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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
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
| JOHN N. HUNTER, | ) |
| ) Court of Appeals No. A-8868 | |
| Appellant, | ) Trial Court No. 3AN-02-2916 CR |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) |
| ) No. 2168 May 9, 2008 | |
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Philip R. Volland,
Judge.
Appearances: Allan Beiswenger, 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.
MANNHEIMER, Judge, concurring.
In an earlier decision in this case, we affirmed John
N. Hunters convictions for five counts of first-degree sexual
assault and several counts of robbery and assault in connection
with the sexual assaults.1 Hunter also challenged his 95-year
composite sentence for these crimes, but we did not resolve his
sentence appeal. Instead, we remanded the case to the superior
court for resentencing because we found plain error in one aspect
of sentencing.2 The error occurred because the superior court
sentenced Hunter as a third felony offender on all of the
counts.3 Because of the timing of Hunters prior felony
convictions, Hunter should have been sentenced as a second felony
offender for one of the counts of first-degree robbery and one of
the counts of first-degree sexual assault.4 Accordingly, we
vacated the sentence imposed for those two convictions and
remanded for re-sentencing.5
The superior court has now resentenced Hunter and
imposed the same 95-year composite term for five counts of first-
degree sexual assault, two counts of first-degree robbery, one
count of third-degree assault and one count of second-degree
assault.
Hunter argues that the superior court violated the
double jeopardy clause when it imposed the same composite term
that was originally imposed. We reject this claim because the
superior court was authorized to impose a composite term that
reflected the totality of Hunters misconduct. The superior court
imposed the composite term by running the presumptive sentence
for each individual count consecutively or concurrently, in whole
or in part, with other counts. We conclude that the superior
courts imposition of the applicable presumptive term for each
count on resentencing, together with its specification of which
portion of the applicable presumptive term was imposed
consecutively or concurrently with other counts, did not violate
double jeopardy.
In addition, Hunter again claims that his composite
term is excessive. Because we conclude that Hunters composite
term for all his convictions is not clearly mistaken, we affirm
Hunters sentence.2
Facts and proceedings
Hunter was convicted of offenses related to his attacks
on five women over the course of more than five years. The five
attacks included a December 1996 assault on M.N., an August 1997
assault on J.J., a December 1998 assault on R.S., a January 2001
assault on J.V., and a January 2002 assault on L.A. We discussed
the facts of these incidents in our earlier decision.3
Hunter had three prior felony convictions when he was
sentenced. He had a 1981 California armed robbery conviction.
Second, he had a 1983 Indiana rape conviction. (Hunter was
unconditionally discharged from these two convictions on
September 28, 1988.) Third, Hunter had an April 2000 Alaska
conviction for felony driving while intoxicated. Because of the
timing of Hunters prior felony convictions, Hunter faced a 25-
year presumptive term for four counts of first-degree sexual
assault4 and a 15-year presumptive term for the remaining count
of first-degree sexual assault5; a 15-year presumptive term for
one first-degree robbery count6 and a 10-year presumptive term
for the second count of first-degree robbery7; a 3-year
presumptive term on the third-degree assault charge8; and a 6-
year presumptive term on the second-degree assault charge.9
On the five first-degree sexual assault counts, Judge
Volland imposed the presumptive term of 25 years imprisonment for
Counts I, II, IV, and V and the presumptive term of 15 years
imprisonment for Count III. He decided that 17 years of Counts
II, IV, and V would run consecutively to Count I and to each
other. He also decided that the entire 15-year presumptive term
for Count III would run consecutively to all the other counts.
Judge Volland imposed a 15-year presumptive term for the first-
degree robbery charge in Count VII with that term to be served
concurrently with the sexual assault terms. He imposed a 10-year
presumptive term for the first-degree robbery in Count VI, with 2
years consecutive to Counts I-V and the rest concurrent. He also
sentenced Hunter to a presumptive 3-year term on the third-degree
assault charge (Count IX) with 6 months of that term consecutive
to all previous counts. Finally, he imposed a presumptive 6-year
term on the second-degree assault charge (Count X), with 18
months to be served consecutively to the previous counts. This
resulted in a composite term of 95 years to serve.10
Discussion
In our earlier decision, we did not address all the
issues Hunter raised because we remanded the case for
resentencing. We now address the remaining claims in the case.
