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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| EDWARD A. WOOLEY, | ) |
| ) Court of Appeals No. A-9335 | |
| Appellant, | ) Trial Court No. 3AN-04-4586 Civ |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2098 May 18, 2007 |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Larry D. Card,
Judge.
Appearances: Colleen A. Libbey, Libbey Law
Offices, Anchorage, for the Appellant. Anne
D. Carpeneti, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and David W. M rquez, Attorney
General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
In 2002, Edward A. Wooley stole a jigsaw from a
hardware store. The saw was valued at $289, so Wooleys crime
would normally be third-degree theft (i.e., theft of property
valued at less than $500).1 However, under AS 11.46.130(a)(6),
such a theft is elevated to second-degree theft if within the
preceding five years, the [defendant] has been convicted and
sentenced [for first-, second-, or third-degree theft] on two or
more separate occasions.
The State alleged that Wooley had two prior convictions
for second-degree theft and that, accordingly, Wooleys act of
stealing the jigsaw constituted second-degree theft. Wooley
ultimately reached a plea bargain with the State; under the terms
of this bargain, Wooley pleaded no contest to second-degree theft
in exchange for the States dismissal of other pending charges.
However, approximately 18 months later, Wooley (now
represented by a new attorney) filed a petition for post-
conviction relief in which he asserted that his second-degree
theft conviction was unlawful because his prior theft convictions
were too old to qualify for consideration under AS
11.46.130(a)(6). The superior court denied relief, and Wooley
now appeals to this Court.
Wooleys attack on his second-degree theft conviction
hinges on an ambiguity in the language of subsection 130(a)(6).
As explained above, this subsection declares that the
theft of property valued at less than $500 is second-degree theft
if within the preceding five years, the [defendant] has been
convicted and sentenced for first-, second-, or third-degree
theft at least twice. The question is whether a prior offense
should be deemed to be within the preceding five years if (1) the
defendant was sentenced for the prior offense within the five
years preceding the defendants commission of the current offense,
but (2) the finding of guilt (either the jurys return of a guilty
verdict, or the courts acceptance of the defendants guilty plea)
occurred more than five years before the commission of the
current offense.
For the reasons explained here, we conclude that
subsection 130(a)(6) refers to the date of the defendants
sentencing for the prior offense.
The pertinent facts of Wooleys case are easy to
describe.
Wooley stole the jigsaw on February 12, 2002. At that
time, Wooley had been convicted of theft on two previous
occasions. On December 20, 1996, Wooley pleaded guilty to second-
degree theft in case number 3PA-96-2379 Cr. Five weeks later, on
January 24, 1997, while Wooley was awaiting sentencing in that
case, he pleaded guilty to another second-degree theft in case
number 3PA-96-1989 Cr. Wooley was sentenced for both of these
offenses on March 28, 1997.
Thus, Wooley was sentenced for both of his prior thefts
within the five years preceding his commission of the current
theft on February 12, 2002. However, the dates on which he
entered his pleas to these offenses December 20, 1996 and
January 24, 1997 are beyond the five-year window.
Subsection 130(a)(6) declares that an act of third-
degree theft is raised to second-degree theft if the defendant
has been convicted and sentenced for qualifying theft offenses
within the preceding five years. Wooley argues that, because the
legislature used both convicted and sentenced in this statute,
the legislature must have been referring to two separate events:
(1) the finding of guilt (i.e., the courts acceptance of either
the jurys verdict or the defendants plea), and (2) the imposition
of sentence. According to Wooley, the legislature intended to
require proof that both of these events occurred within the
preceding five years.
Wooley relies particularly on the following passage
from this Courts decision in Brant v. State, 992 P.2d 590, 592
(Alaska App. 1999):
The legislature frequently defines
crimes in our criminal code on the basis of a
defendants criminal history. In some crimes,
the legislature defines the crime to require
not only that the defendant has been both
convicted, but that the defendant has been
convicted and sentenced. [Footnote citing
the second- and third-degree theft statutes.]
Thus, the legislature, in at least those
crimes just noted, regarded a defendants
status as sentenced as a separate fact to be
proven along with the defendants status of
convicted.
