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Dayton v. State (09/16/2005) ap-2009
Dayton v. State (09/16/2005) ap-2009
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
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E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
FRANKLIN DAYTON JR.,
)
) Court of
Appeals No. A-8791
Appellant,
)
Trial Court No. 4FA-03-1641 Cr
)
v.
)
) O
P I N I O N
STATE OF ALASKA,
)
)
Appellee.
)
[No. 2009 September 16, 2005]
)
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Randy M. Olsen,
Judge.
Appearances: Marcia E. Holland, Assistant
Public Defender, Fairbanks, and Barbara K.
Brink, Public Defender, Anchorage, for the
Appellant. W. H. Hawley Jr., Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Gregg D. Renkes, Attorney General, Juneau,
for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
This case requires us to resolve the slight
inconsistency between the Austin rule the sentencing rule first
established by this Court in Austin v. State, 627 P.2d 657, 657-
58 (Alaska App. 1981) and the later legislative codification of
that rule in former AS 12.55.125(k)(2).
As we explain in more detail below, we promulgated the
Austin rule under our common-law authority to create rules to
implement and supplement the then-existing statutes governing the
sentencing of first felony offenders convicted of class B and
class C felonies i.e., offenders who were not subject to
presumptive sentencing. The purpose of the Austin rule was to
make the sentencing of first felony offenders more consistent
with the sentencing of second felony offenders (i.e., offenders
who were subject to presumptive sentencing). And the purpose of
AS 12.55.125(k)(2) was to codify the Austin rule. But the
wording of the statute differs slightly from the final version of
the Austin rule that we announced in Brezenoff v. State, 658 P.2d
1359, 1362 (Alaska App. 1983).
For the reasons explained here, we conclude that AS
12.55.125(k)(2) did indeed codify a slightly different sentencing
rule from the one we announced in Brezenoff. And because any
common-law rule announced by this Court must yield to a contrary
provision of a statute dealing with the same issue, we conclude
that AS 12.55.125(k)(2) superseded our rule.
Underlying facts
Franklin Dayton Jr. was originally indicted
for first- and second-degree sexual assault, stemming
from his act of sexual penetration with a woman who was
intoxicated and who had fallen asleep in his home.
Dayton successfully moved to have the first-degree
sexual assault charge dismissed, but the superior court
upheld the second-degree sexual assault charge. The
parties then negotiated a plea bargain.
Under the terms of this plea bargain, the
State agreed to dismiss the sexual assault charge and
replace it with a charge of third-degree assault (i.e.,
not a sexual assault). The parties agreed to open
sentencing on this reduced charge, and the parties
further agreed that the superior courts sentencing
decision could be based on the contents of the pre-
sentence report and the police reports in the case,
without the need for either side to produce live
testimony. As Daytons attorney told the court,
Defense Attorney: And ... part of the
agreement is [that] we wont contest any
information in the pre-sentence report that
would require that the victim be present to
testify ... . None of the core information
will [be] contest[ed] from the police
reports.
Following this announcement from the defense
attorney, Superior Court Judge Randy M. Olsen
addressed Dayton personally, asking him if he
understood what he was giving up:
The Court: [Y]oure not going to have a
trial, and youre not going to have witnesses
come in. And Ms. Holland, [your attorney,]
is very experienced, [and she] would be able
to cross-examine people and make people come
in and testify ... even if they didnt want
to. ... And youre giving up all of those
trial rights in return for getting this
resolution [of your case]. And you say you
want to go straight to ... the sentencing.
Is that what you want to do?
Dayton: Yes.
However, the parties then expressed
some doubt as to whether the new charge of
third-degree assault was a true lesser
included offense of the original sexual
assault charges. They concluded that, in
order to resolve any doubt, the district
attorneys office should draw up an
information charging Dayton with third-degree
assault, and then Dayton should be asked to
formally waive indictment on this charge.
For this reason, another court proceeding was
scheduled for the following day.
The next afternoon, Dayton waived
indictment and pleaded no contest to the
information charging him with third-degree
assault. At that time, Daytons attorney
again affirmed that theres not going to be
any denials of the information thats ... in
the police report. The defense attorney
explained that there were two different
versions [of events] presented in the reports
the victims version, and Daytons version.
But the attorney told the court:
Defense Attorney: We agree that theres
no need that the complaining witness would
have to testify, either in person or
telephonically, even [as] to ... information
[that is] disputed about the incident.
Three weeks before Daytons
sentencing, the State filed its required pre-
sentencing pleading under Alaska Criminal
Rule 32.1. In this pleading, the State noted
that Dayton was not subject to presumptive
sentencing because he was a first felony
offender and because his offense, third-
degree assault, was a class C felony. This
meant that Daytons sentencing was governed by
former AS 12.55.125(k)(2).