Hunter argued that Judge Volland improperly speculated
that Hunter had committed additional uncharged sexual assaults
when he sentenced Hunter. Such speculation would violate the
decision in Donlun v. State.11 In Donlun, the supreme court
held that a sentencing court erred when it speculated that the
defendant had committed other uncharged crimes, and that the
charged crime was simply the first time the defendant had been
caught.12
We discussed but did not resolve this issue in our
earlier decision. Because we remanded the case for resentencing,
we indicated that Judge Volland could enter additional findings
addressing this issue. On remand, Judge Volland clarified the
record by indicating he placed no reliance on the potential that
Hunter had other unknown victims. With this clarification, it is
now explicitly clear that Judge Volland did not rely on the
potential that Hunter had other unknown victims. Accordingly, we
reject this claim.
Next, Hunter argues that on resentencing, Judge Volland
violated double jeopardy by imposing 2 years of the 10-year
presumptive term imposed for Count VI consecutive to the sexual
assault counts because he originally imposed the entire
presumptive term for this count concurrently. Hunter relies on
Loola v. State.13 Loola was convicted of one count of assault
with a dangerous weapon and one count of aggravated assault
arising out of a single incident.14 The superior court imposed
sentence on both counts, 10 years with 5 years suspended for
assault with a dangerous weapon and a consecutive 5 years for
aggravated assault.15 The State conceded that the counts should
have merged under our supreme courts decision in Whitton v.
State.16
In Whitton, the court held that even though a defendant
is found guilty of violating two separate criminal statutes
arising out of one criminal episode, double jeopardy requires a
sentencing court to impose only one conviction and one sentence
if the two crimes are so closely related that there are no
significant differences between the conduct proscribed and the
societal values protected by each statute.17 The supreme court
ruled that because Loola had not appealed the sentence imposed
for assault with a dangerous weapon, the superior court could not
increase the sentence originally imposed for that single count,
the only count on which the superior court was constitutionally
authorized to impose sentence.18
That is not the case here. The jury convicted Hunter
of nine counts arising out of five separate attacks on five
different women. (Hunter has not argued that any of those nine
counts merge under Whitton.) In sentencing Hunter, Judge Volland
understood that he had the authority to impose over 200 years
imprisonment if he imposed consecutive maximum sentences for all
nine counts. And he understood that Hunters composite sentence
would exceed 100 years imprisonment if the judge imposed
consecutive unadjusted presumptive terms. Judge Volland
understood that the sentence he imposed would result in Hunter
remaining in prison for the rest of his life. After reviewing
sentencing decisions addressing long composite terms for
offenders who were comparable to Hunter, Judge Volland elected to
impose a 95-year composite term after considering all the
sentencing criteria,19 Hunters history, and the crimes for which
he was convicted. In the circumstances of this case,
resentencing Hunter did not violate his double jeopardy rights.20
The parties did not allege any statutory aggravating or
mitigating factors, so Judge Volland was required to impose the
presumptive term for each count.21 Because the presumptive terms
for the nine counts ranged from 3 to 25 years, there were a vast
number of ways that Judge Volland could have imposed the counts
consecutively and concurrently to reach the composite term he
selected. At Hunters original sentencing, Judge Volland reached
95 years by imposing each sexual assault presumptive term wholly
or partly consecutive to the other sexual assault terms to reach
a composite 93 years. He imposed the presumptive terms for the
assault counts partially consecutive and partially concurrent to
the sexual assault counts to impose an additional consecutive 2
years. The robbery presumptive terms were imposed all concurrent
to the composite sexual assault terms.
