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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| DAVID S. FORSTER, | ) |
| ) Court of Appeals No. A-9470/9490 | |
| Appellant/Cross-Appellee, | ) Trial Court No. 3KN-03-2634 CR |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee/Cross-Appellant. | ) |
| ) No. 2273 July 30, 2010 | |
Appeal from the
Superior Court, Third Judicial District,
Kenai, Donald D. Hopwood, Judge.
Appearances: Josie Garton and Margi Mock,
Assistant Public Defenders, and Quinlan
Steiner, Public Defender, Anchorage, for the
Appellant. W. H. Hawley, 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.
BOLGER, Judge.
David S. Forster shot and killed a police officer.
Forster moved to suppress the statements he made during several
interrogations following his arrest, arguing that he was mentally
incapable of waiving his Miranda rights1 and that the
interrogations that followed his first court appearance violated
his right to counsel.
The superior court suppressed Forsters statements from
the first interrogation after concluding that Forsters mental
condition prevented him from knowingly and intelligently waiving
his Miranda rights. The court also suppressed the statements
Forster made in his final interrogation, ruling that he was
questioned in violation of his right to counsel. Forster now
argues that the superior court also should have suppressed his
statements in the second, third, and fourth interrogations. We
affirm the superior courts decisions that Forster was capable of
a knowing and intelligent waiver during his second and third
interrogations, and that Forsters first court appearance
sufficiently dissipated the taint associated with the Miranda
violation in his first interrogation. We also uphold the courts
decisions that Forster waived his right to counsel before the
second, third, and fourth interrogations.
On cross-appeal, the State argues that the superior
court was required to impose a mandatory 99-year sentence even
though there was no jury finding that the victim was a police
officer engaged in official duties. We affirm the superior
courts decision not to restrict Forsters good-time credit without
a jury determination on this issue, but we conclude that the
court was required to restrict Forsters eligibility for
discretionary parole.
Facts and proceedings
On Christmas Day in 2003, shortly after 8:00 in the
evening, Kenai Police Officer John Watson approached David
Forster in the driveway of Forsters home to conduct a welfare
check based on a report that Forster had been behaving strangely,
was possibly driving under the influence, and that his fianc‚e,
Crystal Hallman, who was with him, seemed upset and frightened.
During this contact, Forster obtained Officer Watsons gun and
shot him in the back and head. After the shooting, Forster
retreated into his house until he was persuaded to surrender
about five hours later.
Forster was ultimately convicted of first-degree
murder2 for killing Officer Watson and of three counts of third-
degree assault3 for conduct involving Hallman and two of the
officers involved in his apprehension. He was sentenced to a
composite term of 101 years to serve, including a 99-year term
for the murder.
After his arrest, Forster was advised of his Miranda
rights and questioned several times by the state troopers. The
first interrogation was conducted by Alaska State Trooper
Investigator Jane Schied on December 26 at 12:11 p.m. at the
Kenai courthouse shortly before Forsters first court appearance.
Investigator Schied interrogated Forster a second time after his
first court appearance, at 2:20 p.m. at the same location. The
third interrogation was conducted by Investigator Schied on
December 27 at 9:35 a.m. at Wildwood Pretrial Facility.
Forster initiated the fourth interrogation by telling
a corrections sergeant at Wildwood that he wanted to speak with
an investigator. This interrogation was conducted by Alaska
State Trooper Investigator Dane Gilmore on December 28 at 11:08
a.m. Forster also initiated the fifth and final interrogation
with Investigator Schied on December 30 at noon at Wildwood.
Before trial, Forster moved to suppress the statements
he made during these interrogations, arguing that he was mentally
ill and suffering from delusions when he was questioned and that
he did not knowingly and intelligently waive his Miranda rights.
He argued that the Miranda violations in each interrogation
tainted his consent to later interrogations. He also argued that
all the interrogations that took place after his first appearance
before District Court Judge David S. Landry violated his Sixth
Amendment right to counsel.
A hearing on Forsters suppression motion was held
before Superior Court Judge Donald D. Hopwood. At that hearing,
Forster offered evidence of his mental condition prior to the
shooting and in the ensuing days when he was interrogated. He
also presented the expert testimony of Dr. Susan LaGrande, a
licensed clinical psychologist. Dr. LaGrande concluded that
Forster had suffered a psychotic break and was not capable of
providing a knowing and intelligent waiver until sometime after
his last interrogation on December 30. She found that throughout
the interrogations Forster was sleep deprived, clearly
delusional, and responding to both auditory and visual
hallucinations. She also opined that at the time that he was
interrogated Forster did not fully comprehend that he was being
charged with a crime, that he had the right to speak to an
attorney, or what manner of legal assistance could be rendered.
The State relied primarily on the testimony of the
troopers who had contact with Forster and on the content of the
interrogations. The primary interrogator, Investigator Schied,
conducted the first interrogation on December 26, and Forster
spoke for most of that interrogation, about forty minutes, about
the devil and how the devil had been after him on the night of
the shooting. But Schied testified that during this and later
interrogations, when she asked Forster direct questions about the
shooting, he was rational and able to answer her questions.
Schied testified that Forster appeared to understand his Miranda
rights and he said that he understood them.
Investigator Gilmore testified that he had contact
with Forster before Investigator Schied interrogated Forster on
the morning of December 26, when Gilmore advised Forster of his
Miranda rights, and Forster declined to be interviewed.
Investigator Gilmore did not meet with Forster again until
December 28. On that date, Gilmore again advised Forster of his
Miranda rights, and Forster agreed to talk. Gilmore
characterized Forster as calm, cooperative, and responsive at
that time.
After hearing the evidence, Judge Hopwood suppressed
Forsters statements during the first interrogation with
Investigator Schied on December 26, finding that Forsters
disturbed mental condition prevented him from knowingly and
intelligently waiving his rights. But Judge Hopwood found that
Forsters mental condition improved quickly after he had rest and
his stress lessened. Forster then began to demonstrate an
increasing understanding and sophistication about what was at
stake and what he wanted to talk about, and how he could ... get
information from the officers without giving them more
information.
In subsequent interrogations, Forster was able to
assemble elaborate detail and lengthy descriptions of events[,
m]uch of [which] was corroborated by other evidence, and he was
able to detect inconsistencies and attempt to correct them. For
instance, on December 28, after Investigator Gilmore confronted
Forster with conflicts in his and his fianc‚e Hallmans
statements, Forster called his friend Jesse Tubbs and told him to
tell Hallman to be careful what she told the police.
Judge Hopwood found that Forsters mental condition had
improved enough for him to knowingly and intelligently waive his
rights during the second, third, and fourth interrogations.
Applying the test in Brown v. Illinois,4 he also rejected
Forsters claim that his consent to these interrogations was
tainted by the earlier Miranda violation.
Judge Hopwood suppressed Forsters statements in the
fifth, and last, interrogation, finding that Forster was
questioned in violation of his Sixth Amendment right to counsel
because by that time he had filed a request for appointed
counsel. Judge Hopwood also ruled that Investigator Schied
violated Forsters rights to silence and counsel by continuing to
question him after he invoked those rights.
Discussion
Did Forster knowingly and intelligently waive his
Miranda rights?