AS 12.55.125(k)(2) was repealed
earlier this year when the legislature
revised Alaskas presumptive sentencing laws.
See SLA 2005, ch. 2, 32 (effective March 23,
2005). However, at the time of Daytons
offense and at the time of his sentencing,
this statute declared that, in the absence of
one or more of the aggravating factors
defined in AS 12.55.155(c), or extraordinary
circumstances as defined in AS 12.55.165, a
first felony offender convicted of a class C
felony could not receive
a term of unsuspended imprisonment that
exceeds the presumptive term for a second
felony offender convicted of the same crime
... .
In Daytons case, the relevant presumptive
term was 2 years to serve.1
The State announced that it would
rely on two aggravating factors to seek a
sentence above the normal 2-year limit.
These two aggravating factors were
AS 12.55.155(c)(5) (that the victim was
particularly vulnerable because she was
incapacitated due to intoxication), and
AS 12.55.155(c)(10) (that Daytons conduct was
among the most serious within the definition
of the offense because he had, in fact,
sexually assaulted the victim).
The State further announced that,
to prove these two aggravators, it would rely
on the information found on pages 2 through 5
of the pre-sentence report. These pages of
the pre-sentence report contain (1) the
victims version of events, (2) the statement
of a witness who reported that the victim
came to her house in tears and said that
Dayton had raped her, and (3) Daytons various
responses to this accusation.
The following week, Daytons
attorney filed a response to the States
pleading. This response almost derailed the
plea bargain. In her response, Daytons
attorney wrote:
Mr. Dayton disputes the states ability
to rely upon [pages] 2-5 of the presentence
report[,] as Mr. Dayton is lodging objections
to the presentence report. ... Mr. Dayton
will re-enter [a] testimonial denial of the
[States] claim that [his] sexual encounter
with [the victim] was nonconsensual. The
state is therefore not entitled to rely on
hearsay statements such as [are] found in the
presentence report to meet its burden of
proof regarding [the proposed] aggravating
factors. [See] Ashenfelter v. State, 988
P.2d 120 (Alaska App. 1999).
That is, the defense attorney declared that
Dayton was going to offer a testimonial
denial of the information contained in the
pre-sentence report thus requiring the State
to either call the victim to the stand or
give up its attempt to prove the
aggravators.2
Understandably, the State responded
by reminding Judge Olsen of the defense
attorneys previous statements in open court
on this subject. As we have already
described, the defense attorney had declared
(on two different occasions) that, as part of
the plea bargain, Dayton [would not] contest
any information in the pre-sentence report
that would require that the victim be present
to testify, and that there [would be] no need
[for] the complaining witness ... to testify,
either in person or telephonically, even [as]
to ... information [that is] disputed about
the incident.
At the ensuing court hearing,
Daytons attorney told Judge Olsen that she
had interpreted the plea agreement to mean
that Dayton would refrain from entering a
testimonial denial, and would not require the
State to call the victim to the stand, so
long as the superior court refrained from
making any findings about the facts of the
offense:
Defense Attorney: [W]hat the defense
thought the plea agreement meant was that
[the parties] would not ask ... the court
[to] make a determination about a particular
version [of the events] being proved ... .
And if you listen to the actual [recording]
of the change-of-plea hearing, ... I was
saying [that] so long as the pre-sentence
report would include both [the victims and
the defendants] versions, we dont see any
reason to have a testimonial denial ... .
[W]hen we said no testimonial denials,
we meant that we werent denying that thats
what [the victim] reported, that thats how
she remembered the incident happening, and
that [we] would not ... [be] asking [to have]
her version completely stricken from the
report. [But I never agreed] that [the
State] could rely on the pre-sentence report
as evidence [to prove aggravating factors].
The defense attorneys attempted
explanation of her actions did not convince
the prosecutor. The prosecutor told Judge
Olsen: No testimonial denials means exactly
that: ... no testimonial denials of any
disputed facts. That is what is in the
agreement, and that is what is placed on the
record. The prosecutor stated that if Dayton
and his attorney held some different view of
this matter, then there was no meeting of the
minds: Dayton should file a motion to
withdraw his plea, and the State would
reinstate the pre-existing charges.
Judge Olsen agreed with the
prosecutor that, under Alaska case law, the
term testimonial denial refers to an
objection to the sentencing courts reliance
on the matters asserted in a witnesss out-of-
court statement, not an objection to the fact
that the witness made the statement. Judge
Olsen further ruled that, in the absence of a
testimonial denial from Dayton, the State
would be entitled to rely on the contents of
the pre-sentence report to prove the two
proposed aggravating factors that is, to
prove that Dayton had sexually assaulted the
victim, and to prove that the victims
intoxication made her particularly
vulnerable. Thus, Judge Olsen declared, the
choice facing Dayton was to proceed with the
sentencing under those rules, or to withdraw
his plea. Judge Olsen gave the parties one
week to discuss this matter.