At Hunters resentencing, Judge Volland reaffirmed his
analysis of Hunters case and again concluded that a 95-year
composite term remained the appropriate sentence. Judge Volland
elected not to change the relationship of the presumptive terms
he imposed for the seven counts on which Hunter was properly
classified as a third felony offender. He decided to impose the
presumptive terms on the two counts on which Hunter had to be
resentenced as a second felony offender both consecutively and
partially concurrently so that the composite term for those two
counts, in addition to the composite term for the seven
undisturbed counts, resulted in a 95-year composite term.
Although Hunter was resentenced, he remains convicted
of the crimes on which the jury found him guilty. Judge Vollands
intent to fashion the 95-year composite sentence is clear from
his remarks, and that term represents the judges analysis of the
appropriate sentence to impose considering the facts of the case
and the sentencing criteria. Furthermore, unlike the appellant
in Loola, Hunter did not challenge the constitutionality of the
superior courts authority to sentence him on any count. Instead,
Hunter challenged, as a matter of plain error, the presumptive
terms that resulted from his misclassification as a third felony
offender and, unlike Loola, argued that his entire term is
excessive. We conclude that Hunters case is distinguishable from
Loola, and that Hunters double jeopardy rights were not violated
when Judge Volland imposed the same presumptive term at
resentencing.
We now turn to Hunters claim that his 95-year term is
excessive. Our review of Alaska sentencing cases shows that
Hunters composite term is the longest (among reported cases) for
a case not involving a homicide. Judge Vollands remarks show
that he reviewed reported cases affirming a defendants lengthy
sentence for sexual assault.
Several decisions of this court are instructive. In
Schuenemann v. State,22 Ross v. State,23and Adams v. State,24 we
upheld sentences that were virtually lifetime sentences for
mature sexual offenders who demonstrated ingrained and compulsive
criminal histories.
In Schuenemann, we upheld a composite 69-year term for
five counts of first-degree sexual assault, two counts of first-
degree attempted sexual assault, and three counts of first-degree
burglary.25 Schuenemann was a second felony offender.26 In
Ross, we upheld, for a second felony offender, a composite
sentence of 84 years to serve for one count of kidnapping, five
counts of first-degree sexual assault, and one count of
second-degree sexual assault.27 In Adams, we upheld a composite
60-year term to serve for a third-felony offender who was
convicted of one count of first-degree sexual assault and one
count of kidnapping.28 Also, in State v. Hodari,29 the supreme
court upheld Hodaris composite 55-year term for two counts of
first-degree sexual assault, one count of first-degree robbery,
and one count of second-degree assault.30 Hodari was sentenced
as a second felony offender.31
Hunter, who was forty-two years old at sentencing, is a
mature offender. Hunter had three prior felony convictions when
he appeared before Judge Volland for sentencing. Hunters
criminal conduct began as a teenager when he attempted to force
another child to engage in sexual penetration. He was convicted
of armed robbery at the age of sixteen. At seventeen, Hunter
and another individual broke into a residence and sexually
assaulted a seventeen-year-old girl. While he was in custody for
armed robbery, Hunter sexually assaulted another inmate.
Judge Volland found that Hunters previous confinement
had no effect and that Hunters criminality was ingrained. These
findings are reinforced by the fact that Hunter committed one of
the sexual assaults in this case within twelve hours of a court
appearance on an unrelated case. Judge Volland found that
Hunters prospects for rehabilitation were nil. He found that
Hunter had to be incarcerated for a substantial period of time to
prevent harm to the public. He found that Hunters repeated
sexual assaults reflect conduct by a man undeterred by frequent
contacts with the criminal justice system and that Hunter was a
worst offender.
In this case, Hunter sexually assaulted five victims;
there was physical assault and physical injury associated with
some of the sexual assaults. Hunters conduct was predatory, and
his treatment of the victims was brutal. Despite repeated
contact with the criminal justice system, he has shown no
potential for rehabilitation. His criminal history shows that he
is a persistent and violent offender.32
The record in this case demonstrates that Judge Volland
reasonably concluded that Hunter is a member of the rare class of
offenders who must be incarcerated for the remainder of their
life for the protection of the public. We conclude that Hunters
sentence is not clearly mistaken.33
Conclusion
Hunters composite sentence is AFFIRMED.