Forster argues that he did not knowingly and
intelligently waive his Miranda rights during the second and
third interrogations, mainly challenging the validity of his
waiver before the second interrogation. As already explained,
Judge Hopwood found that Forsters mental condition prevented him
from knowingly and intelligently waiving his rights during the
first interrogation, but he found that Forster validly waived his
rights in the second interrogation, which began just fifty
minutes after the first interrogation ended.
The State has the burden to prove by a preponderance
of the evidence that Forster intentionally relinquished his
Miranda rights.5 We look at the totality of the circumstances in
determining if the State met that burden.6 We must uphold the
trial courts factual findings unless they are clearly erroneous,
but we independently determine whether Forsters waiver was
knowing and intelligent, viewing the facts in the light most
favorable to the judges ruling.7
The transcript of the second interrogation shows that
Forster expressed a clear and unequivocal waiver of his Miranda
rights. But Forster argues that he was suffering from delusions
that made him incapable of a knowing and intelligent waiver. He
asserts that he continued to be in a highly disturbed state
during the second interrogation and that his purported Miranda
waiver was inextricably linked to his delusion.
We must first determine what level of understanding a
mentally ill suspect must have of his Miranda rights to knowingly
and intelligently waive those rights. Forster urges this court
to apply the analysis in Adams v. State.8 In Adams, we ruled
that a mentally ill defendant was not competent to waive his
right to counsel and represent himself at trial because his
paranoid delusions affected his perception of the evidence and
fettered any ability to appreciate the extent of his own
disability such that he was unable either to be fully aware of
the risk of self-representation or to rationally conceive and
coherently present a defense.9 Forster relies on Adams to argue
that a waiver of Miranda rights is not knowing and intelligent if
the waiver is inextricably linked to [the defendants] delusion or
psychosis.
Adams addressed whether a mentally ill defendant was
capable of representing himself at trial. We do not believe that
this analysis is appropriate to evaluate whether a defendant
knowingly and intelligently waived his Miranda rights. As the
United States Supreme Court recently explained in Indiana v.
Edwards,10 a defendant might be fully competent to waive rights,
including the right to counsel, but still be unable to carry out
the basic tasks needed to present his own defense without the
help of counsel.11
There are no Alaska cases directly addressing the
claim that a waiver of Miranda rights was not knowing and
intelligent because of mental illness.12 Absent Alaska
authority directly on point, Judge Hopwood applied the rule
articulated by the Supreme Court in Colorado v. Spring13 to
assess whether Forsters Miranda waiver was knowing and
intelligent. In Spring, the defendant expressly waived his
Miranda rights but later moved to suppress his confession,
arguing that his waiver was not knowing and intelligent because
the police never told him he would be questioned about his
involvement in a murder.14 The Supreme Court rejected Springs
claim, ruling that a knowing and intelligent waiver does not
require that a suspect know and understand every possible
consequence of a waiver of the Fifth Amendment privilege.15 The
Supreme Court observed that Spring did not allege that he did not
understand his Miranda rights or the consequences of speaking
with law enforcement.16
Similarly, in Moran v. Burbine17 the Supreme Court
held that the defendants Miranda waiver was knowing and
intelligent even though the police failed to inform him of his
attorneys efforts to reach him prior to the interrogation.18 The
Court explained that the constitution did not require the police
to supply a suspect with a flow of information to help him
calibrate his self-interest in deciding whether to speak or stand
by his rights; a waiver is valid as long as the suspects decision
not to rely on his rights was uncoerced, that he at all times
knew he could stand mute and request a lawyer, and that he was
aware of the States intention to use his statements to secure a
conviction.19
Lower courts addressing a Miranda waiver by a mentally
ill suspect treat mental illness as just one factor in the
totality of the circumstances.20 Some courts have found that
mental illness did not vitiate a facially valid waiver.21 Other
courts have found that the defendant was too mentally ill to
knowingly and intelligently waive Miranda rights.22 The general
rule we discern from these cases is the one Judge Hopwood
applied: A Miranda waiver is knowing and intelligent if the
record shows that the defendant had at least a basic
understanding of the Miranda rights and what a waiver of those
rights entailed.23 As Judge Hopwood emphasized, the defendant
need not be totally rational.
Judge Hopwood found that in the days before the
December 25 shooting, and for a period of time after he was taken
into custody early on the morning of December 26, Forster was
under stress, he was having difficulty thinking rationally, he
was not connected to reality, he was exhibiting bizarre behavior
and thought processes in patterns, he had audio hallucinations
and was having difficulty functioning on a reality level and on a
normal level. Prior to the first interrogation on December 26,
Forster had been on suicide watch, he had complained he was cold,
and he objected to being in jail with people he thought were
crazy.
During that one-hour interrogation, Forster spent some
forty minutes talking about the influence of the devil ... and
Satan, and these types of thoughts. He was incoherent at times,
and he made a lot of bizarre references ... that he was a
prophet, that there were prophets at his house, there was the
presence of Jesus there, [and that] his mother was a virgin.
Judge Hopwood found that Forsters response to the Miranda
warnings you give me my rights and Ill tell you what Im feeling
did not indicate an awareness of his rights or of the
consequences of waiving them. He therefore suppressed all
Forsters statement in the first interrogation.
The second interrogation took place at 2:20 p.m.,
fifty minutes after the first interrogation ended and about
twenty minutes after Forsters first appearance in court. Judge
Hopwood concluded that Forster made a knowing and intelligent
waiver of his Miranda rights during this second interrogation,
finding most noteworthy the intervening court proceeding before
Judge Landry. Judge Hopwood found the court proceeding was a
focused, sobering event for Forster. At that proceeding, Forster
received a copy of the charges against him and was advised of the
penalties he faced if he was convicted. He received detailed
video advisements of his rights and a personal explanation from
the judge a much more detailed explanation than normally
required for a Miranda waiver. Judge Landry also provided
Forster with the necessary paperwork to request court-appointed
counsel.
During the interrogation that followed that court
appearance, Investigator Schied again advised Forster of his
Miranda rights. Forster asked Schied to repeat some of the
advisements, which Judge Hopwood found indicated that Forster was
actively thinking about his rights during the interview. After
the advisements, when Schied asked Forster if he would mind
talking to her, Forster responded: Id love to, Id love to. And
when Schied asked Forster about his next court date, he said, I
need to talk to you.
Judge Hopwood found that Forster then tried to explain
the shooting in exculpatory terms, labeling it an accident.
Judge Hopwood concluded that Forster demonstrated an
understanding of the situation and of his rights that was
[m]arkedly different from the first interrogation. He also found
more generally that Forster was highly intelligent and had some
experience with the criminal justice system. Judge Hopwood
concluded that Forsters Miranda waiver was knowing and
intelligent, and that Forsters statements were admissible.
Forster argues that there is no support in the record
for Judge Hopwoods conclusion that his initial appearance before
Judge Landry brought about such a change in his mental state that
he was able to knowingly and intelligently waive his rights. He
argues that the record is replete with evidence of [his]
continuing delusional state. In particular, he claims that his
statements demonstrated that he was confused about whether his
pastor could be his attorney. He argues that this confusion
showed that his religious delusions undermined his ability to
knowingly and intelligently waive his Miranda rights.
