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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
RAFAEL LOPEZ MARTINEZ,
Court of Appeals No. A-13049
Appellant, Trial Court No. 3AN-10-07995 CR
v.
O P I N I O N
STATE OF ALASKA,
Appellee. No. 2748 - May 19, 2023
Appeal from the Superior Court, Third Judicial District,
Anchorage, Gregory A. Miller, Judge.
Appearances: Rachel Cella, Assistant Public Defender, and
Samantha Cherot, Public Defender, Anchorage, for the
Appellant. RuthAnne Beach, Assistant Attorney General,
Office of Criminal Appeals, Anchorage, and Treg R. Taylor,
Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Harbison,
Judges.
Judge ALLARD.
Rafael Lopez Martinez was convicted, following a jury trial, of second-
degree sexual assault for engaging in sexual intercourse with a woman in the back seat
----------------------- Page 2-----------------------
1
of his taxi cab while she was incapacitated from alcohol. The superior court sentenced
Martinez to 15 years with 5 years suspended (10 years to serve) and 10 years' probation,
a sentence in the middle of the presumptive range. Martinez appeals his conviction and
his sentence.
Martinez raises two claims of error with regard to his conviction. Both
claims relate to the fact that Martinez's trial was conducted with Spanish interpreters
even though Martinez's native language is an indigenous language called Triqui.
Although Martinez never objected to the use of the Spanish interpreters at trial, he now
argues that the trial court committed plain error by failing to secure a Triqui interpreter
and by failing to inquire into whether Martinez's decision not to testify was related to his
inability to speak English or Spanish fluently. According to Martinez, the absence of a
Triqui interpreter rendered his waiver of his right to testify involuntary. Martinez also
argues that the trial court erred in failing to adequately explain his right to testify, thereby
rendering his waiver of his right to testify invalid. Based on the record before us, we
reject both of these claims.
Martinez also raises two claims with regard to his sentence. First, he argues
that the trial court sentenced him under a legally incorrect understanding of the relevant
presumptive range. Martinez bases this argument on comments that the trial court made
that suggested that the trial court may have erroneously believed that the middle of the
presumptive range is the default active term of imprisonment for a typical offender
committing a typical offense that is neither aggravated nor mitigated. We agree that such
a view would be inconsistent with the legislative intent behind the creation of
presumptive ranges, the principle of parsimony, and due process. Because the record is
not clear as to whether the court was operating under this mistaken understanding of the
1 See former AS 11.41.420(a)(3)(B) and/or (C) (2010).
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law, we remand this case to the superior court for clarification of the basis for the
sentence and, if appropriate, a resentencing.
Second, Martinez argues that a probation condition requiring him to take
medications prescribed as part of a residential treatment program was not validly
imposed. The State concedes that a remand for further findings is required for this
2
condition. We agree that this concession is well-founded.
Factual background
In March 2010, Martinez was employed as a taxi driver for Anchorage
Yellow Cab. On March 19, a woman (I.C.) reported to the Anchorage Police
Department that a taxi driver sexually assaulted her earlier that day while she slept in the
back of his cab. A sexual assault examination was performed on I.C., which revealed the
presence of sperm in her vagina.
According to I.C., she had gotten into the taxi in the early morning hours
after a night of drinking, and she had fallen asleep during the ride to her apartment.
When she woke up, she was naked from the waist down, and the driver was in the
backseat with her. I.C. testified that she confronted the driver and asked what he was
doing and he backed away, but did not respond. The driver got back into the driver's
seat and drove her to her apartment. I.C. asked the driver the number of the cab. He told
her "40" although she noticed it was 57 when she got out. Martinez was later identified
as the driver of cab 57.
The record indicates that Martinez is originally from a mountainous region
in Oaxaca, Mexico, and that his native language is an indigenous language called Triqui.
2 See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (requiring an appellate court to
independently evaluate any concession of error by the State in a criminal case).
- 3 - 2748
----------------------- Page 4-----------------------
Witnesses at trial later testified that, although Martinez has lived in Alaska since the
1990s, his English is very limited; Martinez also has some difficulty with understanding
Spanish and articulating himself in Spanish.
As part of their investigation, the police interviewed Martinez in Spanish
with a detective serving as an interpreter. At times, Martinez had difficulty
understanding certain Spanish terms. He also had some difficulties expressing himself
in Spanish, sometimes taking long pauses before answering a question. Martinez told
theofficers thatbecausetheinterviewwasconducted in Spanish, "sometimes he couldn't
think as fast."
In the interview, Martinez initially denied any memory of picking up I.C.
and he denied having sexual relations with her. The police asked Martinez to provide
a DNA sample, which he voluntarily did. After providing the DNA sample, Martinez's
version of events changed. Martinez then stated that he remembered picking up a
woman with whom he later had sex.
