|
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
| JOHN P. SMITH II, | ) Court of Appeals No. A-9681 |
| ) | |
| Appellant, | ) Trial Court Nos. 3PA-04-2787, 3PA-04-2788, |
| ) 3PA-04-2791, 3PA-04- 2986, 3PA-05-410, | |
| v. | ) and 3PA-05-2842 Cr |
| ) | |
| STATE OF ALASKA, | ) O P I N I O N |
| ) | |
| Appellee. | ) No. 2175 July 3, 2008 |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Palmer, Beverly W. Cutler,
Judge.
Appearances: Shelley K. Chaffin, Anchorage,
for the Appellant. Richard K. Payne,
Assistant District Attorney, and Roman J.
Kalytiak, District Attorney, Palmer, and
Talis J. Colberg, Attorney General, Juneau,
for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
John P. Smith II appeals the 20-year composite sentence
that he received for a dozen criminal offenses (ten felonies and
two misdemeanors), most of them committed during a two-month
period in the summer of 2004. Smiths appeal raises two issues.
First, does he have the right to appeal his composite sentence?
And second, if he does, is the 20-year composite term of
imprisonment excessive?
Does Smith have the right to appeal his sentences?
Smiths twelve criminal convictions are
contained in eight separate judgements. The State
contends that, under Alaska law, the superior court was
required to impose the sentences in each of these eight
judgements consecutively and that, because the
superior court was required to impose consecutive
sentences for almost all of Smiths offenses, Smith has
no right to appeal these sentences.
(A) Summary of the States argument
The States argument is based on AS 12.55.127
(the statute that governs the imposition of consecutive
and concurrent sentences) and AS 12.55.120 (the statute
that defines the right to appeal a criminal sentence on
the ground that it is excessive).
During the 2004 legislative session, the
Alaska Legislature amended the law governing a courts
power to impose consecutive and concurrent sentences.
The legislature repealed the earlier statutory
provisions governing this area of law former
AS 12.55.025(e), (g), and (h) and, in their place, the
legislature enacted AS 12.55.127.1
Subsection (a) of AS 12.55.127 declares that
[i]f a defendant is required to serve a term of
imprisonment under a separate judgment, [then any] term
of imprisonment imposed in a later judgment, amended
judgment, or probation revocation shall be consecutive.
Subsection (b) of the statute declares that
if a defendant is being sentenced for two or more
crimes in a single judgment, [the] terms of
imprisonment may be concurrent or partially concurrent,
except as provided in subsection (c).
Subsection (c) of the statute lists several
instances where a sentencing court is required to
impose either wholly or partially consecutive sentences
for particular crimes.
This new statute took effect on July 1, 2004
approximately two weeks before Smith commenced his
criminal rampage.2 Thus, AS 12.55.127 governed Smiths
sentencing.
Nine months later (in March 2005), the
legislature amended AS 12.55.120, the statute that
governs a criminal defendants right to pursue a
sentence appeal. The legislature added a new
subsection that eliminates a defendants right of
sentence appeal in two situations: (1) when the
defendants sentence is within [the] applicable
presumptive range set out in AS 12.55.125 for that
offense, and (2) when the defendants sentence is a
consecutive or partially consecutive sentence imposed
in accordance with the minimum sentences set out in AS
12.55.127.3 This subsection is currently codified as
AS 12.55.120(e).
Based on the combination of these two
statutes AS 12.55.127(a) and AS 12.55.120(e) the
State argues that Smith has no right to appeal 18 years
of his 20-year composite sentence.
The two statutes, read in conjunction,
clearly forbid Smith from appealing any of his
individual sentences since each of these sentences was
within the prescribed presumptive range for a first
felony offender convicted of those offenses. But Smith
does not challenge any of his individual sentences;
rather, he challenges his 20-year composite term of
imprisonment.
To support its contention that Smith has no
right to appeal the great majority of his composite
term of imprisonment, the State relies on the provision
of AS 12.55.120(e) that precludes sentence appeals of a
consecutive or partially consecutive sentence imposed
in accordance with the minimum sentences set out in
AS 12.55.127. The State argues that this provision
bars Smith from appealing 18 years of his composite
term because, according to the State, subsection (a)
of AS 12.55.127 required the superior court to impose
all but two years of Smiths various sentences
consecutively.
To evaluate the States claim, we must review
the law governing consecutive sentences as it existed
before the enactment of AS 12.55.127 in 2004, and then
we must assess what changes the legislature made when
it repealed this former law and enacted AS 12.55.127.
(B) The pre-2004 law governing consecutive
sentencing
As explained above, the law that governed
consecutive sentencing before 2004 was contained in
three now-repealed subsections of AS 12.55.025
subsections (e), (g), and (h).
Subsection (e) stated two rules. First,
defendants being sentenced for two or more crimes had
to receive consecutive sentences except in the
circumstances described in subsection (g). Second,
consecutive sentencing was required for defendants who
were sentenced for a crime when they were already
imprisoned because of a previous criminal judgement.
Subsection (g) listed six circumstances in
which concurrent sentencing was allowed. And
subsection (h), in turn, contained a limited exception
to subsection (g) i.e., it required consecutive
sentencing in certain instances even though the
defendant would otherwise qualify for concurrent
sentencing under subsection (g).
Here is the exact wording of former AS
12.55.025(e):
Except as provided in (g) and (h) of
this section, if the defendant has been
convicted of two or more crimes, sentences of
imprisonment shall run consecutively. If the
defendant is imprisoned upon a previous
judgment of conviction for a crime, the
judgment shall provide that the imprisonment
commences at the expiration of the term
imposed by the previous judgment.
Subsection (g) declared:
If the defendant has been convicted of
two or more crimes before the judgment on
either has been entered, any sentence of
imprisonment may run concurrently if ...
[there followed six circumstances in which
concurrent sentences were authorized].
And subsection (h) declared:
If [a] defendant has been convicted of
two or more crimes under AS 11.41.200
11.41.250 or 11.41.410 11.41.458 in which
the victim or victims of the crimes were
minors[,] and [if] the judgment on any of the
convictions has not been [previously]
entered, the court shall impose some
consecutive period of imprisonment for each
conviction.
As just explained, subsection (g)
of the statute contained six categories of
cases in which concurrent sentencing was
allowed. In State v. Andrews, 707 P.2d 900,
905-06, 908 (Alaska App. 1985), this Court
interpreted these six categories as broad
enough to permit concurrent sentencing in
almost every instance where a defendant was
simultaneously sentenced for two or more
crimes. And, based on this interpretation of
subsection (g), this Court then interpreted
the combination of AS 12.55.025(e) and (g) as
merely expressing a preference for, rather
than requiring, consecutive sentences for
defendants who were being sentenced for two
or more crimes. Andrews, 707 P.2d at 910.
(The Alaska Supreme Court affirmed
this Courts interpretation of these statutes
in State v. Andrews, 723 P.2d 85 (Alaska
1986).)
The wording of subsection (e) posed
one other significant question of
interpretation.
As noted above, the second sentence
of subsection (e) required consecutive
sentences whenever a judgement was entered
against a defendant who was already
imprisoned upon a previous judgment of
conviction for a crime. In Wells v. State,
706 P.2d 711 (Alaska App. 1985), this Court
was asked to construe how this provision of
subsection (e) applied to a defendant who,
while awaiting sentencing in a Palmer case,
was sentenced in an unrelated Anchorage case.
The State argued in Wells that,
because the defendant was already imprisoned
upon a previous judgment (i.e., the judgement
from his Anchorage conviction) by the time
the superior court held the sentencing
hearing in the defendants Palmer case, the
court was obliged to impose a consecutive
sentence for the defendants Palmer crime.
