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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| MICHAEL T. WHITING, | ) |
| ) Court of Appeals No. A-10035 | |
| Appellant, | ) Trial Court No. 3PA-06-2984 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2183 September 12, 2008 |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Palmer, Kari C. Kristiansen,
Judge.
Appearances: Barrett Schultz, Assistant
Public Defender, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellant.
Suzanne C. Powell, 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.
Michael T. Whiting pleaded no contest to the crime of
attempted third-degree controlled substance misconduct
(attempting to possess cocaine with intent to distribute it)1 and
one count of fourth-degree controlled substance misconduct
(possession of oxycodone).2 For these two offenses, Whiting
received concurrent sentences of 5 years with 1 year suspended
and 5 years with 4 years suspended, respectively. He now appeals
his sentence on four grounds.
First, Whiting argues that the superior court applied
the wrong standard of proof when the court decided whether
Whiting had proved proposed mitigating factors. It appears that
Whiting is correct. However, the error was harmless because the
superior court applied a lower standard of proof than the law
required.
Next, Whiting contends that the superior court
committed error when the court rejected his proposed mitigating
factor of small quantities, AS 12.55.155(d)(13), with respect to
his attempted possession of cocaine with intent to distribute.
As we explain here, we conclude that the superior court reached
the correct result under the facts of Whitings case.
Third, Whiting argues that the superior court should
have found mitigating factor (d)(15) (small amount for personal
use in ones home) with respect to his possession of the two
oxycodone pills. For the reasons explained here, we conclude
that the superior court misinterpreted the elements of this
mitigator. We therefore direct the superior court to reconsider
whether Whiting proved that these pills were intended solely for
his personal use at home.
Finally, Whiting argues that the superior court erred
when it rejected the conclusion of a substance abuse counselor
that Whiting had been doing well in treatment. We conclude that
the superior court had adequate grounds for rejecting the
counselors view of this matter.
Background facts
On October 31, 2006, Probation Officers
Richard Pass and Conrad Brown were conducting routine
home checks on various probationers. When they arrived
at Whitings residence, they observed Whiting pulling
out of his driveway in a red car. Pass knew that
Whitings drivers license was revoked, so the officers
pulled him over.
When the officers asked Whiting what he was
doing, Whiting replied that he was going to the store
for gas and chewing tobacco. Pass told Whiting that he
intended to collect a urine sample from Whiting, and
then Pass asked Whiting what the urine sample would
reveal. Whiting admitted that his urine would test
positive for methamphetamine.
The officers placed Whiting in restraints and
placed him in the back of their patrol car. They then
began to search the vehicle that Whiting had been
driving (which Whiting claimed did not belong to him).
Pass found a small black bag on the passenger seat of
the car. Inside this bag, he found paraphernalia
consistent with drug use, including a very small
plastic spoon, some pills, and a container with a white
powdery substance.
A Wasilla police officer was summoned to the
scene. This officer read the Miranda warnings to
Whiting, and Whiting waived his rights. Whiting
admitted that he would test positive for cocaine (in
addition to the methamphetamine he had previously
admitted). Whiting stated that the black bag was not
his that he had found it at an apartment complex down
the street. However, Whiting admitted that the bag
contained a couple of pain killers that he had
purchased from an unidentified source, to help ease the
pain of a recent surgery.
In addition, Whiting told the officer that he
said he was in the process of buying the car that he
had been driving although he did not know who the
seller was, and he was not sure whether the
registration had been transferred yet. Whiting then
asked to have an attorney present, and the interview
was concluded.
The car was impounded, and a subsequent
search of the vehicle yielded two electric scales with
cocaine and methamphetamine residue, a baggie
containing thirty-one smaller baggies with a Superman
symbol on them, a baggie containing 22.8 grams of
dimethylsulfone (a relatively inert substance which is
commonly used as a cutting agent for methamphetamine)3,
another baggie containing 8.9 grams of sodium
bicarbonate (i.e., baking soda), another baggie
containing residue of cocaine and methamphetamine, a
glass pipe, a pill crusher, three cut straws, aluminum
foil, a lighter, and a pocket tin containing a cut
straw, a plastic spoon, and five pills. Two of these
pills were oxycodone, two more were
acetaminophen/hydrocodone, and the fifth was tizanidine
(a muscle relaxant).
