|
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
| BRUCE TICE, | ) |
| ) Court of Appeals No. A-9418 | |
| Appellant, | ) Trial Court No. 3PA-04-00948 CR |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2201 December 19, 2008 |
| ) | |
Appeal from the
Superior Court, Third Judicial District,
Palmer, Eric Smith, Judge.
Appearances: David D. Reineke, Assistant
Public Defender, Kathleen Murphy, Assistant
Public Defender, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellant.
Terisia K. Chleborad, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Talis J. Colberg,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, Mannheimer,
Judge, and Stewart, Senior Court of Appeals
Judge.*
COATS, Chief Judge.
Bruce Tice was convicted of manslaughter1 and assault
in the first degree.2 The charges arose out of a single car
accident that killed a five-year-old child and injured a three-
year-old child who were passengers in the car.
Tice was convicted under the pre-March 2005 sentencing
provisions. His two felony offenses, manslaughter and assault in
the first degree, are both class A felonies. The maximum term of
imprisonment for a class A felony is 20 years.3 Tice was a third
felony offender for purposes of presumptive sentencing. Under
the pre-March 2005 sentencing provisions, as a third felony
offender, Tice faced a presumptive term of 15 years imprisonment
for each class A felony.4
At Tices initial sentencing hearing, Superior Court
Judge Eric Smith found that Tice had conceded one aggravating
factor: that he knew or should have known that the victim of the
offense was particularly vulnerable because of extreme youth.5
The presence of the aggravating factor authorized Judge Smith to
increase the 15-year presumptive term to the maximum sentence of
20 years imprisonment.6 Judge Smith sentenced Tice to the
maximum term of 20 years for each of the felony offenses. He
imposed 15 years for the first-degree assault conviction
concurrently and 5 years consecutively. Therefore, Tices
composite term of imprisonment was 25 years.
In our previous decision in this appeal, we concluded
that Tice had not conceded the aggravating factor that he knew or
should have known that the victim of the offense was particularly
vulnerable because of extreme youth.7 We therefore remanded the
case to Judge Smith for resentencing.8
On remand, Judge Smith again found the aggravating
factor based on the evidence presented by the State, and he
imposed the same composite 25-year sentence. Judge Smith stated
that he was determined to impose the 25-year composite sentence
as the appropriate sentence for Tices crimes, even if this court
later found that it was error to find the aggravating factor.
Judge Smith stated that, as an alternative, he would impose 15
years for manslaughter and 15 years for assault in the first
degree, with 10 of those years consecutive to the manslaughter
sentence.
The applicability of aggravator (c)(5) to
Tices case
Alaska Statute 12.55.155(c)(5) applies when the
defendant knew or reasonably should have known that the victim of
the offense was particularly vulnerable or incapable of
resistance due to advanced age, disability, ill health, or
extreme youth or was for any other reason substantially incapable
of exercising normal physical or mental powers of resistance. As
noted earlier, Tices convictions arose out of a single car
accident that killed one child and injured another. Tice argued
at resentencing and now argues on appeal that the vulnerable
victim aggravator does not apply in a case where the defendants
conduct was not aimed at a particular victim. Tice argues that
the aggravator does not apply to him because he did not exploit
or deliberately take advantage of the victims youth.