MANNHEIMER, Judge, concurring.
I write separately to address the apparent conflict
between the Alaska Supreme Courts decision in Loola v. State, 608
P.2d 36, 37 (Alaska 1980), and the series of decisions issued by
this Court dealing with the same issue of double jeopardy law,
beginning with Allain v. State, 810 P.2d 1019, 1021-22 (Alaska
App. 1991).
The problem addressed in Loola and Allain arises when a
trial court mistakenly enters judgement against a defendant for
more separate offenses than the law allows. Under the double
jeopardy doctrine announced in Whitton v. State,1 there will be
times when two or more guilty verdicts must merge into a single
criminal conviction (and a single sentence). Sometimes, the
sentencing judge will recognize the Whitton problem and will
effect the merger before the final judgement is issued. But if
the double jeopardy problem is not perceived, or is not correctly
resolved, until the case is on appeal, the appellate court will
have to direct the sentencing court to amend the judgement and to
re-sentence the defendant.
In such instances, is the sentencing court permitted to
alter the defendants sentences on the remaining offenses so as to
maintain the defendants original composite term of imprisonment?
Or does the double jeopardy clause prohibit the sentencing court
from changing the defendants sentences on the remaining counts?
In Allain, 810 P.2d at 1021-22, this Court examined
this issue at some length and ultimately concluded that the
double jeopardy clause allows a sentencing court to alter the
defendants sentences on the remaining counts, so long as the
defendants new sentences do not exceed the composite term that
the defendant originally received.
The defendant in Allain received two separate
convictions and sentences for sexual abuse of a minor, with each
conviction based on the same episode of sexual contact.2 On the
first of these counts, the superior court sentenced Allain to 3
years imprisonment with 2 years suspended. On the second count,
the superior court sentenced Allain to a consecutive term of 3
years, with all 3 years suspended. In other words, Allain
received a composite sentence of 6 years with 5 years suspended
1 year to serve.3
On appeal, Allain contended that it was improper for
the superior court to enter separate judgements on these two
counts that the jurys verdicts would support only one conviction
and one sentence. The State conceded error.4 This Court then
had to decide what remedy was appropriate for this legal error.
The State argued that, even though the judgement would
have to be amended to reflect only one conviction and sentence,
the sentencing [judge] should be authorized to impose a new
sentence that does not exceed the composite term of six years
with five years suspended originally imposed as to Counts I and
II.5 Allain took the position that any increase in his sentence
on the single count would be barred by the double jeopardy clause
and by the due process clause.6
After considering this issue, this Court concluded that
the states position [is] meritorious and Allains constitutional
claims [are] unpersuasive.
As a matter of federal constitutional
law, it appears clear that resentencing on
[the remaining count] is barred neither by
double jeopardy nor by the due process
prohibition against vindictiveness. See,
e.g., Pennsylvania v. Goldhammer, 474 U.S.
28, 106 S.Ct. 353, 88 L.Ed.2d 183 (1985);
United States v. Pimienta-Redondo, 874 F.2d 9
(1st Cir. 1989) (en banc).
Allain, 810 P.2d at 1021.
This Court recognized that it was
conceivable that the more stringent
protections of Alaskas double jeopardy and
due process clauses might afford Allain
shelter against resentencing in some
circumstances, even though resentencing would
not be barred by the United States
Constitution. But under the circumstances of
Allains case, we concluded that the Alaska
Constitution did not bar an increase in
Allains remaining sentence. We explained
that [t]wo factors [were] pivotal to our
decision:
First, the dismissal of Count I in this
case results from its merger with Count II
and does not in any way implicate the
legitimacy of the jurys factual determination
that Allain was guilty of the conduct
originally charged in Count I. Given the
merger of Counts I and II, Count II now
comprehends the totality of the conduct for
which Allain was originally sentenced.