Wells, 706 P.2d at 713. This Court rejected
the States argument and interpreted
subsection (e) as requiring consecutive
sentences only when the defendants second
crime was committed after judgement was
entered against the defendant for the earlier
crime. We explained that the States
interpretation of the statute led to
irrational and unjustified disparity in
sentencing:
[T]he second sentence of AS 12.55.025(e)
... requires imposition of a consecutive
sentence [i]f the defendant is imprisoned
upon a previous judgment of conviction for a
crime. ... The states interpretation of
subsection (e) assumes that previous judgment
means any judgment entered before the entry
of judgment in the current case. While this
interpretation may seem plausible at first
blush, it is on closer examination
problematical.
To interpret subsection (e) in the
manner proposed by the state would lead to
irrational results: a defendant charged with
and convicted of two or more separate crimes
in a single indictment would be subject to
concurrent sentencing. The same would hold
true for a defendant charged with separate
crimes in separate indictments if that
defendant made arrangements for sentencing
proceedings on the charges to be
consolidated. Yet, for a defendant who did
not have the foresight to arrange
consolidated sentencing proceedings[,] or for
whom consolidated proceedings were not
possible due to scheduling problems or other
procedural difficulties, imposition of
consecutive sentences would be mandatory if
the states interpretation were adopted.
We cannot conceive why the legislature
might have intended the application of
mandatory consecutive sentencing to turn on
such fortuitous and haphazard considerations.
The present case provides an excellent
illustration. Here, Wells Anchorage counsel
was apparently unaware of the pending Palmer
charges when Wells pled no contest and was
sentenced for the Anchorage offense;
consequently, no effort was made to obtain
consolidated sentencing hearings. Although
the state concedes that, under its proposed
interpretation, a routine request for
consolidated sentencing hearings would have
sufficed to avoid a mandatory consecutive
sentence, it maintains that in the absence of
such a request a consecutive sentence was
required. The state insists that, even if it
does not particularly make sense, this is
apparently the manner in which the
legislature intended AS 12.55.025(e) to be
construed. Yet we believe that the
irrationality of this result only serves to
underscore the ambiguity in the statutory
language.
Wells, 706 P.2d at 714. We therefore held
that the phrase imprisoned upon a previous
judgment of conviction referred only to
defendants who committed a new crime after
the entry of judgement for a prior crime.
Id. at 715.
Thus, following this Courts
decision in Wells, consecutive sentencing was
required by former AS 12.55.125(e) only if a
defendant committed a new crime while on
parole from a previous crime,4 or committed a
new crime while on probation from a previous
crime,5 or committed a new crime in prison
while serving a sentence for a previous
crime.6
(C) The wording of AS 12.55.127, and the States
interpretation of how this statute applies to
Smiths case
As explained above, the legislature repealed
AS 12.55.025(e), (g), and (h) in 2004. In their
place, the legislature enacted AS 12.55.127.
Subsections (a), (b), and (c) of AS 12.55.127 now
codify the rules that govern consecutive
sentencing.
Subsection (a) of the statute requires a
court to impose consecutive sentences whenever a
defendant is sentenced to serve a term of
imprisonment under a separate judgment and then
receives another term of imprisonment under a
later judgment, amended judgment, or probation
revocation.
Subsection (b) allows a court to impose
concurrent or partially concurrent sentences when a
defendant is being sentenced for two or more crimes in
a single judgment.
Subsection (c) completes the trilogy by
setting forth a list of exceptions to the concurrent
sentencing allowed by subsection (b). That is,
subsection (c) lists several instances where a
sentencing court is required to impose either wholly or
partially consecutive sentences for particular crimes,
even though the defendant would otherwise qualify for
concurrent sentencing under subsection (b) (because the
defendant is being sentenced for two or more crimes in
a single judgement).
In the present case, the superior court
sentenced Smith for twelve crimes at two sentencing
hearings. These twelve charges were contained in six
different criminal cases. However, rather than issuing
six judgements against Smith (one for each criminal
case), the superior court issued eight separate
judgements. For some reason not disclosed in the
record, the superior court chose to issue an
additional, separate judgement for each of Smiths two
misdemeanor convictions the conviction for driving
under the influence in case number 3PA-04-2986 Cr, and
the conviction for violation of the conditions of
felony release in case number 3PA-05-2842 Cr.
The State argues that because Smiths
sentences were imposed in separate judgements, the
superior court was obliged by AS 12.55.127(a) to impose
the sentences contained in each of these judgements
consecutively to each other and, thus, Smith is
effectively barred from appealing his 20-year composite
sentence.
(Under the States interpretation of the
statute, Smith would still be able to appeal the
superior courts decision to impose consecutive
sentences for offenses contained within any individual
judgement. Thus, in case number 3PA-04-2791 Cr, where
Smith was sentenced to 8 years imprisonment for first-
degree robbery and a consecutive 1 year for first-
degree vehicle theft, Smith would be able to appeal the
superior courts decision to impose the consecutive year
for the vehicle theft. Likewise, in the felony
judgement in case number 3PA-05-2842 Cr, where Smith
was sentenced to 2 years imprisonment for first-degree
burglary and a consecutive 1 year for second-degree
theft, Smith would be able to appeal the superior
courts decision to impose the consecutive year for the
second-degree theft.)
One underlying problem with the States
proposed interpretation of AS 12.55.127(a) is that it
does not comport with the wording of the statute.
The State takes the position that subsection
(a) requires consecutive sentencing whenever a
defendant receives a term of imprisonment in a separate
judgement. But this is not exactly what subsection (a)
says. Rather, subsection (a) declares that consecutive
sentencing is required when a defendant [who] is
required to serve a term of imprisonment under a
separate judgment receives a term of imprisonment ...
in a later judgment, amended judgment, or probation
revocation.
For the reasons we explain in this opinion,
we conclude that the phrase later judgment [or] amended
judgment refers to a judgement based on a crime that
was committed after the court entered judgement for the
defendants separate crime. In other words, this
statutory language was intended to re-enact Alaskas pre-
existing consecutive sentencing rule, as interpreted by
this Court in Wells.
In order to explain our conclusion, we must
set forth the legislative history of AS 12.55.127 in
some detail.
(D) The legislative history of AS 12.55.127
The wording of AS 12.55.127(a) poses some
obvious difficulties. For instance, the statute
appears to require a consecutive term of imprisonment
whenever the sentencing court issues a later ...
amended judgment. But many amended judgements are
issued to fix a clerical error or to otherwise conform
the judgement to what the sentencing judge said at the
sentencing hearing. They are meant to correct and
supersede the originally issued judgement. In such
instances, it would be nonsensical to require the term
of imprisonment specified in the amended judgement to
be served consecutively to the term of imprisonment
specified in the original judgement.
Another problem is that the number of
judgements entered against a defendant sometimes bears
little or no relationship to the number of criminal
episodes that the defendant has engaged in. This
problem is illustrated by the actions of the superior
court in Smiths case. As explained above, two of
Smiths six criminal cases involved a combination of
felony and misdemeanor charges. The superior court
segregated the two misdemeanor counts and issued
separate judgements on those misdemeanor convictions
thus increasing the total number of separate judgements
to eight.
Under the States proposed interpretation of
the statute, because the superior court decided to
issue separate judgements for these misdemeanor
convictions, the superior court was apparently required
to impose the misdemeanor sentences consecutively and,
thus, Smith would have no right to appeal the fact that
these sentences are consecutive to his other sentences.
But we seriously doubt that the Alaska Legislature
intended to allow sentencing judges to adopt the tactic
of issuing a separate judgement for each of a
defendants criminal convictions as a means of
precluding the defendant from appealing the judges
decision to impose the sentences consecutively.
What, then, did the legislature mean when it
declared that, if a defendant receives a term of
imprisonment under a separate judgment, any term of
imprisonment imposed in a later judgment, amended
judgment, or probation revocation shall be consecutive?
We turn to the legislative history of AS 12.55.127 to
answer this question.