When the parties returned to court
the following week, the prosecutor told Judge
Olsen that the parties had agreed that the
pre-sentence report would incorporate both
the victims version of events and the
defendants version of events. Further, the
parties had agreed that
Prosecutor: ... both sides would
respectively argue whatever findings the
court [sh]ould make with respect to
aggravators or mitigators, and what weight to
give [those aggravators and mitigators],
based upon [the] information that is
[contained] in the pre-sentence report [and]
in the police report that the court would
have to review. And there would be no need
to have testimony from [the victim], [or] to
put [in] any additional testimony ... , and
there would be no other further objections.
. . .
The Court: Okay. Ms. Holland?
Defense Attorney: Right, that covers
it. ... I had some objections just to the
format of the pre-sentence report and other
things, but nothing as to the substance, the
information in it. So that does cover [it].
Two days later, the parties
returned to court for Daytons sentencing.
The prosecutor and the defense attorney
argued their differing interpretations of the
information contained in the pre-sentence
report. The defense attorney acknowledged
that the States position on the two
aggravating factors was perhaps consistent
with the victims description of events.
However, the defense attorney argued that it
was impossible to conclude, from the
conflicting versions of events contained in
the pre-sentence report, that the truth of
the victims account was established by clear
and convincing evidence.
(At the time of Daytons sentencing,
the standard of proof for aggravating and
mitigating factors was clear and convincing
evidence. See former AS 12.55.155(f)
(2004).)
At the conclusion of these
arguments, Judge Olsen stated that he [had]
no doubt that Mr. Dayton engaged in sexual
penetration with [the] victim while she was
incapacitated. The judge explained that his
conclusion was based on several factors:
The Court: One [factor] is [Daytons]
varied stories about what happened. [My
conclusion is] also based upon his victims
reaction after [becoming] conscious of the
assault. ... [She ran out of the house] and
[ran] to friends, and [was] very emotionally
upset. And all of that just validates [my
conclusion that] there was no consent. ...
There wasnt any dating relationship [between
these two people]. There wasnt any signal of
[a sexual] come-on. ... What happened was
just a horrible crime to an incapacitated
woman.
. . .
I really am convinced that the
aggravators have been established by clear
and convincing evidence ... .
Judge Olsen then sentenced Dayton
to 4 years imprisonment with 2 years
suspended (i.e., 2 years to serve).
Daytons claim under Blakely v. Washington, and how
resolution of this Blakely claim hinges on the
meaning of AS 12.55.125(k)(2)
In Blakely v. Washington, 542 U.S. 296, 124
S.Ct. 2531, 159 L.Ed.2d 403 (2004), the Supreme Court
held that the Sixth Amendment to the United States
Constitution guarantees criminal defendants a right of
jury trial on all factual issues that are necessary to
establish a sentencing judges authority to impose the
type of sentence that the defendant received. Thus,
when a sentencing judge has no authority to exceed a
specified sentencing ceiling unless particular
aggravating factors are proved, the defendant has a
right to demand a jury trial on those aggravating
factors (with the exception of prior criminal
convictions). Blakely, 542 U.S. at __, 124 S.Ct. at
2537-38. If the defendant is denied this right, then
the sentencing judge can not exceed the prescribed
statutory ceiling. Id., 124 S.Ct. at 2538.
Daytons case presents an issue concerning the
relationship between the right to jury trial recognized
in Blakely and the sentencing of first felony offenders
under former AS 12.55.125(k)(2). Part of the answer is
found in our recent decision in State v. Gibbs, where
we held that Blakely does not affect sentencing under
AS 12.55.125(k)(2) if the defendant received less time
to serve than the presumptive term specified for second
felony offenders convicted of the same crime. 105 P.3d
145, 146 (Alaska App. 2005).
In Gibbs, we expressly rejected the argument
that the Blakely right to jury trial was triggered
whenever the defendants total sentence (that is, the
defendants time to serve plus suspended time) exceeded
the presumptive term for second felony offenders. Id.,
105 P.3d at 147-48. We noted that, in 2001, in Cook v.
State,3 we squarely held that AS 12.55.125(k)(2) only
limits a sentencing judges authority to impose time to
serve; the statute does not limit the judges authority
to impose additional suspended time, so long as the
time to serve limitation is honored. Gibbs, 105 P.3d
at 148.
But Gibbs does not wholly resolve Daytons
case, because Daytons case raises a question concerning
the proper interpretation of the time to serve
limitation codified in AS 12.55.125(k)(2).
Although AS 12.55.125(k)(2) was intended to
codify the Austin rule, we have previously recognized
that there is a slight discrepancy between the wording
of this statute and the final form of the Austin rule
that this Court announced in Brezenoff v. State, 658
P.2d 1359 (Alaska App. 1983).
