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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
DERRICK M. ALEXIE,
Appellant, Court of Appeals No. A-10091
Trial Court No. 4BE-06-1601 Cr
v.
STATE OF ALASKA, O P I N I O N
Appellee.
End of Caption No. 2260 April 30, 2010
Appeal from the Superior Court, Fourth Judi
cial District, Bethel, Marvin Hamilton III,
Judge.
Appearances: David D. Reineke, Assistant
Public Defender, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellant.
Douglas H. Kossler, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Daniel S. Sullivan,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Bolger, Judges.
MANNHEIMER, Judge.
Derrick M. Alexie pleaded no contest to first-degree
assault under | subsection (a | )(1 | ) of AS 11.41.200 the provision of the statute that forbids recklessly caus[ing] serious physical injury to another by means of a dangerous instrument. |
| First-degree assault is a class A felony,1 and sentencing for this offense is governed by AS 12.55.125(c | ). Because Alexie was a first felony offender, his sentencing was governed by the following two subsections of this statute: | |
| (1 | ) if the offense ... does not involve circumstances described in [paragraph] (2 | ) ... , [the presumptive sentencing range is] five to eight years; |
(2) if ... the
defendant possessed a firearm, used a
dangerous instrument, or caused serious
physical injury or death during the
commission of the offense, ... [the
presumptive sentencing range is] seven to 11
years[.]
By entering a no contest plea to
first-degree assault under subsection (a)(1)
of AS 11.41.200, Alexie necessarily conceded
(at least for sentencing purposes) that he
caused serious physical injury to another
person. Thus, Alexies sentencing was
apparently governed by paragraph (2) quoted
above, and the applicable presumptive
sentencing range was 7 to 11 years
imprisonment.
But in his pre-sentencing
memorandum, Alexie took the position that his
sentencing was governed by the lower
presumptive sentencing range specified in
paragraph (1) the range of 5 to 8 years.
The superior court rejected this argument and
ruled that Alexie was subject to the higher
sentencing range. Alexie now appeals that
decision.
In support of the proposition that
the lower presumptive sentencing range
applies to his case, Alexie relies on this
Courts decision in Pruett v. State, 742 P.2d
257 (Alaska App. 1987).
In Pruett, this Court construed the
pre-March 2005 version of the two paragraphs
quoted above, AS 12.55.125(c)(1) and (2). At
that time, these two paragraphs read (in
pertinent part):
(1) if the offense ... does not involve
circumstances described in [paragraph] (2)
... , [the presumptive term is] five years;
(2) if the [defendants] conviction [is]
other than for manslaughter[,] and the
defendant possessed a firearm, used a
dangerous instrument, or caused serious
physical injury during the commission of the
offense, ... [the presumptive term is] seven
years[.]
These two former sentencing
provisions presented a paradox: A 7-year
presumptive term applied to defendants
convicted of first-degree assault under
AS 11.41.200(a)(1) that is, defendants who
recklessly caused serious physical injury to
another person by means of a dangerous
instrument. But a lower presumptive term
the 5-year term specified in paragraph (1)
applied to defendants who committed
manslaughter by recklessly killing another
person (since paragraph (2) expressly
excluded manslaughter convictions from the 7-
year presumptive term).
In Pruett, 742 P.2d at 263, we
acknowledged that it was theoretically
possible to commit manslaughter without using
a dangerous instrument, but we concluded
that, as a practical matter, a dangerous
instrument would be involved in virtually all
manslaughters.
We also noted that, for the same
reason, there was only a very thin line
between first-degree assault under AS
11.41.200(a)(1) (reckless infliction of
serious physical injury by means of a
dangerous instrument) and the class B felony
of second-degree assault under AS
11.41.210(a)(2) (reckless infliction of
serious physical injury). We acknowledged
that it was possible to recklessly cause
serious physical injury without using a
dangerous [instrument], but we concluded
that, given the broad definition of dangerous
instrument in AS 11.81.900(b), such an
occurrence was unlikely. Id.
