|
You can of the Alaska Court of Appeals opinions.
|
|
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
| WILLIAM R. NETLING, | ) |
| ) Court of Appeals No. A-9334 | |
| Appellant, | ) Trial Court No. 1KE-04-1271 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2065 October 13, 2006 |
| ) | |
Appeal from the Superior Court, First Judi
cial District, Ketchikan, Michael A.
Thompson, Judge.
Appearances: Michael P. Heiser, Ketchikan,
for the Appellant. James Scott, Assistant
District Attorney, and Stephen West, District
Attorney, Ketchikan, and David W. M rquez,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
William R. Netling pleaded guilty to second-degree
controlled substance misconduct (manufacturing methamphetamine).1
Netling had a prior conviction for distributing cocaine, but that
prior conviction was old enough that it did not count for
presumptive sentencing purposes.2 Thus, Netling was a first
felony offender for presumptive sentencing purposes, and he was
subject to a 5-year presumptive term for his current offense.3
At his sentencing hearing, Netling proposed four
mitigating factors under AS 12.55.155(d). Any one of these
mitigators, if proved, would have authorized the superior court
to reduce Netlings sentence by up to fifty percent of the 5-year
presumptive term.4 However, Superior Court Judge Michael A.
Thompson rejected all of Netlings proposed mitigators. He then
sentenced Netling to the 5-year presumptive term.
Netling now appeals the superior courts rulings on two
of these proposed mitigators: (d)(13) and (d)(9).
Mitigator (d)(13) which has been re-numbered as
(d)(12) in the current version of the statute applies when the
harm caused by the defendants conduct, both in the defendants
current offense and in any past offenses, has been consistently
minor and inconsistent with a substantial term of imprisonment.
Judge Thompson declared that, given the facts of Netlings case,
mitigator (d)(13) was a close[] call. Nevertheless, Judge
Thompson rejected mitigator (d)(13).
In his ruling, Judge Thompson relied not only on the
danger posed by methamphetamine itself, but also on the physical
danger posed by the manufacturing process:
The Court: [M]ethamphetamine labs ...
pose a hazard [apart] from their intended
purpose. ... [Although] nobody builds these
things with the intent [that] theyre going to
blow up or cause a fire, ... if we pick up
the newspapers, at least in our major
communities, [we see that this] is exactly
whats happening. These [labs] are not only
[putting] methamphetamines into the stream of
illicit commerce, but [they are] actually ...
mak[ing] people sick and [they] sometimes
burn people up. ... [T]he lab itself is a
hazard.
Netling argues that Judge Thompson
was wrong to reject mitigator (d)(13).
Netling points out that he was manufacturing
methamphetamine on only a small scale.
Netling also points out that the State
presented no evidence that Netling had
engaged in numerous sales of methamphetamine,
or that anyone had overdosed or otherwise
become seriously ill as a result of Netlings
activities.
But as this Court explained in Ison
v. State, 941 P.2d 195 (Alaska App. 1997),
certain crimes are serious enough that [they]
are normally thought to justify substantial
imprisonment even though they may involve no
injury at all:
Many crimes from attempted murder and
robbery to bribery and driving while
intoxicated do not require proof of physical
injury or actual harm to property. These
offenses are punished because of the risks
they create, and because of the serious
disruption of the social fabric they entail.
Such risks and disruptions are harms for
purposes of the criminal law:
[The criminal law deals with the] harm
which results from human conduct social
harm. With reference to this term, it
[should] be mentioned that it is
socially harmful not only to have a man
murdered, a dwelling burglariously
invaded, or property stolen, but also to
have a conspiracy formed in the
community, to have one member thereof
challenge another to a duel, or offer to
bribe an officer. In these latter
instances, let it be emphasized, it is
socially harmful to have such influences
abroad in the community even if the
criminal purpose of the conspiracy is
not achieved, the challenge is refused,
and the bribe rejected.
R. Perkins & R. Boyce, Criminal Law (3rd ed.
1982), p. 11.
For these reasons, we reject [the]
contention that mitigator (d)(13) speaks only
to physical harm to persons or property.
Instead, ... [w]hen a defendant proposes
mitigator (d)(13)[,] the sentencing court can
take into account not only the physical
injury and harm to property inflicted by the
defendant, but also the relative seriousness
of the defendants conduct and the risk of
harm posed by the defendants conduct.
Ison, 941 P.2d at 198.