As explained in Brezenoff, the Austin rule
requires proof of aggravating factors if a defendants
time to serve equals the presumptive term for a second
felony offender and, in addition, the defendant
receives suspended jail time:
Where the total sentence received by a
first offender exceeds the presumptive
sentence for a second offender but the period
of actual imprisonment is substantially less,
... the total sentence meets the Austin
requirement of a substantially more favorable
sentence for the first offender. ... Where,
however, the actual period of imprisonment
equals or exceeds the presumptive term for a
second offender, we will require aggravating
factors or extraordinary circumstances to
justify additional [jail] time[,] even if it
is suspended.
Brezenoff, 658 P.2d at 1362 (citations
omitted).
Thus, when Daytons attorney
discussed the range of permissible sentences
with Judge Olsen, she told the judge that,
unless the State proved aggravating factors,
the time to serve component of Daytons
sentence had to be at least one day less than
the 2-year presumptive term prescribed for
second felony offenders.
But AS 12.55.125(k)(2) is worded
differently from the rule stated in
Brezenoff. Under the statute, aggravating
factors are needed only if the defendants
time to serve exceeds the presumptive term
for a second felony offender convicted of the
same crime. (Emphasis added)
Thus, 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.4
In Pitka v. State, 19 P.3d 604
(Alaska App. 2001), the State expressly
argued that AS 12.55.125(k)(2) had superseded
the Austin rule on this point. We found it
unnecessary to decide this issue because, in
Pitka, the State proved an aggravating
factor. Id., 19 P.3d at 608.
But now, Daytons sentence of 4
years with 2 years suspended again squarely
raises this issue, and our resolution of this
point is crucial to our consideration of
Daytons Blakely claim. We therefore must
decide whether the legislature, by enacting
AS 12.55.125(k)(2), changed the rule
governing the time-to-serve component of a
first felony offenders sentence whether, in
the absence of aggravating factors, a first
felony offenders time to serve must be more
favorable than the presumptive term for a
second felony offender (the Austin /
Brezenoff formulation) or, instead, it must
not exceed that presumptive term (the
statutory formulation).
By enacting AS 12.55.125(k)(2), the legislature
superseded the Austin / Brezenoff rule
As we acknowledged in Gibbs, the Austin rule
is an example of our exercise of the common-law
authority to declare the law in the absence of
contrary legislation.5
(Regarding this common-law authority, see our
supreme courts decision in Evans ex rel. Kutch v.
State, 56 P.3d 1046 (Alaska 2002), affirming that, in
the absence of a statute directing a contrary rule,
courts [are] empowered to interpret the common law ...
unless and until the Alaska legislature acts to modify
[that law].6 See also Edwards v. State, 34 P.3d 962,
968 (Alaska App. 2001): [When] statutory [analysis]
does not yield an answer to our inquiry, we must employ
our common-law power to declare the law in the absence
of a statutory directive ... .)
As our supreme court has observed, a statute
may form the basis for a common law rule which applies
beyond the prescribed scope of the statute.7 This is
the rationale of the Austin / Brezenoff rule.
Under the version of presumptive sentencing
enacted in 1980, in prosecutions for class B and class
C felonies, the presumptive sentencing statutes only
governed the sentencing of second and third felony
offenders; the legislature did not expressly restrict
the sentencing of first felony offenders. As we
explained in Cook v. State, the purpose of our decision
in Austin (and our subsequent decisions interpreting
Austin) was to implement the legislatures policy of
reasonable sentence uniformity in the sentencing of
those first felony offenders.8 The fundamental policy
behind the Austin rule was protecting first offenders
against harsher treatment than similarly situated
second offenders.9 In other words, all other things
being equal, a first felony offender should receive a
more favorable sentence than a second felony offender.
But [w]hen the courts exercise their
common-law authority, the guiding principle is that
they should not exercise this authority in disregard of
existing constitutional and statutory provisions.10
This means that when a court adopts a common-law rule
and then the legislature enacts a statute to govern the
same matter, the statute controls.11
We therefore conclude that AS 12.55.125(k)(2)
supersedes the Austin / Brezenoff rule.
Anticipating our conclusion, Dayton suggests
that we should interpret the statute to mean the same
thing as the Austin / Brezenoff rule. That is, even
though AS 12.55.125(k)(2) says that aggravating factors
are needed only if a defendants time to serve exceeds
the presumptive term for a second felony offender
convicted of the same crime, Dayton asks us to
interpret this statute as if it said equals or exceeds.
But the issue here is not what we would like
the statute to say, or what we think it ought to say.
Rather, the question is what the legislature
intended.12 Other than arguing that this Courts
formulation of the rule is better, Dayton offers
nothing from the legislative history of
AS 12.55.125(k)(2) to support his suggestion that the
legislature misspoke when it said exceeds, and that the
legislature really meant to say equals or exceeds.