AS 12.55.127 began life as one section of a
lengthy omnibus criminal law bill introduced by the
governor in 2003. (Actually, the governor introduced
twin bills: House Bill 244 (23rd Legislature) and
Senate Bill 170 (23rd Legislature).)
As reflected by the minutes of several
legislative committee meetings during 2003 and 2004,
the governors omnibus criminal law bill encountered
substantial resistance in the legislature. The bill
contained so many controversial provisions that it drew
active opposition from a wide range of legislators and
citizens.7
By the end of the 23rd Legislature (i.e., the
spring of 2004), it seemed clear that neither House
Bill 244 nor its sibling, Senate Bill 170, would pass.
So on May 11, 2004 (i.e., shortly before the end of the
legislative session), the provision on consecutive
sentencing was inserted into another bill the Senate
Resources Committees Substitute for the House Committee
Substitute for House Bill 309. (Or, in the jargon of
courts and legislators, SCS HCS HB 309 (Res).)
Until that time, the sole purpose of House
Bill 309 had been the enactment of a new provision in
Title 16 (the laws relating to fish and game) to
prohibit the introduction of live nonindigenous fish
[or the live fertilized eggs of such fish] into a body
of fresh public water in this state. But by virtue of
the May 11th amendment, House Bill 309 was re-titled
An Act relating to nonindigenous fish and consecutive
sentencing, and the text of what is now AS 12.55.127
was inserted into the bill as section 3. In this
revised form, House Bill 309 was enacted as SLA 2004,
ch. 125.
(We express no opinion on whether the
legislatures action violated the single-subject rule
contained in Article II, Section 13 of the Alaska
Constitution.)
There are no committee minutes discussing
House Bill 309 in its post-May 11th revised form.
Therefore, to discern how the legislature understood
the provision on consecutive and concurrent sentencing,
we must turn back to the committee minutes from 2003
and 2004 dealing with House Bill 244.
At a meeting of the House Judiciary Committee
on April 14, 2003, Anchorage Chief Assistant District
Attorney John Novak told the committee members that the
provisions of House Bill 244 dealing with consecutive
sentencing were designed to achieve a limited purpose:
to require sentencing judges to impose a defendants
mandatory minimum sentences consecutively.
Mr. Novak told the Committee that when the
legislature enacted the prior provisions dealing with
consecutive sentencing (i.e., when the legislature
enacted former AS 12.55.025(e), (g), and (h)), the
legislature [acted] with the clear intent of wanting
consecutive sentences [to be mandatory]. However,
according to Novak, th[at earlier] legislation was not
well drafted and, thus, the [appellate] court[s]
interpreted the legislation to mean that consecutive
sentencing was simply a legislative preference, not
mandatory.8
(Mr. Novak was referring to State v. Andrews,
707 P.2d 900 (Alaska App. 1985), affirmed 723 P.2d 85
(Alaska 1986), which held that former AS 12.55.025(e)
and (g) expressed a preference for, but did not
require, consecutive sentences when a defendant was
sentenced for two or more crimes at the same time.)
Novak then told the Committee that the
consecutive sentencing provisions of House Bill 244
were not intended to take the law back to what was
intended with the 1982 legislation i.e., not intended
to require complete consecutive sentencing for all
crimes involving separate victims. Rather, Novak told
the Committee that the provisions of House Bill 244
would only require [that] mandatory minimum sentences
... be consecutive.9 Novak then gave this example:
[If a] drunk driver [killed two adults and
injured their child, and if the driver] was
convicted of murder in the second degree [for
killing the two adults], he or she would have
to serve 10 years [i.e., the mandatory
minimum sentence for second-degree murder]
for each of the adults killed, and [the
driver would have to serve] at least 1
[consecutive] day for the crime of assaulting
the child, for a total of 20 years and 1 day.
Minutes of the House Judiciary Committee for
April 14, 2003, Tape 03-38, Side B, Log Nos.
2226 to 1958. (Apparently, on the
legislatures tape machines, the log numbers
run backwards on side B of a tape.)
The House Judiciary Committee held
House Bill 244 under consideration for
several weeks. On May 9, 2003, Chief
Assistant Attorney General Dean J. Guaneli
(of the Criminal Division Central Office)
appeared before the Committee to respond to
questions about the bill.
In response to questions from
Representative Les Gara about the consecutive
sentencing provisions of the bill, Mr.
Guaneli told the Committee that House Bill
244 required consecutive sentencing in very
limited circumstances:
What this provision does [let me] first
explain about [the] current law. In 1982,
the legislature adopted the current
consecutive sentencing statutes. And if you
read them, they do appear to say [that] just
about everything is consecutive.
But ... there was a problem in drafting,
and the Alaska appellate courts have said,
That isnt what it says. It may be what was
intended, and we recognize that the
legislature prefers there to be consecutive
sentencing, but [mandatory consecutive
sentencing] isnt the law. So what [House
Bill 244] does is, it tries to address two
kinds of crimes for mandatory consecutive
sentencing: homicides and rapes, or first-
degree sexual abuse of a minor in other
words, [sexual] penetration of a minor under
13. [Sentencing for] everything else is
essentially at the judges discretion. [Thus,
for] the particular crime that Representative
Gara talked about, ... first-degree assault,
... there is no provision for mandatory
consecutive sentencing under this bill.
Minutes of the House Judiciary Committee for
May 9, 2003, Tape 03-58, Side B, Log Nos.
2320-2219.
Mr. Guaneli then added that House
Bill 244 did also require some active term of
imprisonment of each additional crime ...
under AS 11.41.200 [250] i.e., the various
degrees of assault [because a] judge really
ought to recognize that there were separate
victims and impose some additional time.
[But the new statute] doesnt say how much
[time to impose]; it can be [as little as]
one day.10
Guaneli characterized the bill as
impos[ing] some type of consecutive
sentencing, but its really fairly modest.
... This really is a fairly modest
provision.11
Mr. Novaks and Mr. Guanelis
explanations of the consecutive sentencing
provisions were offered to the legislature in
2003. As explained above, House Bill 244
contained so many controversial provisions
that it ran into considerable trouble in the
legislature that year. In response to
legislative criticism and concerns, the
Department of Law brought back a revised
proposal when the 23rd Legislature reconvened
in 2004.
In the spring of 2004, the
Department of Law sent a third
representative, Deputy Attorney General Susan
A. Parkes, to introduce the revised bill to
the legislature. In appearances before the
House Judiciary Committee on March 19th12 and
before the House Finance Committee on April
21st,13 Ms. Parkes explained that the
provisions of the bill relating to
consecutive sentencing were identical to
those contained in the previous years
version. According to Parkes, the only
significant change from the then-current law
would be that consecutive sentencing either
total or partial would be mandated for the
most serious crimes.14
Parkess most lengthy and
substantive discussion of the consecutive
sentencing provisions occurred in front of
the House Judiciary Committee on March 30,
2004.15 Parkes told the Committee that the
proposed provisions on consecutive sentencing
did not mandate or even establish a
presumption that all sentences should be
consecutive.16 This prompted Representative
Les Gara to ask Parkes, So are you saying
that [these proposed] statutes provide that
in some cases the presumption is not
consecutive sentences? (Emphasis added)17
In response to Representative Garas
question, Parkes replied that the proposed
new statute would carry forward the then-
current rule codified in AS 12.55.025(e) and
(g). In other words, Parkes told the
Committee that, except for the most serious
crimes, concurrent sentencing would still be
allowed under the terms of former AS
12.55.025(g) whenever the defendant has been
convicted of two or more crimes before the
judgment on either has been entered.18
Parkes then added a comment that
suggested a limited expansion of concurrent
sentencing. As explained above, former AS
12.55.025(e) and (g) had been interpreted to
allow concurrent sentencing, but to create a
preference for consecutive sentencing. But
Parkes told the House Judiciary Committee
that, under the proposed new law, its [just
an] opportunity [for consecutive sentencing]
rather than a presumption.19
(E) Why we reject the States interpretation of AS
12.55.127
As can be seen from the foregoing legislative
history of AS 12.55.127, the Department of Law
consistently took the position that this statute would
work only a modest change in Alaska law governing
consecutive and concurrent sentencing. Indeed, the
changes described by the Department of Laws
representatives do not appear to involve AS
12.55.127(a) and (b) at all. Rather, the changes that
the Department described are seemingly all contained in
subsection (c) of the statute the portion of the
statute that sets forth a list of rules for when a
defendant must receive at least partially consecutive
sentences for various types of crimes.