This was the view that Forsters expert, Dr. LaGrande,
advanced in superior court. She opined that Forster did not
understand that his pastor could not act as his attorney and that
this misunderstanding showed that he was incapable of assessing
the meaning of his Miranda waiver.
But Judge Hopwood found that Dr. LaGrande misconstrued
the record on this point. The judge found that Forster
understood after the first court appearance that his pastor could
not act as his attorney and that the court could appoint a
licensed attorney for him. He also found that at the first court
appearance Forster was not really asking to have his pastor act
as his attorney rather, he wanted his pastor to vouch for him.24
Judge Hopwoods findings are a reasonable interpretation of the
record, and Forster has not shown that these findings are clearly
erroneous.25
Forster also argues that during the second
interrogation he made statements demonstrating that he continued
to suffer delusions. He notes, for instance, that he said his
eyes were bleeding after Officer Watson allegedly sprayed him
with pepper spray and that this bleeding was the sweat of
demons.26 And Forster said he could not sleep in his jail cell
because of the evil spirits there. He also points to evidence
that late on the evening of December 26, after the second
interview, he was observed prancing around his cell, naked,
yelling, groping at his genitals, drinking toilet water, and
urinating around his cell.
Judge Hopwood recognized that Forster was still
delusional to some degree. But a defendants mental illness does
not automatically preclude a knowing and intelligent waiver of
rights; it is one factor courts must consider in the totality of
the circumstances. Judge Hopwoods finding that Forsters thought
processes became substantially more rational during and after his
court appearance is supported by the evidence.
Forster behaved rationally during his first court
appearance. He gave the court his date of birth and the correct
spelling of his name. After Judge Landry explained the charges
and potential penalties, Forster asked the court to clarify one
of the mandatory minimum sentences. He told Judge Landry he had
no questions about the video advisements on his rights. And he
objected to the amount of bail, asking the court why it had been
increased from $150,000 to $500,000. He also strongly objected
when Judge Landry imposed a condition of release barring him from
any contact with his fianc‚e. In the interrogation that
followed the hearing, Forster was able to focus on Investigator
Schieds questions about the events leading up to the shooting and
to provide responsive answers. In general, he tried to explain
the shooting in exculpatory terms, repeatedly labeling it an
accident.
Judge Hopwood concluded that by the time of the second
interrogation, Forster understood what was at issue and what was
at stake and he elected to talk with the police without an
attorney. He rejected Dr. LaGrandes opinion that Forsters mental
condition precluded a valid waiver, noting that her assessment
was based in part on the legally irrelevant finding that Forster
did not act in his best interests when he waived his Miranda
rights.27
Judge Hopwood was not required to accept Dr. LaGrandes
expert testimony, even though it was unrefuted, as long as there
was a sufficient evidentiary basis for his contrary findings.28
We conclude that Judge Hopwood did not err when he ruled that
Forster made a valid waiver of his rights in the second
interrogation.
We reach the same conclusion with respect to the third
interrogation. Forster argues that his conduct in his cell the
night before the third interrogation indicated that his mental
condition was still poor. But Forsters conduct and statements
during the interrogation itself support Judge Hopwoods ruling
that he acted knowingly and intelligently. Although Forster at
times complained that he was uncomfortable and tired, the record
shows that he was calm and alert at the start of the
interrogation when he waived his Miranda rights.
Did the first interrogation taint Forsters subsequent
waivers?
Forster next argues that Judge Hopwood should have
suppressed his statements in the second, third, and fourth
interrogations because his consent to those interrogations was
tainted by the statements he made in the first interrogation, at
a time when his mental state precluded a valid Miranda waiver.
He argues that Judge Hopwoods ruling that the later waivers were
valid was based on a faulty analysis and clearly erroneous
findings.
As we explained in Crawford v. State,29 there are two
competing analyses of the potential curative effect of Miranda
warnings administered to a suspect in custody after the police
have already obtained an incriminating statement in violation of
Miranda. The older, dissipation of taint analysis is based on
the Supreme Courts decision in Brown v. Illinois.30 The Court
more recently announced a modified analysis in Oregon v.
Elstad,31 which imposes a presumption that a second statement
made after properly administered Miranda warnings is voluntary
and admissible.32 Alaska courts have not decided whether to
adopt Elstad as a matter of state law.33
In Crawford, this court summarized the difference
between these two tests:
Under Brown, even though a suspect
ultimately receives proper Miranda warnings,
the statements that the suspect makes after
receiving those Miranda warnings are still
presumptively inadmissible; to rebut this
presumption, the government must show that
there was a break in the chain of events to
insulate those later statements from the
taint of the suspects initial unwarned
admissions. But under Elstad, ... a careful
and thorough administration of Miranda
warnings serves to cure the condition that
rendered the [earlier] unwarned statement
inadmissible, even when there has been no
significant break in the stream of
events[.][34]
In other words, Elstad raises a presumption that once Miranda
warnings have been given, the suspects choice whether to exercise
his privilege to remain silent should ordinarily be viewed as an
act of free will.35
Judge Hopwood concluded that the more rigorous Brown
test was appropriate under the Alaska Constitution. We do not
need to determine whether we should adopt Elstad as a matter of
state law because we agree with Judge Hopwoods conclusion that
Forsters second and subsequent interrogations pass the more
rigorous Brown test. The intervening court appearance was a
significant break in the chain of events insulating Forsters
later statements from the statements he gave in the first
interrogation.
In Halberg v. State,36 we listed several factors that
courts should consider in assessing whether a defendants
subsequent statements should be deemed the tainted fruit of prior
illegally obtained statements under the Brown test:
[T]he purpose and flagrancy of the initial
illegal act, the amount of time between the
illegal act and the defendants subsequent
statement, the defendants physical and
mental condition at the time of the
subsequent statement, whether the defendant
remained in custody or was at liberty during
this interval, whether the defendant had the
opportunity to contact legal counsel or
friends during this interval, whether the
subsequent interview took place at a
different location, whether the defendants
interrogators were the same officers who
committed the prior illegal act, whether the
evidence obtained from the prior illegal act
affected the defendants decision to submit
to a subsequent interview, whether the
police used lies or trickery to influence
the defendants decision, and whether there
were other intervening events that affected
the defendants decision.[37]
Forster challenges Judge Hopwoods findings on several
of these factors. First, he argues that Judge Hopwood erred in
finding that the Miranda violation in the first interrogation was
not flagrant. Forster argues that the violation was flagrant
because Investigator Schied persisted in interrogating Mr.
Forster when he was obviously delusional and unable to focus, a
fact easily discernible from the transcripts and observed without
the benefit of a professional psychological assessment.
But Judge Hopwood did not rely solely on the record of
the first interrogation when he decided that Forster was
incapable of knowingly and intelligently waiving his rights. The
judge also relied on the evidence of Forsters unusual behavior in
the days leading up to the shooting, his conduct when he arrived
at jail on December 26, his statements to his friend Tubbs when
Forster called him from jail, and the observations and
conclusions of Dr. LaGrande. As Judge Hopwood emphasized,
Investigator Schied did not have the benefit of all this
information to assess whether Forster was malingering or instead
suffering from such a severe mental illness that he was incapable
of waiving his rights.