Martinez said that he had sexual relations with the woman but that she was
awake the whole time. Martinez stated that she had taken off her pants and initiated the
sexual encounter by getting close to him. He alternatively stated that she had urinated
on herself and that was why she took off her pants. The detectives accused Martinez of
lying about the woman being awake. Martinez insisted that the woman had been awake
and that she was not mad at him. When asked why he did not initially tell the truth,
Martinez said that he was nervous and worried about his job and his family.
Later DNA testing indicated to a reasonable degree of forensic certainty
that Martinez was the source of the sperm found during the sexual assault examination
of I.C. A grand jury subsequently indicted Martinez on one count of second-degree
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----------------------- Page 5-----------------------
sexual assault (sexual penetration of a person who is incapacitated and/or unaware that
3
a sexual act is being committed).
Trial proceedings
Although the Alaska Public Defender Agency was initially appointed to
represent Martinez, he later retained an attorney. The private defense attorney raised the
issue of Martinez's language difficulties during a pretrial status hearing. According to
the attorney, Martinez did not have "much facility in any of the languages that we talk
including Spanish." The attorney stated that he had tried to find a Triqui interpreter but
had been unable to locate one. He explained that he had been communicating with
Martinez in Spanish through Martinez's pastor who was from Cuba. The attorney's
intention was to use the pastor as the trial interpreter because of his long-standing
relationship with Martinez and because Martinez did not have funds for a certified
4
interpreter.
The trial court expressed hesitation about using a non-certified interpreter.
Instead, the trial court obtained the services of two certified Spanish interpreters at court
expense. The trial court explained to Martinez that the pastor could also attend trial and
that Martinez could use the pastor during breaks to communicate with his attorney.
There was no objection to this plan.
3 Former AS 11.41.420(a)(3)(B) and/or (C) (2010) ("An offender commits the crime
of sexual assault in the second degree if . . . the offender engages in sexual penetration with
a person who the offender knows is . . . incapacitated; or . . . unaware that a sexual act is
being committed.").
4 At the time, the party requiring the interpretation services was required to bear the
costs. See former Alaska R. Admin. P. 6(b)(2) (2011). Alaska Rule of Administrative
Procedure 6(b) has since been amended and presently the court system bears the cost of
interpretation services.
- 5 - 2748
----------------------- Page 6-----------------------
At the beginning of trial, the trial court checked with the first Spanish
5
interpreter to makesurethatMartinezwas understanding theinterpreter.
The interpreter
confirmed that Martinez understood him and that he and Martinez had been able to
communicate with one another.
Through the Spanish interpreter, the trial court then advised Martinez of his
right to testify and the court made clear that Martinez did not need to make a decision at
that moment. Martinez appeared to indicate his understanding of this advisement.
At trial, the defense attorney highlighted Martinez's lack of facility with
both English and Spanish. The attorney argued that Martinez's conduct in the police
interview was a result of Martinez's language difficulties and naivety rather than
evidence that he was lying, as the prosecutor claimed.
To support the defense attorney's argument that Martinez had difficulties
with Spanish, the defense called Martinez's pastor to testify. The pastor testified that
Martinez has a hard time understanding both English and Spanish. He explained that he
and other church members were able to communicate with Martinez in Spanish by
speaking slowly, modifying their vocabulary, and repeating themselves quite a bit.
After the pastor's testimony, the defense attorney informed the trial court
that Martinez had chosen not to testify. The court then conducted the required LaVigne
inquiry to make sure that Martinez understood that he had a right to testify and that this
6
right belonged to him, not his attorney. After giving Martinez additional time to consult
5 There was one Spanish language interpreter for the first two days of trial and two
Spanish language interpreters for the last three days.
6 LaVigne v. State , 812 P.2d 217, 222 (Alaska 1991) (holding that "judges should make
an on-the-record inquiry after the close of the defendant's case, although out of the jury's
hearing, into whether a nontestifying defendant understands and voluntarily waives [their]
right [to testify]"); Alaska R. Crim. P. 27.1(b) ("If the defendant has not testified, the court
(continued...)
- 6 - 2748
----------------------- Page 7-----------------------
with his attorney and checking with the interpreter to make sure that there were no
interpretation issues, the trial court found that Martinez had knowingly and voluntarily
waived his right to testify. (A more detailed description of the LaVigne inquiry is
provided below.)
Following deliberations, the jury convicted Martinez of second-degree
sexual assault.
Sentencing hearing
At sentencing, Martinez provided the following statement through a
Spanish interpreter:
Whenever - this is what I want to say. Whenever that
woman asked me to get in my car, she was n ot very drunk.
She actually got in my car. She was doing sort of well. And
she asked me to bring her to her apartment. I did that. Then
she asked me to bring her to Mountain View and I took her
to Mountain View. And then when we got there, she
knocked on the door, but nobody opened the door. And then
I brought her back to her apartment, and she showed me her
breasts. That was the reason - that's how it all started.