We note that the legislature used a similar
formulation when it amended AS 12.55.120(a) and (d) in
1995, limiting the right of sentence appeal to those
felony offenders who receive a composite sentence
exceeding two years of unsuspended incarceration, and
to those misdemeanor offenders who receive a composite
sentence exceeding 120 days.13
We further note that the legislature might
reasonably have concluded that AS 12.55.125(k)(2) would
present fewer administrative problems for the
Department of Corrections if the statute said exceeds
rather than equals or exceeds so that sentencing
judges would not impose sentences of 1 year and 11
months or even 1 year and 364 days to stay within the
statutory limit.
It is true that Alaska does not adhere to the
plain meaning rule of statutory construction.14
Nevertheless, the wording of AS 12.55.125(k)(2) is
clear and this means that Dayton must present a very
convincing argument before we declare that the statute
should be interpreted at variance with that wording.15
Dayton has failed to meet this burden.
Accordingly, we declare that AS
12.55.125(k)(2) means what it says: when a judge is
sentencing a first felony offender for a class B or a
class C felony, the defendants time to serve (i.e., the
unsuspended portion of the defendants term of
imprisonment) can equal, but can not exceed, the
presumptive term that would apply to a second felony
offender convicted of the same crime.
Daytons argument that AS 12.55.125(k)(2) was
unconstitutional if interpreted in this way
Dayton argues that if AS 12.55.125(k)(2) is
interpreted as we have just interpreted it, then the
statute was unconstitutional.
Dayton notes that, under the pre-2005
presumptive sentencing statutes, a judge could not
sentence a second felony offender to more than the
applicable presumptive term even if the additional
jail time was suspended unless aggravating factors
were proved.16 Dayton contends that, all other things
being equal, it is anomalous for AS 12.55.125(k)(2) to
authorize a judge to sentence a first felony offender
to the same amount of unsuspended jail time that a
similarly situated second felony offender could
receive, plus additional suspended jail time (something
that the judge could not do when sentencing the
similarly situated second felony offender). Dayton
asserts that this distinction is so unfair and so
unreasonable that it deprives first felony offenders of
due process of law.
But this purported unfairness has been a
fixture of Alaska law since 1982, when this Court
decided Tazruk v. State, 655 P.2d 788 (Alaska 1982).
The defendant in Tazruk was a first felony
offender convicted of a class B felony. He received a
sentence of 8 years imprisonment with 5 years suspended
(i.e., 3 years to serve). On appeal, Tazruk invoked
the Austin rule that, in a non-aggravated case, a first
felony offender should receive a more favorable
sentence than the presumptive term that would apply to
a second felony offender. In Tazruks case, that
applicable presumptive term was 4 years. Tazruk
therefore argued that his 8-year sentence was illegal
under Austin.17
We affirmed Tazruks sentence because we
rejected his proposed interpretation of the Austin
rule:
We conclude that a sentence of eight
years with five suspended is not greater than
the presumptive sentence of four years for
purposes of applying the Austin rule. When
we evaluate a sentence[,] we consider the
whole sentence including suspended time.
However, in evaluating whether a sentence is
in excess of the presumptive sentence which a
second felony offender would receive, our
primary focus should be on [the unsuspended]
portion of the sentence ... . By that
standard, the three years of imprisonment to
which Tazruk is sentenced is less than the
four years which a second felony offender
would receive. In the event that the
suspended portion of Tazruks sentence is
later imposed, he would be entitled to bring
a sentence appeal at that time. [But we]
conclude that Tazruks sentence does not
violate the Austin rule.
Tazruk, 655 P.2d at 789.
To a large extent, Daytons current
argument concerning the purported unfairness
of AS 12.55.125(k)(2) is a reprise of the
attack on Tazruk that was presented to us in
Cook v. State, 36 P.3d 710 (Alaska App.
2001). We rejected that argument in Cook,18
and we do so again here. Even under
the Austin rule, suspended jail time was not
the equivalent of unsuspended jail time. As
our decision in Tazruk illustrates, the
Austin rule allowed a judge to sentence a
first felony offender to a term of
imprisonment that, in total, exceeded the
presumptive term for a second felony
offender, so long as the unsuspended portion
of the sentence was less than the applicable
presumptive term.