Based on the foregoing, we held in
Pruett that, despite the literal wording of
AS 12.55.125(c)(1) and (2), the legislature
did not intend the larger [7-year]
presumptive term to apply to a reckless
infliction of serious physical injury, even
when the injury was inflicted with a
dangerous instrument because it was
illogical to apply a 7-year presumptive term
to those who recklessly commit assault in the
first degree, but only a [5]-year presumptive
term to those who, under identical
circumstances, kill their victim. Id. We
concluded that the legislature must have
intended the 5-year presumptive term to
govern the sentencing of first felony
offenders convicted of first-degree assault
under AS 11.41.200(a)(1).
In 2005 (almost twenty years after
our decision in Pruett), the legislature
enacted substantial amendments to AS
12.55.125. As part of these amendments, the
legislature made changes to AS
12.55.125(c)(1) and (2).
For purposes of Alexies case, the
two pertinent changes are found in paragraph
(2). First, the legislature deleted the
language that exempted manslaughter
convictions from the higher presumptive
sentencing range specified in paragraph (2).
Second, the legislature added the words or
death to the list of circumstances that
trigger the higher presumptive range
specified in paragraph (2). We have
italicized this change in the wording:
(2) if ... the defendant possessed a
firearm, used a dangerous instrument, or
caused serious physical injury or death
during the commission of the offense, ...
[the presumptive sentencing range is] seven
to 11 years[.]
Because of these two amendments to
AS 12.55.125(c)(2), the higher presumptive
sentencing range of 7 to 11 years
imprisonment specified in paragraph (2) now
applies to all first felony offenders
convicted of a class A felony in which the
defendant caused the death of another person
during the commission of the offense.
In other words, this higher presumptive range
applies to all first felony offenders
convicted of manslaughter.
Thus, under the current version of
AS 12.55.125(c)(1) (2), the same presumptive
sentencing range 7 to 11 years imprisonment
applies both to defendants who are convicted
of first-degree assault under AS 11.41.
200(a)(1) for recklessly inflicting serious
physical injury on another person by means of
a dangerous instrument and to defendants who
are convicted of manslaughter under AS
11.41.120(a) for recklessly causing the death
of another person.
In his brief to this Court, Alexie
argues that the reasoning of Pruett continues
to apply to the amended statute. Alexie
contends that, just as it was illogical for
the legislature to provide a lower
presumptive term for defendants convicted of
manslaughter (as opposed to defendants
convicted of reckless first-degree assault),
it is equally illogical for the legislature
to now provide the same presumptive
sentencing range for these two groups of
defendants.
As examples of the purported
illogic of the current sentencing provisions,
Alexie points out that a defendant who
recklessly uses (or misuses) a loaded
firearm, causing it to discharge, would face
the same presumptive sentencing range whether
the bullet seriously injured the victim or
killed the victim.
Alexie further points out that a
defendant who recklessly used a loaded
firearm and seriously injured another person
(and was therefore convicted of first-degree
assault under subsection (a)(1) of AS
11.41.200) would face the same presumptive
sentencing range as a defendant who
intentionally caused serious physical injury
to another person by means of a firearm (and
was therefore convicted of first-degree
assault under subsection (a)(2) of the
statute).
We acknowledge that most people
would view the reckless killing of another
person as a more serious offense than the
reckless injuring of another person.
Similarly, most people would view the act of
intentionally injuring another person as a
more serious offense than the act of
recklessly injuring another person. But
under the amended version of AS 12.55.125(c),
the legislature has not provided a lesser
penalty for the apparently more serious
offenses. Rather, the legislature has
provided the same penalty.
In our view, this is a significant
difference. Under our system of government,
it is the legislature, and not the judiciary,
which establishes the punishment or range of
punishments for a particular offense.2 As
our supreme court stated in Alex v. State,
484 P.2d 677, 685 (Alaska 1971), Save only as
limited by constitutional safeguards, ... the
comparative gravity of offenses and their
classification and resultant punishment is
for legislative determination. For this
reason, generally speaking, a criminal
defendant can not challenge the legislatures
assessment of the proper penalty range for a
particular offense. State v. Morgan, 111
P.3d 360, 365 (Alaska App. 2005).