A grand jury initially indicted Whiting for
second-degree controlled substance misconduct, based on
the allegation that he possessed the oxycodone with the
intent to deliver it, and third-degree controlled
substance misconduct, based on the allegation that he
possessed the cocaine with the intent to deliver it, as
well as two alternative counts of fourth-degree
controlled substance misconduct (for possessing the
oxycodone and the cocaine, regardless of any intent to
deliver these substances). In addition, the district
attorneys office filed an information charging Whiting
with driving while his license was revoked, improper
use of vehicle registration or title, and one count of
fifth-degree controlled substance misconduct for
possessing less than fifty tablets, ampules, or
syrettes containing hydrocodone.
These charges were ultimately resolved by a
plea bargain. The State dropped the second-degree
controlled substance misconduct charge (possession of
oxycodone with intent to deliver), and the State
replaced the third-degree controlled substance
misconduct charge (possession of cocaine with intent to
deliver) with the lesser charge of attempted third-
degree controlled substance misconduct. Whiting
pleaded no contest to this reduced charge, as well as
no contest to the fourth-degree controlled substance
misconduct charge based on his possession of the
oxycodone. In exchange for these pleas, the State
dropped all the remaining charges.
Whitings sentencing
Fourth-degree controlled substance misconduct
is a class C felony.4 Third-
degree controlled substance misconduct is a class B
felony,5 but Whiting pleaded no contest to attempted
third-degree controlled substance misconduct which,
pursuant to AS 11.31.100(d), is a class C felony.
Thus, Whiting was sentenced for two class C felonies.
Whiting had three prior felony convictions
(two convictions for felony driving under the
influence, plus one conviction for third-degree weapons
misconduct). Whiting was therefore a third felony
offender for presumptive sentencing purposes, and he
faced a presumptive sentencing range of 3 to 5 years
imprisonment for each of his offenses.6
Whiting conceded two of the aggravating
factors listed in AS 12.55.155(c): (c)(15) that he
had more than two prior felonies; and (c)(20) that he
was on felony probation when the current offenses were
committed. (The presence of these aggravators did not
increase the superior courts sentencing authority:
Whiting was a third felony offender, and thus his
presumptive sentencing range already encompassed the 5-
year maximum term of imprisonment for his crimes.)
Whiting proposed four of the mitigating
factors listed in AS 12.55.155(d): (d)(8) that his
conduct was among the least serious conduct included in
the definition of the offense; (d)(12) that the facts
surrounding the commission of his offenses and his
previous offenses established that the harm caused by
his conduct was consistently minor and inconsistent
with the imposition of a substantial period of
imprisonment; (d)(13) that his offenses involved small
quantities of a controlled substance; and (d)(15) that
one of his offenses (his possession of oxycodone)
involved the possession of a small amount of a
controlled substance for personal use in his home.
The State contested these mitigators, with
the exception of (d)(13) (small quantities). The State
initially conceded mitigator (d)(13) (small quantities)
with respect to both of Whitings offenses, but the
State later altered its position and argued that the
small quantity mitigator did not apply to Whitings
attempt to commit third-degree controlled substance
misconduct.
The State conceded that the amount of cocaine
found in Whitings possession was quite small; indeed,
it was only trace amounts. However, the State pointed
out that Whiting had not been convicted of possessing
this trace amount with intent to deliver it. Rather,
Whiting had been convicted of attempting to possess
cocaine for the purpose of delivering it. The State
argued that, given the amount and kinds of drug
paraphernalia that Whiting had been carrying in the
car, one could reasonably conclude that he was
attempting to possess much more cocaine than the trace
amount found in his possession and, thus, the small
quantity mitigator should not apply to that crime.
