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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
| TYLER W. HEAVYRUNNER, | ) |
| ) Court of Appeals No. A-9817 | |
| Appellant, | ) Trial Court No. 4FA-05-1224 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2128 December 7, 2007 |
| ) | |
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Randy M. Olsen,
Judge.
Appearances: Nelson Traverso, Fairbanks, for
the Appellant. Jenel M. Domke, Assistant
District Attorney, and Jeffrey A. OBryant,
District Attorney, Fairbanks, and Talis J.
Colberg, Attorney General, Juneau, for the
Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Tyler W. Heavyrunner enticed a woman to get into his
vehicle (on the pretext that he would give her a ride to the
grocery store to get formula for her infant child), and then he
abducted her. Heavyrunner drove the woman to an isolated spot,
bound her with duck tape, assaulted her, and then abandoned her.
The victim spent a substantial period of time in the cold before
she was able to obtain help, and as a result she developed
hypothermia. By the time she arrived at Fairbanks Memorial
Hospital, her body temperature had dropped to 90 degrees
Fahrenheit. According to the treating physician, the victims
hypothermia, coupled with her intoxication, posed a substantial
risk of death.
Heavyrunner ultimately reached a plea agreement with
the State. Under the terms of this agreement, Heavyrunner
pleaded no contest to kidnapping and second-degree assault.1
Heavyrunner also conceded two aggravating factors under AS 12.55.
155(c): (c)(8) that Heavyrunner had a history of aggravated or
repeated instances of assaultive behavior; and (c)(12) that
Heavyrunner was on probation from a conviction for a misdemeanor
having assault as a necessary element at the time of the current
offenses. In exchange, the State dropped pending charges of
first-degree sexual assault and second-degree robbery.
The plea agreement specified that Heavyrunner would
receive 8 years to serve on the kidnapping conviction, plus a
consecutive 2 years to serve on the second-degree assault
conviction. Further, the State would be allowed to argue for
additional jail time, but any additional jail time would be
suspended.
After receiving a pre-sentence report, and after
hearing the arguments of the parties, Superior Court Judge Randy
M. Olsen imposed a sentence that conformed to the plea agreement.
He sentenced Heavyrunner to 35 years with 27 years suspended
(i.e., 8 years to serve) for the offense of kidnapping, and a
consecutive 2 years to serve for the offense of second-degree
assault.
In this appeal, Heavyrunner argues that his sentence
for kidnapping is clearly excessive. Heavyrunner does not
contest the 8-year time to serve component of the sentence nor
could he, since he agreed to this specific sentence.2 However,
Heavyrunner argues that 27 years of suspended imprisonment is
manifestly too severe.
As a preliminary matter, the State argues that
Heavyrunners claim is not ripe for decision that Heavyrunner has
no right to appeal the imposition of the 27 years of suspended
imprisonment unless and until the superior court revokes his
probation and imposes some or all of this suspended imprisonment.
The State is mistaken. As this Court explained in
Jimmy v. State, 689 P.2d 504, 505 (Alaska App. 1984), even though
suspended imprisonment is not the equivalent of time to serve,
[i]n determining whether [a] sentence is excessive, we must
consider the sentence in its entirety, including all suspended
time. Accord, Wassillie v. State, 911 P.2d 1071, 1074 (Alaska
App. 1996).
This Court has, on occasion, given specific
consideration to the suspended portion of a defendants sentence.
For instance, in Williams v. State, 859 P.2d 720, 723 (Alaska
App. 1993), this Court found that the sentencing judge could
properly conclude ... that a substantial period of suspended
incarceration was called for to serve as a deterrent in the event
that [the defendants] efforts toward rehabilitation proved
unsuccessful. And in Hurd v. State, 107 P.3d 314, 321, 335
(Alaska App. 2005), this Court reviewed a sentence for
excessiveness when the sentence of imprisonment was suspended in
its entirety except for the portion that the defendant had
already served.
We therefore turn to the question of whether the
suspended portion of Heavyrunners sentence is excessive.
Kidnapping is an unclassified felony that carries a
penalty of 5 to 99 years imprisonment.3 The sentence that
Heavyrunner negotiated with the State 8 years to serve is among
the most lenient that might be imposed on a defendant convicted
of this crime.
Although Heavyrunner was a first felony offender, he
had five prior misdemeanor convictions. Three of these were
convictions for fourth-degree assault; in all three of these
cases, Heavyrunner beat up his girlfriend.
Additionally, Heavyrunners DNA matched the DNA that was
found on the victim of a sexual assault that occurred in
Anchorage less than four months before the present offense. As
part of the plea agreement in this case, the State agreed not to
charge Heavyrunner with this Anchorage sexual assault.
