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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
EDWARD A. WOOLEY,
Appellant, Court of Appeals No. A-9335
Trial Court No. 3AN-04-4586 Civ
v.
STATE OF ALASKA, O P I N I O N
Appellee.
End of Caption No. 2247 December 11, 2009
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Larry D. Card,
Judge.
Appearances: Colleen A. Libbey, Libbey Law
Offices, Anchorage, for the Appellant. Diane
L. Wendlandt, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Richard A. Svobodny, Acting
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Bolger, Judges.
MANNHEIMER, Judge.
In this appeal, we are asked to clarify what the
legislature meant when they | provided, in AS 11.46.130(a | )(6 | ), that a theft of property valued at between $50 and $500 would be enhanced by one degree from third-degree theft to second-degree theft if, within the preceding five years, the defendant has been convicted and sentenced for first-, second-, or third-degree theft on two or more separate occasions. | |||
| For the reasons explained in this opinion, we conclude that this statutory language should be interpreted as codifying the rule set forth in State v. Carlson, 560 P.2d 26, 29-30 (Alaska 1977 | ), for identifying habitual offenders under Alaskas former criminal code the same rule that is currently codified in AS 12.55.145(a | )(2 | )(B | ) for identifying those repeat defendants who are subject to increased penalties under AS 12.55.125(l | ). |
| Specifically, we interpret AS 11.46.130(a | )(6 | ) to mean that a theft which would normally be of the third degree will be enhanced to a theft of the second degree if, within the preceding five years, the defendant was convicted and sentenced for one theft, then committed another theft and was convicted and sentenced for it, and then committed the current theft. | |||
The underlying facts and
procedural background of this case
On February 12, 2002, Edward A. Wooley stole
a jigsaw from a hardware store in Eagle River. Because
this saw was valued at slightly less than $300, Wooleys
crime would normally have been a misdemeanor: third-
degree theft under AS 11.46.140(a)(1). However, Wooley
had prior convictions for theft. In particular, on
March 28, 1997 that is, within the five years
preceding his theft of the jigsaw Wooley was sentenced
for two separate thefts. (One of these thefts was
committed in September 1996, and the other was
committed in November 1996, but the judgements for both
of these thefts were entered on the same day: March
28, 1997.)
In addition to the theft of the jigsaw,
Wooley also faced charges stemming from another
attempted theft and from an alleged act of witness
tampering. To resolve all of these charges, Wooley
entered into a plea agreement with the State. Under
the terms of this bargain, the State dropped the
attempted theft and the witness tampering charges, and
Wooley pleaded guilty to second-degree theft (a felony)
under AS 11.46.130(a)(6).
Under this statute, a theft of property
valued at between $50 and $500 that is, a theft that
would normally be a misdemeanor becomes a class C
felony [if] within the preceding five years the
[defendant] has been convicted and sentenced on two or
more separate occasions for first-, second-, or third-
degree theft. As part of his plea bargain, Wooley
stipulated that the two thefts he committed in 1996
were the predicate thefts that would support a felony
charge under this statute.
However, in February 2004, Wooley (now
represented by a new attorney) filed a petition for
post-conviction relief in which he argued that his
sentence was illegal and that his former attorney
represented him incompetently. Specifically, Wooley
argued that his attorney failed to see that, as a
matter of law, Wooleys two prior theft convictions were
too old to support a felony theft charge under
AS 11.46.130(a)(6).
As we explained above, judgement was entered
against Wooley for these two thefts on March 28, 1997
within the five years preceding his theft of the jigsaw
on February 12, 2002. But Wooley argued that the date
of his sentencing was not the determinative date for
purposes of the statute. Instead, Wooley argued, the
crucial date was the date on which the defendant was
found to be factually guilty of the prior theft either
the date on which the jury returned its guilty verdict,
or the date on which the defendant entered a guilty
plea.
The superior court rejected this argument and
denied Wooleys petition for post-conviction relief.
Wooley then appealed to this Court.
