, unless
the State proves statutory aggravating
factors (i.e., the aggravating factors listed
in AS 12.55.155(c)) or non-statutory
aggravating factors (i.e., the type of
extraordinary circumstances that would
warrant referral of the defendants case to
the statewide three-judge sentencing panel
under AS 12.55.165).
Since 1992, we have repeatedly and
consistently interpreted this statutory
language as codifying the Austin / Tazruk /
Brezenoff rule (with the slight difference
that the Austin rule calls for a first
offender to receive an unsuspended term of
imprisonment more favorable than the
presumptive term for second felony offenders,
while the statute calls for a first felony
offender to receive an unsuspended term no
greater than the presumptive term for second
felony offenders).6 I particularly note that
in Petersen v. State, 930 P.2d 414, 437
(Alaska App. 1996), we applied AS
12.55.125(k) to a first felony offender who
was convicted of a class C felony and who
received 5 years imprisonment with 2 years
suspended i.e., a less favorable sentence
than the 3-year presumptive term for a third
felony offender.7
In 1999, when the legislature was
discussing the provision that eventually
became subsection (1) of AS 12.55.125(k)8,
the legislature was told that this provision
would allow courts to impose higher
unsuspended sentences on defendants convicted
of criminally negligent homicide involving
children.9 But no one ever suggested that
this provision would impose new restrictions
on the courts authority to sentence
defendants convicted of other felonies, or
that the provision would modify the series of
court decisions interpreting the language
that remained in subsection (2).
Given this backdrop, I agree with
my colleagues that AS 12.55.125(k)(1) was
intended to abrogate the Austin rule for
first felony offenders convicted of
criminally negligent homicide involving
children younger than 16. That is, the
legislature intended to authorize courts to
sentence these offenders to unsuspended terms
of imprisonment equal to or greater than the
presumptive term for third felony offenders
convicted of the same crime even when the
State did not prove aggravating factors under
AS 12.55.155(c) or extraordinary
circumstances as defined in AS 12.55.165.
The legislature did not intend to alter the
meaning of AS 12.55.125(k)(2) by imposing a
new restriction on the unsuspended terms of
other first felony offenders.
_______________________________
1 AS 11.41.220(a), (b).
2 See Wylie v. State, 797 P.2d 651, 663 (Alaska App. 1990).
3 See Austin v. State, 627 P.2d 657, 657-58 (Alaska App.
1981) (A first felony offender should ordinarily receive a more
favorable sentence than the presumptive term for a second felony
offender convicted of the same class of crime).
4 AS 12.55.125(e)(2).
5 See Wylie v. State, 797 P.2d 651, 663 (Alaska App. 1990).
6 Millman v. State, 841 P.2d 190, 194 (Alaska App. 1992).
7 See Progressive Ins. Co. v. Simmons, 953 P.2d 510, 516
(Alaska 1998).
8 Id. (citing State v. Alex, 646 P.2d 203, 208-09 n.4
(Alaska 1982)).
9 University of Alaska v. Geistauts, 666 P.2d 424, 428 n.5
(Alaska 1983).
10 818 P.2d 1165 (Alaska App. 1991).
11 Id. at 1167-68.
12 See House Judiciary Committee hearing on H.B. 396
(January 17, 1992) (testimony by Gayle Horetski, Deputy
Commissioner of Public Safety); (January 24, 1992) (testimony of
Margot Knuth, Assistant Attorney General).
13 See House Judiciary Committee hearing on S.B. 3 (March 3,
1999) (testimony by Juli Lucky, Staff, Senator Rick Halford).
14 See House Finance Committee hearing on S.B. 3 (May 10,
1999) (testimony by Juli Lucky, Staff, Senator Rick Halford).
15 University of Alaska v. Geistauts, 666 P.2d 424, 428 n.5
(Alaska 1983).
16 See House Judiciary Committee hearing on S.B. 3 (March 3,
1999) (testimony by Juli Lucky, Staff, Senator Rick Halford (The
purpose of the prime sponsor of the bill, Senator Halford, is to
send the message if you kill a child you will go to jail for a
long time.)).
1See SLA 1992, ch. 79, 25.
2See Minutes of the House Judiciary Committee for January
15, 1992, Tape Jud 92-1, Side B, at 177 (testimony of
Laurie Otto, Staff Counsel for the House Judiciary
Committee).
3627 P.2d 657 (Alaska App. 1981).
4655 P.2d 788, 789 (Alaska App. 1982).
5658 P.2d 1359, 1362 (Alaska App. 1983).
6See Cook v. State, 36 P.3d 710, 730 (Alaska App. 2001);
Pitka v. State, 19 P.3d 604, 608 (Alaska App. 2001);
Foley v. State, 9 P.3d 1038, 1040 & n.5 (Alaska App.
2000); Harris v. State, 980 P.2d 482, 486 (Alaska App.
1999); Reese v. State, 930 P.2d 1295, 1298-99 (Alaska
App. 1996).
7Specifically, this Court said: Petersen was a first
felony offender. Under AS 12.55.125(k) and Austin v.
State, 627 P.2d 657 (Alaska App. 1981), as construed in
Brezenoff v. State, 658 P.2d 1359, 1362 (Alaska App.
1983), Petersen could not receive 3 years to serve
unless the sentencing judge found one or more of the
aggravating factors listed in AS 12.55.155(c) (or
unless the judge found extraordinary circumstances
under AS 12.55.165).
8HCS CSSB 3 (Finance), 11.
9See Minutes of the House Judiciary Committee for March 3,
1999, Tape 99-9, Side A, at 1638 (testimony of Juli
Lucky, staff researcher for Senator Halford), and
Minutes of the House Finance Committee for May 10,
1999, Tape HFC 99-122, Side 1 (testimony of Juli
Lucky).