During the many legislative hearings on this
proposed statute, no one stated or even suggested that
subsections (a) and (b) the portions of the statute at
issue in the present case would work a change in the
law (with the exception of the one remark made by
Deputy Attorney General Parkes to the House Judiciary
Committee, suggesting that these two subsections would
eliminate the then-existing preference for consecutive
sentencing). Rather, as we have described above, the
Department of Law consistently took the position that
subsections (a) and (b) merely carried forward existing
law that is, they allowed concurrent sentencing, with
the exception of the consecutive sentencing mandated by
subsection (c).
We acknowledge that this conclusion is not
self-evident from the wording of AS 12.55.127(a) and
(b). The language of these two subsections does not
mimic the language of former AS 12.55.025(e) and (g).
But the States suggested reading of subsection (a)
i.e., its argument that subsection (a) requires
consecutive sentencing whenever sentences of
imprisonment are imposed in separate judgements does
not comport with the wording of the subsection, and it
is inconsistent with the legislative history we have
just set forth.
That legislative history the sum of the
discussions and descriptions of AS 12.55.127 found in
the various legislative committee hearings of 2003 and
2004 demonstrates that subsections (a) and (b) of the
statute were intended by the Department of Law, and
understood by the Alaska Legislature, to basically
restate the consecutive sentencing rules codified in
the earlier law, AS 12.55.025(e) and (g), as
interpreted by the decisions of this Court and the
Alaska Supreme Court.
For these reasons, we conclude that the State
is mistaken when it asserts that subsection (a)
mandates consecutive sentencing whenever a defendants
sentences are contained in separate judgements.
Instead, with the exception of the consecutive
sentencing mandated by subsection (c) of the statute,
subsections (a) and (b) were meant to carry forward the
pre-existing rule that consecutive sentences are
required in only one category of cases: instances
where a defendant is sentenced for a crime that the
defendant committed after judgement was issued against
the defendant for an earlier crime. In those
instances, the sentence for the new crime must be
consecutive to the defendants sentence for the earlier
crime including any amended sentence that the
defendant might receive if the court revoked the
defendants probation from the earlier crime.
Our conclusion on this point is bolstered by
the fact that, if we interpreted AS 12.55.127(a) and
(b) as the State suggests in other words, if
consecutive sentencing were mandated whenever a court
issued a defendants sentences in separate judgements
this would give rise to the same potential for
irrational sentencing that this Court identified in
Wells v. State, when we adopted a limiting construction
of former AS 12.55.025(e).20
If AS 12.55.127 were interpreted to require
consecutive terms of imprisonment whenever the
sentencing court issued separate judgements, a
sentencing courts authority to impose concurrent
sentences for two or more crimes would hinge in large
measure on the prosecutors initial charging decision.
If the prosecutor chose to join the crimes in a single
indictment, concurrent sentences would be allowed (in
the sentencing judges discretion). But if the
prosecutor chose to pursue these same crimes in
separate criminal cases, concurrent sentences would be
prohibited.
By the same token, even when a defendants
crimes were joined in the same indictment, the
sentencing judge could effectively require consecutive
sentences and insulate those sentences from later
attack by dividing up the charges and issuing separate
judgements for each conviction.
But neither a prosecutors decision to join
different crimes in the same indictment, nor a
sentencing judges decision to issue separate judgements
on different counts of the same indictment, appears to
have any rational bearing on the question of whether a
defendant should receive consecutive or concurrent
sentences for multiple crimes. What we said in Wells,
when we rejected a literal reading of former
AS 12.55.025(e), applies equally to the conundrums
posed by the States proposed reading of AS 12.55.127(a)
and (b): We cannot conceive why the legislature might
have intended the application of mandatory consecutive
sentencing to turn on such fortuitous and haphazard
considerations. 706 P.2d at 714.
Accordingly, we conclude that AS 12.55.127
did not require the superior court to impose Smiths
sentences consecutively (either in whole or part).
Rather, the superior court was authorized to impose
concurrent sentences in Smiths case and, as a
consequence, Smith is entitled to appeal his composite
term of imprisonment.
Whether Smiths 20-year composite sentence is excessive
Now that we have concluded that Smith is
entitled to appeal his composite sentence, we turn to
the remaining issue in this case: whether that
sentence is excessive. To explain our answer to this
question, we must first describe Smiths series of
criminal offenses.
As we explain in more detail below, Smith
committed a series of criminal acts during the summer
of 2004. As a result, the State filed five different
criminal cases against Smith, comprising twenty-six
different offenses. These five cases were ultimately
resolved by an omnibus plea agreement.
However, before Smith and the State reached
this omnibus plea agreement, while Smith was in jail
awaiting trial on these five cases, Smith asked the
superior court to release him for one day to attend his
fathers funeral. The superior court granted this
request and released Smith to his mothers custody.
Smith then absconded and committed more offenses
(burglary, theft, and criminal mischief). This led to
the filing of a sixth criminal case against Smith.
This sixth case was resolved in a separate plea
agreement.
(A) The details of Smiths criminal conduct in these
six cases
On July 18, 2004, eighteen-year-old John P.
Smith II was expelled from the military academy he had
been attending. He then stole a pickup truck belonging
to the Municipality of Anchorage. Accompanied by a
friend, Smith drove the truck to Jim Creek (southeast
of Palmer) and went four-wheeling. This activity
caused $5000 of damage to the pickup truck. Smith and
his friend, both of whom had been drinking, then stole
another pickup truck. Smith drove this second pickup
truck at speeds of over 90 miles per hour. Although
Smiths friend urged him to stop driving crazy, Smith
did not heed this warning. Ultimately, the truck hit
an embankment, became airborne, struck a utility pole
(which split in half), and then landed on its roof and
caught fire.
A witness summoned emergency personnel. When
the paramedics arrived, they were initially unable to
free Smith from the wreckage. While they were
collecting additional rescue equipment, Smith managed
to free himself. He crawled to a nearby ambulance, got
in, and attempted to drive away. But as Smith tried to
maneuver the ambulance, he got the cab of the ambulance
entangled in a low-hanging power line which brought
the ambulance to a halt. Emergency personnel then
removed Smith from the drivers seat, strapped him to a
gurney, and took him to the hospital where he required
surgery for a ruptured spleen.
As noted above, the damage to the municipal
pickup truck was $5000. The damage to the second
pickup truck was $10,000 (a total loss). In addition,
Smith caused $1000 of damage to the ambulance and $6000
of damage to the utility pole and its accompanying
electrical transformer.
Based on these events, Smith was charged with
two counts of first-degree vehicle theft, three counts
of second-degree criminal mischief, and driving under
the influence in case number 3PA-04-2986 Cr.
As part of the omnibus plea agreement that
resolved the first five of Smiths criminal cases, Smith
pleaded no contest to first-degree vehicle theft, and
to a reduced charge of reckless driving (in place of
the driving under the influence charge); all the other
charges were dismissed.