Our criminal code provides several
examples of offenses that can be committed in
several distinct ways, and where people might
reasonably differ as to whether the various
types of conduct specified in the statute all
deserve the same punishment.
For example, under AS
11.41.220(a)(1)(B), a person commits third-
degree assault if they recklessly cause
physical injury to another person by means of
a dangerous instrument. Thus, a person who
recklessly handles a knife and cuts another
person (even slightly) is guilty of third-
degree assault under this subsection of the
statute. On the other hand, under subsection
(a)(2) of the same statute, a person commits
the same offense, third-degree assault, if
they make repeated threats to kill or injure
another person with the intent of placing
another person in fear for themselves or a
family member.
Reasonable people might conclude
that these two acts are significantly
different, and that they call for
significantly different punishments. But
under our system of government, that decision
is up to the legislature. A court has only
limited authority to alter the legislatures
determination.
In Pruett, we confronted the former
version of AS 12.55.125(c), which created an
apparently senseless sentencing disparity:
defendants who, through an act of
recklessness, seriously injured another
person were subject to a 7-year presumptive
term, while other defendants who engaged in
identical conduct but who caused the death of
another person were subject to a lesser, 5-
year presumptive term. We concluded that
this result was so illogical that the
legislature simply could not have intended
it:
[W]e conclude that the legislature could not
have intended the seven-year presumptive term
to apply to those who recklessly commit
assault in the first degree, but only a
five-year presumptive term to those who,
under identical circumstances, kill their
victim. See Sherman v. Holiday Construction
Co., 435 P.2d 16, 19 (Alaska 1967) (statutes
should be construed to avoid absurd results).
We therefore conclude that the legislature
intended that Pruett and those similarly
situated would be subject to the five-year
presumptive term rather than the seven-year
presumptive term.
Pruett, 742 P.2d at 263.
In other words, we did not overrule
the legislatures determination, nor did we
declare the statute unconstitutional.
Rather, we attempted to implement the
legislatures intent, after concluding that
the legislature simply could not have
intended the statute to be applied in the way
that the words of the statute literally
called for.
In Alexies case, we confront a
different situation. AS 12.55.125(c) no
longer calls for a lesser sentence for
defendants whose reckless criminal conduct
results in more blameworthy consequences
(death of another person, as opposed to
serious physical injury). Rather, the
statute now declares that the same
presumptive sentencing range applies to both
groups of defendants.
Moreover, as we explained earlier,
in 2005 the legislature amended subsection
(c)(2) of the statute so that it now includes
the words or death. Under the amended form
of the statute, the higher presumptive range
of 7 to 11 years imprisonment now expressly
applies to first felony offenders convicted
of a class A felony if they caused serious
physical or death during the commission of
the offense. This demonstrates that the
legislature made a deliberate choice to apply
the same presumptive sentencing range to
first felony offenders convicted of either
first-degree assault (i.e., those who cause
serious physical injury) or manslaughter
(i.e., those who cause death).
Reasonable people might disagree as
to the desirability or wisdom of this
sentencing framework. But this sentencing
framework does not lead to the type of
inexplicable sentencing disparity that would
allow us to say with assurance that no
reasonable legislature could have intended
AS 12.55.125(c) to be interpreted this way.
Accordingly, we hold that first
felony offenders like Alexie who are
convicted of first-degree assault under AS
11.41.200(a)(1) (reckless infliction of
serious physical injury by means of a
dangerous instrument) are subject to the 7-
to 11-year presumptive sentencing range
specified in AS 12.55.125(c)(2).
The judgement of the superior court
is AFFIRMED.
_______________________________
1 AS 11.41.200(b).
2See, e.g., Beltz v. State, 980 P.2d 474, 480 (Alaska App.
1999).
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