And she also wanted me to drink with her. She wanted
me to buy beer with her but I told her that the liquor stores
weren't open and so we didn't - we did not go to buy it.
And then we - yes, I was with her in the car, but it was only
for 20 minutes and she said that I hit her, but I did not hit her.
She only spoke loud and the thing that she offered me her
body, that's - yes, she did that, but that was it. What I think
6 (...continued)
shall ask the defendant to confirm that the decision not to testify is voluntary. This inquiry
must be directed to the defendant personally and must be made on the record outside the
presence of the jury.").
- 7 - 2748
----------------------- Page 8-----------------------
is that whenever she went to her apartment, she had more
beer and she probably drunk more beer. That's everything.
As a defendant with no prior felony convictions, Martinez faced a
presumptive range of 5 to 15 years for his conviction.7
At sentencing, Martinez's
attorney emphasized Martinez's lack of a prior criminal history and his good prospects
for rehabilitation, and argued that Martinez should receive a sentence at the low end of
the presumptive range.
In contrast, the State argued for 10 years to serve on the ground that
Martinez's case was "more serious" than the typical case because Martinez was a taxi
cab driver who had violated the trust society placed in him to keep vulnerable passengers
safe. The State acknowledged that it was requesting an active term of imprisonment in
the middle of the presumptive range rather than at the bottom of the range, but it
explained that the State's intent was to ensure that the time to serve was "substantial
enough" to have a deterrent effect.
The trial court imposed a sentence of 15 years with 5 years suspended (10
years to serve) and 10 years' probation.
No notice of appeal was filed.
Post-conviction relief proceedings
Martinez filed a timely application for post-conviction relief in which he
argued, inter alia, that his trial attorney's failure to file a notice of appeal constituted
ineffective assistance of counsel. The superior court agreed, and granted Martinez relief
8
on this post-conviction claim.
This appeal then followed.
7 See AS 12.55.125(i)(3)(A).
8 Martinez also raised other post-conviction relief claims that were denied. Martinez
(continued...)
- 8 - 2748
----------------------- Page 9-----------------------
Martinez's argument that he did not voluntarily waive his right to testify
because he was not given the opportunity to testify in his native language
Martinez argues that his conviction should be reversed because the trial
court "fail[ed] to accommodate Martinez's language barrier." According to Martinez,
the trial court should have obtained a Triqui interpreter for Martinez, or, at the very least,
should have inquired into whether Martinez's decision not to testify was related to his
inability to speak Spanish or English fluently. Martinez argues that the failure to conduct
such an inquiry or to provide a Triqui interpreter rendered his waiver of his right to
testify involuntary.
There are multiple problems with this argument. First, there is nothing in
the record currently before us to suggest that a Triqui interpreter was available for trial.
Martinez's trial attorney claimed to have looked for a Triqui interpreter but was unable
to find one. The trial court was entitled to rely on this representation, particularly in the
absence of any objection to proceeding with Spanish interpreters.
Second, there is nothing in the record currently before us to indicate that
Martinez would have chosen to testify if a Triqui interpreter had been available; nor is
there anything to suggest that the absence of such an interpreter played a role in
Martinez's decision not to testify. Martinez argues that the trial court should have raised
this issue sua sponte during the LaVigne inquiry. But the LaVigne inquiry is, by nature,
a very limited inquiry. 9
As we explained in Mute v. State,
[I]t is not a trial judge's function under LaVigne to question
the defendant about their reasons for declining to take the
8 (...continued)
challenged the denial of his other post-conviction relief claims in a separate appeal. See
Martinez v. State , 2023 WL 3093454 (Alaska App. Apr. 26, 2023).
9 Mute v. State , 954 P.2d 1384, 1386-87 (Alaska App. 1998); Trout v. State, 377 P.3d
296, 300 (Alaska App. 2016).
- 9 - 2748
----------------------- Page 10-----------------------
stand. A judge must advise the defendant that the choice
rests with them, but the judge need not question the defendant
to make sure that they have fully considered their options,
that they have received competent advice from their attorney,
and that they are making an informed choice. [10]
Indeed, as we have previously noted, a LaVigne inquiry can quickly
become "conceptually troublesome" if trial courts treat the inquiry as akin to the type of
in-depth examinationthat should accompany adefendant's waiver ofother constitutional
11
rights, such as the right to counsel.
One primary concern is the potential coerciveness
of such in-depth questioning, which could be viewed by the defendant as an implied
criticism of the defendant's decision not to testify rather than the simple inquiry that the
12
LaVigne inquiry is intended to be.
We therefore reject Martinez's argument that the trial court should have
intruded into the attorney-client relationship by sua sponte questioning Martinez about
why he had chosen not to testify, and whether a Triqui interpreter would have made a
difference to that decision.