In our previous decision in this case, Wooley
v. State, 157 P.3d 1064 (Alaska App. 2007), we held
that, for purposes of the five-year period specified in
AS 11.46.130(a)(6), a defendant is convicted and
sentenced on the day that the court enters judgement
against the defendant as opposed to the day on which a
jury finds the defendant guilty, or the day on which
the defendant enters a guilty plea to the charge. We
therefore concluded that even though Wooley pleaded
guilty to the two prior thefts in December 1996 and in
January 1997 (two dates outside the five-year statutory
period), the date that mattered was the date on which
judgement was entered against Wooley on these two theft
convictions. That date was March 28, 1997 a date
within the five-year period.
Following our decision of this point, Wooley
petitioned the Alaska Supreme Court to hear his case.
The supreme court granted hearing and directed us to
consider one further issue in Wooleys case.
As we explained earlier in this opinion,
AS 11.46.130(a)(6) applies to cases where the defendant
has previously been convicted and sentenced for first-,
second-, or third-degree theft on two or more separate
occasions within the five years preceding the
defendants commission of the current theft. Because
the judgements for both of Wooleys prior thefts were
entered on the same day (March 28, 1997), the supreme
court asked us to decide whether Wooley had been
convicted and sentenced for theft on two or more
separate occasions within the meaning of AS
11.46.130(a)(6).
The legal background of this case: the competing rules
of interpretation adopted in State v. Carlson and State
v. Rastopsoff
Legislatures often enact higher penalties for
repeat criminal offenders for example, by making a
repeat offense a higher degree of crime, or by
providing an increased mandatory minimum penalty for a
repeat offense. But these statutes sometimes fail to
precisely define which defendants qualify as repeat
offenders.
Thirty years ago, the Alaska Supreme Court
faced this problem in State v. Carlson, 560 P.2d 26
(Alaska 1977). The issue in Carlson was how to
interpret the habitual criminal statute that was part
of Alaskas pre-1980 criminal code. This statute,
former AS 12.55.050, established a system of
progressively greater penalties for felony offenders
who had previously been convicted of one, two, or three
felonies.1
The defendant in State v. Carlson, a man
named Tyrone Davenport, had committed four felonies.
Davenport committed the first of these felonies in
1969, and he was sentenced for this crime that same
year.2 In 1971, Davenport committed two more felonies.
Although these crimes were committed on separate
occasions, Davenport was sentenced for both crimes on
the same day (in early 1972).3 Then, in mid-1975,
Davenport committed a fourth felony.4
The State argued that Davenport fell within
the statutory category of defendants who had previously
been convicted of three or more felonies, and that
Davenport should therefore be sentenced under
subsection (3) of the habitual criminal statute. In
other words, the State argued that Davenports minimum
sentence was 20 years imprisonment and his maximum
sentence was life imprisonment.5
When Superior Court Judge Victor D. Carlson
refused to sentence Davenport under subsection (3) of
the statute, and instead imposed a sentence of only
5 years imprisonment, the State sought a writ of
mandamus from the supreme court.6
The supreme court rejected the States
position that a defendants status as a second, third,
or fourth offender should be determined by simply
counting up the number of the defendants prior
offenses. The court concluded that such a rule would
run counter to the policy underlying habitual offender
statutes:
Habitual criminal statutes are founded
on the general principle that persistent
offenders should be subject to greater
sanctions than those who have been convicted
only once. These statutes serve as a warning
to first time offenders and provide them with
an opportunity to reform. It is only upon
subsequent convictions for repeated criminal
conduct that increasingly stiffer sentences
are imposed. The reason the sanctions become
increasingly severe is not so much that the
defendant has sinned more than once[, but]
that he is deemed incorrigible when he
persists in violations of the law after
conviction of previous infractions.
Carlson, 560 P.2d at 28-29 (footnotes and
internal citations and quotations omitted).
The supreme court therefore held
that the increased penalties provided for
repeat offenders under the habitual criminal
statute only applied if the defendants later
offense was committed after judgement was
entered on the defendants prior offense.
Carlson, 560 P.2d at 30. In other words,
where the sequence of prior convictions is in
issue, the rule ... is that each successive
felony must be committed after the previous
felony conviction in order to count towards
habitual criminal status. Id. at 29.