Because the merger of Counts I and II was
precisely the relief that Allain sought in
bringing this appeal, he cannot be heard to
complain that double jeopardy precludes the
imposition of a new sentence that takes into
account the expanded scope of the conduct now
included in that count.
Allain, 810 P.2d at 1021-22.
Second, [Allains sentencing judge] made
it abundantly clear at the original
sentencing hearing that he viewed Allains
convictions as essentially a single episode
of criminal misconduct and that, while he
elected to use consecutive sentences, his aim
was to fashion a composite term appropriate
for the totality of Allains conduct. Given
[the judges] remarks, it is apparent that the
judges selection of a partially suspended
term on Count I and a completely suspended
term on Count II was wholly fortuitous. It
is further evident that [the judge] deemed
the total term of six years with five years
suspended to be appropriate as a total
sentence, regardless of whether that sentence
was implemented by means of consecutive or
concurrent sentences.
Allain, 810 P.2d at 1022.
For these reasons, we concluded
that the superior court was authorized to re-
sentence Allain to a modified term of
imprisonment on the remaining count, so long
as that new sentence did not exceed the
composite sentence originally imposed.7
Since that time, we have repeatedly
applied our holding in Allain to other cases
where a defendant had to be re-sentenced
owing to the merger or dismissal of one or
more of the original counts. See, e.g.,
Marker v. State, 829 P.2d 1191, 1195-97
(Alaska App. 1992); Ward v. State, 120 P.3d
204, 208-09 (Alaska App. 2005); Moore v.
State, 123 P.3d 1081, 1093-94 (Alaska App.
2005); Walsh v. State, 134 P.3d 366, 372-73
(Alaska App. 2006); and Billum v. State, 151
P.3d 507, 509-510 (Alaska App. 2006).
But there is a problem with Allain
and our ensuing decisions on this issue. The
problem is that, in Loola v. State, 608 P.2d
at 37, the Alaska Supreme Court reached the
opposite decision: that is, the supreme
court held that the double jeopardy clauses
of both the federal and state constitutions
forbid any increase in a defendants remaining
sentences after one or more of the original
counts are vacated on Whitton grounds.
The defendant in Loola was
convicted of two crimes under Alaskas former
criminal code assault with a dangerous
weapon and aggravated assault based on a
single assaultive act.8 For the first of
these offenses, Loola received 10 years
imprisonment with 5 years suspended. For the
second offense, Loola received another 5
years imprisonment, to be served
consecutively.9 In other words, Loola
received a composite term of 10 years to
serve and an additional 5 years suspended.
Loola filed a sentence appeal, but
he only appealed his second sentence. Loolas
opening brief was slightly over two pages
long, and it was almost entirely devoted to
explaining the facts of his case and then
arguing that his two offenses merged under
Whitton. In the concluding paragraph of that
brief, rather than asking for a remedy
consistent with Whitton i.e., merger of
these two offenses into one conviction and
sentence Loola merely asked the supreme
court to alter the judgement so that his two
sentences would be served concurrently. See
Alaska Supreme Court File No. 4858, Loola v.
State, Opening Brief of the Appellant.
The State filed a two-paragraph
brief in response. In the first paragraph,
the State conceded error on the Whitton
issue. In the second paragraph, the State
asked the supreme court to allow the superior
court to alter Loolas sentence on the
remaining count, so that the superior courts
sentencing intention (10 years to serve)
could be carried out. See Alaska Supreme
Court File No. 4858, Loola v. State, Brief of
the Appellee.
Loola then filed a one-page reply
brief in which he asserted that such an
alteration of his remaining sentence would
violate the double jeopardy clauses of the
federal and state constitutions. Loola cited
no authority in support of this
constitutional argument. See Alaska Supreme
Court File No. 4858, Loola v. State, Reply
Brief of the Appellant.
