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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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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
| VALERIE SWEEZEY, | ) |
| ) Court of Appeals No. A-9749 | |
| Appellant, | ) Trial Court No. 3AN-05-7253 CR |
| v. | ) |
| ) | |
| STATE OF ALASKA, | ) O P I N I O N |
| ) | |
| Appellee. | ) |
| ) No. 2118 August 31, 2007 | |
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Eric A. Aarseth,
Judge.
Appearances: Carmen E. Clark, Ingaldson,
Maassen & Fitzgerald, P.C., Anchorage, for
the Appellant. Diane L. Wendlandt, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Talis J. Colberg, Attorney General, Juneau,
for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
In August 2005, the Anchorage police went to Valerie
Sweezeys home because of a complaint that someone was trying to
set the home on fire. The police found Sweezey disoriented,
irrational, and apparently under the influence of drugs.
Eventually, Sweezey admitted possessing 1.91 grams of cocaine
that the police found in the house. Sweezey was charged with
fourth-degree misconduct involving a controlled substance.1
Sweezey pleaded no contest. She asserted that
statutory mitigating factor AS 12.55.155(d)(14) (Sweezey
possessed a small amount of cocaine) applied.2 Sweezey also
rejected probation because she believed, in part, that probation
would require a drastic change in her lifestyle.
Superior Court Judge Eric A. Aarseth found that the
proposed mitigating factor had not been proven. He concluded
that a suspended imposition of sentence was most appropriate,
rejected Sweezeys attempt to refuse probation, and imposed a 3-
year probationary period. He required that Sweezey serve 60 days
imprisonment as a condition of probation, and granted her Nygren
credit3 for the inpatient treatment she had attended as a
condition of her pre-trial release. Sweezey appeals.
Sweezey argues that Judge Aarseth erroneously rejected
the proposed mitigating factor. This argument fails. Because
Sweezey was a first felony offender, Sweezey faced a presumptive
range of 0 to 2 years imprisonment.4 Judge Aarseth could impose
a sentence at the lowest end of this range without regard to
whether Sweezey had proven the mitigating factor. Thus, Sweezeys
objection is moot.5
Next, we address Sweezeys contention that the superior
court improperly imposed probation after she rejected that
sentencing option. A defendants option to reject probation has
been recognized for over thirty years starting with the Alaska
Supreme Courts decision in Brown v. State.6 The supreme court
noted that under the Alaska statutes governing probation, the
defendant can refuse probation if he deems the terms too
onerous.7 We have recognized the supreme courts analysis in
several reported cases.8
Because a defendant retains the option to reject
probation under this construction of the statutes, when a
defendant accepts probation conditions announced by the court, we
analyze the probation conditions as analogous to contracts
between the court and the defendant.9
The State urges us to turn from this jurisprudence and
rule that a defendant does not have the right to reject
probation. The States brief cites decisions from other
jurisdictions that adopt this position. But the principle that a
defendant may reject probation in Alaska arose from the supreme
courts analysis of the probation statutes. In the decades since
that decision, the supreme court has not questioned that
analysis. And the State has not cited any action by the
legislature to change the statutes to eliminate that principle.
Moreover, as an intermediate appellate court, we are bound to
follow the decisions of the Alaska Supreme Court.10
A decision that overturns settled law necessarily
undercuts the value of stare decisis. Even if we were not bound
by a decision of the Alaska Supreme Court, the State asks us to
overturn a line of authority developed in this Court. As the
Alaska Supreme Court recognizes, a party raising a claim
controlled by an existing decision bears a heavy threshold burden
of showing compelling reasons for reconsidering the prior ruling:
We will overrule a prior decision only when clearly convinced
that the rule was originally erroneous or is no longer sound
because of changed conditions, and that more good than harm would
result from a departure from precedent.11 The State has not met
that burden because the State has not convinced us that the
supreme courts original analysis of the probation statutes was
erroneous or is unsound because of changed conditions.
Therefore, we refuse the States invitation to reject
the supreme courts decision in Brown and overturn the clear line
of authority that permits Sweezey to reject probation.
Because the superior court imposed probation after
Sweezey rejected that option, we must vacate Sweezeys sentence
and remand the case for resentencing. Whatever the wisdom of
Sweezeys choice to reject probation, that is her option.
Sweezey further argues that comments made by Judge
Aarseth indicate that he would have imposed an excessive term to
serve if he had allowed her to reject probation. This issue is
not ripe for consideration because Judge Aarseth did not impose
that term.
Conclusion
Sweezeys sentence is VACATED. We REMAND the case to
the superior court for resentencing. We do not retain
jurisdiction.
_______________________________
1 AS 11.71.040(a)(3)(A).
2 This mitigating factor was renumbered as AS
12.55.155(d)(13) in the 2006 version of the Alaska Statutes.
3 See Nygren v. State, 658 P.2d 141, 146 (Alaska App. 1983)
(holding that a defendant is entitled to credit for time served
while released on bail if the defendant is subjected to
restrictions approximating those experienced by one who is
incarcerated).
4 AS 11.71.040(d) and AS 12.55.125(e)(1).
5 See Allen v. State, 56 P.3d 683, 685 (Alaska App. 2002)
(holding that a challenge to a judges findings concerning
contested aggravating and mitigating factors is moot when the
judges authority to impose a particular sentence does not rest on
the judges findings concerning the aggravating or mitigating
factors). See also Krack v. State, 973 P.2d 100, 104 (Alaska
App. 1999).
6 559 P.2d 107 (Alaska 1977).
7 Id. at 111 n.13.
8 See Hurd v. State, 107 P.3d 314, 333 (Alaska App. 2005);
State v. Auliye, 57 P.3d 711, 717 (Alaska App. 2002); Joubert v.
State, 926 P.2d 1191, 1193 (Alaska App. 1996); Bland v. State,
846 P.2d 815, 818 (Alaska App. 1993); State v. Staael, 807 P.2d
513, 516 (Alaska App. 1991); Alfred v. State, 758 P.2d 130, 131
(Alaska App. 1988).
9 See Hurd, 107 P.3d at 333; Auliye, 57 P.3d at 717.
10 See Smart v. State, 146 P.3d 15, 28 (Alaska App. 2006).
11 Thomas v. Anchorage Equal Rights Commn, 102 P.3d 937, 943
(Alaska 2004) (quoting Alaska Commercial Fisheries Entry Commn
v. Carlson, 65 P.3d 851, 859 (Alaska 2003) (internal quotation
marks omitted)).
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