The court explained that the
harsher penalties of the habitual criminal
statute were intended to be applied in cases
where a convicted criminal has not taken
advantage of the opportunity to reform and
subsequently commits another crime. Id. at
30. In Davenports case, because two of his
convictions were entered on the same day, the
opportunity for reformation [stemming from
those convictions was] afforded to him only
once, not twice. Id. Thus, the court
concluded, even though Davenport had (as a
factual matter) committed three felonies
before he committed his current offense, he
should have been sentenced under subsection
(2) of the statute the subsection that set
forth the penalty range for a defendant
previously ... convicted of two felonies.
Id.
The following year, in Gonzales v.
State, 582 P.2d 630, 636 (Alaska 1978), the
supreme court applied this same rule of
construction to former AS 17.10.200, a
statute which imposed increasingly severe
penalties on drug offenders for a second
offense and for a third or subsequent
offense.
We now return to the statutory
language at issue in Wooleys case: the
language found in AS 11.46.130(a)(6), which
defines a repeat theft offender as someone
who has been convicted and sentenced on two
or more separate occasions for first-, second-
, or third-degree theft within the preceding
5 years.
If the phrase sentenced on two or
more separate occasions was intended to
codify the Carlson rule and, on its face,
the language appears to be consistent with
that rule then Wooleys two prior theft
convictions would not support a prosecution
or conviction for felony theft under
AS 11.46.130(a)(6). Within the five years
preceding his current offense, Wooley has
been sentenced only once for theft. (The
judgements for his previous two thefts were
both entered on the same day.) Thus, like
the defendant in Carlson, Wooley has only
once, and not twice, failed to take advantage
of an opportunity for reformation.
But the situation is complicated
because two more recent Alaska statutes that
is, two statutes passed after the Carlson
decision have been interpreted as codifying
a different rule for assessing a defendants
status as a repeat offender.
In January 1980, Alaskas current
criminal code took effect.7 In place of the
habitual felony offender statute (which was
repealed), the legislature enacted a
presumptive sentencing scheme that subjects
defendants to increasing presumptive terms
(or, now, increasing presumptive ranges of
imprisonment) if the defendant is being
sentenced for a second felony conviction or a
third felony conviction as those terms are
defined in AS 12.55.185.
Under this statute, second felony
conviction means that the defendant
previously has been convicted of a felony,8
and third felony conviction means that the
defendant has been at least twice previously
convicted of a felony.9 In State v.
Rastopsoff, 659 P.2d 630 (Alaska App. 1983),
this Court had to decide whether the wording
of the new presumptive sentencing statute,
twice previously convicted of a felony,
should be interpreted in conformity with the
Carlson rule that is, whether this new
language should be interpreted as meaning the
same thing as the phrase previously ...
convicted of two felonies that appeared in
the old habitual criminal statute.
In Rastopsoff, this Court engaged
in a lengthy, detailed analysis of the
language, statutory history, and legislative
commentary accompanying the presumptive
sentencing statutes. See 659 P.2d at 635-
640. Based on this analysis, we concluded
that the presumptive sentencing statutes were
intended to codify a modified version of the
Carlson rule.
We held that, under the new
sentencing statutes, a defendants prior
felony convictions could not be used to alter
the defendants presumptive sentencing status
unless the defendants current felony offense
was committed after the defendant was
sentenced for the previous felonies.
Rastopsoff, 659 P.2d at 640-41. This aspect
of the new statutes was a continuation of the
Carlson rule. However, we held that the new
sentencing statutes departed from the Carlson
rule in that the new statutes required proof
of only one earlier opportunity for
reformation. Thus, if a defendant was
sentenced at a single proceeding for two
separate felonies (as defined in AS 12.55.
145(a)), and if the defendant thereafter
committed another felony, this later felony
would be deemed the defendants third felony
conviction. Id. at 640.
Four years after Rastopsoff, in
Tulowetzke v. Division of Motor Vehicles, 743
P.2d 368 (Alaska 1987), the Alaska Supreme
Court applied the Rastopsoff rule of
construction to AS 28.15.181(c), a statute
that specifies increasing mandatory minimum
periods of license revocation for drivers
convicted of driving under the influence,
depending on whether the driver has been
previously convicted once or previously
convicted twice or previously convicted more
than twice.
