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NOTICE
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
ANNIE SHINAULT, )
) Court of Appeals No. A-10358
Appellant, ) Trial Court No. 3AN-07-4047 CR
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. )
) No. 2308 - May 27, 2011
Appeal from the Superior Court, Third Judicial District,
Anchorage, Patrick J. McKay, Judge.
Appearances: Janella K. Combs, Johnson & Combs, P.C.,
Kodiak, for the Appellant. Ben Hofmeister, Assistant Attorney
General, Anchorage, and Daniel S. Sullivan, Attorney General,
Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger,
Judges.
BOLGER, Judge.
Annie Shinault is challenging the sentence she received for her participation
with her co-defendants Douglas McClain and Brenda Cleveland in the torture and abuse
of two women.
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Background
McClain became convinced that a prostitute named M.J. had stolen crack,
a pistol, a cell phone, and car keys from him when she came to his trailer to perform
sexual services. He also believed that M.J. then urged her friends to rob him at gunpoint,
stealing approximately $8,000 from him. McClain's friend and co-defendant, Annie
Shinault, picked up M.J. off the streets a few days later and took her to McClain's trailer.
Over the following three days, M.J. was beaten, tortured, and sexually abused by
McClain, Shinault, and a third co-defendant, Cleveland.
Another woman named V.B. came by to help clean up McClain's trailer in
exchange for drugs while M.J. was there. V.B. stole a crack pipe and some rolls of
quarters from McClain. Shinault, Cleveland, and McClain then subjected V.B. to similar
beatings and abuse.
Shinault was convicted of several crimes against M.J., including
kidnapping, first-degree sexual assault, fourth-degree assault, and harassment. She was
also convicted of misconduct involving weapons (for being a felon in possession of a
concealable firearm) and fourth-degree assault committed against V.B. Superior Court
Judge Patrick J. McKay imposed a composite sentence of fifty-one years and 270 days'
imprisonment.
Shinault had at least two prior felony convictions, so the presumptive range
for her first-degree sexual assault conviction was forty to sixty years' imprisonment.1
The judge imposed a forty-year sentence on this count, the minimum sentence within the
presumptive range.
1 AS 12.55.125(i)(1)(E); AS 12.55.185(17).
2
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Discussion
Before the sentencing hearing, Shinault submitted a request for Judge
McKay to find a mitigating factor, based on AS 12.55.155(d)(2). This subsection allows
a sentence below the presumptive range if "the defendant, although an accomplice,
played only a minor role in the commission of the offense."2
The judge denied Shinault's request, and she now appeals this ruling. We
must review Judge McKay's factual findings for clear error, but we independently
determine whether, given these findings, the evidence establishes this mitigating factor.3
Mitigating factor (d)(2) is not intended to undermine the law on
complicity.4 A defendant is not entitled to a mitigated sentence merely because they act
as an accomplice.5 In order to rely on this factor, the sentencing judge must be clearly
convinced that the defendant played only a minor role in the offense under
consideration.6
In this case, Shinault brought Cleveland and M.J. to McClain's trailer,
where M.J. was beaten and tortured. The sexual assault conviction was based on
2 AS 12.55.155(d)(2).
3 Michael v. State, 115 P.3d 517, 519-20 (Alaska 2005).
4 See AS 11.16.110 ("A person is legally accountable for the conduct of another
constituting an offense if ... with intent to promote or facilitate the commission of the
offense, the person ... aids or abets the other in planning or committing the offense.").
5 See Marzak v. State, 796 P.2d 1374, 1376 (Alaska App. 1990) (rejecting this factor
where defendant arranged to have a co-defendant kill an adverse witness); Hale v. State, 764
P.2d 313, 314, 316 (Alaska App. 1988) (rejecting this factor where the defendant procured
the weapon used in an armed robbery and planned the offense); Abdulbaqui v. State , 728
P.2d 1211, 1215 (Alaska App. 1986) (rejecting this factor where the defendant acted as a
lookout for a store robbery).
6 AS 12.55.155(d)(2), (f)(1).
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Shinault's conduct after M.J. was forced to strip off her clothes, whipped with a belt, and
taken to a back bedroom. Then Shinault said to Cleveland, "I want to see you fuck her
with something." In response, Cleveland put on a leather glove, put some Vaseline on
it, and shoved her hand into M.J.'s anus, hard enough to make her cry. Then Cleveland
made M.J. lick the glove.
Judge McKay found that Shinault had been an active participant in M.J.'s
abuse, beginning with her delivery of M.J. to McClain for retaliation. The judge found
that M.J. had been tortured, and that Shinault participated actively by burning her with
a crack pipe and putting a sock in her mouth. He found that Shinault had not merely
encouraged Cleveland, but rather that Shinault had almost directed Cleveland to sexually
assault M.J. He found that Cleveland's decision to shove the soiled glove in M.J.'s
mouth was horrific, and that Shinault's amusement during this assault was disgusting.
We conclude that Judge McKay's findings are reasonably supported by the
trial testimony. We likewise agree that, under these circumstances, Shinault failed to
establish that she played only a minor role in this offense.