(We note that, even though the plea agreement
called for Smith to be convicted of reckless driving
instead of driving under the influence, the judgement
issued by the superior court states that Smith was
convicted of driving under the influence. Smith does
not complain of this discrepancy on appeal. If the
superior court in fact made a mistake, Smith can seek
relief in the superior court under Alaska Criminal
Rule 35(a).21)
On August 24, 2004 (i.e., roughly five weeks
after this first criminal episode), a woman called the
Alaska State Troopers to report that her home had been
ransacked and her vehicle stolen. Subsequent
investigation revealed that Smith had been walking down
a power line trail and had stopped at the womans house
to get a drink of water from an outside hose. Smith
then decided to break into the residence. Once inside,
Smith rummaged through a file cabinet and some desk
drawers, where he found $150 in cash and the keys to a
pickup truck all of which he took. Smith later
abandoned the stolen truck at an apartment complex.
Based on these events, Smith was charged with
first-degree burglary, first-degree vehicle theft,
third-degree theft, and fifth-degree criminal mischief
in case number 3PA-05-410 Cr.
Under the terms of Smiths omnibus plea
agreement with the State, Smith pleaded no contest to
first-degree burglary, and the other charges were
dismissed.
On August 25, 2004 (i.e., the day following
Smiths commission of the just-described burglary and
vehicle theft), another woman called the state troopers
to report that her vehicle had been stolen from her
residence. Later that evening, the Anchorage police
were summoned to the scene of a single-vehicle accident
near Eagle River. When they arrived, they found the
womans stolen vehicle in a ditch. Inside the vehicle
were eight firearms, as well as burglary tools and
flashlights.
Subsequent investigation revealed that Smith
(accompanied by some other youths) had been driving the
car. The car went into the ditch when Smith fell
asleep behind the wheel. After the crash, witnesses
saw Smith flee on foot.
Of the eight firearms found in the stolen car
on the evening of August 25th, one had been reported
stolen in a burglary the previous week, and four others
were later reported stolen in a burglary that,
according to the homeowner, occurred sometime between
the morning of August 25th and August 27th.
Several weeks later, after the police
arrested Smith on unrelated charges, he confessed to
having committed the vehicle theft and one of these
burglaries.
Based on these events, Smith was charged with
first-degree burglary, first-degree vehicle theft, and
four counts of second-degree theft (i.e., theft of a
firearm) in case number 3PA-04-2787 Cr.
Under the terms of Smiths omnibus plea
agreement with the State, Smith pleaded no contest to
first-degree burglary and one count of second-degree
theft; the other charges were dismissed.
On September 13, 2004, the state troopers
responded to the report of an armed robbery at a home
outside of Wasilla. The homeowner told the troopers
that three people broke into his residence during the
day and were still there when he returned home. When
the homeowner entered the house, one of the three
later identified as Smith pointed a gun at him and
addressed him by name, telling him, Freeze, Bill. The
homeowner tried to close the door and hold it shut, but
he ceased resisting when Smith told him, I am going to
shoot you, Bill. I have a gun.
The robbers then placed a pillow case over
the homeowners head and secured it around his neck with
packing tape. They also bound his hands with packing
tape and secured his feet with a belt.
The robbers stole the homeowners ATM card,
$3000 in cash, $3500 worth of jewelry, three handguns,
and a video camera. Using knives, they slashed the
homeowners leather couches. They also took the
homeowners truck. This vehicle was found later that
same day near Mud Lake; it had been totally destroyed
by fire. Smith later told the police that he decided
that he had to burn the truck because his accomplices
had not worn gloves (and thus had left fingerprints in
the vehicle).
Based on these events, Smith was charged with
first-degree robbery, first-degree burglary, third-
degree assault, first-degree vehicle theft, two counts
of second-degree theft, and third-degree criminal
mischief in case number 3PA-04-2791 Cr.
Under the terms of Smiths omnibus plea
agreement with the State, Smith pleaded no contest to
first-degree robbery, first-degree vehicle theft, and
third-degree assault; all the other charges were
dismissed.
A little after two oclock in the morning of
September 19, 2004, the Palmer police received a report
of a vehicle on the Palmer-Wasilla Highway that was
swerving all over the road, with people dangling out of
the windows. The officer who was dispatched to
investigate soon spotted the vehicle and made a traffic
stop. There were four people in the car; Smith was the
passenger in the front seat.
Smith falsely identified himself as his
cousin, Jason Walker. But when Walker was unable to
provide his social security number, and when he gave a
place of birth that did not match the computer records
for the real Jason Walker, the officer placed Smith in
handcuffs and patted him down for weapons. In Smiths
right front pocket, the officer found a plastic baggie
containing several 9-mm bullets. Later, after the
driver of the car gave the police permission to search
the vehicle, the police found a 9-mm Witness handgun
under the seat where Smith had been sitting.
The two passengers in the back seat were both
minors. The minors told the police that Smith had
provided them with alcoholic beverages.
Based on these events, Smith was charged with
third-degree weapons misconduct, giving false
information to a police officer with the intent of
implicating another, and two counts of furnishing
alcoholic beverages to a minor in case number 3PA-04-
2788 Cr.
Under the terms of Smiths omnibus plea
agreement with the State, Smith pleaded no contest to
third-degree weapons misconduct, and the other charges
were dismissed.
We now come to Smiths sixth criminal case
the one case that was not included in the omnibus plea
bargain.
On October 13, 2005, while Smith was in jail
awaiting trial on these various charges described
above, the superior court granted his request for a one-
day release from custody so that he could attend his
fathers funeral. The following day (October 14th),
Smith was released to the custody of his mother on a
$100,000 unsecured bond and under electronic
monitoring. The court directed Smith to return to
custody by nine oclock that evening. Approximately
thirty minutes before this deadline, Smith cut off the
ankle bracelet that monitored his geographic position,
and he then absconded.
On October 21st, while Smith was on the run,
the state troopers received a report of a residential
burglary in which two handguns (a Para-Ordinance .45
and a Colt 10-mm) were stolen. That same evening, the
state Fugitive Task Force (a combination of federal and
state law enforcement officers) located Smith at a
house in Wasilla. Smith initially refused to
surrender, but negotiators finally convinced him to
give himself up. Following his arrest, Smith informed
the authorities where to find the two handguns that had
been stolen in the burglary earlier that day.
Based on these events, Smith was charged with
violating the conditions of his felony release, first-
degree burglary, two counts of second-degree theft, and
fourth-degree criminal mischief in case number 3PA-05-
2842 Cr.
Smith ultimately reached a separate plea
agreement with the State concerning these charges: he
pleaded no contest to violating the conditions of his
release, first-degree burglary, and one count of second-
degree theft, in exchange for dismissal of the other
charges and an agreed-upon sentence cap of 4 years to
serve.
(B) Smiths background before these six cases
Smith is apparently quite intelligent, but he
has been in trouble with the law since early 1999, when
he was twelve years old. Smith was adjudicated a
delinquent minor for several thefts, trespasses, and
criminal mischiefs committed in February 1999. While
on probation, he committed criminal mischief again in
December 1999, which was informally adjusted. He
violated his juvenile probation again in March 2000,
but the court continued his probation. However, Smith
was institutionalized i.e., sent to McLaughlin Youth
Center after he committed two burglaries, second-
degree theft, second-degree criminal mischief, escape,
and assault during the last four months of 2000.
In December 2002, the superior court entered
another institutionalization order against Smith, after
he committed second-degree escape.
(C) The two sentencings
In March 2006, Smith was sentenced on the
first five of his cases (i.e., all of the charges
except the ones stemming from Smiths October 2005
flight from custody). (At the time of this first
sentencing, the sixth criminal case had been filed, but
Smith had not yet been indicted on those charges.)
Smith was sentenced for his October 2005 offenses in
November 2006.
The author of the pre-sentence report that
was prepared for Smiths first sentencing (the March
2006 sentencing) concluded that isolation should be the
superior courts primary goal in sentencing Smith since
neither probation nor institutionalization with
treatment [have been] successful in reforming Smith or
even deterring him. The pre-sentence investigator
declared:
[Smiths] calculated approach to ...
criminal activity and his inclusion of others
[in these activities] is ... frightening.
His behavior has escalated in seriousness,
[and at] this juncture, the communitys safety
can only be ensured [by] his lengthy
incarceration.