Forster also complains that Judge Hopwood failed to
consider whether his illegally obtained admissions affected his
decision to submit to later questioning. But Forster only
mentions his admission that he shot Officer Watson, and that fact
was never in dispute. Forster does not explain how this or any
other admission affected his later decisions to waive his rights
he just makes the conclusory assertion that his admissions,
together with his disturbed mental state, put him at a
psychological disadvantage.
During the first interrogation, Forster told
Investigator Schied that Officer Watson got out of his patrol car
with his gun drawn, backed him to the wall, told him to drop to
his knees, and sprayed him in the eyes with pepper spray so he
could not see. Forster said he took the gun from Watsons hand
and, after a struggle over the gun, shot him in the heart and the
head. Throughout the interview he maintained that he had no
choice but to kill Watson: I knew if I didnt shoot him he would
pull his other gun and kill me, that [h]e came after me and my
bride, and that he was going to kill me.
We have previously observed that [a] defendant will
not feel psychological pressure to waive his or her rights if the
defendant does not view his or her prior statements as
incriminating.38 Several days later, concerned about new
admissions he had made to Investigator Schied during the third
interrogation, Forster told Investigator Gilmore that [t]he first
story that I told [Schied] was what happened. Thus it appears
unlikely that Forster considered that his statements in the first
interrogation were incriminating.
Forster next argues that Judge Hopwood gave inadequate
consideration to the fact that he remained in custody between the
first and second interrogations and did not consult with a
friend, his pastor, or a lawyer. Forster did, however, appear in
court, and, as Judge Hopwood found, this was a significant
intervening event. Forster watched detailed video advisements on
his rights, he was informed of the charges against him, he was
told that his pastor could not act as his attorney, and he was
advised about his right to apply for court-appointed counsel.
Judge Hopwood found that this hearing was a focused, sobering
event for Forster, and this finding is supported by the more
rational responses Forster provided to Investigator Schieds
questions during the second interrogation.
As Judge Hopwood acknowledged, some of the Brown
factors suggested that Forsters decision to waive his rights in
the second interrogation was tainted by the earlier Miranda
violation: the same officer conducted both interrogations, in
the same place, and close in time. But these factors are
relatively less significant, because Investigator Schied did not
engage in any coercive or intimidating tactics during the first
interrogation.39 The totality of the circumstances therefore
supports the superior courts conclusion that Forsters decision to
waive his rights during the second interrogation was not tainted
by the earlier Miranda violation.
Forsters claim also fails with respect to the third
and fourth interrogations. Forster concedes that his mental
condition had improved by this time. And Forster has not
explained how his illegally obtained statements affected his
decision to consent to these later interrogations.
Forster additionally argues that Investigator Schied
did not scrupulously honor his right to silence during the third
interrogation because she continued to question him after he said
I want some rest please. As the State points out, Forster did
not raise this claim below, and we normally do not consider
pretrial suppression issues raised for the first time on appeal
unless the violation is [s]ingularly egregious.40 We find no
egregious violation here. Forster cites no legal authority
establishing that a reasonable police officer in the
circumstances would understand his request for rest as an
invocation of the right to silence41 and there is authority to
the contrary.42
Did the troopers violate Forsters right to counsel?
Forster argues that the superior court should have
suppressed all his statements in the interrogations following his
first appearance before Judge Landry because his right to counsel
under the Sixth Amendment and article I, section 2 of the Alaska
Constitution attached at that hearing. He argues that his
Miranda waivers were insufficient to waive his right to counsel.
Forster listened to a detailed video explanation of
his right to counsel at his first appearance on December 26. The
judge asked whether Forster was going to have the assistance of
an attorney, and Forster indicated that he was not, that his
pastor would act as his witness. After the judge clarified that
the pastor could not act as an attorney, Forster asked whether he
was required to decide immediately. In response, the judge gave
Forster an application form he could use to request appointed
counsel. Forsters second interrogation took place shortly after
this court proceeding ended.
Judge Hopwood rejected Forsters Sixth Amendment claim
with respect to this second interrogation on December 26 and the
interrogations on December 27 and 28. He suppressed all of
Forsters statements in the last interrogation on December 30,
because Forster by then had filed the request for appointed
counsel. Judge Hopwood did not address Forsters right to counsel
under the Alaska Constitution because Forster did not raise that
claim in superior court.
A defendants initial appearance before a judge, at
which the defendant is informed of the charges against him and
bail is set, marks the start of adversary judicial proceedings
that trigger attachment of the Sixth Amendment right to
counsel.43 Once that right attaches, the defendant is entitled
to the presence of counsel at any critical stage of
postattachment proceedings,44 including a police interrogation.45
However, in Patterson v. Illinois46 the Supreme Court held that
the Miranda warnings are sufficient to protect the Sixth
Amendment right to counsel in the context of post-indictment
questioning.47
Forster argues that Patterson does not apply in his
case because Patterson initiated the police interview,48 whereas
Investigator Schied took Forster to a room in the courthouse and
interrogated him. But the Supreme Court has clarified that the
Patterson analysis also applies when the police initiate the
interview.49 Thus, Forsters Miranda waivers were sufficient to
waive his Sixth Amendment right to counsel.
Forster urges us to hold that a Miranda waiver is not
adequate to waive the right to counsel under the Alaska
Constitution. In other contexts, the Alaska Supreme Court has
interpreted the right to counsel in article I, section 11 of the
Alaska Constitution to afford greater protection to criminal
defendants than the Sixth Amendment.50 But Forster did not raise
his state constitutional claim in superior court, so he must show
plain error.51 Judge Hopwood did not commit plain error by
failing to adopt a more stringent test under the Alaska
Constitution, given the clear Supreme Court precedent indicating
that a valid Miranda waiver is sufficient to waive the Sixth
Amendment right to counsel.52
Was the judge required to impose a mandatory 99-year
sentence?
Normally a person convicted of first-degree murder
faces a sentencing range of 20 to 99 years to serve.53 But AS
12.55.125(a)(1) provides that a defendant convicted of the first-
degree murder of a uniformed or otherwise clearly identified
peace officer ... who was engaged in the performance of official
duties at the time of the murder is subject to a mandatory 99-
year term. Under related statutes, a defendant sentenced to this
mandatory term is ineligible for a good-time deduction or
discretionary parole.54
Forster was convicted of first-degree murder, and
there was no dispute that Officer Watson was in uniform and
engaged in official duties at the time he was killed. But the
jury was never asked to make a finding that Officer Watson was a
police officer engaged in official duties.
Under Apprendi v. New Jersey55 and Blakely v.
Washington,56 a defendants Sixth Amendment right to jury trial
requires that any fact other than a prior conviction that
increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury and proved beyond a
reasonable doubt.57 Judge Hopwood ruled that imposing the
mandatory 99-year term would violate this rule because the jury
did not find that Officer Watson was engaged in the performance
of official duties at the time he was killed. He therefore
applied the normal sentencing range of 20 to 99 years and imposed
the maximum sentence within that range 99 years to serve, with
no suspended time. That sentence left Forster eligible for both
good-time credit and discretionary parole.