Whitings sentencing judge, Superior Court
Judge Kari Kristiansen, ultimately agreed with the
State on this point. She found that the small quantity
mitigator applied only to Whitings conviction for
possession of oxycodone, and not to his conviction for
attempted possession of cocaine. She also found that
Whiting had failed to prove his three other proposed
mitigators.
At Whitings sentencing hearing, the defense
called Cathy Bishop, a woman who worked as a counselor
at Nugens Ranch a long-term residential substance
abuse treatment center where Whiting had spent two
years. Bishop testified that Whiting had done very
well in the treatment program and that, in her opinion,
he was a good candidate for rehabilitation. Bishop
acknowledged that Whiting had not completed the Nugens
Ranch after-care program, and had in fact relapsed into
drug use. Nevertheless, Bishop asserted that Whitings
relapse was not truly his fault that it could be
attributed to the fact that he was prescribed narcotics
as pain medication for an injury. However, during
Bishops cross-examination by the prosecutor, it became
apparent that Bishop did not know the nature of the new
charges against Whiting, and that she had only a vague
recollection of Whitings criminal history.
When Judge Kristiansen analyzed Whitings
potential sentence under the Chaney criteria,7 she
first noted that Whiting had an extensive criminal
history. Regarding the sentencing goal of
rehabilitation, Judge Kristiansen expressed doubt about
Whitings prospects. The judge noted that Whiting had
already been given several opportunities for
rehabilitation, and she stated that she did not find
Bishops testimony particularly helpful in this regard.
She noted that Bishop did not seem to be well-advised
as to Whitings present circumstances, and she expressed
doubts whether Bishop understood what doing well in
drug treatment meant. Judge Kristiansen also found
that Whiting needed to be confined to protect the
community.
Ultimately, Judge Kristiansen sentenced
Whiting to a term of 5 years imprisonment with 1 year
suspended (4 years to serve) for the attempted
possession of cocaine conviction, and to a concurrent
term of 5 years imprisonment with 4 years suspended (1
year to serve) for the possession of oxycodone. (In
other words, Whiting received a total of 4 years to
serve for these two crimes.) Judge Kristiansen also
revoked Whitings probation, requiring to him to serve
the remaining 2 years of his previous felony sentence.
Whether the superior court applied the wrong standard
of proof when deciding whether Whiting had proved his
proposed mitigating factors
When the State proposes aggravating factors
or a defendant proposes mitigating factors in a felony
sentencing proceeding governed by the presumptive
sentencing law, the aggravating and mitigating factors
must be proved by clear and convincing evidence. AS
12.55.155(f).
At Whitings sentencing hearing, Judge
Kristiansen stated, I do not find that [Whitings
proposed mitigating factors have] been proven by a
preponderance [of the evidence]. Whiting correctly
points out that this was the wrong standard of proof.
However, this error is harmless because it
ran in Whitings favor: Judge Kristiansen applied a
lower standard of proof than the law required. Because
the judge concluded that Whiting had not proved his
mitigators by a preponderance of the evidence, it
necessarily follows that she would have concluded that
he failed to prove these mitigators by clear and
convincing evidence.
Whether Whiting proved the mitigating factor of small
quantity with respect to his attempted possession of
cocaine for purposes of delivery
As explained above, one of Whitings proposed
mitigating factors was AS 12.55.155(d)(13) that his
offenses involved small quantities of a controlled
substance. The State conceded that this mitigator
applied to the fourth-degree count (i.e., Whitings
possession of the two pills of oxycodone), but the
State argued that the small quantity mitigator did not
apply to the attempted third-degree count (i.e.,
Whitings attempt to possess cocaine for purposes of
delivery).
The State acknowledged that Whiting had only
trace amounts of cocaine in his possession. However,
the State argued that the surrounding circumstances
especially, Whitings possession of a large number of
baggies, a set of scales, and a substantial amount of
cutting agent showed that Whiting was attempting to
obtain and distribute a much larger quantity of
cocaine.