In 16 years of working with juveniles in
a treatment setting[,] and with adults in a
probation setting, this officer has never
[before] held the belief that deterrence of
any defendant was not possible. However, in
this case[,] the defendant appears to be
incorrigible. He has no regard for the
safety of community members or their
property. He does not do well on
supervision[, and he] does not actively
engage in treatment while incarcerated.
As explained above, the plea
agreement that resolved Smiths first five
cases required him to plead no contest to
nine different offenses eight felonies and
one misdemeanor. These were:
Case number 3PA-04-2986 Cr first-
degree vehicle theft (a class C
felony)22 and reckless driving (a non-
classified misdemeanor carrying a
maximum sentence of 1 year);23
Case number 3PA-05-410 Cr first-
degree burglary (a class B felony);24
Case number 3PA-04-2787 Cr first-
degree burglary (a class B felony) and
second-degree theft (a class C
felony);25
Case number 3PA-04-2791 Cr first-
degree robbery (a class A felony),26
first-degree vehicle theft (a class C
felony), and third-degree assault (a
class C felony);27 and
Case number 3PA-04-2788 Cr third-
degree weapons misconduct (a class C
felony).28
Of Smiths nine offenses in these
five cases, the most serious was the class A
felony of first-degree robbery. This crime
carried a maximum penalty of 20 years
imprisonment.29 Under former AS 12.55.155(a)
(the pre-March 2005 version), Smith could
receive this 20-year maximum sentence because
he conceded that the State could prove two of
the aggravating factors listed in
AS 12.55.155(c): (c)(19) that Smith had
been adjudicated a delinquent minor for
conduct that would have been a felony had he
been an adult; and (c)(21) that Smith had
previously repeatedly engaged in similar
criminal conduct (i.e., his previous thefts).
(Smith further conceded that, under
the facts of his case, these two aggravating
factors were Blakely-compliant.)30
Smiths next most serious offenses
were the two class B felonies of first-degree
burglary. These crimes carried a maximum
sentence of 10 years imprisonment.31 Again,
Smith was eligible for this maximum penalty
because of the two conceded aggravating
factors.
Superior Court Judge Beverly W.
Cutler was the sentencing judge in Smiths
case. She had also been the judge who
handled Smiths delinquency matters. As Judge
Cutler noted toward the beginning of her
sentencing remarks, she had been dealing with
Smith since he was thirteen years old.
Based on Smiths juvenile history
and his current series of crimes, Judge
Cutler told Smith that it would be
unrealistic to indulge once again in the
notion that, somehow, you dont really mean
[to do] evil, and [that] this is just some
sort of teenage acting-out behavior that
youre going to change. The judge declared
that Smiths behavior [had] gone from bad to
very, very much worse.
Judge Cutler acknowledged that
Smith had not committed any unclassified
felonies (such as a murder or a first-degree
sexual assault) although she noted that
Smiths armed robbery had been extremely
serious. She then explained why she believed
that only a lengthy term of imprisonment
could protect the public from Smiths further
criminal conduct:
The Court: [This] Court ha[s] already
spent ... five years attempting [Smiths]
rehabilitation, ... attempt[ing] it in every
single imaginable way. And we indulged over
and over and over again in the [views
expressed by Smiths defense attorney today]
that, ... as a society, we would really ...
prefer not to be unduly punitive, and to help
people be more functional [members of
society].
. . .
But [our] society ... has [already]
tried every conceivable method of attempting
[to get Smith] to help [him]self ... .
I dont think I will ever forget the
surprise and shock, really, [that] I felt
when you ... came in [to juvenile court] on
your first crimes, and it was described what
... you had done in the city of Palmer[:]
... the number of businesses you broke into,
the way you broke into those businesses,
[and] the things you chose to do with the
things you [stole].
I certainly hope ... that ... by the
time you are 30 [or] 35, ... you will be more
cognizant of what you need to do to control
your behavior, so that you can live with
other people without just grabbing what you
want, doing [whatever] you think ... you can
get away with ... . But Im going to guess
that youll be 35 to 40 years old before youre
really brought around.
Judge Cutler declared that Smiths
criminal record was certainly one of the
worst records that this Court has [seen] that
doesnt include homicide or sexual assault.
And she expressed her agreement with the
conclusion of the pre-sentence investigator
that it would be fruitless to put Smith on
probation:
The Court: I think that the [pre-
sentence investigator] is probably quite
insightful and prescient when she says [that]
there is no point [in] suspending ... half of
[Smiths sentences] and placing [Smith] on
probation. Weve been doing that for five
years. Theres no point in doing that
anymore. ... [I]t just doesnt seem to me to
make sense to impose anything [but time to
serve] here. ... [T]hat [does not mean
that] the key has been thrown away. It,
rather, recognizes that the parole system is
the best system, at this point in time, for
determining how [Smiths] transition [to
society] should go, [and] when [Smith should]
finally get out of jail ... .
Despite these pessimistic
conclusions, Judge Cutler also expressly
acknowledged that it was her duty to make
sure that Smiths individual sentences for the
nine crimes did not add up to something
[excessive]. The judge then imposed the
following sentences. All of the terms of
imprisonment listed here are unsuspended, and
the sentences in each of the five different
cases are consecutive to each other:
Case Number 3PA-04-2791: 8 years
for the robbery, plus a concurrent
2 years for the accompanying assault.
Judge Cutler also imposed a consecutive
1 year for the vehicle theft in this
case the vehicle theft that ended in
Smiths destruction of the car by arson
because this offense was an extremely
serious vehicle theft;
Case Number 3PA-04-2986: 1 year
for the vehicle theft and a consecutive
6 months for driving under the
influence;
Case Number 3PA-05-410: 2 years
for the burglary;
Case Number 3PA-04-2787: 2 years
for the burglary, and a concurrent 1
year for the theft; and
Case Number 3PA-04-2788: 18 months
for the weapons misconduct.
Judge Cutler acknowledged that
these individual sentences totaled 16 years
to serve. However, she asserted that this
lengthy composite sentence was justified,
given Smiths huge number of offenses.
As already explained, Smiths
sentencing in case number 3PA-05-2982 Cr (the
offenses Smith committed when he absconded in
mid-October 2005) took place in November
2006, eight months after his first sentencing
hearing.
A different probation officer
prepared an updated pre-sentence report for
this sentencing. This second pre-sentence
investigator likewise concluded that Smiths
prospects for rehabilitation were minimal
because Smith has never been deterred by
prior actions of the [superior court] and
because Smith has not performed well on
previous periods of juvenile probation. The
pre-sentence investigator also noted that
Smith had a lengthy history of attempting to
flee from [judicial] sanctions, as evidenced
by [his] multiple escape convictions as a
juvenile, as well as the present offense in
which [Smith] used the death of his father to
facilitate his escape from custody.
The pre-sentence investigator
concluded that nothing would be gained from
sentencing Smith to further probation
supervision, and that isolation was the only
Chaney sentencing criterion that the court
should consider.32
As already explained, Smiths plea
agreement with the State in this sixth case
called for Smith to be convicted of one class
B felony (first-degree burglary), one class C
felony (second-degree theft), and one class A
misdemeanor (violating the terms of his
felony release),33 with a sentence cap of 4
years to serve.
Smiths attorney conceded that Smith
should receive 4 years to serve for these
offenses, but the defense attorney asked
Judge Cutler to make this 4-year term either
wholly or partially concurrent to the
sentences that Smith had already received in
the other five cases.
Judge Cutler rejected this request
for concurrent sentences. She declared that
Smith was incorrigible and that Smiths
sentences for his October 2005 offenses
should be imposed consecutively to his other
sentences because the October 2005 charges
represent different crimes in a [separate]
crime spree.
She then sentenced Smith to 2 years
for the burglary, 1 year for the theft, and 1
year for violating the conditions of his
release all consecutive to each other, and
all consecutive to the sentences that Smith
had received in the other five cases in
March.
