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E-mail: corrections @ appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
KEVIN L. GARNER, )
) Court of Appeals No. A-10231
Appellant, ) Trial Court No. 4FA-07-409 CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) No. 2338 - November 25, 2011
)
Appeal from the Superior Court, Fourth Judicial District,
Fairbanks, Randy M. Olsen, Stephanie E. Joannides, Richard H.
Erlich, and Eric Smith, Judges.
Appearances: Tracey Wollenberg, Assistant Public Defender,
and Quinlan Steiner, Public Defender, Anchorage, for the
Appellant. Diane L. Wendlandt, Assistant Attorney General,
Office of Special Prosecutions and Appeals, Anchorage, and
John J. Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger,
Judges.
COATS, Chief Judge.
MANNHEIMER, Judge, with whom BOLGER, Judge, joins,
concurring.
----------------------- Page 2-----------------------
Kevin L. Garner was convicted of manslaughter, a class A felony, and faced
a presumptive term of imprisonment of seven to eleven years.1 Garner was also
convicted of driving under the influence, a misdemeanor with a one-year maximum
2
sentence.
Superior Court Judge Randy M. Olsen found the non-statutory mitigating
factor that Garner had exceptional rehabilitative prospects. He referred Garner's case to
the three-judge sentencing panel.
A majority of the three-judge panel also concluded that Garner possessed
extraordinary potential for rehabilitation. But the panel concluded that "even after
considering the non-statutory mitigating factor ... we do not find the presumptive term
to be manifestly unjust in this case." The panel remanded the case to Judge Olsen to
impose a sentence within the presumptive range.
On remand, Judge Olsen imposed a seven-year term for the manslaughter
conviction, which was at the bottom of the presumptive range available to him. He also
imposed a consecutive sentence of twelve months with ten months suspended for the
driving under the influence conviction.
We affirmed Garner's convictions in a prior decision.3 We asked for further
briefing on Garner's contention that the three-judge panel erred when it refused to
impose sentence and remanded the case to Judge Olsen for sentencing.4 Garner's
1 AS 11.41.120(b); AS 12.55.125(c)(2)(A).
2 AS 28.35.030(b); AS 12.55.135(a).
3 Garner v. State, Memorandum Opinion & Judgment No. 5690 (Alaska App. Mar.
30, 2011), 2011 WL 1229149, at *1.
4 Id. at *9.
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contention is that once the three-judge panel found the non-statutory mitigator that he
had exceptional prospects for rehabilitation, the question before the panel was not
whether the presumptive term was manifestly unjust. The question before the panel was,
rather, whether manifest injustice would result from failure to consider his exceptional
prospects for rehabilitation in imposing sentence. Garner contends that the panel did not
answer this question.
Both parties have submitted briefs of excellent quality which have been
very helpful to this court.
Discussion
Garner was convicted of manslaughter and faced a presumptive term of
seven to eleven years. Garner did not prove any statutory factors in mitigation. Had
Garner established a factor in mitigation, Judge Olsen would have had the authority to
impose a sentence "below the presumptive range as long as the active term of
imprisonment [was] not less than 50 percent of the low end of the presumptive
range ... ."5 In other words, had Garner established a statutory mitigating factor, Judge
Olsen would have had the authority to reduce the presumptive range to a minimum of
three and one-half years. But since Garner did not establish a statutory mitigating factor,
Judge Olsen had no legal authority to impose a sentence of less than seven years of
imprisonment.
Instead, Garner established the non-statutory mitigating factor that he had
exceptional prospects for rehabilitation. Alaska Statute 12.55.165(a) directs a sentencing
judge to refer a case to the three-judge panel for sentencing if the judge determines by
5 AS 12.55.155(a)(2).
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clear and convincing evidence that manifest injustice would result from the failure to
consider a non-statutory mitigating factor. In Kirby v. State,6 we explained the duty of
the sentencing court in these circumstances:
[O]nce the court finds the mitigating factor of unusual
prospects for rehabilitation in the case of a first [felony]
offender, it should evaluate the factor's impact on an
appropriate sentence in the same way it would evaluate a
statutory mitigating factor that had been established by clear
and convincing evidence. The court should consider it in
light of the totality of the circumstances and in light of the
Chaney sentencing criteria to determine whether the
presumptive term should be adjusted. The court should deny
referral to the three-judge panel only when it concludes that
no adjustment to the presumptive term is appropriate in light
of the factor.7
Alaska Statute 12.55.175 governs the three-judge sentencing panel's
consideration of a case. Once an individual sentencing judge refers a case to the three-
judge panel, the panel must independently decide whether to provide relief from the
normal rules of presumptive sentencing.8 It must do so in two discrete situations: where
the panel determines by clear and convincing evidence either (1) that manifest injustice
would result from the failure to consider a non-statutory aggravating or mitigating factor;
or (2) that manifest injustice would result from imposition of a sentence within the
presumptive range after adjustment for statutory aggravating and mitigating factors.9
6 748 P.2d 757 (Alaska App. 1987).