Despite the fact that this
constitutional issue was raised for the first
time in a reply brief in other words,
despite the fact that there was no
adversarial briefing of this issue and
despite the fact that Loola provided no case
law or other authority to support his
assertion that it would be unconstitutional
to increase his remaining sentence, the
Alaska Supreme Court concluded that the
double jeopardy clauses of the federal and
state constitutions prohibited the superior
court from increasing Loolas remaining
sentence. Loola, 608 P.2d at 37. The court
declared that this conclusion was dictated by
the fact that Loola had not appealed both of
his sentences, but rather only the second
one. Id. Based on this, the court held that
any increase in the un-appealed sentence
would be unconstitutional.
To the extent that the decision in
Loola rests on the federal double jeopardy
clause, it was wrongly decided. As this
Court noted in Allain, the United States
Supreme Court addressed a similar situation
in Pennsylvania v. Goldhammer, 474 U.S. 28,
106 S.Ct. 353, 88 L.Ed.2d 183 (1985), and
concluded that the federal double jeopardy
clause does not prohibit an increase in the
defendants remaining sentences.
The defendant in Goldhammer was
convicted of 56 counts of forgery and an
accompanying 56 counts of theft. The
sentencing court imposed a sentence of 2 to 5
years imprisonment on one of the theft
counts, and imposed 5 years of probation on
one of the forgery counts. The court then
suspended Goldhammers sentence on the
remaining 110 counts.10 On appeal, the
appellate division of the Pennsylvania
superior court held that 34 of the theft
counts including the one on which Goldhammer
was actually sentenced were barred by the
statute of limitations. The Pennsylvania
Supreme Court later affirmed the dismissal of
the 34 theft counts, and further held that
the federal double jeopardy clause did not
permit the trial court to alter any of the
suspended sentences that Goldhammer received
for the other 22 theft counts.11
In response to the State of
Pennsylvanias petition for writ of
certiorari, the United States Supreme Court
summarily reversed the Pennsylvania Supreme
Courts double jeopardy ruling and remanded
the case to the Pennsylvania courts for a
determination of whether, under state law,
the government was allowed to seek an
increase in Goldhammers sentence on the
remaining counts.12
This leaves the question of whether
Alaska law allows or forbids the increase of
a defendants remaining sentences in this
situation.
Leaving aside the fact that the
constitutional ruling in Loola was issued
without the benefit of adversarial briefing,
it appears that the decision in Loola is
flawed in two respects. First, it is
inconsistent with the Alaska Supreme Courts
Whitton jurisprudence. Second, it is
inconsistent with Alaska law governing
sentence appeals when a defendant has been
sentenced for two or more offenses.
As this Court explained in Erickson
v. State, 950 P.2d 580 (Alaska App. 1997),
when a defendant attacks a conviction and
sentence on Whitton grounds, the appeal is
not a sentence appeal in the technical sense.
In a sentence appeal, the defendant concedes
the lawfulness of the sentence, but attacks
its severity.13 In contrast, a defendant who
raises a Whitton challenge is attacking the
lawfulness of both the conviction and the
sentence: the defendant is arguing that, as
a constitutional matter, it was improper to
enter a separate conviction (much less impose
a separate sentence) for the challenged
offense.
Moreover, when a defendant has
received two separate convictions in
violation of Whitton, the proper remedy is
not dismissal of one count in preference to
the other. Rather, as we explained in
Kailukiak v. State, 959 P.2d 771, 774 n. 1
(Alaska App. 1998), and again in Hurd v.
State, 107 P.3d 314, 322 (Alaska App. 2005),
the proper remedy is a merger of the two
counts into a single conviction and sentence
based on both verdicts:
[I]t is technically incorrect for a
sentencing court to dismiss a count on
Whitton grounds. Even though the Alaska
double jeopardy clause, as construed in
Whitton, prevents a sentencing court from
entering separate convictions and sentences
on two counts that constitute the same
offense, a Whitton ruling does not impugn the
validity of the jurys underlying verdicts.
