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Tuttle v. State (3/14/2003) ap-1859
Tuttle v. State (3/14/2003) ap-1859
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
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
TOREY JOHN TUTTLE, )
) Court of Appeals No.
A-8077
Appellant, )
Trial Court No. 3AN-99-10681 Cr.
)
v. )
) O P I N
I O N
STATE OF ALASKA, ) ON REHEARING
)
Appellee. )
[No. 1859 March 14, 2003]
)
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Larry D. Card,
Judge.
Appearances: Rex Lamont Butler, Anchorage,
for Appellant. James J. Fayette, Assistant
District Attorney, Susan A. Parkes, District
Attorney, Anchorage, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
The State asks us to reconsider a portion of our
decision in this case: our conclusion that the sentencing judge
applied the wrong standard of proof when he found that Tuttle
carried a firearm during the robbery a finding that subjected
Tuttle to a 7-year presumptive term rather than a 5-year
presumptive term under AS 12.55.125(c).
As described in our prior decision (Tuttle v. State,
___ P.3d ___, Alaska App. Opinion No. 1801 (May 3, 2002)),
Tuttles sentencing judge declared that he was applying the
preponderance of the evidence standard of proof when he found
that Tuttle carried a firearm during the robbery. But we had
previously ruled in Huf v. State, 675 P.2d 268 (Alaska App.
1984), that the applicable standard of proof was beyond a
reasonable doubt.
Huf addressed a legal issue that was not expressly
answered in our sentencing statutes: What burden of proof
applies when the State alleges that the defendant faces a
presumptive term, or a more severe presumptive term, based on the
circumstances of the offense rather than the number of the
defendants prior felony convictions?
In most instances, the applicable presumptive term for
any given felony is determined solely by the number of the
defendants prior felony convictions. The legislature has
declared that prior convictions not expressly admitted by the
defendant must be proved by authenticated copies of court
records. See AS 12.55.145(b). And if, after the State produces
these court records, the defendant still disputes a prior felony
conviction (by asserting, for example, that he is not the person
named in the court records), the State must prove the prior
conviction beyond a reasonable doubt. See AS 12.55.145(d).
But though the legislature specified beyond a
reasonable doubt as the standard for proving a defendants prior
felony convictions, the legislature did not expressly specify the
burden of proof that sentencing courts should apply when the
determination of the presumptive term rests on other factual
issues such as the defendants possession of a firearm during the
offense. In Huf, we reasoned that the legislature must have
intended to have sentencing courts apply the same standard of
proof beyond a reasonable doubt in these situations, too. Huf,
675 P.2d at 273-74.
The State, in its petition for rehearing, points out
that Huf appears to have been superseded by AS 12.55.025(i), a
statute that was enacted in 1992. This statute reads:
Except as provided by AS 12.55.125(a)(3)
[specifying an increased sentence
for first-degree murder if the
State proves by clear and
convincing evidence that the
defendant subjected the victim to
substantial physical torture],
12.55.125(k)
[authorizing a court to sentence a
first felony offender to a term of
imprisonment exceeding the
presumptive term for second felony
offenders if the State proves
aggravating factors or
extraordinary circumstances by
clear and convincing evidence],
12.55.145(d)
[specifying beyond a reasonable
doubt as the standard of proof that
the State must meet when a
defendant contests a prior felony
conviction],
12.55.155(f)
[specifying that aggravating and
mitigating factors must be proved
by clear and convincing evidence],
and 12.55.165
[specifying that the grounds for
referring a defendants case to the
statewide three-judge sentencing
panel must be proved by clear and
convincing evidence],
the preponderance of the evidence standard of
proof applies to sentencing proceedings.
The State notes that, in Tuttles
case, the sentencing judge was required to
resolve a factual issue under AS
12.55.125(c). Specifically, the judge had to
determine whether Tuttles presumptive term
was governed by subsection 125(c)(1) (stating
that 5 years is the normal presumptive term
for a first felony offender convicted of a
class A felony) or, instead, by subsection
125(c)(2)(A) (stating that when a first
felony offender is convicted of a class A
felony other than manslaughter, and the
defendant possessed a firearm during the
offense, the presumptive term is 7 years).