When Judge Kristiansen made her ruling on
mitigator (d)(13), she stated, I do not find ... that
[this mitigator] appears to apply to Count II [i.e.,
the attempted third-degree count]. The judge offered
no further explanation of her ruling.
On appeal, Whiting argues that Judge
Kristiansens statement suggests that she believed that,
as a matter of law, mitigator (d)(13) never applies to
the attempted possession of controlled substances.
Given the evidence in Whitings case, and given the
specific argument to which Judge Kristiansen was
responding, Whitings suggested interpretation of the
judges remark appears unlikely. In context, Judge
Kristiansens remark appears to mean that she agreed
with the States analysis of this proposed mitigator.
In other words, the judge did not mean that
mitigator (d)(13) could never apply to an attempted
possession of controlled substances; rather, she
declared that this mitigator was not proved with
respect to the particular attempted possession charged
against Whiting.
Whiting also argues that, when the superior
court assessed mitigator (d)(13), the only relevant
factor was the amount of cocaine found in Whitings
possession and that his possession of the baggies,
scales, and cutting agent was irrelevant. We disagree.
Because Whiting was convicted of attempted possession,
it was his burden to prove by clear and convincing
evidence that he attempted to possess only a small
quantity of cocaine. Thus, the fact that the police
found only trace amounts of cocaine in Whitings
possession was not dispositive; this circumstance had
to be weighed against the other circumstances described
above: the fact that Whiting had thirty-one small
baggies, two scales with cocaine residue on them, and a
substantial quantity of cutting agents. Given this
record, we uphold Judge Kristiansens ruling that
Whiting failed to prove the small quantity mitigator.
Whether Whiting proved the mitigating factor of small
amount ... for personal use in the defendants home with
respect to his possession of the two pills of oxycodone
With respect to Whitings conviction for
fourth-degree controlled substance misconduct based on
his possession of two pills containing oxycodone,
Whiting proposed mitigating factor (d)(15): that his
offense involved the possession of a small amount of a
controlled substance for personal use in the defendants
home.
It is undisputed that the two oxycodone pills
were discovered in Whitings car as he was driving away
from his residence. On appeal, the State argues that
these circumstances i.e., that the pills were
discovered in Whitings car, and that he was driving
away from his home created sufficient ambiguity in the
situation to justify Judge Kristiansens conclusion that
Whiting had failed to prove this mitigator by clear and
convincing evidence.
However, the sentencing transcript strongly
suggests that Judge Kristiansen did not follow this
reasoning when she rejected the proposed mitigator. At
the sentencing hearing, the prosecutor argued that
mitigator (d)(15) was clearly not applicable [because
Whiting] was driving in his car [and] this was not
personal use. In other words, the prosecutor argued
that mitigator (d)(15) could not apply because the
oxycodone pills were not located in Whitings residence.
And Judge Kristiansen apparently adopted this view of
the law when she issued her ruling on this mitigator:
As to [mitigator (d)(15)], I do not find that [it has]
been proven by the preponderance[.] I agree with the
States arguments that ... these [controlled substances]
were not found in the defendants home.
On appeal, Whiting argues that the place
where the pills were found is not dispositive that
mitigator (d)(15) focuses instead on where and how the
defendant intends to use the controlled substance,
regardless of where the controlled substance might be
found at the time of the defendants arrest.
Mitigator (d)(15) is worded ambiguously on
this point. AS 12.55.155(d)(15) states that this
mitigator applies to cases where the defendant is
convicted of an offense specified in AS 11.71 [i.e., a
controlled substance offense] and the offense involved
the possession of a small amount of a controlled
substance for personal use in the defendants home. The
ambiguity arises from the fact that it is difficult to
tell whether the phrase in the defendants home modifies
possession or, instead, for personal use.
In other words, the statute could be read as
applying to possession of a small amount of a
controlled substance in ones home, when that possession
is for personal use or, alternatively, the statute
could be read as applying to possession of a small
amount of a controlled substance in any location, when
that possession is for personal use in ones home.