Lastly, we note that the current record does not support Martinez's claim
that he required a Triqui interpreter to testify. As already pointed out, neither Martinez
nor his attorney objected to the use of the Spanish interpreters. Moreover, Martinez was
willing to use one of his previous Spanish interpreters for his allocution at sentencing.
10 Mute , 954 P.2d at 1387.
11 Id. at 1386-87 (quoting Knix v. State, 922 P.2d 913, 918 n.6 (Alaska App. 1996)).
12 Id. at 1387; Knix, 922 P.2d at 918 n.6 (discussing the necessary limitations of the
LaVigne inquiry); Trout, 377 P.3d at 300 (reviewing how despite the limited scope of a
judicial inquiry, a "defendant may nevertheless perceive the judge's advisement and
questioning, not as inquiry into the voluntariness of the defendant's decision to testify, but
rather as an implied comment on the advisability of the defendant's decision" (emphasis in
original)).
- 10 - 2748
----------------------- Page 11-----------------------
Notably, courts in other jurisdictions have upheld convictions under similar
13
circumstances.
Accordingly, based on the record currently before us, we reject Martinez's
claim that his decision not to testify was rendered involuntary by the absence of a Triqui
interpreter.
Martinez's argument that he did not knowingly waive his right to testify
because the trial court's explanation of the right to testify was inadequate
Martinez also argues that his waiver of his right to testify was not
"knowing" because (according to Martinez) the trial court failed to adequately explain
that he had a personal right to testify. Martinez argues s pecifically that t he trial court
failed to adequately define the term "testify."
At the beginning of the LaVigne inquiry, Martinez expressed confusion
over the word "testify." The trial court then provided the following explanation:
13 See, e.g., Falak v. State, 583 S.E.2d 146, 149-50 (Ga. App. 2003) (finding no violation
of right to testify and to meaningfully participate in trial when defendant spoke a different
dialect of Arabic than the Syrian interpreter, but interpreter said he understood defendant and
defendant did not express any difficulty understanding translations and even asked for him
to interpret again); People v. Warcha, 792 N.Y.S.2d 627, 628-29 (N.Y. App. Div. 2005)
(finding defendant's proficiency in Spanish sufficient to allow him to proceed to trial with
Spanish interpreters, despite fact that defendant's native language was Quiche, a Guatemalan
dialect, because interpreters felt they could communicate, and there was evidence that the
defendant had been speaking Spanish with co-workers for previous two years and that he had
been taught partly in Spanish in his native country); Martins v. State , 52 S.W.3d 459, 470,
471-73 (Tex. Crim. App. 2001) (affirming conviction of native-Portuguese speaker who
received Spanish interpreter at trial because he never requested a Portuguese interpreter or
objected to receiving a Spanish interpreter and there was significant evidence that he
regularly communicated in Spanish); cf. Tsen v. State, 176 P.3d 1, 10 (Alaska App. 2008)
(affirming trial court's denial of any interpreter for native-Vietnamese speaking defendant
after finding that he had a sufficient grasp of E nglish to understand the trial, even if he did
not understand "some of the nuances of the [English] language").
- 11 - 2748
----------------------- Page 12-----------------------
Court: Okay, "testify" means to come up here to the
witness stand and tell the jury in your own words, you
personally, to answer questions presented by your attorney.
Testifying is what all of the witnesses in your case have done
so if you were to testify you would be sworn in, meaning take
the oath as a witness to tell the truth.
[Your attorney] would then ask you questions and you
would answer his questions with the jury here, the jury would
hear you, and then the attorneys for the State . . . would be
able to ask you questions, what we call cross-examination,
and then [your attorney] would have the right to ask you
follow-up questions. That is what "testifying" means and that
is what you've seen with all the other witnesses in your case
do.
On appeal, Martinez criticizes this explanation as "ungrammatical" and
"confusing." But Martinez ignores the fact that, following this explanation, the court
provided Martinez with unlimited time to consult with his attorney and the interpreters
regarding any questions he might have about his right to testify. The court also provided
Martinez with a preview of the questions that it would ask as part of the LaVigne inquiry,
and the court expressly told Martinez that the decision of whether he should testify
belonged to him alone, not his attorney:
Court: You could take as long a break as you need to
speak with your attorney and the translators can help you,
and when you come back I will ask you personally if it is
your decision to testify or not testify; the choice is yours[.]
[Y]ou can do either, and it is only your choice. It's not [your
attorney]'s choice; it's yours and when you come back from
the break after you've been able to speak more with [your
attorney], I'll ask if you've discussed this with [him].
I'll ask you if anyone has promised you anything or
threatened you in any way to convince you to make whatever
decision you make. And I will ask you if you are sick or if
- 12 - 2748
----------------------- Page 13-----------------------
you are under the influence of any alcohol or drugs or any
medication. So those are the questions I'll ask when we
come back from a break. Okay?