Because Alaska case law is silent on this issue, and
our review of the legislative history of AS 12.55.155(c)(5) has
been unhelpful in this regard, we have looked to the history of a
similar federal sentencing guideline. The federal guidelines
allow increased punishment [i]f the defendant knew or should have
known that a victim of the offense was a vulnerable victim.9 A
vulnerable victim is defined as a person ... who is unusually
vulnerable due to age, physical or mental condition, or who is
otherwise particularly susceptible to the criminal conduct.10
The commentary to the 1993 version of the federal guidelines
provided that the adjustment applies to offenses where an
unusually vulnerable victim is made a target of criminal activity
by the defendant.11 This commentary led to a split in the
federal circuit courts on the question of whether this guideline
required specific targeting of a victim because of the victims
vulnerability.12 In 1995, in order to remove this ambiguity, the
United States Sentencing Commission deleted the targeting
language from the commentary.13
Because of the sentencing commissions action, it now
appears that the federal courts would apply the vulnerable victim
guideline to a case such as Tices where the defendant did not
specifically target the victim because of the victims
vulnerability. However, the history of the federal guidelines,
as well as the fact that the federal courts were divided on the
proper interpretation of this language before the sentencing
commission took action, suggest that the similar language found
in AS 12.55.155(c)(5) could reasonably be interpreted in
different ways. Accordingly, we might be obliged to resolve this
ambiguity against the government.14
The parties to this appeal have not briefed the
legislative history of aggravator (c)(5) or offered other
authority from Alaska on the correct interpretation of its
language. Moreover, Judge Smith unequivocally expressed his
intention to sentence Tice to a composite term of 25 years, and
proposed an alternative formulation of Tices sentence to achieve
this goal in the event that this court held that aggravator
(c)(5) did not apply to the facts of Tices case.
For these reasons, we have decided not to adopt a
definitive interpretation of aggravator (c)(5) in Tices case.
Instead, we will evaluate Tices sentence under the alternative
formulation proposed by Judge Smith: a sentence of 15 years for
manslaughter and a sentence of 15 years for first-degree assault,
of which 10 years is consecutive to the manslaughter sentence.
Tices sentence was not clearly mistaken
We review Tices composite sentence to determine whether
it is clearly mistaken.15 As we have previously pointed out,
Tice was a third felony offender and, under the pre-March 2005
sentencing provisions, he faced a presumptive term of 15 years
imprisonment for each of his manslaughter and first-degree
assault convictions. Prior to his current offenses, Tice had
multiple criminal convictions. These included a felony
conviction for theft in the second degree, a felony conviction
for sexual abuse of a minor in the second degree, and various
convictions for probation violations and driving offenses one of
which was for driving while intoxicated. In addition, Tice was
discharged from the United States Navy under other than honorable
conditions. He spent 18 months incarcerated while he was in the
Navy for using and selling drugs, vehicle theft, writing bad
checks, and being absent without leave.
During sentencing, Judge Smith noted that Tice had a
long and difficult criminal history. He also made the following
comments with respect to Tices current convictions:
Tice drank enough beer to be just barely
below the legal limit when the blood test was
taken after the accident. He was driving on
a bumpy road with two little girls, one
three, one five, in the back seat, not
buckled in. Ms. Maddux testified credibly
that she was trying to get him to stop. He
was bouncing over the bumps because the girls
were giggling, and they thought it was funny.
He lost control of the car, the car rolled,
and not to put too fine a point on it, he
killed one of the little girls.
Judge Smith pointed out that, although the other little
girl was not badly injured, it was just a matter of luck that she
wasnt badly hurt or killed like her older sister. He found that
after Maddux crawled out of the car and while she was holding her
dying daughter, Tice urged her to tell the police that she was
driving, not him. Judge Smith emphasized that Tice convinced
Maddux to lie for him for a year and to take responsibility for
the death of her daughter. Judge Smith concluded that Tices
ability to control someone like he had controlled Maddux
indicated that he was a very dangerous person.