Shinault also argues that Judge McKay should havesua sponte referred her
case to the three-judge sentencing panel for consideration of a sentence below the
presumptive range. Under AS 12.55.165, a sentencing judge is to refer a defendant's
sentencing to the three-judge panel if the judge finds "that manifest injustice would result
from ... imposition of a sentence within the presumptive range, [even after the sentence
is] adjusted for [proven] aggravating or mitigating factors." In other words, this statute
directs a sentencing judge to refer a defendant's case to the three-judge panel if, given
the applicable presumptive range of sentences and given the amount of adjustment that
the judge is authorized to make for aggravating and mitigating factors, the judge
4 2308
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concludes that any sentence within his or her authority would be manifestly unjust under
the circumstances of the defendant's case.7
Because Shinault was a third felony offender for presumptive sentencing
purposes, she faced a presumptive range of forty to sixty years' imprisonment for the
crime of first-degree sexual assault. Shinault did not prove any mitigating factors, so the
forty-year floor of the presumptive range was effectively the minimum sentence that
Judge McKay could impose for the sexual assault. Shinault was separately convicted of
kidnapping, an unclassified felony with a mandatory minimum sentence of five years'
imprisonment.8 Under AS 12.55.127(c)(2)(B), Judge McKay was obliged to make at
least five years of Shinault's kidnapping sentence consecutive to her sexual assault
sentence. Thus, Judge McKay was required to sentence Shinault to a minimum of forty-
five years' imprisonment.
Shinault contends that Judge McKay committed plain error when, even in
the absence of a defense request, he failed to see that any sentence within his authority
would be manifestly unjust and that Shinault's case should therefore be referred to the
three-judge panel. But even though Shinault describes this alleged error as Judge
McKay's failure to refer her case to the three-judge panel, as we explain below, Shinault
is actually arguing that her sentence is excessive.
Judge McKay's failure to refer Shinault's case to the three-judge sentencing
panel would constitute plain error only if all competent judges would conclude that it
was manifestly unjust to sentence Shinault to even the most lenient term of imprisonment
7 Harapat v. State, 174 P.3d 249, 253-54 (Alaska App. 2007).
8 AS 11.41.300(c); AS 12.55.125(b).
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available to Judge McKay.9 In other words, if we were to grant relief to Shinault (i.e.,
if we were to order the transfer of her case to the three-judge panel), we would
effectively be declaring that any sentence of forty-five years or more was "manifestly
unjust," given the circumstances of her case.
We can perceive no principled distinction between (1) holding that any
sentence of forty-five years or more is "manifestly unjust" and (2) holding that any
sentence of forty-five years or more is "clearly mistaken" under the sentencing criteria
codified in AS 12.55.005.
Indeed, in Harapat v. State,10 this court explained that these two concepts
are one and the same:
When a defendant seeks referral to the three-judge
panel on the theory that any sentence within the range
allowed to a single sentencing judge under the presumptive
sentencing law would still be manifestly too severe, the
sentencing judge must undertake an analysis of the lower end
of the sentencing range allowed by the presumptive
sentencing law - either the presumptive term itself (if no
statutory mitigators are proved), or the utmost adjustment that
is possible under AS 12.55.155(a) based on statutory
mitigators. The question to be answered is whether this
lowest allowed sentence would still be clearly mistaken under
the sentencing criteria first announced by the supreme court
in State v. Chaney and now codified in AS 12.55.005.11
9 See generally Simon v. State, 121 P.3d 815, 820 (Alaska App. 2005) ("To be 'plain
error', an error must be so obvious that any competent judge or attorney would have
recognized it. If a claim of error is reasonably debatable - if reasonable judges could differ
on what the law requires - then a claim of plain error fails." (footnote omitted)).
10 174 P.3d 249.
11 Id. at 254 (footnote omitted).
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Thus, the question, "If Shinault received a sentence of forty-five years or
more, would that sentence be manifestly unjust?" is legally equivalent to the question,
"If Shinault received a sentence of forty-five years or more, would that sentence be
clearly mistaken under Alaska's sentencing criteria?" This court has no jurisdiction to
answer this latter question.
A sentence of forty-five years to serve lies within the forty- to sixty-year
presumptive range of sentences for Shinault's sexual assault conviction. Alaska Statute
12.55.120(e) declares, "A sentence within an applicable presumptive range set out in AS
12.55.125 ... may not be appealed to the court of appeals under [AS 12.55.120] or AS
22.07.020 on the ground that the sentence is excessive." (Instead, the defendant only has
the right to petition the Alaska Supreme Court for discretionary review of the sentence.)
Thus, if Shinault had received this minimum forty-five-year sentence, and if she wished
to argue that this sentence was excessive, this court would lack jurisdiction to adjudicate
Shinault's claim.12
But Shinault's contention that Judge McKay should have referred her case
to the three-judge sentencing panel rests on exactly the same underlying claim: the
assertion that even a sentence of forty-five years (the least severe sentence available to
Judge McKay) was clearly mistaken under the Chaney sentencing criteria. And because
the underlying claim is the same, this court's jurisdiction to resolve that claim - or,
rather, our lack of jurisdiction to resolve that claim - is also the same.
We have no jurisdiction to grant relief to Shinault - no authority to declare
that Shinault's case should be referred to the three-judge panel on the ground that even
a sentence of forty-five years to serve was clearly mistaken. We likewise have no
12 See AS 22.07.020(b), which declares that this court has jurisdiction to hear appeals
of felony sentences that exceed two years to serve "except as limited by AS 12.55.120."
7 2308
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authority to declare that such a sentence was not clearly mistaken (and that Judge McKay
therefore committed no error when he failed to refer Shinault's case to the three-judge
panel).
Because this court lacks jurisdiction to resolve this issue, we conclude that
Shinault's only avenue for seeking relief is to petition the Alaska Supreme Court to
exercise its power of discretionary sentence review.
Conclusion
Accordingly, we REFER the appellant's excessive sentence claim to the
Alaska Supreme Court pursuant to Alaska Appellate Rule 215(k). We AFFIRM the
remaining aspects of the superior court's judgment and sentence.
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