The States argument in the superior court,
and Judge Kristiansens ruling, appear to be based on
the first potential reading of the statute i.e., that
the mitigator applies only when the defendants
possession is in the defendants home. On appeal,
however, the States argument appears to be based on the
second potential reading of the statute (in other
words, Whitings proposed interpretation) i.e., that
the mitigator hinges on a defendants intention to use
the controlled substance in their home. The States
appellate brief adopts this second interpretation of
the mitigator, but then argues that the facts of
Whitings case (in particular, the fact that he was
driving away from his home) justify a finding that
Whiting had failed to prove this aggravator by clear
and convincing evidence.
Neither party has provided us with any case
law or legislative history to resolve the ambiguity in
the wording of this statute. There is, however, a
canon of statutory construction that counsels us to
interpret the statute as Whiting proposes. That canon,
reddendo singula singulis (also known in English as the
last antecedent rule), is the doctrine that limiting or
restrictive clauses in a statute are normally to be
construed as referring to (that is, as limiting or
restricting) the immediately antecedent clause of the
statute.8 Under this doctrine, we should interpret the
phrase in the defendants home as referring to or
limiting the immediately preceding clause, for personal
use. In other words, the mitigator applies when the
defendant possesses a small amount of a controlled
substance for the purpose of using it personally in
their home.
Moreover, this interpretation of the statute
appears to be reasonable. The fact that the
legislature enacted mitigator (d)(15) implies that the
legislature concluded that people who unlawfully
possess controlled substances should not be punished as
severely if they are merely using small amounts of
controlled substances in their homes. Most controlled
substances can not be grown or manufactured at home;
the substances must be purchased elsewhere and then
brought home. Thus, in instances where a person is
apprehended outside their home after purchasing a small
amount of a controlled substance, it would seemingly
fulfill the legislatures policy to allow the person to
argue and prove that they only intended to use the
controlled substance personally, and that they did not
intend to use the controlled substance until they got
home.
Finally, to the extent that a statute
defining criminal liability remains ambiguous even
after we subject it to recognized methods of statutory
construction, we must resolve that ambiguity against
the government.9
For these reasons, we conclude that Whitings
proposed interpretation of mitigator (d)(15) is the
correct one. We hold that proof of this mitigator does
not hinge on where the controlled substance is found,
but rather on where and for what purpose the defendant
intends to use the controlled substance.
As explained above, the State (in its
appellate brief) appears to accept this interpretation
of the mitigator, and the State argues that, under the
facts of Whitings case, Judge Kristiansen would have
been justified in finding that Whiting did not intend
to use the controlled substance personally in his home.
The problem with the States argument is that, from the
record of the trial court proceedings, it appears that
Judge Kristiansen relied on the other interpretation of
mitigator (d)(15) that is, the wrong interpretation
when she ruled that Whiting had failed to prove this
mitigator.
The judge did not reach the issue of Whitings
intentions with respect to the controlled substance;
rather, she ruled that the mitigator did not apply
because Whiting possessed the controlled substance
outside his home. For this reason, we must vacate the
judges ruling and remand this issue to the superior
court for reconsideration.
Whether the superior court misconstrued or improperly
evaluated the testimony of substance abuse counselor
Cathy Bishop
At his sentencing hearing, Whiting presented
the testimony of Cathy Bishop, his former substance
abuse counselor. Bishop testified that Whiting had
good prospects for rehabilitation. However, although
Bishop seemed to remember Whiting well, she was
unfamiliar with Whitings conduct underlying the current
charges, and she had not seen him for about a year
before the sentencing hearing.
During her sentencing remarks, Judge
Kristiansen stated that she did not find Bishops
testimony helpful. The judge concluded that Bishop was
not well-[informed] as to the circumstances of the
defendant at the present time. And, referring to
Bishops comment that Whiting had done well [in
treatment] for some time, Judge Kristiansen stated, I
just dont find that she [i.e., Bishop] understands what
that means.