7 Id. at 765; see also Harapat v. State, 174 P.3d 249, 254-55 (Alaska App. 2007).
8 See AS 12.55.175(b).
9 Id.
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In Harapat v. State, we explained that a different test applies in each
situation.10 When a defendant seeks referral to the three-judge panel on the theory that
the lowest possible sentence permissible under the presumptive sentencing law is too
severe, "[t]he question to be answered is whether this lowest allowed sentence would still
be clearly mistaken under the [Chaney sentencing criteria and AS 12.55.005]."11 We
pointed out that a different test applies when a defendant seeks referral to the three-judge
panel on the theory that it would be manifestly unjust to fail to consider a non-statutory
mitigating factor:
In contrast, when a defendant seeks referral to the
three-judge panel on the theory that it would be manifestly
unjust to fail to consider a non-statutory mitigating factor ...
the sentencing judge must perform a different analysis. Here,
the question is whether, because of the presence of this non-
statutory mitigator, it would be manifestly unjust to fail to
make some adjustment (albeit small) to the sentence allowed
by the presumptive sentencing law.12
When sentencing is referred to the three-judge panel based on the single
judge's finding of a non-statutory mitigating factor, the panel must independently decide
whether the defendant has established by clear and convincing evidence that the non-
statutory mitigating factor applies. If the panel agrees that the non-statutory mitigating
factor applies and that "it would be manifestly unjust to fail to make some adjustment
(albeit small) to the sentence allowed by the presumptive sentencing law," the three
10 Harapat, 174 P.3d at 253-56.
11 Id. at 254.
12 Id .; see also Bossie v. State, 835 P.2d 1257, 1258-59 (Alaska App. 1992)
(upholding trial court's refusal to send to three-judge panel based on its finding that any
sentence below the presumptive range would be clearly mistaken).
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----------------------- Page 6-----------------------
judge panel must then assess the proper sentence, applying the Chaney sentencing
criteria and taking the mitigating factor into consideration.13
If the sentence the three-judge panel would impose is outside the range of
sentences the sentencing judge is authorized to impose, the panel must retain jurisdiction
and impose a sentence under AS 12.55.175(c) or (e).
The panel's sentencing discretion under AS 12.55.175(c) and (e)
As it was originally designed, the three-judge panel had wide sentencing
discretion. This discretion has been limited to some degree by the legislature and by case
law. For example, in cases where the panel concludes that a non-statutory mitigating
factor should be considered when sentencing a defendant, AS 12.55.175(c) apparently
gives the panel the discretion to impose "any definite term of imprisonment." But in
State v. Price,14 this court held that, despite the broad wording of AS 12.55.175(c), when
the three-judge panel adjusts a defendant's sentence because of a non-statutory
mitigating factor, the panel is limited to the same scope of adjustment that an individual
sentencing judge could make for a statutory mitigating factor under AS 12.55.155(a).15
In other words, if the low end of the applicable presumptive sentencing
range is more than four years, the three-judge panel can only adjust the defendant's
sentence down to fifty percent of the low end of the presumptive range.16 In Garner's
case, this means that, even if the three-judge panel agreed with Garner's sentencing judge
13 Harapat, 174 P.3d at 254 (citing Kirby, 748 P.2d at 765).
14 740 P.2d 476 (Alaska App. 1987).
15 Id. at 482.
16 AS 12.55.155(a)(2).
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----------------------- Page 7-----------------------
that Garner had an extraordinary potential for rehabilitation, the panel could not reduce
Garner's sentence below three and one-half years to serve based on this non-statutory
mitigator - because the low end of the applicable presumptive range was seven years.