Thus, Smiths composite sentence
(his total sentence for all twelve offenses
encompassed in his six separate criminal
cases) is 20 years imprisonment.
(D) Why we conclude that Smiths composite sentence
is not excessive
In challenging his 20-year composite
sentence, Smith first argues that Judge Cutler failed
to make sufficient findings to support this sentence.
Specifically, Smith argues that, before Judge Cutler
could properly impose a composite term longer than
10 years to serve, the judge needed to make an express
finding that this lengthier sentence was justified by
extraordinary circumstances or weighty aggravating
factors.
Smiths argument is partly based on the
American Bar Associations recommendation that sentences
of imprisonment should normally not exceed 10 years.
The Alaska Supreme Court endorsed the ABAs suggested
ceiling on felony sentences in Donlun v. State, 527
P.2d 472, 475 (Alaska 1974). (At that time, the
suggested ceiling was 5 years imprisonment.) And this
Court issued several decisions in the 1980s endorsing
the ABAs sentencing guideline (which, by then, had been
increased to 10 years imprisonment). But all of these
decisions were disapproved by the Alaska Supreme Court
in State v. Bumpus, 820 P.2d 298 (Alaska 1991), a case
involving a defendant who engaged in a series of
burglaries and thefts. Here is what the supreme court
said:
Citing its own decisions and this courts
decision in Pears v. State, 698 P.2d 1198
(Alaska 1985), the court of appeals asserted
[below] that the sentencing goals of
rehabilitation, deterrence, and reaffirmation
of societal norms will almost invariably be
satisfied by imposition of a sentence of ten
years or less. [Bumpus v. State, 776 P.2d
329, 335 (Alaska App. 1989).] ... [T]he
court [of appeals] concluded that [the
sentencing] goals [of deterrence and
community condemnation] could never support
imposition of [the] twenty-three year
aggregate term [of imprisonment imposed in
Bumpuss case]. Id.
The [court of appeals] conclusion is no
longer valid in the wake of this courts
decision in State v. Wentz, 805 P.2d 962
(Alaska 1991), where we stated that dicta in
Pears purporting to limit the circumstances
under which sentences may exceed ten years
could not be applied beyond the particular
facts of that case. [Wentz, 805 P.2d] at 966
n. 5.
Wentz established that it is no longer
appropriate for courts to rigidly define the
length of sentence that can be justified by
any particular criterion, provided that the
sentence is ultimately within the range
allowed by the legislature.
Bumpus, 820 P.2d at 302 (footnote omitted).
Nine years later, in Griffin v.
State, 9 P.3d 301, 308 (Alaska App. 2000),
this Court expressly acknowledged and
confirmed that the supreme courts decision in
Bumpus had abrogated the earlier 10-year
sentencing guideline. Thus, Judge Cutler
needed no special justification to impose a
composite sentence exceeding 10 years to
serve.
Next, Smith argues that Judge
Cutler never found that Smith was a worst
offender (as that term has been defined in
the sentencing decisions of this Court and
the Alaska Supreme Court) before she imposed
a composite 20 years to serve a sentence
equal to the maximum term of imprisonment
that Smith could have received for his single
most serious crime, the class A felony of
first-degree robbery.
Smith is apparently relying on the
rule that [g]enerally, a maximum sentence
cannot be imposed without some foundation for
characterizing a defendant as the worst type
of offender.34 But Smith did not receive a
maximum sentence (or anything close to a
maximum sentence) for any of his offenses.
Indeed, the 16-year composite sentence that
Smith received at his first sentencing (the
one held in March 2006) for his first five
criminal cases was less than the 20-year
maximum that he might have received for his
single most serious offense, first-degree
robbery.
True, Smith was later indicted for
the offenses in case number 3PA-05-2982 Cr,
and he later received an additional 4 years
imprisonment in that case (at the sentencing
held in November 2006). But as Judge Cutler
noted at that second sentencing, Smiths
crimes in this sixth criminal case the
crimes he committed after he absconded from
bail release in October 2005 were completely
separate from the series of crimes
encompassed in his other five criminal cases.
Smith points to no decision of this
Court or of the Alaska Supreme Court holding
that a worst offender finding is required to
support a defendants combined total of
imprisonment imposed at different sentencing
hearings in completely unrelated cases.
Moreover, even assuming that Judge
Cutler needed to make a worst offender
finding before she sentenced Smith to the
final 4 years of imprisonment at the November
2006 sentencing, this requirement was
satisfied.
Although Judge Cutler may never
have uttered the words worst offender, both
the Alaska Supreme Court and this Court have
repeatedly stated that we will uphold a
maximum sentence if the record shows that the
sentencing judge implicitly made the required
finding.35 Here, as we have already noted,
Judge Cutler found at Smiths first sentencing
(the one held in March 2006) that Smith had
not responded to five years worth of
rehabilitative efforts and that he had,
instead, proceeded to commit a huge number of
new crimes. The judge concluded that it
would be fruitless to release Smith on
probation again, and that Smith was unlikely
to stop committing crimes until he reached
early middle age. Moreover, at Smiths second
sentencing (the one held in November 2006),
Judge Cutler declared that Smith was
incorrigible.
These findings and conclusions add
up to an implicit finding of worst offender,
if one was needed.
Smith next argues that his
composite sentence violates the rule
announced by this Court in Farmer v. State,
746 P.2d 1300 (Alaska App. 1987). Under
Farmer, a judge who is sentencing a first
felony offender must have good reason before
imposing a composite sentence that exceeds
the Austin limit for the defendants single
most serious offense. Id. at 1301-02.
(See Austin v. State, 627 P.2d 657,
657-58 (Alaska App. 1981), where we held that
a defendant convicted of a first felony
offense for which no presumptive term of
imprisonment is specified should ordinarily
receive a sentence more favorable than the
presumptive term enacted by the legislature
for a second felony offender convicted of the
same offense. The Austin rule was later
codified in former AS 12.55.125(k)(2).)
Application of Farmer to Smiths
case is problematic because the Austin rule
did not apply to Smiths sentencing for his
most serious offense, first-degree robbery.
As just explained, the Austin rule applied
only when a first felony offender was being
sentenced for a felony that did not carry a
presumptive term for first felony offenders.
First-degree robbery is a class A felony and,
even under the pre-2005 version of Alaskas
presumptive sentencing law, class A felonies
carried presumptive terms for first felony
offenders.
Smith appears to be arguing that we
should hold, by analogy to the Austin rule,
that Judge Cutler had to have good reason to
impose a composite term that exceeded the 10-
year presumptive term specified for second
felony offenders convicted of first-degree
robbery. But even if Smith were correct,
there is abundant good reason in his case.
First, Smith conceded the existence
of two aggravating factors under
AS 12.55.155(c): (c)(19) and (c)(21). In
Randall v. State, 44 P.3d 984, 985 (Alaska
App. 2002), we held that the existence of
statutory aggravators constitutes the good
reason or good cause required by Farmer.
Thus, even under the rule Smith proposes, the
presence of these aggravators would authorize
Judge Cutler to impose a sentence that
exceeded Smiths suggested 10-year ceiling.
Second, as we noted above, the good
reason required by Farmer does not require
proof of any particular aggravator under AS
12.55.155(c). Rather, good reason can
consist of other factors. Here, Smiths
crimes involved many different victims, and
they comprised discrete criminal episodes
spread out over a period of months. These
factors constitute good reason under Farmer.
Finally, Smith argues that, given
the case law, [his] youth, and [his prior]
lack of adult criminal history, his composite
sentence should not have exceeded 10 years to
serve, or perhaps 15 years with some of it
suspended.
We acknowledge that Smith is a
youthful first felony offender, and we
further acknowledge that, normally, one would
not expect a youthful first felony offender
to receive a composite sentence of 20 years
to serve for crimes that did not involve the
infliction of serious injury or sexual
assault. But Smith is not a typical youthful
first felony offender.