AS 28.15.181(c) does not define the
phrase previously convicted, but the supreme
court concluded that this phrase should be
interpreted to mean the same thing as the
corresponding phrase in the presumptive
sentencing statutes that this Court construed
in Rastopsoff. The supreme court reached
this conclusion because both statutes deal
with the same problem (recidivism), both
statutes were enacted during the same
legislative session (1978), and both statutes
employ essentially the same language to
describe the recidivist offenders who are
subject to the increased penalties.
Tulowetzke, 743 P.2d at 370.
The supreme court noted that, in
Rastopsoff, we interpreted this language to
mean that prior convictions which [do] not
arise out of the same criminal episode must
[later] be counted separately for presumptive
sentencing purposes, even if the convictions
were entered on the same day. Tulowetzke,
743 P.2d at 371. The supreme court then
declared, We agree with the court of appeals
analysis ... and [we] apply the same analysis
to AS 28.15.181(c). Thus, ... all [of a
defendants] prior DWI convictions must be
counted separately for purposes of
[determining the minimum] drivers license
revocation following a subsequent conviction,
regardless of whether the prior convictions
were entered simultaneously. Id.
Why we interpret the statutory phrase convicted and
sentenced on two or more separate occasions as
embodying the rule of State v. Carlson
Because the decisions in Rastopsoff and
Tulowetzke departed from the rule adopted earlier
in Carlson, we are confronted with two competing
rules of statutory interpretation for resolving
the question presented in Wooleys case the
question of who can be prosecuted for felony theft
as a third offender under AS 11.46.130(a)(6).
Under the Carlson rule, Wooley is only a
second offender, and his two prior theft
convictions count as only one. Wooley committed
both of the prior thefts before he was sentenced
on either of them. Thus, Wooley had only one
opportunity for reformation before he committed
his current offense. But under the Rastopsoff-
Tulowetzke rule, this one opportunity for
reformation is all that is required. Because
Wooley committed another theft after receiving
this opportunity for reformation, and because his
two prior convictions arise from separate
incidents, his two prior convictions are counted
separately and he is a third offender.
(We note that, conceivably, there is a third
way to interpret the phrase sentenced on two or more
separate occasions. This language might be read as
describing neither the Carlson rule nor the Rastopsoff
rule, but rather all situations where the sentencings
on a defendants prior theft offenses occurred on
different days or even at different times on the same
day, if the sentencings were separated by a recess of
any duration. The State does not argue that AS
11.46.130(a)(6) should be interpreted in this manner.)
The State argues that we should interpret AS
11.46.130(a)(6) in conformity with the Rastopsoff-
Tulowetzke rule because that was the prevailing rule in
1988, when the legislature added subsection (a)(6) to
AS 11.46.130. This argument would have considerably
more force if the legislature had written subsection
(a)(6) using the same phrase, previously convicted,
that was construed in Rastopsoff and Tulowetzke. But
subsection (a)(6) uses a different formula: convicted
and sentenced on two or more separate occasions.
The States position is further weakened by
the fact that the original version of subsection (a)(6)
House Bill 461, 15th Legislature did contain wording
similar to the statutes at issue in Rastopsoff and
Tulowetzke. As originally proposed, subsection (a)(6)
would have authorized felony prosecution of what would
otherwise be a misdemeanor theft if, within the
preceding five years,
[the defendant] has been convicted three or
more times [of first-, second-, or third-
degree theft] or an offense [in another
jurisdiction] under another law or ordinance
with substantially similar elements.
See House Bill 461 (15th Legislature), draft
of February 29, 1988 (emphasis added).
But at some point between late
February and mid-March 1988, the language of
House Bill 461 was changed from convicted
three or more times to convicted and
sentenced on two or more separate occasions.
See House Bill 461, draft of March 17, 1988
(emphasis added).
House Bill 461 was the subject of
considerable legislative discussion and
public comment, but none of the discussion or
comment addressed this change in the
statutory language. The legislative record
(the committee minutes, the internal memo
randa, and other pertinent documentation)
offers no explanation, either explicit or
implicit, for this alteration of the formula
for determining which defendants would be
subject to felony prosecution as repeat
offenders.
The State argues that this silent
record supports the conclusion that the
legislature did not think they were doing
anything remarkable and thus we should
interpret the silent record to mean that the
legislature thought the new statute would be
construed in the same manner as the statutes
at issue in Rastopsoff and Tulowetzke.