In Price, we also held that, despite this limitation on the three-judge panel's
authority to reduce a sentence based on a non-statutory mitigator, the panel could lower
the defendant's sentence even further if the panel separately concluded that even this
reduced sentence would be manifestly unjust.17 But in 1992, the legislature modified this
aspect of Price by enacting AS 12.55.175(e).18
Alaska Statute 12.55.175(e) governs situations where the three-judge panel
retains jurisdiction on the basis of the non-statutory mitigating factor that the defendant
has extraordinary potential for rehabilitation. It declares that the panel "shall sentence
the defendant within the presumptive range required under AS 12.55.125 or as permitted
under AS 12.55.155."19 Both Garner and the State agree, based on the legislative history
of this provision, that the intent of this provision was (1) to re-affirm the three-judge
panel's authority to reduce the defendant's sentence based on this non-statutory mitigator
according to the rules codified in AS 12.55.155(a), but (2) to take away the additional
authority recognized in Price - i.e., the authority to reduce the defendant's sentence
even further if the panel concludes that a greater reduction is necessary to avoid manifest
injustice. Instead, the statute grants the panel the authority to make the defendant eligible
17 Price, 740 P.2d at 482.
18 1992 Alaska Sess. Laws ch. 79, § 28 (codified as amended at AS 12.55.175(e)(1)
(3)).
19 AS 12.55.175(e)(1).
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----------------------- Page 8-----------------------
for discretionary parole during the second half of the reduced sentence if the defendant
completes certain rehabilitation programs.20
We have independently examined the text and legislative history of this
statute, and we conclude that it supports the parties' position. We therefore adopt this
interpretation of the statute.
Garner's case is governed by AS 12.55.175(e) because his case was
referred to the three-judge panel on the basis of the non-statutory mitigating factor that
he has extraordinary potential for rehabilitation. This means that the three-judge panel
had no authority to reduce Garner's sentence to less than three and one-half years to
serve (fifty percent of the low end of the applicable presumptive range), even if the three-
judge panel concluded that such a sentence would be manifestly too severe. However,
the statute allowed the three-judge panel to make Garner eligible for discretionary parole
during the second half of his sentence if he completed certain rehabilitation programs.
We affirm the decision of the three-judge panel
A majority of the three-judge panel concluded that Garner established the
non-statutory mitigating factor that he had exceptional prospects for rehabilitation. But
the panel concluded that, even after considering the non-statutory mitigating factor, the
presumptive term was not manifestly unjust in this case. The panel's decision makes it
clear that it considered Garner's exceptional prospects for rehabilitation and concluded
that, even considering this non-statutory mitigating factor, it would not be manifestly
unjust to fail to make some adjustment to the range of sentences allowed by the
20 AS 12.55.175(e)(3).
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presumptive sentencing law. We thus conclude that the panel applied the correct test in
declining to accept jurisdiction. We affirm the panel's decision.
Conclusion
The judgment of the three-judge panel is AFFIRMED.
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Judge MANNHEIMER, joined by Judge BOLGER, concurring.
Under Alaska's presumptive sentencing laws, a sentencing judge must
impose a sentence within the applicable presumptive sentencing range unless the judge
is authorized to go outside the sentencing range pursuant to AS 12.55.155(a). This
statute authorizes a judge to impose a sentence above the presumptive range if the judge
finds one or more of the aggravating factors listed in AS 12.55.155(c), or to impose a
sentence below the presumptive range if the judge finds one or more of the mitigating
factors listed in AS 12.55.155(d).
There are times when a sentencing judge may conclude that the normal
range of sentences should be adjusted because of an aggravating or mitigating factor that
is not among those listed in AS 12.55.155. An individual sentencing judge has no
authority to relax the rules of presumptive sentencing based on a factor that is not listed
in AS 12.55.155(c) - (d). 1 Accordingly, in these circumstances - i.e., when the judge
finds that manifest injustice would result from failure to consider a relevant non-statutory
aggravating or mitigating factor - AS 12.55.165(a) directs the sentencing judge to send
the case to the statewide three-judge sentencing panel.
One of this Court's primary tasks in the current appeal is to identify the
three-judge panel's duty in these cases. The pertinent statute, AS 12.55.175(b) describes
the panel's duty in the following manner:
If the panel finds that manifest injustice would result from
failure to consider relevant aggravating or mitigating factors
not specifically included in AS 12.55.155 ... , [the panel] shall
sentence the defendant in accordance with this section. If the
1 See Woods v. State, 667 P.2d 184, 187 (Alaska 1983).
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panel does not find that manifest injustice would result, it
shall remand the case to the sentencing court, with a written
statement of its findings and conclusions, for sentencing
under [the normal rules of presumptive sentencing].