That is, a Whitton ruling that two counts are
duplicative casts no doubt on the validity of
the jurys fact-finding or its conclusion that
the defendant is guilty of the conduct
alleged in both counts. For this reason,
even though this Court has occasionally
spoken of dismissal of the duplicative count,
we have most often (and most correctly)
described the proper course of action as a
merger of the two counts into a single
conviction i.e., the entry of one conviction
and sentence premised on both jury verdicts.
Hurd, 107 P.3d at 322 (footnotes omitted).
In other words, a Whitton challenge
necessarily involves both of the related
convictions and sentences. And even if the
challenge is well-founded, the defendant is
not entitled to demand that the court ignore
one of the verdicts. Rather, the defendant
is entitled to demand a single conviction and
sentence based on both of the verdicts.
It is true that, in Whitton, the
supreme court referred to a Whitton ruling as
a type of sentencing decision, and the court
suggested that the remedy for an improper
Whitton ruling was a sentence appeal. See
Whitton, 479 P.2d at 313-14.
But as we explained in Erickson,
both the Whitton decision itself and the
supreme courts subsequent decisions on this
issue clearly demonstrate that Whitton
rulings are not exercises of sentencing
discretion; rather, they are rulings of law.
As a consequence, both the State and the
defendant are entitled to seek review and
reversal (not just disapproval) of an
erroneous Whitton ruling. See Erickson, 950
P.2d at 585-87. In particular, see State v.
Occhipinti, 562 P.2d 348, 349-351 (Alaska
1977), where the supreme court held that the
State is entitled to seek a writ of mandamus,
and a re-sentencing, when the superior court
mistakenly rules that a defendants
convictions must merge under Whitton.
Leaving aside the legal basis and
status of Whitton appeals, both the Alaska
Supreme Court and this Court have repeatedly
held that a defendant who is sentenced for
two or more offenses is not allowed to bring
a sentence appeal that attacks only a single
sentence, or isolated sentences, from among
the entirety of the sentence imposed. As we
explained (most recently) in Custer v. State,
When a defendant pursues a sentence
appeal after the sentencing court has imposed
a composite sentence for two or more criminal
convictions, this Court assesses whether the
defendants combined sentence is clearly
mistaken, given the whole of the defendants
conduct and history. [Brown v. State, 12
P.3d 201, 210 (Alaska App. 2000); Comegys v.
State, 747 P.2d 554, 558-59 (Alaska
App.1987).] Because the question is whether
the combined sentence is justified in light
of the entirety of the defendants conduct and
history, the law does not require that a
specific sentence imposed for a particular
count or offense be individually justifiable
as if that one crime were considered in
isolation. [Waters v. State, 483 P.2d 199,
202 (Alaska 1971); Jones v. State, 765 P.2d
107, 109 (Alaska App. 1988); Comegys, 747
P.2d at 558-59.]
For these reasons, an appellate court
will not hear a defendants challenge to a
composite sentence unless the defendant has
appealed each of the sentences that
contributes to the composite total so that
the court can meaningfully evaluate the
whole. See Preston v. State, 583 P.2d 787,
788 (Alaska 1978).
Custer, 88 P.3d 545, 549 (Alaska App. 2004)
(footnotes replaced by bracketed text).
The Alaska Supreme Courts decision
in Loola is premised on two assumptions that
are inconsistent with this case law (even
though some of this case law predates the
Loola decision). First, the supreme courts
decision rests on the idea that a Whitton
appeal is a sentence appeal (in the limited,
technical sense of that term i.e., an
appellate challenge to the severity of a
concededly lawful sentence). Second, the
supreme courts decision rests on the idea
that defendants who receive multiple
sentences are entitled to appeal only one of
their sentences, if that is what they wish to
do. Both of these premises are incorrect.
It therefore appears to me that
Loola was decided without adequate
consideration of the legal issues involved
and the governing law. The decision in
Allain (which was issued before I joined the
Court of Appeals) appears to be better
reasoned and more consistent with the Alaska
case law I have discussed here. However, if
there is a conflict between a decision of the
Alaska Supreme Court and a decision of this
Court, the supreme courts decision governs.