The State challenges this decision, arguing that
eliminating a defendants eligibility for discretionary parole or
good time does not affect the defendants statutory maximum term
for purposes of the rule in Apprendi and Blakely.
The States argument is correct with respect to
discretionary parole. In State v. Malloy,58 the defendant
challenged another subdivision of this statute, AS
12.55.125(a)(3), which requires a judge sentencing a defendant
for first-degree murder to impose a mandatory 99-year term with
no eligibility for parole if the judge finds by clear and
convincing evidence that the defendant engaged in substantial
physical torture of the victim. The Alaska Supreme Court held
that this provision did not violate the right to jury trial in
Apprendi and Blakely because, under AS 12.55.115, the sentencing
court had the statutory authority to impose a 99-year sentence
with no eligibility for discretionary parole even without a
finding of substantial physical torture.59 Therefore, the
finding of substantial torture did not increase the statutory
maximum sentence.
Similarly, in the present case, a restriction on
discretionary parole would not increase the statutory maximum
sentence. There is no dispute that Forsters victim was a
uniformed police officer engaged in his official duties. We
therefore conclude that Judge Hopwood should have restricted
Forsters eligibility for discretionary parole.
But the Malloy holding did not resolve whether the
right to jury trial is violated by a sentence that denies the
defendant the right to earn good-time credit based on a factual
finding that was not submitted to the jury.60 Under Alaskas good-
time credit statutes, prisoners serve only two-thirds of their
sentences and then are released on mandatory parole unless they
forfeit good time by misbehaving in prison.61 But AS
33.20.010(a)(1) declares that a first-degree murder defendant who
receives a mandatory 99-year term receives no good-time credit
and therefore is never eligible for mandatory parole. The
question left unresolved in Malloy and squarely presented in
this case is whether a defendant is entitled to have a jury find
the facts that result in this elimination of the good-time
deduction.
The State argues that the weight of authority in other
jurisdictions suggests that sentencing statutes restricting good-
time credit do not implicate Blakely or Apprendi because the
statutes do not alter the maximum sentence imposed, only the
sentence served and then only potentially, because the defendant
might forfeit good-time credit by poor conduct in prison.62
Forster points out that Alaska sentencing courts have
no authority to restrict eligibility for good-time credit. All
first-degree murder defendants automatically receive the good-
time deduction unless the State proves one of the factors listed
in the statute in this case, that the victim was an officer
engaged in official duties.63 Therefore, he argues, a mandatory
99-year sentence with no possibility of good-time credit and
mandatory parole is not within the maximum sentence a judge may
impose solely on the basis of the facts reflected in the jury
verdict or admitted by the defendant.
The Malloy decision states the test we are required to
apply to determine whether the good-time restriction increases
the maximum sentence for purposes of Apprendi. This test is
based on the original formulation by the United State Supreme
Court in Apprendi: [T]he relevant inquiry is one not of form,
but of effect does the required finding expose the defendant to
a greater punishment than that authorized by the jurys guilty
verdict?64 We are required to compare the harshest sentence
actually available before a finding of aggravating circumstances
under AS 12.55.125(a) with the actual harshness of the sentence
that is mandated by such a finding.65
This test involves three steps: first, we identify
the harshest sentence available before a finding of the
aggravating circumstance. Second, we identify the harshness of
the sentence that is mandated when the aggravating circumstance
is found. And third, we compare the two sentences to determine
whether the aggravating circumstance requires a sentence that is
actually harsher than the harshest sentence otherwise available.
In this case, the harshest sentence available without
a finding of the aggravating circumstance is 99 years
imprisonment, without the possibility of discretionary parole,
but with a reduction for good-time credit. As we have noted,
even without this aggravating circumstance, a sentencing judge
has the statutory authority to restrict or completely eliminate
a defendants eligibility for discretionary parole.66
But the Alaska sentencing statutes give courts no
discretion to limit a prisoners good-time deduction.
A prisoner sentenced to more than three days is
entitled to a deduction of one-third of the term of
imprisonment.67 The amount of the good-time deduction is
computed according to a prisoners total sentence and credited at
the outset of the sentence.68 At the expiration of the prisoners
sentence, less the time deducted for good conduct, the prisoner
shall be released.69 A prisoner does not forfeit his good time
unless the authorities establish that he has committed a
subsequent offense or violated prison rules.70 Thus a sentence
of imprisonment necessarily includes good-time credit and
mandatory parole, unless a fact finder makes one of the
additional factual findings specified in the sentencing
statute.71
The second step in the Malloy test requires us to
identify the actual harshness of the sentence that is mandated by
a finding of the aggravating circumstance. In this case, under
AS 33.20.010(a)(1), a mandatory 99-year sentence calls for
complete elimination of good-time credit and mandatory parole.
The third step requires us to compare the two
sentences to determine whether the aggravating circumstance
requires a sentence that is actually harsher than the harshest
sentence otherwise available. Here, we must determine whether a
sentence that excludes good-time credit is actually harsher than
a sentence that includes good-time credit.
On a similar issue, the Malloy court stated that a
parole-restricted term of ninety-nine years is undeniably harsher
than a ninety-nine-year term that does not restrict a defendants
eligibility for discretionary parole.72 The court ultimately
held that this distinction did not trigger the requirement of
jury trial because a sentencing judge could restrict
discretionary parole without relying on the aggravating
circumstance. But the courts comparison of the parole-restricted
sentence to a sentence without such a restriction bears directly
on the issue presented in this case.
If a parole-restricted 99-year sentence is undeniably
harsher than a sentence without such a restriction, then a
sentence without the possibility of good-time credit and
mandatory parole is undeniably harsher than a 99-year term
without such a restriction. So the mandatory sentence required
by the aggravating circumstance is actually harsher than the
harshest sentence actually available without this finding: that
is, the aggravating circumstance exposes the defendant to a
greater punishment than the maximum sentence authorized by the
jurys verdict standing alone.
In Keels v. United States73 the defendant challenged a
similar statute that required the court to impose a sentence of
life imprisonment without the possibility of parole for first-
degree murder based on the courts finding of specified
aggravating circumstances for instance, that the murder was
especially heinous, atrocious, or cruel.74 The Keels court
concluded that this statute lengthened the maximum sentence the
defendant faced, and rejected the governments claim that the
limitation on parole was an increase in the mandatory minimum
sentence that did not implicate the right to jury trial under
Apprendi:
Ultimately the governments distinction
between a mandatory minimum and a maximum
sentence in the present context is one of
words. ... [Life without parole] is
undeniably more burdensome to the defendant
than life with the possibility of parole.
... Excluding the jury from the
determination of an offenders eligibility
for heightened punishment of this kind
distorts McMillan,[75] a true mandatory
minimum case, and cannot be reconciled with
Apprendi.[76]
We agree with this reasoning and consequently hold that a
sentencing court may not restrict or eliminate a defendants
eligibility for good-time credit and mandatory parole without
holding a jury trial on the aggravating circumstance in AS
12.55.125(a).
In summary, Judge Hopwood correctly recognized that he
could not restrict Forsters eligibility for good-time credit or
mandatory parole based solely on the guilty verdict. Without
additional findings, the most severe sentence the judge could
impose was 99 years subject to the normal good-time deduction of
one-third of that sentence. Apprendi and Blakely require that
any finding eliminating this good-time deduction be submitted to
a jury and proven beyond a reasonable doubt.