It is true that, in non-aggravated
cases, the Austin rule (as interpreted in
Tazruk and in Brezenoff) allowed a sentencing
judge to give a first felony offender almost
the same amount of time to serve as a second
felony offender, and then add suspended jail
time. But as we noted in Tazruk, if the
defendants probation was later revoked and
the previously suspended jail time was
imposed, the defendant would again be able to
appeal the sentence and, in such
circumstances, if the defendants new total of
unsuspended incarceration exceeded the
applicable presumptive term, the sentence
would have to be supported by aggravating
factors or extraordinary circumstances.19
Moreover, as the State points out,
a first felony offenders sentence of
imprisonment was a non-presumptive sentence
of imprisonment. That is, even though a
first felony offender convicted of a class B
or class C felony might receive unsuspended
jail time equal to (or almost equal to) the
presumptive term for a second felony
offender, the first felony offender would be
eligible for discretionary parole after
serving one-fourth of the sentence, while a
second felony offender would be ineligible
for discretionary parole.20
For these reasons, we re-affirm the
interpretation of the Austin rule that we
announced twenty years ago in Tazruk, and
that we recently upheld in Cook: the Austin
rule focused on a defendants unsuspended term
of imprisonment, not on additional jail time
that might be suspended.
As we explained above, the Austin
rule called for an unsuspended term of
imprisonment that was more favorable than the
applicable presumptive term for second felony
offenders. But as Daytons attorney told
Judge Olsen during a discussion of sentencing
matters, even in the absence of aggravating
factors, the Austin rule would have
authorized Judge Olsen to sentence Dayton to
an unsuspended term of 2 years minus 1 day.
That is, AS 12.55.125(k)(2) increased the
authorized amount of unsuspended
incarceration by a single day; it allowed
Judge Olsen to impose an unsuspended term of
2 years.
Thus, if AS 12.55.125(k)(2) is so
unfair as to violate the guarantee of due
process of law, that unfairness must lie in
this one additional day of unsuspended jail
time.
Dayton argues that this single day
is indeed constitutionally significant
because, by superseding the Austin rule, AS
12.55.125(k)(2) allowed a sentencing judge to
give a first felony offender an unsuspended
term of imprisonment that was not just close
to, but rather equal to, the presumptive term
for a second felony offender, plus an
additional amount of suspended jail time.
Dayton argues that this was fundamentally
unfair because a judge could not give the
same sentence to a second felony offender
(the presumptive term to serve, plus
additional suspended jail time) unless one or
more aggravating factors were proved.
According to Dayton, this extra day
is the straw that broke the statutes back.
No longer could the State argue that,
notwithstanding the additional jail time, a
first offenders time to serve was minimally
less than the applicable presumptive term for
second felony offenders. Rather, in cases
where no aggravating factors were proved,
AS 12.55.125(k)(2) allowed sentencing judges
to give first felony offenders a more severe
sentence than similarly situated second
felony offenders i.e., exactly the same
amount of time to serve, plus additional
suspended time without any apparent
justification for this difference in
treatment.
But as we pointed out earlier, the
sentence of imprisonment that a first felony
offender received under AS 12.55.125(k)(2)
was not the same as the sentence of
imprisonment that a second felony offender
received under the applicable presumptive
sentencing statutes (former AS 12.55.125(d)
or (e), depending on whether the offense was
a class B or class C felony). First felony
offenders received a non-presumptive term;
they were eligible for discretionary parole
after serving one-fourth of their sentence.
Second felony offenders received a
presumptive term; they were not eligible for
discretionary parole.
Thus, even though a first felony
offender convicted of a class B or class C
felony might receive the same amount of time
to serve as a similarly situated second
felony offender, the first felony offenders
sentence was in fact less severe. For this
reason, we conclude that AS 12.55.125(k)(2)
did not violate the due process rights of
first felony offenders.
Our conclusion with respect to AS 12.55.125(k)(2) and
Daytons Blakely claim
As we have explained here, AS 12.55.125(k)(2)
superseded the common-law sentencing rule
announced in Austin, Tazruk, and Brezenoff.
Moreover, we have rejected Daytons constitutional
challenge to this statute. This means that, even
without proof of any aggravating factors, Judge
Olsen was authorized to impose the sentence that
Dayton received in this case: 4 years
imprisonment with 2 years suspended.
Daytons Blakely argument is therefore moot.
Issues that may potentially arise in future proceedings
in Daytons case
Even though Daytons sentence is lawful under
AS 12.55.125(k)(2), the fact that he received a term of
suspended imprisonment means that, potentially, Blakely
issues will arise in his case in the future that is,
if Dayton violates his probation and the superior court
decides to revoke some or all of the suspended
imprisonment.
We need not decide now whether, or how,
Blakely would apply to those potential probation
revocation proceedings. We do, however, wish to
address two related matters.
As explained above, Daytons sentencing judge,
Judge Olsen, found that the State had proved two
aggravating factors by clear and convincing evidence.
Dayton argues that, under Blakely, he was entitled to
have a jury decide whether the State had proved these
aggravating factors, and he was also entitled to demand
that the aggravating factors be proved beyond a
reasonable doubt.
This is a correct reading of Blakely.