On appeal, Whiting takes issue with Judge
Kristiansens last comment her assertion that Bishop
did not understand the concept of doing well in
substance abuse treatment. Whiting notes that Bishop
worked as a substance abuse counselor for three years,
and that her experience and qualifications in this area
were not contested at the sentencing hearing. Whiting
further argues that Bishops conclusion regarding
Whitings prospects for rehabilitation was both
plausible and supported by the evidence that Whiting
completed nearly two years of treatment, completed all
twelve AA steps, maintained sobriety while at the
treatment facility, and completed all homework
assignments and group sessions.
Notwithstanding all of this, the prosecutors
cross-examination of Bishop revealed that Bishop was
unfamiliar with Whitings criminal history and present
circumstances, and that she had not seen him for a year
when she testified. It was also revealed that Whiting
did not finish his treatment program because he had a
relapse. These circumstances provided at least a
reasonable basis for Judge Kristiansen to question
Bishops favorable evaluation of Whitings prospects for
rehabilitation.
Even assuming that Judge Kristiansen spoke
over-hastily when she declared that Bishop did not
understand what doing well in treatment means, the real
underlying issue is whether Judge Kristiansen had a
reasonable basis for viewing Bishops favorable
evaluation with skepticism. Because the record reveals
a reasonable basis for the judges skepticism, we find
no reversible error.
Conclusion
We affirm the actions of the superior court
in all respects except one: we vacate the superior
courts ruling with respect to mitigator (d)(15). The
superior court must reconsider whether Whiting proved
this mitigator by clear and convincing evidence.
Whiting alleged that this mitigator applied
to only one of his offenses: the charge of fourth-
degree controlled substance misconduct, based on his
possession of the two pills of oxycodone. Accordingly,
if the superior court finds that Whiting has proved
this mitigator, the court should then reconsider
Whitings sentence for this offense.
However, with respect to Whitings sentence
for his other offense (attempted third-degree substance
abuse misconduct), the sentencing decision of the
superior court is affirmed.
_______________________________
1 AS 11.71.030(a)(1).
2 AS 11.71.040(a)(3)(A).
3 See National Drug Intelligence Center, Louisiana Drug Threat
Assessment (May 2001), available at
http://www.justice.gov/ndic/pubs0/666/meth.htm.
4 AS 11.71.040(d) (fourth-degree controlled substance
misconduct is a class C felony).
5 AS 11.71.030(c).
6 AS 12.55.125(e)(3).
7 See State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970).
The Chaney sentencing criteria are now codified in AS
12.55.005.
8 See Linkus v. Maryland State Board of Heating Ventilation,
Air-Conditioning, and Refrigeration Contractors, 689 A.2d
1254, 1262 (Md. App. 1997); Boeing Co. v. Washington
Department of Licensing, 693 P.2d 104, 108 (Wash. 1985);
McKenzie Tank Lines, Inc. v. McCauley, 418 So.2d 1177, 1179-
1180 (Fla. App. 1982); In re Thompson, 402 N.E.2d 609, 611
(Ill. 1980). See generally Singer, Sutherland on Statutes
and Statutory Construction (6th ed. 2007), 47:26, Vol. 2A,
pp. 438-442 ([When] a sentence contains several antecedents
and several consequents[,] they are to be read
distributively. The [clauses] are to be applied to the
subjects that seem most properly related by context and
applicability.).
9 See Brookins v. State, 600 P.2d 12, 17 (Alaska 1979); Ned v.
State, 119 P.3d 438, 446-47 (Alaska App. 2005); Wells v.
State, 102 P.3d 972, 976 (Alaska App. 2004); Whitesides v.
State, 88 P.3d 147, 151 (Alaska App. 2004); State v. ABC
Towing, 954 P.2d 575, 579 (Alaska App. 1998); Magnuson v.
State, 843 P.2d 1251, 1253 (Alaska App. 1992).
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