But Judge Hopwood was required to impose the
restriction on discretionary parole mandated by AS 12.55.125(a).
This restriction does not increase the statutory maximum
sentence, so a jury finding is not required.77 In this case,
there is no dispute that the victim of Forsters crime was a
uniformed peace officer who was engaged in the performance of his
official duties at the time of this crime.
Under the double jeopardy clauses of the state and
federal constitutions, once a sentence has been meaningfully
imposed, it may not, at a later time, be increased.78 But an
illegal sentence may be corrected even if this means increasing
the sentence because an illegal sentence has not been
meaningfully imposed for double jeopardy purposes.79 The
superior courts decision not to restrict Forsters discretionary
parole constituted an illegal sentence because, as just noted,
the parole restriction was required by the uncontested facts of
this case.
Forster argues that the State cannot challenge the
legality of his sentence in a cross-appeal, but only in a
petition for review. He also argues that the States cross-appeal
should not be treated as a petition for review.
There is authority holding that the State may only
seek modification of an illegal sentence by filing a petition for
review.80 But those cases were decided before the legislature
amended this courts jurisdictional statute, AS 22.07.020, in 1993
to broaden the States right to appeal in criminal cases. Before
that amendment, the States right to appeal in criminal cases was
limited to testing the sufficiency of the indictment or
information.81 Under the current statute, the governments right
to appeal is limited only by the prohibitions against double
jeopardy contained in the United States Constitution and the
Alaska Constitution.82 As we have already discussed, correcting
an illegal sentence does not violate the defendants right against
double jeopardy.
When the legislature amended AS 22.07.020(d)(2), it
declared its intent to bring the States right to appeal in
criminal cases in line with federal law under 18 U.S.C. 3731.83
And yet the federal courts of appeal are split on whether section
3731 authorizes the government to appeal an illegal sentence,84
and the legislative history of AS 22.07.020(d)(2) is silent on
this issue.85 It is therefore not clear whether the State has a
right to pursue a modification of Forsters sentence in a cross-
appeal.
As Forster points out, if the State appeals a criminal
sentence as too lenient and the defendant does not challenge the
sentence, under AS 12.55.120(b) the authority of this court is
limited to issuing an advisory opinion approving or disapproving
the sentence.86 But the plain language of this statute suggests
that it limits only our authority to modify a sentence the State
challenges as too lenient i.e., as an abuse of discretion.87
Alaska cases have long recognized our authority to direct
sentencing courts to correct an illegal sentence,88 and nothing
in the legislatures 1993 amendment to our jurisdictional statute
suggests it intended to change this well-established rule.89
We need not definitively resolve these questions
because we conclude that the States appeal raises an important
question of law that advances an important public interest and
that it merits recognition as a petition for review.90 The
superior courts decision not to restrict Forsters discretionary
parole constituted an illegal sentence because the parole
restriction was required by the uncontested facts of this case.
We therefore grant the petition for review and reverse the
superior courts decision on this issue.
Is discretionary parole required by Forsters right to
reformation?
Forster also argues that a 99-year term of
imprisonment without discretionary parole would violate his right
to reformation. Article 1, section 12 of the Alaska Constitution
provides in pertinent part:
Criminal administration shall be based upon
the following: the need for protecting the
public, community condemnation of the
offender, the rights of victims of crimes,
restitution from the offender, and the
principle of reformation.
This provision provides an outer limit on the legislatures
authority to determine the appropriate punishment for a crime.91
A given sentencing provision is not required to
satisfy each of the goals listed in this provision.92 The
legislature may reasonably emphasize certain goals over others
when determining the individual components of a criminal
sentence.93 In other words, each component of a criminal
sentence must advance the protection of the public, community
condemnation of the offender, the rights of crime victims,
restitution, or the reformation of the defendant.
We therefore consider which of these goals might be
served by the legislative restriction on discretionary parole for
a defendant who intentionally killed a police officer. The
legislature could reasonably conclude that a restriction on
parole might be necessary to protect the public from someone
brazen and dangerous enough to murder a uniformed police officer
engaged in official duties. The legislature could likewise
conclude that this crime merited additional community
condemnation because of the officers special role in maintaining
public order, and because of the risks police officers take by
putting themselves in harms way. The legislature could also
conclude that a lengthy sentence is necessary for a person who
murders a police officer in order to deter the offender from
future crimes and to serve as a warning to others. The
restriction on discretionary parole for these serious offenders
thus bears a substantial relationship to several of the
sentencing goals.
Forster argues that we recognized the importance of
the three-judge panel as a safety valve when we sustained the
presumptive sentencing system against a similar constitutional
attack.94 The three-judge panel has the authority to depart from
the strict provisions of the presumptive sentencing scheme to
prevent manifest injustice.95 The three-judge panel has no
authority in a first-degree murder case, like this one, because
presumptive sentencing does not apply.
But a defendant sentenced to a mandatory 99-year term
does have a different type of safety valve. A defendant
sentenced to a mandatory 99-year term under AS 12.55.125(a) may
apply for a modification or reduction of sentence after serving
one-half the mandatory term without consideration of good time.96
This provision serves the goal of reformation for those offenders
who deserve parole consideration before their mandatory release.
In this case, Judge Hopwood recognized that Forster
had a low potential for rehabilitation. If his circumstances
change during his incarceration, then he may be eligible for a
sentence modification and discretionary parole. But regardless
of Forsters future potential, we conclude that the statutory
restriction on his discretionary parole is consistent with the
multiple sentencing goals encompassed in the Alaska Constitution.
Conclusion
We find no error in the superior courts denial of
Forsters motion to suppress. We therefore AFFIRM the judgment of
conviction. But we REMAND for amendment of the judgment to
reflect that Forster is not eligible for discretionary parole.
_______________________________
1 See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16
L. Ed. 2d 694 (1966).
2 AS 11.41.100(a)(1)(A).
3 AS 11.41.220(a)(1)(A).
4 422 U.S. 590, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975).
5 Giacomazzi v. State, 633 P.2d 218, 222 & n.4 (Alaska
1981); McMahan v. State, 617 P.2d 494, 498 (Alaska 1980).
6 Moran v. Burbine, 475 U.S. 412, 421, 106 S. Ct. 1135,
1141, 89 L. Ed. 2d 410 (1986).
7 See Nashoalook v. State, 663 P.2d 975, 979 & n.2 (Alaska
App. 1983).
8 829 P.2d 1201 (Alaska App. 1992).
9 Id. at 1206.
10 554 U.S. 164, 128 S. Ct. 2379, 171 L. Ed. 2d 345
(2008).
11 Id., 128 S. Ct. at 2386.
12 But see Schade v. State, 512 P.2d 907, 916 (Alaska
1973) (concluding that mental illness is one of several factors
which must be weighed in determining whether a confession is
voluntary).
13 479 U.S. 564, 107 S. Ct. 851, 93 L. Ed. 2d 954
(1987).
14 Id. at 567-69, 573, 107 S. Ct. at 853-55, 857.
15 Id. at 574-75, 107 S. Ct. at 857-58.
16 Id.
17 475 U.S. 412, 106 S. Ct. 1135, 89 L. Ed. 2d 410
(1986).