But there are other conclusions
that might reasonably be drawn. Here, the
legislature started out with statutory
language similar to the language that had
been previously construed under the
Rastopsoff-Tulowetzke rule and then the
legislature replaced this language with a new
formula that, at least facially, appears to
codify the Carlson rule.
Moreover, the legislature did not
simply change the statutory description of
the predicate prior convictions. The
legislature also changed the minimum number
of prior convictions that would trigger the
higher degree of offense reducing this
minimum number from three to two.
When these two changes are
considered together, one reasonable
conclusion is that the legislature initially
intended to require proof of three prior
convictions under the Rastopsoff-Tulowetzke
rule, and then the legislature changed its
mind and decided to reduce the required
number of prior convictions, but to
concomitantly require the State to satisfy
the Carlson rule. In other words, under the
initial language, the State would have to
prove that the defendant had at least three
prior theft convictions, but the State would
only have to prove that the defendant had a
single prior opportunity to reform. Under
the amended language, the State would only
have to prove two prior theft convictions,
but the State would have to prove that the
defendant had a separate opportunity to
reform after each of those convictions.
The language of AS 11.46.130(a)(6)
is fully consistent with this interpretation.
Indeed, the statutory language is seemingly
inconsistent with the States contrary
interpretation.
Finally, we note that in 1996,
eight years after the legislature enacted
AS 11.46.130(a)(6), the legislature enacted
another recidivist statute that expressly
codifies the Carlson rule as the method for
determining which offenders should be
subjected to increased penalties for
recidivism. See SLA 1996, ch. 7, 7-8.
Section 7 of this session law
enacted AS 12.55.125(l), which provides for
greatly increased penalties for certain
repeat felony offenders:
Notwithstanding any other provision of
law, a defendant [who is] convicted of an
unclassified or class A felony offense, and
[who is] not subject to a mandatory 99-year
sentence under [AS 12.55.125(a)], shall be
sentenced to a definite term of imprisonment
of 99 years when the defendant has been
previously convicted of two or more most
serious felonies.
This is a modern-day version of the
old habitual criminal statute that was
construed in Carlson, and the legislature
declared that the goals of this new statute
were to (1) improve public safety by placing
the most dangerous criminals in prison;
(2) reduce the number of serious, repeat
offenders by tougher sentencing; (3) set
proper and simplified sentencing practices
that both victims and persistent offenders
can understand; and (4) restore public trust
in our criminal justice system all
traditional goals of recidivist offender
statutes. See SLA 1996, ch. 7, 1.
From an appellate judges point of
view (and from a sentencing judges point of
view), the wording of AS 12.55.125(l)
immediately raises the question: How do we
determine whether a defendant has been
previously convicted of two or more most
serious felonies? Fortunately, the
legislature provided the answer to this
question in section 8 of the session law.
This section enacted AS 12.55.145(a)(2)(B) a
statute that surely ranks among the paragons
of legislative clarity:
For purposes of considering prior
convictions in imposing sentence under ... AS
12.55.125(l),
. . .
(B) commission of and conviction
for offenses relied on as prior most
serious felony offenses must occur in
the following order: [the] conviction
for the first offense must occur before
[the] commission of the second offense,
and [the] conviction for the second
offense must occur before [the]
commission of the offense for which the
defendant is being sentenced[.]
This is the Carlson rule, expressed
in plain English. In other words, the
legislature codified the Carlson rule as the
method for determining which repeat felony
offenders will be subject to the increased
penalties specified in AS 12.55.125(l).
Given all of this, the best that
can be said for the States suggested
interpretation of AS 11.46.130(a)(6) is that
this interpretation is debatable. The
wording of the statute appears to be contrary
to the States proposed interpretation. The
legislative record is silent as to what the
legislature intended, but it is obvious that
the legislature started out with a phrasing
that was similar to the language that had
previously been judicially construed in
Rastopsoff and Tulowetzke, and then the
legislature dropped this language in favor of
a new formula. And, finally, we note that
the legislature has adopted and codified the
Carlson test in a related context that is,
in a statute that calls for increased
penalties for recidivist offenders.