Based on Tices extensive prior criminal history and his
behavior during his current offenses, Judge Smith concluded that
Tice was a worst offender. Judge Smith also concluded that it
was necessary to impose a composite sentence greater than the 20-
year maximum sentence for a class A felony in order to protect
the public. (Under the Neal-Mutschler rule established by the
Alaska Supreme Court, a judge may not impose a composite sentence
for two or more counts that exceeds the maximum sentence for the
most serious offense unless the judge affirmatively finds that a
longer term of imprisonment is necessary to protect the
public.16)
Tice points out that his sentence is at the top of the
range for offenders convicted of manslaughter and assault in the
first degree arising out of similar circumstances. In 2004, in
Powell v. State,17 we affirmed a 26-year sentence for convictions
on four charges following a drunk-driving incident: two counts
of first-degree assault, one count of reckless endangerment, and
one count of driving while intoxicated.18 Powell was a third
felony offender for presumptive sentencing purposes and faced a
presumptive term of 15 years in prison for each of the first-
degree assault charges.19 He was sentenced to 25 years for his
four offenses, and to 1 year of previously suspended time.20 At
that time, we acknowledged that Powells 26-year sentence exceeded
any we had previously affirmed, even for defendants convicted of
vehicular homicide.21
Even though Powell did not kill anyone, we held that
the 26-year composite sentence was not clearly mistaken.22 We
noted that the 15-year presumptive term represents the
legislatures judgment as to the prison term that should be
imposed on a typical third felony offender who commits a typical
act of first-degree assault.23 We concluded that Powell was not
a typical third felony offender because he had three prior
felonies, was being sentenced for two first-degree assaults, had
eleven prior convictions for driving while intoxicated as well as
several other criminal convictions, and had poor prospects for
rehabilitation.24
Powell had one more felony conviction and ten more
convictions for driving while intoxicated than Tice. So, in that
respect, his record is more egregious than Tices record. On the
other hand, Tices conduct, unlike Powells, resulted in a death.
And Tices conduct in intimidating Maddux is another factor that
weighs in favor of a more severe sentence. Judge Smith could
certainly conclude that Tices pattern of behavior, both before
and after his current offenses, was particularly odious and
reflected poorly on Tices character and prospects for
rehabilitation.
We accordingly conclude that Judge Smith was not
clearly mistaken in imposing a 25-year composite sentence.
The judgment of the superior court is AFFIRMED, with
the exception that the judgment must be amended to reflect a
sentence of 15 years imprisonment for manslaughter and a sentence
of 15 years imprisonment for first-degree assault, of which 10
years is consecutive to the manslaughter sentence.
_______________________________
* Sitting by assignment made pursuant to article IV, section
11 of the Alaska Constitution and Administrative Rule 23(a).
1 AS 11.41.120(a)(1).
2 AS 11.41.200(a)(1).
3 AS 12.55.125(c).
4 Former AS 12.55.125(c)(4).
5 AS 12.55.155(c)(5).
6 Former AS 12.55.155(a)(2).
7 Tice v. State, Alaska App. Memorandum Opinion and Judgment
No. 5286 at 6 (Dec. 26, 2007), 2007 WL 4554394 at *3.
8 Id. at 7, 2007 WL 4554394 at *3.
9 U.S. Sentencing Guidelines Manual 3A1.1(b) (2008).
10 Id. 3A1.1 cmt. 2 (2008).
11 Id. 3A1.1 cmt. 1 (1993) (emphasis added).
12 See United States v. Smith, 39 F.3d 119, 123 (6th Cir.
1994) (Most circuits require that the defendant have actually
targeted the victims because of their vulnerability.).
13 U.S. Sentencing Guidelines Manual app. C, amend. 521,
at 415 (2008); see also United States v. Feldman, 83 F.3d 9, 16
(1st Cir. 1996).
14 See, e.g., State v. ABC Towing, 954 P.2d 575, 579
(Alaska App. 1998) (noting that when the scope of a criminal
statute is unclear, courts should normally construe the statute
against the government); Magnuson v. State, 843 P.2d 1251, 1253
(Alaska App.1992) (same).
15 McClain v. State, 519 P.2d 811, 813 (Alaska 1974).
16 Powell v. State, 88 P.3d 532, 537 (Alaska App. 2004)
(citing Neal v. State, 628 P.2d 19, 21 (Alaska 1981)).
17 88 P.3d 532.
18 Id. at 533-34.
19 Id. at 533.
20 Id.
21 Id. at 539 (citing Pusich v. State, 907 P.2d 29 (Alaska
App. 1995) (upholding a composite sentence of 18 years to serve
for manslaughter and first-degree assault); Foxglove v. State,
929 P.2d 669 (Alaska App. 1997) (upholding a composite sentence
of 19 years to serve for manslaughter and first-degree assault)).
22 Id. at 533-34.
23 Id. at 539.
24 Id.
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