Based on Heavyrunners criminal history, plus
Heavyrunners conduct in the present case, Judge Olsen concluded
that Heavyrunner was extremely dangerous and that his prospects
for rehabilitation were not good. The judge noted that
Heavyrunner had been sentenced for other crimes in the past, and
that he had been on probation, but he had not been deterred.
Although Judge Olsen accepted the agreed-upon 8 years
to serve, he added 27 suspended years to Heavyrunners sentence
apparently both as a deterrent and as a safeguard. Judge Olsen
declared that his aim in imposing this suspended term of
imprisonment was to make sure that if Heavyrunner got out of
prison and [continued] along the way that [he has], then the
state will have the chance to lock [him] back up and keep the
community safe.
Given this record, we readily conclude that
Heavyrunners sentence is not clearly mistaken. As in Williams,
859 P.2d at 723, Judge Olsen could reasonably conclude that a
substantial period of suspended incarceration was called for to
serve as a deterrent in the event that [Heavyrunners] efforts
toward rehabilitation proved unsuccessful.
However, in examining the record, we have discovered a
problem in the wording of the judgement.
The judgement states that, of the 8 years to serve that
Heavyrunner received for kidnapping, [f]ive years [is]
presumptive. The judgement further states that, of the
consecutive 2 years to serve that Heavyrunner received for second-
degree assault, [o]ne year [is] presumptive.
Judge Olsens decision to label 5 years of the
kidnapping sentence and 1 year of the second-degree assault
sentence as presumptive apparently stems from a confusion between
presumptive sentences and mandatory minimum sentences. This
confusion is demonstrated by the way in which the parties and the
court discussed this issue toward the end of Heavyrunners
sentencing hearing:
Prosecutor: Your Honor, theres another
issue. ... The first five years [of] the
kidnapping [sentence are] presumptive. Its
an unclassified felony, [and] under
[AS] 12.55.125(b), [a defendant convicted of
this crime] shall be sentenced to a definite
term of imprisonment [of] at least five
years, but not more than ninety-nine.
The Court: Mr. [Defense Attorney], any
challenge to that?
Defense Attorney: No.
The Court: That the first five years are
presumptive?
Defense Attorney: [no verbal response]
But as this Court noted in Soundara
v. State, 107 P.3d 290 (Alaska App. 2005),
kidnapping does not carry a 5-year
presumptive term. Rather, it carries a
5-year mandatory minimum term. As we
explained:
A mandatory minimum term is the least
possible sentence that can be imposed for a
particular crime. A mandatory minimum
represents the legislatures assessment of how
much prison time should be imposed on an
offender even when the offenders background
is extremely favorable and the offender has
engaged in the most mitigated conduct within
the definition of the offense. A presumptive
term, on the other hand, is intended for a
typical offender. The presumptive term
represents the legislatures judgement as to
the appropriate sentence for a typical felony
offender (i.e., an offender with the
specified number of prior felony convictions,
and with a typical background) who commits a
typical act within the definition of the
offense.
Soundara, 107 P.3d at 300 (emphasis in the
original) (footnotes omitted).
In other words, contrary to the
prosecutors argument, the defense attorneys
concession, and Judge Olsens ruling,
mandatory minimum terms of imprisonment are
not presumptive terms. Thus, no portion of
Heavyrunners sentence for kidnapping is
presumptive.
(See also Malloy v. State, 153 P.3d
1003, 1008-09 (Alaska App. 2007), Carlson v.
State, 128 P.3d 197, 203-04 (Alaska App.
2006), and Page v. State, 657 P.2d 850, 855
(Alaska App. 1983), all recognizing that
sentencing for the crime of second-degree
murder is not governed by the presumptive
sentencing law. Second-degree murder, like
kidnapping, is one of the crimes which are
subject to indeterminate sentencing under AS
12.55.125(b).)
It may be that, by calling the
first 5 years of Heavyrunners sentence
presumptive, Judge Olsen and the two
attorneys meant to describe the fact that
Heavyrunner would not be eligible for
discretionary parole during those 5 years.
See AS 33.16.090(b)(1), which declares that
[a] prisoner ... who is sentenced ... to a
single sentence under AS 12.55.125(a) or (b)
may not be released on discretionary parole
until the prisoner has served the mandatory
minimum term under [section 125(a) or (b)],
[or] one-third of the active term of
imprisonment imposed.
However, as can be seen from the
text of AS 33.16.090(b)(1), the limitation on
parole eligibility stems from the fact that
the prisoner faced a mandatory minimum
sentence, not a presumptive sentence.