Martinez : It's okay.
Court: Do you understand all that?
Martinez : Yes. I understand.
When the parties returned from the break, Martinez did not express any
further questions or concerns. The following exchange then occurred:
Court: At the beginning of the case I advised you that
you have the right to choose whether to testify or to remain
silent at this trial, do you remember that?
Martinez : Yes.
Court: [Y]our attorney[] has just said that you have
decided not to testify, is that your decision?
Martinez : Yes.
Court: Your personal decision?
Martinez : Yes.
Court: And that's your voluntary decision.
Martinez : Yes.
Court: Have you discussed your decision with [your
attorney]?
Martinez : Would you repeat again?
Court: Sure, have you discussed your decision with
[your attorney]?
Martinez : Yes.
Court: Okay. Has anyone promised you anything to
make this decision?
Martinez : No.
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----------------------- Page 14-----------------------
Court: Has anyone threatened you in any way to
convince you to make this decision?
Martinez : No.
Court: Are you sick?
Martinez : No.
Court: Are you under the influence of any drugs?
Martinez : No.
Court: Any medication?
Martinez : No.
Court: Or any alcohol?
Martinez : No.
Following this exchange, the trial court checked with the Spanish
interpreter to see if there had been any language difficulties. The interpreter confirmed
that she was able to converse with Martinez and she indicated that she had translated
everything that was said and she had gone "very slowly." The court subsequently found
that Martinez had knowingly and voluntarily waived his right to testify.
On appeal, Martinez criticizes the above exchange as not a "true colloquy"
and as inadequate to guarantee that Martinez understood his right to testify. In support
of these criticisms, Martinez cites to State v. Han , a case from the Hawai'i Supreme
Court, which held that a heightened level of care applies to the Hawaiian version of the
14
LaVigne inquiry in cases that involve "language barriers."
Martinez argues that this
Court should adopt a similar heightened level of care for LaVigne inquiries involving
defendants who are not native English speakers.
14 State v. Han, 306 P.3d 128, 137 (Haw. 2013), as corrected (July 10, and July 31,
2013).
- 14 - 2748
----------------------- Page 15-----------------------
We agree with Martinez that, as a general matter, a trial court should take
extra steps to ensure that a defendant who is relying on an interpreter understands the
LaVigne advisement. But the record shows that extra steps were taken here. After
Martinez expressed confusion over the word "testify," the court explained that word.
Additionally, the court gave Martinez an unlimited amount of time in which to consult
with his attorney and the interpreter. And at the end of the colloquy, the court
specifically checked with the interpreter to ensure that she was able to converse with
Martinez through translating.
Martinez argues that the court should have done more to engage Martinez
in the colloquy and he asserts that the court should have asked open-ended questions or
requested that Martinez explain what the right to testify meant in his own words. While
these actions may be needed in some cases, we do not find that they were required here.
Unlike in Han, the trial court was careful to engage Martinez at each step of the
advisement, and there was nothing about Martinez's responses after the break to suggest
that he did not understand the advisement. 15
Indeed, the colloquy in this case appears
remarkably similar to a colloquy that was cited approvingly by the Hawai'i Supreme
16
Court in Han .
15 See id. at 130-31, 135.
16 THE COURT: As I have discussed with you before the start of the trial, you do
have the constitutional right to testify in your own defense, You understand?
THE DEFENDANT: Yes.
THE COURT: And although you should consult with [ ], your lawyer regarding
your decision to testify, it is your decision and no one can prevent you from testifying
if you chose to do so . . . Do you understand?
THE DEFENDANT: Yes.
THE COURT: And if you decide to testify, the prosecutor will be allowed to
cross-examine you. You understand that?
(continued...)
- 15 - 2748
----------------------- Page 16-----------------------
Accordingly, we reject Martinez's challenges to the LaVigne inquiry.
Martinez's challenge to his sentence
As a defendant with no prior felony convictions, Martinez faced a
17
presumptive range of 5 to 15 years for his conviction. As already explained, the State
requested that the trial court impose an active term of imprisonment of 10 years to serve
on the ground that Martinez's case was "more serious" than the typical case because of
Martinez's status as a taxi cab driver. The trial court agreed with the State's
recommendation and imposed a sentence of 15 years with 5 years suspended (10 years
to serve) and 10 years' probation.
On appeal, Martinez does not directly challenge his sentence as excessive.
Instead, he argues that his case must be remanded for resentencing because he claims that
the record shows that the trial court imposed his sentence under an erroneous
understanding of the applicable presumptive range.
16 (...continued)
THE DEFENDANT: Yes.
THE COURT: You also have the constitutional right not to testify and to remain
silent. You understand?
THE DEFENDANT: I understand.