It is evident that the Alaska
Legislature views methamphetamine as a
particularly dangerous drug, and the
manufacture of methamphetamine as a serious
offense. Even though methamphetamine is a
Schedule IIA controlled substance,5 the
legislature has enacted a special provision
of law to punish the manufacture of
methamphetamine more severely than the
manufacture of other Schedule IIA controlled
substances. Generally, the manufacture of a
Schedule IIA controlled substance is third-
degree controlled substance misconduct, a
class B felony. See AS 11.71.030(a)(1). In
contrast, the manufacture of methamphetamine
is second-degree controlled substance
misconduct, a class A felony. See AS
11.71.020(a)(2).
Netling does not dispute that
methamphetamine is a particularly dangerous
drug, nor does Netling dispute the accuracy
of Judge Thompsons remarks about the dangers
of the methamphetamine manufacturing process.
This being so, Judge Thompson was not
required to find mitigator (d)(13) simply
because Netling was manufacturing
methamphetamine on a small scale and his
activities had never caused physical harm to
anyone.
We now turn to mitigator (d)(9)
which has been re-numbered as (d)(8) in the
current version of the statute: the
assertion that Netlings conduct was among the
least serious within the definition of the
offense. Netling argued that his conduct was
among the least serious because he only
manufactured methamphetamine on a limited
scale. Judge Thompson rejected this
mitigator for the following reasons:
The Court: Manufacture of this
[substance], even on a small scale, is
normally, I think, most of us would consider
well, I wouldnt say [that it was] the most
serious, necessarily. I guess that would
depend on how much a person was
manufacturing. But the allegation is that he
was actually making the stuff and would, if
he applied himself to it, be able to
manufacture far more, presumably, than he
could personally use ... . So it would be
hard I cant I think it would be quite a
stretch and I cant say that I would consider
this the least serious conduct that the
legislature intended to prohibit with this
statute.
Judge Thompsons remarks are
problematic. His first and second sentences
suggest that he rejected mitigator (d)(9)
because he believed that the act of
manufacturing methamphetamine, in any amount,
could not qualify as among the least serious.
If so, this was error.
As we pointed out above, the
legislature has classified the manufacture of
methamphetamine as a more serious offense
than the manufacture of other Schedule IIA
controlled substances. Generally, the
manufacture of a Schedule IIA controlled
substance is a class B felony, but the
manufacture of methamphetamine is a class A
felony.
But precisely because the
manufacture of methamphetamine constitutes a
separate, higher degree of offense than the
manufacture of other Schedule IIA controlled
substances, a superior court would commit
error by rejecting mitigator (d)(9) simply on
the basis that methamphetamine is among the
most dangerous drugs, or that the manufacture
of methamphetamine is among the most serious
social problems. These are the factors that
presumably motivated the legislature to
punish the manufacture of methamphetamine as
a class A felony rather than a class B
felony. The question posed by mitigator
(d)(9) is whether, within the range of
methamphetamine manufacturing, the defendants
conduct was among the least serious.
Judge Thompsons third sentence is
also problematic. In this sentence, Judge
Thompson appears to say that Netlings conduct
was not among the least serious because, if
Netling had wanted to, and if Netling had
applied himself, Netling could have
manufactured far more methamphetamine than he
actually did. This fact would be significant
if there were any indication that Netling
actually intended to engage in manufacture on
a far larger scale in the future. But Judge
Thompson made no such finding. Rather, his
remark suggests the paradoxical conclusion
that Netlings conduct was more blameworthy
because Netling chose not to utilize the full
extent of his manufacturing capability.
For these reasons, we vacate Judge
Thompsons ruling on mitigator (d)(9), and we
direct him to reconsider this mitigator.
Judge Thompson may, in his discretion, hear
further argument on this proposed mitigator.
If Judge Thompson rules in Netlings
favor on this mitigator, he may proceed to re-
sentence Netling. Netling will then have 30
days to appeal this sentence if he wishes.
See Appellate Rule 215(c). If Judge Thompson
again rejects the proposed mitigator, this
present appeal will continue.
Within 90 days of this opinion,
Judge Thompson shall transmit his ruling on
mitigator (d)(9) to this Court. If Judge
Thompson again rules against Netling, the
parties shall have 30 days to file
simultaneous supplemental memoranda
addressing the judges ruling. When we have
received the supplemental memoranda of the
parties, we shall renew our consideration of
this issue.
We retain jurisdiction of this
appeal.
_______________________________
1AS 11.71.020(a)(2)(A).
2See AS 12.55.145(a)(1)(A).
3AS 12.55.125(c)(1) (pre-March 2005 version).
4See AS 12.55.155(a)(2) (pre-March 2005 version).
5AS 11.71.150(e)(2).
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