18 Id. at 420-24, 106 S. Ct. at 1140-42.
19 Id. at 422, 106 S. Ct. at 1141; see also Berghuis
v. Thompkins, 560 U.S. ___, 130 S. Ct. 2250, 2262 (2010), 2010 WL
2160784 at *11 (Where the prosecution shows that a Miranda
warning was given and that it was understood by the accused, an
accuseds uncoerced statement establishes an implied waiver of the
right to remain silent.).
20 Obviously, if the impairment is substantial enough, it
may be the controlling factor. Cf. Garrett v. State, 369 So.2d
833, 836 (Ala. 1979) (discussing confession by mentally disabled
juvenile).
21 See, e.g., People v. Woidtke, 587 N.E.2d 1101, 1111
(Ill. App. 1992); Commonwealth v. Cifizzari, 474 N.E.2d 1174,
1177 (Mass. App. 1985); State v. Scott, 841 S.W.2d 787, 789 (Mo.
App. 1992); State v. Miller, 714 S.W.2d 815, 818, 822-25 (Mo.
App. 1986); McGregor v. State, 885 P.2d 1366, 1378 (Okla. Crim.
App. 1994); Morris v. State, 766 P.2d 1388, 1391-92 (Okla. Crim.
App. 1988).
22 See, e.g., Commonwealth v. Hilton, 823 N.E.2d 383, 392-
93 (Mass. 2005); Commonwealth v. Cephas, 522 A.2d 63, 65 (Pa.
Super. 1987).
23 Woidtke, 587 N.E.2d at 1111; see also Hilton, 823
N.E.2d at 393 (invalid waiver where defendant did not understand
her legal rights); Scott, 841 S.W.2d at 789 (valid waiver where
defendant understood that he could remain silent and that he was
making a statement that could be used against him); McGregor, 885
P.2d at 1378 (valid waiver where defendant understood what he was
doing when he made his statements); Morris, 766 P.2d at 1392
(valid waiver where defendant could understand and appreciate the
rights that he waived); Cephas, 522 A.2d at 66 (invalid waiver
where defendant was incapable of comprehending the meaning of the
Miranda warnings at the time he was interrogated).
24 At the first appearance, after Judge Landry asked
Forster if he was going to have an attorney assist him, Forster
said, [I]nstead of having an attorney, I would like to have my
my pastor as my witness.
25 See Nashoalook, 663 P.2d at 979 n.2.
26 It appears to be uncontested that Officer Watsons
pepper spray was still snapped and secured on his belt after the
incident.
27 See Spring, 479 U.S. at 576-77, 107 S. Ct. at 858-59
(citing Moran, 475 U.S. at 422, 106 S. Ct. at 1141) (for a
Miranda waiver to be valid, police are not required to supply
information that would merely affect the wisdom of the waiver);
State v. Kaahanai, 747 P.2d 1276, 1281 (Haw. 1987) (the Miranda
rights waiver is calibrated to ensure the voluntary and knowing
nature of the waiver, not its ultimate wisdom); State v. Norfolk,
381 N.W.2d 120, 127 (Neb. 1986) (In reference to a waiver of the
rights designated in the Miranda warning, intelligent is not
synonymous with prudent, and intelligence is not equated with
wisdom.) (citation omitted); Wayne R. LaFave, Jerold H. Israel,
Nancy J. King, Orin S. Kerr, Criminal Procedure 6.9(b) at 824
(3d ed. 2007) (it is not in the sense of shrewdness that Miranda
speaks of intelligent waiver, and thus in this context
intelligence is not equated with wisdom) (quoting Collins v.
Brierly, 492 F.2d 735 (3d Cir. 1974)) (internal quotation marks
omitted).
28 See Dolchok v. State, 639 P.2d 277, 281 (Alaska 1982);
Trumbly v. State, 515 P.2d 707, 708 (Alaska 1973); cf. Bowker v.
State, 373 P.2d 500, 501-02 (Alaska 1962).
29 100 P.3d 440 (Alaska App. 2004).
30 422 U.S. 590, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975).
31 470 U.S. 298, 105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985).
32 Crawford, 100 P.3d at 446-47.
33 Stock v. State, 191 P.3d 153, 156 (Alaska App. 2008);
Noyakuk v. State, 127 P.3d 856, 863 (Alaska App. 2006).
34 Crawford, 100 P.3d at 441 (quoting Elstad, 470 U. S. at
310-11, 105 S. Ct. at 1294) (alteration in Crawford).
35 Elstad, 470 U.S. at 311, 105 S. Ct. at 1294 (quoting
Wong Sun v. United States, 371 U.S. 471, 486, 83 S. Ct. 407, 416,
9 L. Ed. 2d 441 (1963)).
36 903 P.2d 1090 (Alaska App. 1995).
37 Id. at 1098 (citations omitted).
38 Id. at 1099 n.4 (citing United States v. Knight, 395
F.2d 971, 975 (2nd Cir. 1968)).
39 Id. at 1098.
40 See Moreau v. State, 588 P.2d 275, 279-80 & n.13
(Alaska 1978); Longley v. State, 776 P.2d 339, 343-44 (Alaska
App. 1989).
41 See Munson v. State, 123 P.3d 1042, 1048 (Alaska 2005)
(citing Davis v. United States, 512 U.S. 452, 459, 114 S. Ct.
2350, 129 L. Ed. 2d 362 (1994)).
42 See Berghuis, 130 S. Ct. at 2259-60, 2010 WL 2160784 at
*8-9 (holding that an accused must unambiguously invoke the right
to remain silent); State v. Bailey, 714 S.W.2d 590, 593 (Mo. App.
1986) (holding a suspects request for some time to think alone
was not an invocation of the right to silence); State v. Bey, 548
A.2d 887, 892-93 (N.J. 1988) (holding request to lie down and
think about what happened not a clear invocation of the right to
silence); State v. Domagalski, 378 N.W.2d 297, 297 n.7 (Wis. App.
1985) (table, text in Westlaw, No. 85-509-CR) (A persons bare
statement that he is tired and wants to sleep is not, without
more, an invocation of his right to silence.).
43 Rothgery v. Gillespie County, Texas, 554 U.S. 191, 128
S. Ct. 2578, 2592, 171 L. Ed. 2d 366 (2008).
44 Id., 128 S. Ct. at 2591.
45 Montejo v. Louisiana, 556 U.S. ___, 129 S. Ct. 2079,
173 L. Ed. 2d 955 (2009).
46 487 U.S. 285, 108 S. Ct. 2389, 101 L. Ed. 2d 261
(1988).
47 Id. at 298-99, 108 S. Ct. at 2398.
48 Id. at 287-88, 108 S. Ct. at 2392.
49 Montejo, 129 S. Ct. at 2091.
50 See Blue v. State, 558 P.2d 636, 641-42 (Alaska 1977)
(extending right to counsel to defendant subjected to pre-
indictment lineup while in custody, absent exigent
circumstances); Alexander v. Anchorage, 490 P.2d 910, 915 (Alaska
1971) (extending right to counsel to all criminal prosecutions
involving the possibility of incarceration); Roberts v. State,
458 P.2d 340, 342-43 (Alaska 1969) (extending right to counsel to
prisoner from whom the police sought to obtain a handwriting
exemplar after indictment and appointment of counsel).