However, Daytons conviction stems from a plea bargain
in which he expressly agreed that the aggravators would
be litigated in this manner. It could be argued that
Dayton must renounce his plea bargain if, in the
future, he wishes to raise a Blakely attack on the
aggravators and on any enhanced sentence imposed for
violation of probation. We express no opinion on this
issue at this time.
Dayton also argues that, aside from any
Blakely issue, it was improper as a matter of law for
Judge Olsen to find the two aggravating factors based
solely on the content of the pre-sentence report and
the police reports. Dayton points out that the pre-
sentence report contains at least two different
versions of events, and he argues that certain portions
of the pre-sentence report cast doubt on the veracity
of the victims account. Dayton contends that, under
these circumstances, the law should prohibit a
sentencing judge from finding any disputed aggravator
to be proved unless the State presents live testimony
to support the aggravator.
This argument is a repudiation of the
position that this same attorney expressly endorsed in
the superior court. As we explained above, Daytons
plea agreement with the State almost unraveled when
Daytons attorney insisted that the State was obliged to
present live testimony from the victim, and could not
rely solely on the pre-sentence report, if the State
wished to prove aggravating factors at Daytons
sentencing. The plea bargain went forward again only
after Daytons attorney expressly agreed (in open court)
that Judge Olsen could decide the disputed aggravating
factors based on the content of the pre-sentence report
and the police reports, without requiring live
testimony from the victim (or anyone else).
Daytons point was not preserved in the
superior court, and any error was invited. Because of
this, Dayton is estopped from pursuing this claim.
Daytons challenges to three of his conditions of
probation
One of Daytons conditions of probation,
General Condition No. 11, requires him to [a]bide by
any special instructions given [to him] by ...
probation officers. Dayton argues that this condition
of probation constitutes an improper delegation of
authority to the Department of Corrections because,
theoretically, a probation officers instruction might
violate Daytons constitutional rights, or because the
instruction might place such a substantial burden on
Dayton as to amount to a new condition of probation,
outside the ones imposed by the sentencing court.
Dayton contends that we should amend the
condition of probation so that it reads: abide by any
special instructions given by ... probation officers
... that are necessary to the implementation of the
conditions of probation established by the court, that
are not inconsistent with any other condition of
probation, that are consistent with the purpose[s] of
probation, and that do not violate any statutory or
constitutional right of the probationer.
But, with the caveat that a probation
officers instruction need be necessary only in the
broader sense of that word (i.e., appropriate and well
adapted to fulfilling the objectives of probation),21
the limitations that Dayton proposes are already
implicitly present. Dayton has the right to seek court
review of any special instruction from a probation
officer that he believes abridges his rights or exceeds
the authority of the Department of Corrections. His
objection to this condition of probation is therefore
moot.
Another of Daytons conditions of probation,
Special Condition No. 6, requires him to [i]nform [his]
probation officer of any medications being taken and
[to] provide proof of valid prescriptions for [these
medications]. Dayton argues that the record contains
no evidence that he abuses prescription drugs.
Moreover, Dayton argues that this condition of
probation is worded so broadly that it requires him to
inform his probation officer every time he takes
aspirin or any other non-prescription medication.
Based on the fact that Judge Olsen required
Dayton to provide proof of valid prescriptions for the
medications he was taking, it appears to us that Judge
Olsen did not intend to require Dayton to report non-
prescription medications. Rather, the judge intended
to impose a narrower reporting requirement, confined to
prescription medications.
The question, then, is whether the record
supports Judge Olsens decision to require Dayton to
report his use of any prescription medication. When
Judge Olsen imposed this requirement, he told Dayton
that it was just to help [the probation officers] keep
track of [your progress]; the probation officers are
responsible for your continued progress, and ... any
substance abuse, they should have access to that.
But a persons use of prescription medications
does not typically indicate substance abuse. We agree
with Dayton that, in the absence of any reason to
believe that he had abused or might abuse prescription
drugs, there was an insufficient basis for this
condition of his probation.
Finally, Dayton challenges Special Condition
No. 9, which requires him to submit to warrantless
searches for prohibited weapons and alcohol. Dayton
concedes that the record establishes his problem with
alcohol, but he contests the portion of this condition
that subjects him to searches for prohibited weapons.
He claims that Judge Olsen erred in authorizing this
type of search because Daytons underlying offense
involved no weapon.
In Sprague v. State, 590 P.2d 410 (Alaska
1979), the Alaska Supreme Court invalidated a similar
condition of probation that required the defendant to
submit to warrantless searches for drugs. The
defendant in Sprague was being sentenced for burglary;
he had not been accused of any drug offenses, nor had
the State shown that he was addicted to drugs or that
his involvement in the burglary was precipitated by a
need for money to purchase illegal drugs.22 Rather,
the sentencing judge imposed this condition to
forestall Spragues future involvement with the kind of
individuals who would be likely to burglarize other
peoples homes.23 The supreme court concluded that,
given so weak a connection between the crime committed
and the [challenged] condition of probation, Sprague
could not be subjected to warrantless searches for
drugs as a condition of his probation:
If we were to uphold the probation condition
in this case, in effect, we would be opening
up virtually all classes of offenders to
warrantless searches on less than probable
cause.