Labeling a portion of Heavyrunners sentence
as presumptive is both legally incorrect and,
potentially, a cause of future confusion
because different provisions of AS 33.16.090
govern the parole eligibility of prisoners
who are subject to presumptive sentencing.
See AS 33.16.090(b)(2) (4).
For related reasons, it was wrong
for Judge Olsen to label the first year of
Heavyrunners 2-year sentence for second-
degree assault as presumptive.
Under Alaska sentencing law before
March 2005, a felony offender who was subject
to presumptive sentencing faced a fixed
presumptive term of imprisonment that could
be adjusted by the sentencing judge based on
aggravating and mitigating factors. The
parole eligibility statutes at the time, AS
33.16.090 100 (pre-March 2005 versions),
drew a distinction between (1) the portion of
the prisoners sentence that was attributable
to the legislatively fixed presumptive term,
and (2) the portion of the prisoners sentence
that was attributable to a judge-imposed
sentence enhancement based on aggravating
factors. Under former AS 33.16.090(b) (c),
a prisoner who was sentenced under the
presumptive sentencing law was not eligible
for parole during the legislatively fixed
presumptive term, but was (generally
speaking) eligible for parole during the
judge-imposed sentence enhancement.
However, this framework has now
changed. Under Alaskas current presumptive
sentencing law, felony offenders who are
subject to presumptive sentencing face
presumptive ranges of imprisonment and the
parole eligibility statute has been amended
accordingly.
AS 33.16.090 no longer defines
parole eligibility based on presumptive terms
and sentence enhancements. Rather, the
parole eligibility of defendants who are
subject to presumptive sentencing now varies
according to (1) what presumptive range
applied to them, (2) whether they received a
sentence within or below that presumptive
range, or instead a sentence above the
presumptive range, (3) whether they were
sentenced for two or more crimes, and, if so,
(4) whether they received concurrent or
consecutive sentences.
For defendants like Heavyrunner,
who receive consecutive sentences for two or
more crimes, parole eligibility is governed
by AS 33.16.090(b)(7):
[A prisoner who is sentenced] to
consecutive or partially consecutive
sentences may not be released on
discretionary parole until the prisoner has
served the greatest of
(A) the composite total of any mandatory
minimum sentence or sentences ... ;
(B) any term set [by the sentencing
judge] under AS 12.55.115; or
(C) the amount of time that is required
to be served under [AS 33.16.090(b)](1) (5)
... for the sentence imposed for the
[prisoners] primary crime, had that been the
only sentence imposed, plus one-quarter of
the composite total of the active term[s] of
imprisonment imposed as consecutive or
partially consecutive sentences ... for all
crimes other than the primary crime.
This last provision, AS 33.16.090(b)(7)(C),
is the one that applies to Heavyrunner.
Heavyrunners primary crime is
kidnapping.4 If he had been sentenced only
for this crime, then, under AS 33.16.
090(b)(1), he would not have been eligible
for parole until he served the 5-year
mandatory minimum sentence prescribed by
AS 12.55.125(b). However, Heavyrunner was
sentenced for an additional crime, second-
degree assault, and he received a consecutive
2-year sentence for that crime.
Because Heavyrunner received
consecutive sentences, his parole eligibility
is governed by AS 33.16.090(b)(7)(C). Under
that statute, he will not be eligible for
discretionary parole until he serves the 5-
year mandatory minimum sentence for
kidnapping plus one-quarter of [his 2-year]
active term of imprisonment for his other
crime. In other words, Heavyrunner will be
eligible for discretionary parole after
serving 5 years.
Thus, the fact that 1 year of
Heavyrunners 2-year sentence for second-
degree assault is described as presumptive in
the judgement is both misleading and likely
to cause future confusion. Despite the
wording of the judgement,
AS 33.16.090(b)(7)(C) specifies that
Heavyrunner will in fact be eligible for
discretionary parole after he has served
6 months of his consecutive sentence for
second-degree assault.
(See also Reyes v. State, 978 P.2d
635, 641-42 (Alaska App. 1999), where we held
that a sentencing judge has no discretionary
authority to alter the status of a defendants
sentence from non-presumptive to presumptive,
or vice-versa.)
Accordingly, we direct the superior
court to amend the judgement by striking the
two clauses that refer to portions of
Heavyrunners sentences as presumptive.
_______________________________
1 AS 11.41.300(a)(1)(C) and AS 11.41.210(a)(2), respectively.
2 See AS 12.55.120(a) (declaring that a defendant may not
appeal a sentence of imprisonment that was imposed in accordance
with a plea agreement ... [that] provided for imposition of a
specific sentence or a sentence equal to or less than a specified
maximum sentence).
3 AS 12.55.125(b).
4See AS 33.16.090(c)(1) and AS 12.55.127(d)(4).
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