THE COURT: And you understand that if you chose not to testify, that the jury
will be instructed that it can not hold your silence against you in deciding your case.
THE DEFENDANT: I understand.
THE COURT: It's the understanding of the Court that you do not intend to testify
in this case, is that correct?
THE DEFENDANT: That's correct.
THE COURT: And that's your decision.
THE DEFENDANT: Yes.
Id. at 136 n.6 (emphasis in original) (citing State v. Christian, 967 P.2d 239, 246-47 (Haw.
1998)).
17 See AS 12.55.125(i)(3)(A).
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----------------------- Page 17-----------------------
Martinez bases his argument on some ambiguous comments that the court
made during sentencing. Near the beginning of its sentencing remarks, the court noted
that the presumptive range was 5 to 15 years, and the court also noted that " further
statutes say that 'presumptive' generally means the middle of the presumptive range
which means 10 years. That is exactly what the State is seeking." 18
(The court's reference to "further statutes" appears to be a reference to
AS 12.55.127(e)(3), which governs consecutive and concurrent sentencing and defines
"presumptive term" to mean "the middle of the applicable presumptive range" for
purposes of certain mandatory consecutive sentencing provisions. However,
AS 12.55.127 was inapplicable to Martinez's case because he was only convicted of a
single crime.)
Onappeal, Martinezargues that thecourt'scommentsuggeststhatthecourt
mistakenly believed that the legislature intended the middle of the presumptive range to
be the default active term of imprisonment for the typical offender committing an typical
offense that is neither aggravated nor mitigated. Martinez also points to another
comment the court made later in its remarks, in which the court stated that "the state's
recommendation which is the midrange of the presumptive, which is really the statutory
19
range, is exactly right," as further confirmation that the court was operating under a
mistaken understanding of the proper legal framework.
We agree that it would be error for a trial court to impose an active term of
imprisonment in the middle of a presumptive range for a typical offender committing a
typical offense that is neither aggravated nor mitigated. Such a sentence would be
inconsistent with the rule of parsimony and the express legislative intent behind the 1978
18 Emphasis added.
19 Emphasis added.
- 17 - 2748
----------------------- Page 18-----------------------
creation of a presumptive sentencing scheme and the 2005 expansion of presumptive
terms into presumptive ranges.
As a general matter, the intended purpose of presumptive sentencing is to
"eliminat[e] disparity in the sentencing of similarly situated offenders and mak[e]
20
criminal sentencing a predictable, internally consistent process." As originally enacted
in 1978, Alaska's presumptive sentencing scheme used presumptive terms - i.e., a set
term of imprisonment based on the level of offense and the defendant's prior felony
21
convictions.
Aswehavepreviouslyexplained,thepresumptiveterm"represent[ed]the
legislature's judgement as to the appropriate sentence for a typical felony offender (i.e.,
an offender with the specified number of prior felony convictions, and with a typical
22
background) who commits a typical act within the definition of the offense."
For the most part, the presumptive terms were "intended as appropriate for
23
imposition in most cases, without significant upward or downward adjustment." As
this Court explained in Juneby v. State : "The presumptive term should remain as the
starting point of the analysis, and the Chaney criteria should be employed for the limited
20 Juneby v. State , 641 P.2d 823, 829-30 (Alaska App. 1982), modified on other grounds,
665 P.2d 30 (Alaska App. 1983); see SLA 1978, ch. 166, § 12; AS 12.55.005.
The Alaska legislature adopted presumptive sentencing in 1978 partly in response to
a number of sentencing studies that had shown significant sentencing disparities between
similarly situated offenders based on the identity of the sentencing judge and the race of the
offender. Commentary to Alaska's Revised Criminal Code, 1978 Senate Journal Supp.
No. 47 (June 12) at 148-49; see, e.g., Beverly Cutler, Sentencing in Alaska: A Description
of the Process and Summary of Statistical Data for 1973, at 175-76 (1975); Alaska Judicial
Council, Alaska Felony Sentencing Patterns: A Multivariate Statistical Analysis
(1974-1976), at iii-iv (1977).
21 SLA 1978, ch. 166, § 12.
22 Clark v. State, 8 P.3d 1149, 1150 (Alaska App. 2000).
23 Juneby , 641 P.2d at 833.
- 18 - 2748
----------------------- Page 19-----------------------
purpose of determining the extent to which the totality of the aggravating and mitigating
24
factors will justify deviation from the presumptive term."
Courts were encouraged to
take a "measured and restrained approach" in the adjustment of presumptive sentences
for both aggravating and mitigating factors so that the purposes of presumptive
sentencing -enhancing reasonable uniformity and decreasing unjustified disparities -
25
were not lost.