Based on this passage from Brant, Wooley
argues that this Court should now formally
adopt the interpretation of AS
11.46.130(a)(6) that we implicitly adopted in
Brant.
But this excerpt from Brant is not
the language of the Court. Rather, it is the
language of the individual judge who authored
the main opinion. Brant was a two-to-one
decision, with the present author concurring
and Chief Judge Coats dissenting. Moreover,
the concurring opinion expressly declares
that it is based on a differ[ent] ...
approach to the question of statutory
interpretation from the one presented in the
lead opinion. In other words, the portion of
Brant that Wooley relies on the passage that
purports to interpret AS 11.46.130(a)(6)
represented the view of only one member of
this Court.
Now that we are squarely presented
with the issue of how to interpret
AS 11.46.130(a)(6), we conclude that this
statute should be interpreted in accordance
with the longstanding principle of Alaska law
that, when a statute imposes enhanced
punishment for repeat offenders, a defendants
status as a repeat offender hinges on the
date of the defendants sentencing rather than
the date on which the jury found the
defendant guilty or the court accepted the
defendants guilty plea.
See State v. Carlson, 560 P.2d 26,
30 (Alaska 1977) (interpreting the habitual
criminal statutes that were in force before
the enactment of Alaskas current criminal
code to require proof that the defendant was
sentenced for the prior offense before the
defendant committed the present offense);
Gonzales v. State, 582 P.2d 630, 636 (Alaska
1978) (applying this same rule to the
provisions imposing enhanced punishment for
repeat drug offenders); State v. Rastopsoff,
659 P.2d 630, 640-41 (Alaska App. 1983), and
Sawyer v. State, 663 P.2d 230, 232 (Alaska
App. 1983) (holding that, for purposes of
determining a defendants status under Alaskas
presumptive sentencing laws, a defendant is
not previously convicted of a felony unless
the defendant has been sentenced for that
felony); Smith v. State, 83 P.3d 12, 15-16
(Alaska App. 2004) (applying the same rule to
an out-of-state felony even though, under the
law of that other state, the felony would
have been counted as a prior conviction).
As we explained in Smith,
[prior Alaska cases on this point]
demonstrate an important presumption of
Alaska law: before a defendants sentence can
be enhanced based on a prior offense, the
government ordinarily must prove that the
defendant was judicially confronted with his
prior misconduct and was given an opportunity
for reformation before the defendant
committed the current offense.
Smith, 83 P.3d at 16.
This principle of law does not, by
itself, dispose of Wooleys argument. It is
still conceivable that the legislature wanted
to require the State to prove that the
defendants sentencing and the underlying
finding of guilt both occurred within the
previous five years. But Wooley has not
suggested a plausible rationale for this
proposed interpretation of the statute. That
is, Wooley has not suggested a plausible
reason why, in cases where a defendants prior
sentencings occurred within the preceding
five years, the legislature would
additionally insist on proof that the jurys
verdicts, or the defendants guilty pleas,
were also entered within the preceding five
years.
As we explained in Smith, the
underlying rationale for imposing enhanced
punishment on repeat offenders is the idea
that a person is more blameworthy if they
return to crime after being judicially
confronted with [their] prior misconduct and
... given an opportunity for reformation.
The judicial confrontation and the
opportunity for reformation occur at (and
following) the defendants sentencing.
True, one might argue that a jurys
return of its verdict or a defendants act of
pleading guilty constitute events in which
defendants confront their wrongdoing in some
fashion. But the judicial confrontation that
we talked about in Smith is the sentencing
hearing the hearing in which a judge
publicly assesses the defendants criminal
conduct, the defendants history, the
defendants degree of blame, and the
defendants chances for rehabilitation.
Likewise, a defendants opportunity for
reformation occurs at the close of the
sentencing hearing, not when the jury returns
its verdict or the defendant first enters
their guilty plea.
For these reasons, we conclude that
the date of a defendants sentencing for a
prior offense is the date that determines
whether that prior offense falls within the
five-year time period specified in AS
11.46.130(a)(6).
The judgement of the superior court
is AFFIRMED.
_______________________________
1AS 11.46.140(a)(1).
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