Under this statute, the three-judge panel's duty in the case hinges on
whether it would be manifestly unjust to "[fail] to consider" relevant non-statutory
aggravating or mitigating factors. There are conceivably two ways to interpret this
statutory directive.
Because an individual sentencing judge is not authorized to exceed the
normal limits of presumptive sentencing based on a non-statutory sentencing factor, one
might interpret AS 12.55.175(b) as requiring the three-judge panel to retain the case, and
to impose the defendant's sentence, whenever the panel concludes that it would be
manifestly unjust to fail to take account of a non-statutory sentencing factor when
formulating the defendant's sentence - even if the panel ultimately concludes that the
defendant should receive a sentence within the range of sentences that was available to
the individual sentencing judge.
But in Smith v. State, 711 P.2d 561 (Alaska App. 1985), this Court gave a
different interpretation to the statutory directive found in AS 12.55.175(b). This
interpretation is hidden in footnote 8 of Smith, 711 P.2d at 572. Here is the text of that
footnote:
Individual sentencing judges will be completely
precluded from considering relevant non-statutory aggrava
ting or mitigating factors[,] and from making adjustments to
a presumptive term in light of such factors[,] only in cases
where no statutory factors can be proved. Thus, the need to
refer a case to the three-judge panel to consider non-statutory
aggravating or mitigating factors will ordinarily arise only in
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----------------------- Page 12-----------------------
cases where no statutory aggravating or mitigating factors
can be established. Conversely, where a statutory aggrava
ting or mitigating factor is established, no need for referral to
the three-judge panel will usually exist. This is because,
upon proof of a statutory factor, the individual sentencing
judge will be authorized to adjust the presumptive term. In
making adjustments, the judge does not view the statutory
factor in isolation, but is required to consider the totality of
the circumstances in the case in light of the sentencing goals
stated in State v. Chaney, 477 P.2d 441, 443-44 (Alaska
1970). See Juneby v. State, 641 P.2d 823, 843 (Alaska App.
1982), modified on other grounds, ... 665 P.2d 30 (Alaska
App. 1983). Thus, when a statutory aggravating or
mitigating factor has been established, the individual
sentencing judge, [when] applying the Chaney criteria to
determine the amount by which the presumptive term should
be adjusted, will be able to take into account the totality of
the circumstances, including any non-statutory aggravating
or mitigating factors.
This footnote makes for fairly dense reading, but I would paraphrase it in the following
way:
(1) Even though individual sentencing judges are not allowed to deviate
from the applicable presumptive range based on a non-statutory sentencing factor,
individual sentencing judges retain the authority to consider non-statutory factors when
they decide what sentence to impose within the range allowed to them - because,
almost by definition, any non-statutory sentencing factor will be relevant to one or more
of the Chaney sentencing criteria (i.e., the sentencing goals that judges are required to
consider when determining a defendant's sentence).
(2) Because individual sentencing judges are allowed to consider non-
statutory sentencing factors when deciding what sentence to impose within the range of
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sentences allowed to them under the presumptive sentencing laws, AS 12.55.175(b) must
be interpreted in light of this fact. Consequently, when AS 12.55.175(b) speaks of cases
where manifest injustice would result from "failure to consider" a non-statutory
sentencing factor, the statute is really referring only to those cases where manifest
injustice would result fromfailure to adjust the otherwise available sentencing range
because of a non-statutory sentencing factor.
(3) Thus, whenever the three-judge panel concludes that, even after taking
the non-statutory sentencing factor into account, the defendant should still receive a
sentence within the range of sentences that was already available to the individual
sentencing judge, the panel's conclusion is equivalent to a finding that it would not be
manifestly unjust to "fail to consider" the non-statutory sentencing factor. The case is
therefore governed by the final sentence of AS 12.55.175(b), which directs the three-
judge panel to "remand the case to the sentencing court, with a written statement of its
findings and conclusions, for sentencing under [the normal rules of presumptive
sentencing]."
In Garner's case, the three-judge panel considered the non-statutory
mitigating factor (Garner's extraordinary potential for rehabilitation), but the panel
nevertheless concluded that it would not be manifestly unjust to sentence Garner to a
term of imprisonment within the range of sentences already available to the individual
sentencing judge. The panel therefore acted properly when they declined to sentence
Garner and, instead, sent the case back to the individual sentencing judge.
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