In 2005, in response to the United States Supreme Court's decision in
26
Blakely v. Washington, the legislature replaced the former presumptive terms with
presumptive ranges that generally began at the former presumptive term and then moved
upwards in the amount of active and suspended time that could be imposed. In adopting
presumptive ranges, the legislature made clear that its intent was "to preserve the basic
structureofAlaska's presumptivesentencingsystem"whilereturningjudicialsentencing
27
discretion that had been "unduly constrain[ed]" by Blakely. The legislature also made
clear that it did not intend active terms of imprisonment to increase based on the
24 Juneby , 665 P.2d at 37.
25 Juneby , 641 P.2d at 833 ("Unless the provisions of AS 12.55.155 are adhered to
strictly, and unless a measured and restrained approach is taken in the adjustment of
presumptive sentences for both aggravating and mitigating factors, then the prospect of
attaining the statutory goal of uniform treatment for similarly situated offenders would
quickly be eroded, the potential for irrational disparity in sentencing would threaten to
become reality, and the revised code's carefully fashioned system of escalating penalties for
repeat offenders would be rendered utterly ineffective.").
26 Blakely v. Washington, 542 U.S. 296, 301-04 (2004) (holding that the Sixth
Amendment prohibits a court from enhancing an otherwise maximum sentence based on facts
that were not found by the jury beyond a reasonable doubt unless the facts were conceded by
the defendant or based on the defendant's prior convictions).
27 SLA 2005, ch. 2, § 1.
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----------------------- Page 20-----------------------
28
conversion of presumptive terms to presumptive ranges. As the legislature's letter of
intent stated:
Although the presumptive terms are being replaced by
presumptive ranges, it is not the intent of this Act in doing so
to bring about an overall increase in the amount of active
imprisonment for felony sentences. Rather, this Act is
intended to give judges the authority to impose an appropriate
sentence, with an appropriate amount of probation
supervision, by taking into account the consideration set out
[29]
in AS 12.55.005 and 12.55.015.
Thus, the legislative history indicates that the legislature intended the
former presumptive term (i.e., the low end of the presumptive range) to remain as "the
starting point" for the court's sentencing analysis with regard to the active term of
30
imprisonment.
28 See Teresa W. Carns, Alaska's Responses to the Blakely Case , 24 Alaska L. Rev. 1,
15-17 (2007) (explaining that the 2005 creation of presumptive ranges was not intended to
increase active terms of imprisonment but was instead intended to restore flexibility to the
sentencing court, particularly with regard to the imposition of suspended time).
29 Id.
30 Juneby , 665 P.2d at 37 ("The presumptive term should remain as the starting point of
the analysis, and the Chaney criteria should be employed for the limited purpose of
determining the extent to which the totality of the aggravating and mitigating factors will
justify deviation from the presumptive term." (quoting Juneby , 641 P.2d at 835 n.21)); see
also Clark v. State, 8 P.3d 1149, 1150 (Alaska App. 2000) ("A presumptive term . . .
represents the legislature's judgement as to the appropriate sentence for a typical felony
offender (i.e., an offender with the specified number of prior felony convictions, and with
a typical background) who commits a typical act within the definition of the offense.") (citing
Mullin v. State , 886 P.2d 1323, 1328 (Alaska App. 1994)).
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----------------------- Page 21-----------------------
This legislative intent is also consistent with the principle of parsimony, a
31
well-establishedlegalprinciplegoverningcriminal sentencing.
AstheAlaskaSupreme
Court explained in Pears v. State, the principle of parsimony requires that a defendant's
liberty be restrained "only to the minimum extent necessary to achieve the objectives of
32
sentencing." This "least restrictive" principle is directly codified in federal law, and
requires the sentencing court to "impose a sentence sufficient, but not greater than
33
necessary," to serve the purposes of punishment. Starting the active time to serve at the
bottom end of a presumptive range and moving upwards only if an upwards departure
is justified by one of the Chaney criteria is one way to ensure that the principle of
34
parsimony is properly followed.
31 See Pears v. State, 698 P.2d 1198, 1205 (Alaska 1985).
32 Id. ; see also Pickard v. State, 965 P.2d 755, 760 (Alaska App. 1998) (explaining that
"[t]he principle of parsimony . . . declares that, 'to the extent that there is any doubt
[concerning the appropriateness of a defendant's sentence], that . . . doubt [should] be
resolved in favor of a shorter, rather than a longer, sentence'" (alterations in original)
(quoting State v. Price, 740 P.2d 476, 483 (Alaska App. 1987))).
33 18 U.S.C. § 3553(a). The ABA Standards express the principle this way: "The
sentence imposed in each case should call for the minimum sanction which is consistent with
the protection of the public and the gravity of the crime." 3 ABA Standards for Criminal
Justice § 18-2.2(a), at 57 (2d ed. 1979); see also ABA Standards for Criminal Justice:
Sentencing §§ 18-2.4, at 28 (3d ed. 1994) ("Sentences authorized and imposed, taking into
account the gravity of the offenses, should be no more severe than necessary to achieve the
societal purposes for which they are authorized."), 18-6.1(a), at 219 ("The sentence imposed
should be no more severe than necessary to achieve the societal purpose or purposes for
which it is authorized."); Model Penal Code § 1.02(2)(a)(iii) (Proposed Final Draft 2017).