AS 12.55.125(c) is not one of the
statutes listed in AS 12.55.025(i) as being
an exception to the normal rule that
sentencing issues are governed by the
preponderance of the evidence standard of
proof. Accordingly, the State contends that
our decision in Huf has been superseded by
this statute, and thus Tuttles sentencing
judge was correct when he decided the firearm
possession issue by a preponderance of the
evidence.
If Alaska followed the plain
meaning rule of statutory interpretation, the
State would have an open-and-shut case. AS
12.55.025(i) purports to list all of the
exceptions to the preponderance of the
evidence standard of proof, and AS
12.55.125(c) is not among those exceptions.
But Alaska does not follow the plain meaning
rule. Thus, even when a statute is absolute
and unambiguous on its face,
the plain language of [the statute] does not
itself end the inquiry. Under Alaskas
sliding-scale approach to statutory
construction, strong legislative history may
support a different meaning [ although when
a] statutes meaning appears clear and
unambiguous, the party asserting a different
meaning bears a correspondingly heavy burden
of demonstrating contrary legislative intent.
Wold v. Progressive Preferred Insurance Co.,
52 P.3d 155, 161 (Alaska 2002) (footnotes and
internal quotations omitted).
For the reasons explained here, we
conclude that the legislative history of AS
12.55.025(i) demonstrates that the
legislature did not intend to overrule our
decision in Huf that, in fact, when the
legislature enacted AS 12.55.025(i), the
legislature intended to codify Alaskas then-
current law (both statutes and court
decisions) defining the various burdens of
proof at sentencing.
AS 12.55.025(i) was introduced as
1992 House Bill 396. There is no mention of
Huf in the legislative discussions of this
bill. Instead, the minutes of these
legislative discussions reveal that House
Bill 396 was written by the Department of Law
for the purpose of having the legislature
overturn a sentencing decision that this
Court had issued the year before: Buoy v.
State, 818 P.2d 1165 (Alaska App. 1991).
Our decision in Buoy was a follow-
up to our decisions in Austin v. State, 627
P.2d 657, 657-58 (Alaska App. 1981), and
Brezenoff v. State, 658 P.2d 1359, 1362
(Alaska App. 1983). In Austin and Brezenoff,
we held that a first felony offender should
receive a more favorable sentence than the
presumptive term mandated for second felony
offenders convicted of the same offense,
unless the State proved aggravating factors
under AS 12.55.155(c) or extraordinary
circumstances under AS 12.55.165.
In Buoy, we were required to decide
what standard of proof should apply when the
State sought a higher sentence for a first
felony offender by alleging aggravators or
extraordinary circumstances. As was true in
Huf, there was no statute governing this
issue, but there were statutes that governed
related issues.
In AS 12.55.155(f), the legislature
had declared that the clear and convincing
evidence standard governed the proof of
aggravators and mitigators when a defendant
is subject to presumptive sentencing.
Similarly, in AS 12.55.165, the legislature
had declared that the clear and convincing
evidence standard governed the proof of non-
statutory aggravators and mitigators, as well
as extraordinary circumstances, for the
purpose of determining whether a defendants
case should be sent to the statewide three-
judge sentencing panel. Using these two
statutes as guides, this Court concluded that
this same burden of proof clear and
convincing evidence should apply when the
State wished to prove aggravating factors
and/or extraordinary circumstances at the
sentencing hearing of a first felony offender
for the purpose of seeking a sentence above
the normal Austin limit. Buoy, 818 P.2d at
1167-68.
The Department of Law was
dissatisfied with Buoy, so they drafted House
Bill 396 to overturn it. In its original
form, House Bill 396 read:
Except as provided in AS 12.55.145(d)
[i.e., proof of a defendants prior felony
convictions, which is governed by the beyond
a reasonable doubt standard], 12.55.155(f)
[i.e., proof of aggravators and mitigators in
cases governed by presumptive sentencing,
where the clear and convincing evidence
standard applies], and 12.55.165 [i.e., proof
of non-statutory factors or extraordinary
circumstances which, again, is governed by
the clear and convincing evidence standard],
the preponderance of the evidence standard of
proof applies to sentencing proceedings.
During the House Judiciary
Committees hearings on this bill, the
Committee was repeatedly told that the effect
of this language was to overturn Buoy but
that, in all other respects, the bill would
codify and restate Alaskas existing law
regarding the burdens of proof at sentencing.