Sprague, 590 P.2d at 418.
Daytons case is similar. The
record contains no indication that Dayton has
ever used or possessed weapons in violation
of the law, or that he has used or carried
weapons during the commission of a crime. It
is true that, because Dayton is now a
convicted felon, Alaska law bars him from
possessing any concealable firearm, and
federal law forbids him from possessing any
firearm at all. But the question is whether
Daytons person, residence, and vehicles
should be subjected to warrantless searches
for weapons on less than probable cause. The
record contains no justification for this
condition of probation.
Conclusion
Under former AS 12.55.125(k)(2), Judge Olsen
was authorized to sentence Dayton to 4 years
imprisonment with 2 years suspended even in the
absence of any aggravating factors. Daytons
Blakely attack on the sentencing procedures in his
case is therefore moot. Accordingly, we AFFIRM
Daytons sentence of 4 years with 2 years
suspended.
With regard to the three challenged
conditions of Daytons probation, we AFFIRM General
Condition 11, but we VACATE Special Condition 6
and the weapons clause of Special Condition 9.
_______________________________
1See former AS 12.55.125(e)(1) (before the 2005 amendment).
2See Evans v. State, 23 P.3d 650, 652 (Alaska App. 2001);
Hamilton v. State, 771 P.2d 1358, 1362-63 (Alaska App.
1989) (a sentencing judge can rely on out-of-court
statements described in the pre-sentence report for
proof of the matters asserted unless the defendant
offers a testimonial denial of those statements and
submits to cross-examination, in which case the State
must support its assertions with live testimony).
336 P.3d 710, 730 (Alaska App. 2001).
4Beasley v. State, 56 P.3d 1082, 1087 (Alaska App. 2002)
(Mannheimer, J., concurring) (emphasis in the original).
5Gibbs, 105 P.3d at 148.
6Evans, 56 P.3d at 1056 n. 60, quoting Bauman v. Day, 892
P.2d 817, 828 (Alaska 1995), and Surina v. Buckalew, 629
P.2d 969, 973 (Alaska 1981).
7John v. Baker, 982 P.2d 738, 793-94 (Alaska 1999), quoting
Hanebuth v. Bell Helicopter Internatl, 694 P.2d 143, 146
(Alaska 1984).
8Cook, 36 P.3d at 730.
9Espinoza v. State, 901 P.2d 450, 453 (Alaska App. 1995).
Accord, Andrew v. State, 835 P.2d 1251, 1253 (Alaska App.
1992).
10Hosier v. State, 957 P.2d 1360, 1364-65 (Alaska App.
1998).
11Dandova v. State, 72 P.3d 325, 333 (Alaska App. 2003).
12See Brant v. State, 992 P.2d 590, 592-93 (Alaska App.
1999) (Mannheimer, J., concurring).
13See 1995 SLA, ch. 79, 7-8.
14Eppenger v. State, 966 P.2d 995, 996 (Alaska App. 1998).
15See, e.g., Eppenger v. State, 966 P.2d at 996; Tallent v.
State, 951 P.2d 857, 860 (Alaska App. 1997).
16See Haag v. State, __ P.3d __, Alaska App. Opinion No.
1996 (July 22, 2005), slip opinion at 17; 2005 WL 1706379 at
*9.
17Tazruk, 655 P.2d at 789.
18Cook, 36 P.3d at 730.
19Tazruk, 655 P.2d at 789. See also Chrisman v. State, 789
P.2d 370, 371 (Alaska App. 1990).
20See former AS 12.55.025(g)(3) (pre-2005) (presumptive
terms of imprisonment could not be reduced); AS
33.16.090(b) (pre-2005) (prisoners who received a
presumptive term were not eligible for discretionary
parole during that presumptive term, although they
could apply for parole after serving a portion of any
extra years of imprisonment that were added to the
presumptive term because of aggravating factors); and
AS 33.16.100(c) (pre-2005) (prisoners serving a non-
presumptive term for a class B or class C felony were
eligible for discretionary parole after serving one-
fourth of their sentence).
See also 22 AAC 20.040(4) and 20.035(4) (restating the rule
that prisoners serving a non-presumptive term for a
class B or class C felony are eligible for
discretionary parole after serving one-fourth of their
sentence).
21See the definition of the phrase necessary and proper
contained in Blacks Law Dictionary (7th ed. 1999), p. 1052.
22Sprague, 590 P.2d at 417-18.
23Id. at 418.