The present case is different
enough from Loola that we need not directly
confront and resolve the discrepancy between
Loola and Allain. But because the situation
posed in Loola and Allain (re-sentencing as a
result of a Whitton ruling) occurs with some
frequency, I believe that judges and criminal
law practitioners should be alerted to this
problem.
_______________________________
1 Hunter v. State, Alaska App. Memorandum Opinion and
Judgment No. 5259 at 3, 8 (August 2, 2007), 2007 WL 2405208 at
*2, *4.
2 Id. at 31-36, 2007 WL 2405208 at *16-19.
3 Id. at 32, 2007 WL 2405208 at *17.
4 Id. at 32-37, 2007 WL 2405208 at *17-19.
5 Id. at 36-37, 2007 WL 2405208 at *19.
2 See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974)
(holding that an appellate court is to uphold a sentencing
decision unless the sentence is clearly mistaken).
3 Hunter, Alaska App. Memorandum Opinion and Judgment No.
5259 at 4-8, 2007 WL 2405208 at *2-5.
4 AS 11.41.410(b) and former AS 12.55.125(i)(4).
5 AS 11.41.410(b) and former AS 12.55.125(I)(3).
6 AS 11.41.500(b) and former AS 12.55.125(c)(4).
7 AS 11.41.500(b) and former AS 12.55.125(c)(3).
8 AS 11.41.220(d) and former AS 12.55.125(e)(2).
9 AS 11.41.210(b) and former AS 12.55.125(d)(2).
10 Our first decision described Hunters composite term as a
94-year term which is the term that is described by the original
written judgment. But the written judgment contained a clerical
error. The written judgment indicated that only 6 months of
Count X was imposed consecutively to the other counts. In fact,
Judge Vollands oral pronouncement of sentence imposed 18 months
of Count X consecutively to the other counts. This clerical
error was discussed at resentencing.
11 550 P.2d 369 (Alaska 1976).
12 Id. at 371.
13 608 P.2d 36 (Alaska 1980).
14 Id. at 37.
15 Id.
16 Id. (citing Whitton, 479 P.2d 302 (Alaska 1970)).
17 Id. at 312-13.
18 Loola, 608 P.2d at 37.
19 See State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970)
and AS 12.55.005 (codifying the Chaney sentencing criteria).
20 See, e.g., Pennsylvania v. Goldhammer, 474 U.S. 28, 106
S. Ct. 353, 88 L. Ed. 2d 183 (1985).
21 See Smith v. State, 711 P.2d 561, 567 (Alaska App. 1985)
(in absence of aggravating or mitigating factors an individual
sentencing judge has no discretion to deviate from the
presumptive term).
22 781 P.2d 1005 (Alaska App. 1989).
23 877 P.2d 777 (Alaska App. 1994).
24 927 P.2d 751 (Alaska App. 1996).
25 Schuenemann, 781 P.2d at 1009.
26 Id. at 1007.
27 Ross, 877 P.2d at 781-83.
28 Adams, 927 P.2d at 759-61.
29 996 P.2d 1230 (Alaska 2000).
30 Id. at 1231.
31 Id.
32 See Williams v. State, 800 P.2d 955, 959-60 (Alaska App.
1990), modified on reconsideration, 809 P.2d 931 (Alaska App.
1991).
33 See McClain, 519 P.2d at 813-14.
1 479 P.2d 302 (Alaska 1970).
2 810 P.2d at 1021.
3 Id.
4 Id.
5 Id.
6 Id.
7Id. at 1022.
8Loola, 608 P.2d at 37.
9Id.
10Id., 474 U.S. at 29, 106 S.Ct. at 353.
11Id.
12Id., 474 U.S. at 29-31, 106 S.Ct. at 353-54.
13Rozkydal v. State, 938 P.2d 1091, 1093-94 (Alaska App.
1997).
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