When the meaning of a penal statute
remains ambiguous or unclear after it has
been subjected to legal analysis, the law
requires us to construe the statute against
the government.10 Accordingly, we now hold
that AS 11.46.130(a)(6) must be interpreted
in accordance with the Carlson rule. A
defendant can not be convicted under this
subsection unless, within the five years
preceding the defendants current offense, (1)
the defendant was sentenced for first-,
second-, or third-degree theft, and then (2)
the defendant committed another first-,
second-, or third-degree theft and was
sentenced for that theft, and then (3) the
defendant committed the current theft.
The proper disposition of Wooleys case
One further issue remains to be resolved.
In Wooleys petition for post-conviction
relief in the superior court, he asserted that he
could not lawfully be convicted of felony theft
under AS 11.46.130(a)(6), and he therefore asked
the superior court to set aside his felony
conviction and to reduce his conviction to
misdemeanor theft, with a maximum sentence of 1
years imprisonment.
We have now concluded that, as a factual
matter, the State could not have successfully
prosecuted Wooley under AS 11.46.130(a)(6)
because Wooley committed his second prior offense
before he was sentenced for the first prior
offense. However, this does not mean that Wooley
is entitled to the relief that he asked for.
As we explained toward the beginning of this
opinion, Wooleys conviction under AS
11.46.130(a)(6) was the result of a plea bargain.
Wooley pleaded no contest to felony theft under
this statute in exchange for the States dismissal
of two other charges an alleged attempted theft
and an alleged act of witness tampering.
Even assuming that Wooley entered his plea
without any inkling that he might have a defense to the
felony theft charge, the fact remains that Wooley
negotiated a plea agreement with the government and he
obtained concessions (the dismissal of other criminal
charges) as part of that bargain. Wooley is not
entitled to claim the benefit of the portions of the
agreement that he likes while, at the same time,
mounting an attack on the portions that he does not
like.
When, as in Wooleys case, a defendant wishes
to challenge an already consummated plea agreement as
being unlawful, or as being the result of incompetent
advice received from the defendants attorney, the
defendant must seek rescission of the agreement not
selective enforcement of only those provisions
favorable to the defendant. We addressed similar
situations in Woodbury v. State, 151 P.3d 528, 532
(Alaska App. 2007), and in Grasser v. State, 119 P.3d
1016, 1018 (Alaska App. 2005).
Accordingly, we REMAND Wooleys case to the
superior court. In the superior court, Wooley shall be
given the opportunity to renew his petition for post-
conviction relief with the understanding that, if he
is successful, his remedy is not to have the superior
court reduce his theft conviction to a misdemeanor, but
rather to be allowed to withdraw his no contest plea to
the felony theft charge and to have the parties
returned to their respective positions before the plea
bargain, including reinstatement of the other criminal
charges that the State dismissed as part of the plea
bargain.
We do not retain jurisdiction of this case.
_______________________________
1 Former AS 12.55.050 declared:
Increased punishment for persons convicted of more than one
felony. A person convicted of a felony in this state who
has been previously convicted of a felony in this state or
elsewhere, if the same crime elsewhere would constitute a
felony under Alaska law, is punishable as follows:
(1) If the person ... has previously been convicted of one
felony, then he is punishable by imprisonment for not less
than the minimum nor more than twice the longest term
prescribed for the felony of which that person [currently
stands] convicted.
(2) If the person has previously been convicted of two
felonies, then he is punishable by imprisonment for not less
than the minimum nor more than twice the longest term
prescribed [in subsection (1)] for a second conviction of
felony.
(3) If the person has previously been convicted of three or
more felonies, then on the fourth conviction he shall be
adjudged an habitual criminal, and is punishable by
imprisonment for not less than 20 years nor more than the
remainder of his natural life.
2 Carlson, 560 P.2d at 27.
3 Id.
4 Id.
5 Id. at 28.
6 Id.
7The new criminal code and the new presumptive sentencing
laws took effect on January 1, 1980. See SLA 1978, ch.
166, 25.
8AS 12.55.185(14).
9AS 12.55.185(17).
10 Haywood v. State, 193 P.3d 1203, 1206 (Alaska App. 2008);
State v. ABC Towing, 954 P.2d 575, 579 (Alaska App.
1998).
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