First, Smith was sentenced for a
total of ten felonies and two misdemeanors
stemming from six discrete criminal episodes.
Second, as explained above, Smith
has been under state supervision for a great
deal of his life since he was twelve
beginning with juvenile probation, followed
by juvenile institutionalization, then jail
(awaiting trial in his first five cases),
followed by a brief interlude of freedom when
he absconded while on bail release, and then
a return to jail. Despite the efforts of
probation officers and the juvenile court,
Smiths history when not in custody has been
one of repeated burglary and trespass, theft,
and criminal mischief. Moreover, his conduct
while in custody has included two flights
from custody: an escape committed as a
juvenile, and his act of absconding while on
bail release in October 2005.
Repeated judicial interventions
have not reformed Smith or even deterred him.
In fact, as Judge Cutler noted at the March
2006 sentencing hearing, Smiths conduct has
gone from bad to very, very much worse. In
his repeated burglaries, Smith has shown a
continued interest in stealing firearms; and
in case number 3PA-04-2791 Cr, his conduct
escalated from theft to armed robbery.
Equally telling is Smiths
manipulation of the system after being jailed
for his first five criminal cases. Taking
advantage of compassionate leave i.e., his
temporary release on bail to attend his
fathers funeral Smith absconded and quickly
resumed his wonted criminal activities:
burglary and theft of firearms. The fact
that Smith committed these new felonies while
on bail release from his earlier felony
charges is an aggravating factor under
AS 12.55.155(c)(12). And this final criminal
escapade is what prompted Judge Cutler to
declare Smith incorrigible.
In Shagloak v. State, 582 P.2d
1034, 1039-1040 (Alaska 1978), the Alaska
Supreme Court upheld a sentence of 15 years
to serve for a defendant convicted of a
single residential burglary. Shagloak
entered an apartment in the early morning
hours, when the residents were asleep.
However, he apparently was not armed, and he
stayed for only a few minutes, grabbing a
ring, some currency, and the wifes purse.
Id. at 1038.
In upholding this sentence, the
supreme court noted that Shagloak had
compiled a lengthy criminal record over the
preceding seven years: six burglaries, one
escape, one larceny, and one act of
defrauding an innkeeper (i.e., absconding
without paying). Id. at 1039. The supreme
court declared:
[This] record clearly demonstrates
Shagloaks propensity for criminal activity.
He has not been discouraged by more lenient
sentences. ... [Shagloaks present] crime
was a serious offense committed by a
dangerous, compulsive offender, thus
warranting deviation from [normal sentencing
guidelines]. In this case, the fifteen[-
]year sentence was not excessive.
Shagloak, 582 P.2d at 1039.
Likewise, in Griffin v. State, 9
P.3d 301 (Alaska App. 2000), this Court
upheld a composite sentence of close to 23
years imprisonment for a defendant with a
long history of burglaries and thefts who was
sentenced for a number of class B and class C
felonies arising from two separate criminal
episodes that occurred approximately three
weeks apart.
In the present case, Smith was
sentenced for armed robbery in addition to a
series of burglaries and thefts. Despite
being a teenager at the time of these crimes,
Smith already had a lengthy history of
convictions and unavailing attempts to
supervise and rehabilitate him. Judge Cutler
concluded that Smith was a dangerous and
impulsive offender who could not be reformed
or deterred, at least until he reached middle
age. The record supports these conclusions.
The question before us is whether
Smiths composite sentence of 20 years to
serve is clearly mistaken.36 On this record,
we conclude that this composite sentence is
not clearly mistaken. We therefore AFFIRM
the sentencing decision of the superior
court.
_______________________________
1 See SLA 2004, ch. 125, 2, 7 (repealing the former
provisions) and 3 (enacting the new statute).
2 See SLA 2004, ch. 125, 8.
3 This new restriction on sentence appeals was enacted by SLA
2005, ch. 2, 7. Pursuant to 33 of that same session law,
the restriction took effect on March 23, 2005.
4See Sanders v. State, 718 P.2d 167, 168 (Alaska App. 1986).
5See Jackson v. State, 31 P.3d 105, 107-08 (Alaska App.
2001); Griffin v. State, 9 P.3d 301, 308 (Alaska App.
2000).
6See Jennings v. State, 713 P.2d 1222, 1223 (Alaska App.
1986).
7 See, for example, the minutes of the House Judiciary
Committee for April 14, May 8, and May 9, 2003. At these
three committee hearings, members of the bar, other
citizens, and several committee members expressed hesitance
concerning, or outright opposition to, various provisions of
the bill. The portions of the bill that drew the most
opposition were: (1) provisions that would have altered the
burden of proof on the defenses of self-defense, heat of
passion, and defense of others, so that a criminal defendant
would have to prove these defenses by a preponderance of the
evidence; (2) a provision that would have restricted the
right of a person to claim self-defense if the person came
armed to a confrontation; (3) a provision that would have
restricted the ability of a spouse, parent, or family member
of an arrestee to hire an attorney to consult with the
arrestee before or during any police interrogation, if the
arrestee had not personally asked for the assistance of an
attorney; (4) a provision that would have required a
prosecutor to be present whenever a witness in a criminal
case claimed the privilege against self-incrimination and
wished to explain the basis of that claim of privilege to a
judge in camera; and (5) a provision that would have
prohibited the bifurcation of felony DUI trials, so that a
jury would learn of the defendants prior convictions before
the jury decided whether the defendant was guilty of driving
under the influence on the occasion in question.
8 Minutes of the House Judiciary Committee for April 14, 2003,
Tape 03-38, Side B.
9 Minutes of the House Judiciary Committee for April 14, 2003,
Tape 03-38, Side B, Log Nos. 2226 to 1958.
10 Minutes of the House Judiciary Committee for May 9, 2003,
Tape 03-58, Side B, Log Nos. 2320-2219.
11 Id. at Log Nos. 2219 - 2132.
12 Minutes of the House Judiciary Committee for March 19,
2004, Tape 04-42, Side B, Log Nos. 1748-1514.
13 Minutes of the House Finance Committee for April 21,
2004, Tape HFC 04-92, Side B.
14 See footnotes 12 and 13.
15 Minutes of the House Judiciary Committee for March 30,
2004, Tape 04-53, Side A, Log No. 1266.
16 Id. at Log Nos. 1266-1359.
17 Id. at Log No. 1359.
18 Id. at Log Nos. 1359-1529.
19 Id.
20706 P.2d at 714.
21See Bishop v. Anchorage, 685 P.2d 103, 105 (Alaska App.
1984).
22 AS 11.46.360(c).
23 AS 28.35.400(b).
24 AS 11.46.300(b).
25 AS 11.46.130(c).
26 AS 11.41.500(b).
27 AS 11.41.220(d).
28 AS 11.61.200(i).
29 AS 12.55.125(c).
30 See Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531,
159 L.Ed.2d 403 (2004).
31 AS 12.55.125(d).
32 See State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970)
(prescribing the criteria that a judge should use when
assessing a criminal defendants sentence).
33 AS 11.56.757(b)(1).
34 Howell v. State, 115 P.3d 587, 592-93 (Alaska App. 2005),
quoting State v. Wortham, 537 P.2d 1117, 1120 (Alaska
1975); see also Hintz v. State, 627 P.2d 207, 210
(Alaska 1981).
35 See, e.g., Jacinth v. State, 593 P.2d 263, 267 (Alaska
1979) ([T]here is no requirement that the sentencing
judge utter the phrase worst offender. ); Howell v.
State, 115 P.3d 587, 593 (Alaska App. 2005); Napayonak
v. State, 793 P.2d 1059, 1062 (Alaska App. 1990).
36 See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974)
(an appellate court is to uphold a sentencing decision
unless the sentence is clearly mistaken).
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