During a hearing on January 15,
2002, Staff Counsel Laurie Otto told the
Committee that the proposed bill would codify
a whole body of [existing] case law and that
the Buoy case was the only one which would be
reversed by [the proposed AS 12.55.025(i)].1
At a subsequent hearing on January 17, Ms.
Otto referred to a written analysis of the
bill which had been distributed to the
Committee members. This memorandum
apparently contained a discussion of the
benefits of the preponderance of the evidence
standard of proof. Ms. Otto again assured
the Committee that the proposed bill would
merely codify Alaskas existing law, with the
exception of overruling Buoy.2
At this same hearing of January 17,
2002, Deputy Commissioner of Public Safety
Gayle Horetski echoed Ms. Ottos comments:
she told the Committee that the proposed bill
would return Alaskas sentencing law to what
it had been before Buoy was decided.3 One
week later, at a hearing on January 24, 2002,
Assistant Attorney General Margo Knuth
(representing the Department of Law) also
announced support for the proposed bill.
She, too, indicated that the effect of the
new law would be to return Alaska sentencing
law to its pre-Buoy status.4
Surprisingly, despite all of this
support for overruling Buoy, the legislature
decided not to overrule Buoy. Instead, they
did the opposite: they enacted a new statute
to codify the Buoy decision. That statute
originally enacted as AS 12.55.125(k), and
now re-numbered as AS 12.55.125(k)(2) reads:
[Except as provided in subdivision (1)
of this statute], [a] first felony offender
convicted of an offense for which a
presumptive term of imprisonment is not
specified ... 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.
Having enacted AS 12.55.125(k) to codify the
Buoy decision, the legislature approved the
Department of Laws proposed AS 12.55.025(i)
but only after adding the new statute, AS
12.55.125(k), to the list of sentencing
issues exempted from the preponderance of the
evidence standard of proof that is,
sentencing issues governed by a higher
standard of proof.
In its petition for rehearing, the
State argues that the legislatures inclusion
of AS 12.55.125(k) in the list of exemptions
is proof that the legislature considered all
of the factual issues that might arise at
sentencing hearings, and that the legislature
carefully chose which issues would be
governed by a higher standard of proof.
According to the State, the fact that
AS 12.55.025(i) contains no exemption for
factual issues under AS 12.55.125(c) i.e.,
the fact that this statute contains no
exemption for issues of fact that will
determine the presumptive term for a first
felony offender convicted of a class A felony
means that the legislature decided to
overrule our decision in Huf.
But the States interpretation is
inconsistent with the legislative history.
As just explained, the legislature was told
that AS 12.55.025(i), as originally proposed,
would effect no change in Alaska sentencing
law except to overrule Buoy. The legislature
rejected the Department of Laws overture to
overrule Buoy, they enacted a statute to
codify Buoy, and then they amended proposed
AS 12.55.025(i) so that it expressly
confirmed the Buoy decision.
In all of these discussions, no one
indicated dissatisfaction with our decision
in Huf. In fact, no one mentioned Huf. The
reason no one mentioned Huf is plain: the
sponsors of AS 12.55.025(i) and the Judiciary
Committees own staff counsel repeatedly
assured the Committee that, leaving aside
Buoy, the proposed statute would ratify
Alaskas existing law concerning the burdens
of proof at sentencing.
Based on this legislative history,
we conclude that even though the wording of
AS 12.55.025(i) appears to supersede our
decision in Huf, this was not the
legislatures intention. Rather, the failure
of AS 12.55.025(i) to include a reference to
AS 12.55.125(c) appears to be a drafting
error on the part of the proponents of the
bill proponents whose express intention was
to codify Alaskas existing law on this issue.
For these reasons, we re-affirm our
decision that, on the issue of whether Tuttle
possessed a firearm during the robbery for
purposes of determining his presumptive term
under AS 12.55.125(c), the sentencing judge
applied the wrong standard of proof. The
State was and is obliged to prove this fact
beyond a reasonable doubt.
_______________________________
1 See Minutes of the House Judiciary Committee, January 15,
1992, Tape 92-1, Side B, Log No. 211.
2 See Minutes of the House Judiciary Committee, January 17,
1992, Tape 92-2, Side A, Log No. 578.
3 See id., Tape 92-2, Side A, Log No. 680.
4 See Minutes of the House Judiciary Committee, January 24,
1992, Tape 92-3, Side B, Log No. 140.