51 See McGill v. State, 18 P.3d 77, 81 (Alaska App. 2001).
52 See Marrone v. State, 653 P.2d 672, 675-81 (Alaska App.
1982) (when the applicable law can be reasonably disputed, there
is no plain error).
53 AS 12.55.125(a).
54 See former AS 33.16.090(b) (2004) (A prisoner sentenced
to a mandatory 99-year-term under AS 12.55.125(a) ... is not
eligible for discretionary parole during the entire term.); AS
33.20.010(a)(1) (A prisoner is not eligible for a good time
deduction if the prisoner has been sentenced to a ... mandatory
99-year term of imprisonment under AS 12.55.125(a)[.]).
55 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435
(2000).
56 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403
(2004).
57 Blakely, 542 U. S. at 301, 124 S. Ct. at 2536 (quoting
Apprendi, 530 U.S. at 490, 120 S. Ct. at 2362-63).
58 46 P.3d 949 (Alaska 2002) (Malloy I).
59 Id. at 954.
60 See Malloy v. State, 153 P.3d 1003, 1011 (Alaska App.
2007) (Malloy II) (the restriction on good-time credit would have
violated the ex post facto clauses of both the federal and state
constitutions because Malloy committed her crimes before the
amended statute took effect).
61 AS 33.20.040(a); State v. Staael, 807 P.2d 513 (Alaska
App. 1991).
62 See, e.g., People v. Murphy, 21 Cal. Rptr.3d 769, 772-
73 (Cal. App. 2004); Jenner v. Ortiz, 155 P.3d 563, 565 (Colo.
App. 2006); People v. Robinson, 892 N.E.2d 39, 44 (Ill. App.
2008); People v. Fender, 757 N.E.2d 645, 652-54 (Ill. App. 2001);
State v. Montoya, 114 P.3d 393, 397-98 (N.M. App. 2005); State
v. Clark, 134 P.3d 1074, 1077-78 (Or. App. 2006); State v.
Spencer, 114 P.3d 1222, 1228 (Wash. App. 2005).
63 See AS 12.55.125(a)(1)-(5).
64 Malloy I, 46 P.3d at 956 (quoting Apprendi, 530 U.S. at
494, 120 S. Ct. at 2365).
65 Id. at 956.
66 Id. at 954.
67 Hampel v. State, 911 P.2d 517, 521 (Alaska App. 1996)
(emphasis added) (quoting AS 33.20.010(a)).
68 State v. McCallion, 875 P.2d 93, 95, 98-99 (Alaska App.
1994).
69 AS 33.20.030; see Smith v. State, Dept of Corrections,
872 P.2d 1218, 1226-27 (Alaska 1994); Hill v. State, 22 P.3d 24,
27 (Alaska App. 2001).
70 AS 33.20.050; Briggs v. Donnelly, 828 P.2d 1207, 1208-
09 (Alaska App. 1992).
71 See AS 12.55.125(a)(1)-(5) (mandatory 99-year sentence)
& AS 33.20.010(a)(2)-(3) (making certain prisoners with multiple
felony convictions ineligible for good time).
72 Malloy I, 46 P.3d at 956.
73 785 A.2d 672 (D.C. 2001).
74 Id. at 680.
75 See McMillan v. Pennsylvania, 477 U.S. 79, 81-82, 93,
106 S. Ct. 2411, 2413-14, 2420, 91 L. Ed. 2d 67 (1986) (holding
it permissible to increase a mandatory minimum sentence based
solely on facts found by the sentencing judge).
76 Keels, 785 A.2d at 684 (citation omitted).
77 Malloy I, 46 P.3d at 957.
78 Lapp v. State, 220 P.3d 534, 537 (Alaska App. 2009)
(citing Sonnier v. State, 483 P.2d 1003, 1005 (Alaska 1971)).
79 Smith v. State, 892 P.2d 202, 203 (Alaska App. 1995).
80 See Napayonak v. State, 793 P.2d 1059, 1063 (Alaska
App. 1990); State v. LaPorte, 672 P.2d 466, 468-69 (Alaska App.
1983).
81 Ch. 71, 2, SLA 1993; see State v. Walker, 887 P.2d
971, 975-76 (Alaska App. 1994). As discussed later in the text
of this opinion, both before and after 1993, the State also had
the right to appeal a sentence as too lenient. See former AS
22.07.020(d)(2) (pre-1993 version); AS 12.55.120(b).
82 AS 22.07.020(d)(2).
83 Ch. 71, 1, SLA 1993; see also Committee Minutes, House
Judiciary Committee discussion of H.B. 181 (March 8, 1993).
84 Compare United States v. Edmonson, 792 F.2d 1492, 1496-
97 (9th Cir. 1986), with United States v. Denson, 588 F.2d 1112,
1125-27 (5th Cir. 1979), modified on rehearing en banc, 603 F.2d
1143 (5th Cir. 1979); see also United States v. Horak, 833 F.2d
1235, 1246-48 (7th Cir. 1987) (discussing this split in
authority, and holding that 18 U.S.C. 3731 did not authorize
appeals from sentencing decisions).
85 See Ch. 71, 1-5, SLA 1993; Minutes of House Judiciary
Committee, House Bill 181, (March 8, 1993); see also House
Judiciary Committee file on H.B. 181 (sponsor statement, fiscal
note, and Division of Legal Services sectional summary).
86 AS 12.55.120(b); AS 22.07.020(b).
87 See State v. Gibson, 543 P.2d 406, 408 (Alaska 1975),
overruled on other grounds by State v. Dunlop, 721 P.2d 604
(Alaska 1986).
88 See State v. Occhipinti, 562 P.2d 348, 349 (Alaska
1977); Dunham v. City and Borough of Juneau, 790 P.2d 239, 241
(Alaska App. 1990), receded from on other grounds in Curtis v.
State, 831 P.2d 359, 360-61 (Alaska App. 1992); LaPorte, 672 P.2d
at 468-69 & n.6.
89 The legislature explicitly retained the limitation on
our authority to modify a sentence the State appealed as too
lenient when it otherwise broadened the States right to appeal in
criminal cases in 1993. See Ch. 71, 4, SLA 1993; AS
12.55.120(b).
90 See Alaska Appellate Rule 402(b)(2).
91 See Nell v. State, 642 P.2d 1361, 1368-69 (Alaska App.
1982) (citing Thessen v. State, 508 P.2d 1192, 1197 (Alaska 1973)
overruled on other grounds by Dunlop, 721 P.2d at 610).
92 See Koteles v. State, 660 P.2d 1199, 1202 (Alaska App.
1983) (Singleton, J., concurring) (describing the discussion of
this provision at the Alaska Constitutional Convention, including
the interpretation of the similar language of the Indiana
Constitution).
93 See Dancer v. State, 715 P.2d 1174, 1182 (Alaska App.
1986) (citing Koteles, 660 P.2d at 1202-03 (Singleton, J.,
concurring)).
94 See id. at 1177-79.
95 AS 12.55.175.
96 AS 12.55.125(j).
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