34 This is not to say that a sentencing court's failure to expressly state that it has followed
this parsimonious approach constitutes error. Rather, in the absence of direct evidence to the
contrary, it will generally be assumed that the sentencing court is following the rule of
parsimony and is imposing the lowest sentence that the court believes will satisfy the Chaney
(continued...)
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In the current case, some of the trial court's comments suggest that the
court mistakenly believed that it was required to start its consideration of the active term
of imprisonment in the middle of the presumptive range, and the court therefore imposed
ten years to serve because it believed that was the default active term of imprisonment
for the typical offender committing the typical second-degree sexual assault. Other
comments, however, suggest that the trial court had a proper understanding of the
presumptive sentencing framework, and the court sentenced Martinez to an active term
of imprisonment in the middle of the presumptive range because the court agreed with
the State that Martinez's case was atypically serious because of his status as a taxi cab
driver.
Because the record is ambiguous, we conclude that a remand is required for
clarification of the court's basis for the sentence and, if appropriate, a resentencing.
Martinez's challenge to his probation condition
As part of Martinez's sentence, the trial court imposed a number of special
probation conditions. Special Probation Condition No. 8 provides:
The probationer shall, if decided appropriate by his probation
officer and sex offender treatment provider, enter and
successfully complete any other Department-approved
programs, including but not limited to substance abuse
treatment and domestic violence programming. The
34 (...continued)
criteria - a determination that is ultimately reviewed on appeal under the deferential "clearly
mistaken" standard of review. See Morrissette v. State, 524 P.3d 803, 807-08 (Alaska App.
2023) (explaining the different roles of trial courts and appellate courts with regard to
criminal sentencing); cf. Smith v. State, 691 P.2d 293, 295 (Alaska App. 1984) ("[I]t is only
in instances where the court's remarks afford no insight to its reasons for sentencing or where
they affirmatively indicate that its sentence was not properly grounded on the Chaney goals
that failure to address the goals expressly will require a remand." (citations omitted)).
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----------------------- Page 23-----------------------
probationer shall sign releases of information to enable other
programs to exchange verbal and written information with
the probation officer and sex offender treatment provider.
The probationer shall, if determined necessary by an
appropriate mental health or substance abuse professional,
enroll in a residential mental health or substance abuse
program for a length of time determined necessary by the
appropriate professionals. The probationer shall also comply
with use of medications prescribed as part of the treatment
program.
On appeal, Martinez argues that the provision requiring him to "comply
with use of medications prescribed as part of the treatment program" should be vacated
because nothing in the record supports the need for Martinez to be subject to such a
broad medication mandate. The State concedes that the sentencing court failed to apply
the proper analysis and argues that the case should be remanded so that the court can
apply special scrutiny and determine whether the condition is justified. The State also
concedes that, if the court determines that the medication provision is justified under
special scrutiny, the condition should be reworded to include an appropriate judicial
review process. We find the State's concessions well-founded, and therefore vacate this
35
condition and remand it for reconsideration.
Because we are remanding this condition, we note another problem with
the condition. Although the probation condition expressly states that Martinez may have
to enroll in residential treatment, the court failed to specify any period of time for the
residential treatment. But the lawis well-settled that when a probation condition requires
a defendant to attend residential treatment, the court must specify the maximum period
35 See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (requiring an appellate court to
independently evaluate any concession of error by the State in a criminal case).
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----------------------- Page 24-----------------------
36
of custodial treatment. Moreover, once a sentence has been imposed, the court
generally cannot "correct" such a mistake on remand, because doing so constitutes an
illegal increase in the defendant's sentence in violation of the prohibition against double
37
jeopardy. Accordingly, on remand, the court shall strike the portion of the probation
condition that requires the treatment to be "residential."
Conclusion
For the reasons explained above, we AFFIRM Martinez's conviction. We
REMAND this case to the superior court so that it may clarify the basis for Martinez's
sentence and, if appropriate, conduct a resentencing. We also VACATE Special
Probation Condition No. 8, and instruct the superior court on remand to apply special
scrutiny to the medication mandate and to strike the invalid residential treatment
language. We retain jurisdiction.
36 Christensen v. State, 844 P.2d 557, 558 (Alaska App. 1993); Galindo v. State, 481
P.3d 686, 690 (Alaska App. 2021); see AS 12.55.100(c) ("A program of inpatient treatment
. . . may not exceed the maximum term of inpatient treatment specified in the judgment.").
37 Christensen, 844 P.2d at 558-59.
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